R. v. Bishop, 2013 NUCA 03

In the Court of Appeal of Nunavut Citation: R. v. Bishop, 2013 NUCA 03 Date: 2013-01-28 Docket: 21-10-006-CAP Registry: Iqaluit Between: Chris Bishop Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court: The Honourable Mr. Justice Jean Côté The Honourable Madam Justice Patricia Rowbotham The Honourable Mr. Justice Brian O’Ferrall Memorandum of Judgment Judgment of The Honourable Mr. Justice Côté Concurred in by The Honourable Madam Justice Rowbotham Dissenting Memorandum of Judgment of The Honourable Mr. Justice O’Ferrall

Appeal from the Conviction by The Honourable Mr. Justice J.Z. Vertes Sitting With a Jury Dated the 9th day of June, 2010 MEMORANDUM OF JUDGMENT OF HONOURABLE MR. JUSTICE CÔTÉ (NOTE: This document has been edited for publication) I. INTRODUCTION [ 1 ] Two issues on this appeal interlock. The trial judge let the jury hear and act on a general statement alleging previous serious criminal conduct by Mr. Bishop against unrelated people.

Yet the judge kept from the jury detailed analogous evidence of similar previous crimes by the home invaders who are the subject of the present events. [ 2 ] There is no issue about admitting evidence as to the accused’s animosity toward the invaders of his home. Mr. Bishop does not complain of that. [ 3 ] Sometimes an appeal court will avoid discussing the substantive facts from which that prosecution flows. But that is not possible here; facts must be explained for three overlapping reasons. [ 4 ] First, this appeal is not a resort to mere technicalities by a man clearly guilty. In our view, Mr.

Bishop had arguable defences and the Crown case had arguable gaps, which the jury had to sift and weigh very carefully. Second, the Crown argues very earnestly that the legal mistakes made at trial worked no substantial wrong or miscarriage of justice, and so argues that s 686 of the Criminal Code would let the Court of Appeal dismiss Mr. Bishop’s appeal. Third, the arguments made to us are much easier to understand if one knows the facts leading to the trial. II. FACTS A. Terminology [ 5 ] Often there is no doubt that a crime has been committed, and any defence is as to (say) identity.

Then it is proper to refer to the person wounded or losing property as “the victim”. That is not apt here, as the important defence is self-defence, and the onus of proof is on the Crown. Moreover, the Crown admits that the people shot here were a group of home invaders armed with a sword and a club.

The evidence amply supports that admission. (There is conflicting evidence as to whether one woman who was only wounded entered the house or when they got their weapons.) Instead I will refer to those people collectively as the invaders. [ 6 ] The marginal line numbers in the transcript are convenient, but do not agree with an actual line count from the top of the page. Line numbers cited here count only from the marginal numbers. B. The events [ 7 ] Cambridge Bay is a town of about 1500 people on Victoria Island in Canada’s Arctic, lying 1,300 miles due north of Regina.

It is in Nunavut, but two time zones west of the capital Iqaluit. Mr. Bishop has one aboriginal parent and one who is not. [ 8 ] Mr. Bishop was peacefully occupying his small one-door home in Cambridge Bay. About 3:00 a.m. one January night, he phoned the R.C.M.P. to say that some men were trying to break down his door. He then said they seemed to be leaving.

[ 9 ] He phoned the police again a few minutes later to say that the men were back with more people, and were breaking down his door, and he was alone and unarmed. He said to come immediately. The police could hear shouts and thumping in the background. [ 10 ] But no police came. [ 11 ] Escape or retreat was neither physically possible, nor legally necessary. The front door was not holding against the invaders’ battering, so Mr. Bishop retreated to his bedroom and locked its door. He legally owned and possessed a rifle.

He had a magazine holding more rounds than was legal. [ 12 ] After the event, the lead invader was found to be holding a samurai sword, and another had a broken golf club. One eyewitness mentioned a crow bar. It is conceded that the invaders’ aim was to injure Mr. Bishop seriously. Obviously a samurai sword can easily kill, especially without prompt experienced surgical intervention. Oddly, the charge to the jury says that the Crown’s theory was that Mr. Bishop “would have known that these men were not armed”: p 631, ll 24-25.

The Crown’s final jury address suggested that the invaders picked up the sword in the house, but there is no direct evidence on the topic. Even if the invaders got their weapons in the house, that was irrelevant. They broke down the final refuge, the bedroom door. [ 13 ] Once the invaders broke down his final (bedroom) door, only then did Mr. Bishop fire his rifle. He then and there hit at least two of the invaders. DNA evidence showed that one invader spilled his blood inside the relevant bedroom, and another spilled his blood very near the bedroom. These two invaders were later found dead in or very near Mr.

Bishop’s small house. [ 14 ] The undisputed evidence of the Crown’s forensic firearms expert makes it almost certain that the four shots from the bedroom were fired after the bedroom door was forced open. No shot went through the door, nor through the bedroom wall. [ 15 ] Later events cannot be analyzed the same way. The only real evidence is police collection of spent shell casings, not actual bullets. Twenty-five expended casings were found, of which 13 were found ‘outside’ the house. But that may include some on the porch.

That implies that 12 were found inside the house, though the locations of only seven were specified, leaving five to implication. All this assumes that no one moved any shell casings during the very long delay before the forensic team arrived. And it assumes that the gun’s ejector did not throw ejected shells any distance. [ 16 ] A lot of shots were fired in and from the house, and it seems probable that most hit one or more invaders. Only a few shots seem not to have.

But some shots were post-mortem and so irrelevant. [ 17 ] However, analysis of bullets and bullet marks tells very little about where the invaders were when hit, and still less what the invaders were doing at the time. [ 18 ] The Crown’s final jury address erred on this topic also. It suggested that after an initial four shots in the bedroom, almost every following shot hit an invader. There is no direct evidence of that. It is a supposition based on inferences of how many shots were fired.

It assumes all rounds were accounted for, and miscounts wounds, since one shot penetrated only a parka without hitting anyone. And forensic evidence shows one shot fired in the bedroom hit two invaders. There is no way to know whether any later wounds came from the same bullet. [ 19 ] Three other invaders were wounded, one of whom died about 44 meters from the house. The other two invaders survived, each receiving but a single wound. (A bullet went harmlessly through the coat of one.) One did not even realize for a time that he had been hit.

At trial, he admitted that he had been in the house and did not know when or how he had been hit. [ 20 ] At some point, the invaders appeared to begin to retreat, and Mr. Bishop fired more rounds. The evidence does not make it at all clear when a retreat occurred or was evident to Mr. Bishop. Some shots were fired during the retreat, and some during the invasion, but no one really knows how many fall into each category.

[ 21 ] The neighbors saw Mr. Bishop come out on his porch and fire shots at or near some fleeing invaders. One invader died in the doorway of the house. The invader who died soon after, 44 meters from the house, was on the ground and evidently already seriously wounded when Mr. Bishop fired at or near him. There also is strong evidence indicating that a different invader had been seriously wounded in the interior hallway by the accused’s bedroom. C. Trial and result [ 22 ] The Crown charged Mr. Bishop with three counts of second degree murder, and two of attempted murder. An Iqaluit jury convicted Mr.

Bishop on all five counts. The trial judge imposed a 16-year ineligibility for parole, longer than anyone had suggested. III. COURSE OF THE TRIAL [ 23 ] At times, we mention certain additional features of the jury charge. We do not rely on them as independent grounds of appeal. Instead we describe them to show the impact of the two legal errors argued to us. A. Voir dire [ 24 ] The Crown gave the Defence a new witness statement by Brenda Ohokak, at supper time the day before she testified (see transcript around pp 420-22). It showed that even before the home invasion, Mr.

Bishop had had ill-will toward some of the invaders, and had said that they “would pay” for a previous assault by them on Mr. Bishop. [ 25 ] Defence counsel had no objection to Ms. Ohokak testifying as to Mr. Bishop’s former animus against the soon-to-be invaders. But he objected to her going any further about events before the home invasion. [ 26 ] The Court held a fairly brief hearing in the absence of the jury, dealing with the proposed evidence of Brenda Ohokak. Not many details of the proposed evidence were mentioned.

The Defence objected to this proposed evidence as irrelevant, but the trial judge overruled the objection. No one at this brief hearing mentioned previous shootings, though the witness statement (which is not in evidence) may have. Neither Ms. Ohokak nor anyone else testified during this brief hearing. [ 27 ] Defence counsel had filed a formal motion to the trial judge. It asked to adduce evidence that all three of the invaders who later died had a history of burglary, violent crimes, and even home invasions. That Defence motion was argued at this stage, during the same hearing without the jury.

Finally the trial judge refused to allow such Defence evidence to be given. [ 28 ] Extended argument on appeal confirms that this hearing at trial about proposed evidence was not nearly so precise or focused as it could have been, especially with respect to Crown evidence of Mr. Bishop’s bad character. It is doubtful that either counsel or the trial judge understood clearly what the other two were and were not discussing. B. Evidence of Brenda Ohokak [ 29 ] After lunch, the jury was brought in. The witness, Ms. Ohokak, took the stand and testified. She is a neighbor.

She testified both about the home invasion, and also about an earlier conversation. She said that some days before the invasion, at a social drinking gathering, she had had a conversation with Mr. Bishop about his state of mind, and his dislikes and intent. [ 30 ] Then came this question and answer: Q. Okay. So what happens after that, Brenda?

A. He handed me a photo album and he said, Look at this, like he was proud to have a photo album. I looked at the pictures and there was pictures of him holding a big gun and he had some gear like army gear and something to cover his face and Desiree Pangnatuk who was there with me, she saw the pictures too and she was asking some questions like, aren’t you scared to use it? Are you scared to use it? And he said, no, I’m not. He said that he shot a few people before when he was living in Yellowknife, but I wasn’t sure if he was telling the truth or not.

And then he was talking about an argument that went on earlier that night. He said he got into an argument with a couple guys. He said that he gave Duma a black eye and that Duma gave him the bruise on his cheek. And then he said Dean and Duma, going to pay. Going to pay for what they did to me. (emphasis added) [ 31 ] There was no further objection just then. But earlier during the hearing without the jury, Defence counsel had of course objected to her evidence about the pre-invasion conversation, and had been overruled.

And it is not at all clear whether Crown counsel had intended to elicit evidence of previous shootings, when he asked such a bland and open-ended question. [ 32 ] The cross-examination of Ms. Ohokak was brief. It had to deal with the conversations a few days before, because that was the Crown’s evidence that Mr. Bishop had previous animosity against two of the invaders. Defence counsel properly suggested to the witness in cross-examination that Mr. Bishop’s words had been just hot air, but again Ms. Ohokak injected the question of previous killings: Q.

You were over out hanging with people, looking at photo albums, joking around, right, having a good time. Right? A. I wasn’t joking about the photo album, but I was there and he showed us the photo album and he was talking about it. Q. But you thought Chris was joking around. Right? A. I thought he was just bragging. Q. You thought he was joking? A. I thought he was bragging about killing a few people in Yellowknife. Q. You know that’s not true. Right? A. I don’t know. (emphasis added) C.

What was before the jury [ 33 ] Whether or not anyone took that evidence seriously when the evidence was given, it became very serious after all the evidence was in. [ 34 ] During its final address to the jury, the Crown emphasized this “previous shooting” evidence, and read a transcript of that portion of Ms. Ohokak’s evidence word for word to the jury. [ 35 ] The trial judge’s charge to the jury (after argument) never told the jury to disregard any of this evidence. Nor did it tell the jury to use this evidence only for limited purposes. Nor did it warn the jury not to use it for a propensity of Mr.

Bishop to do bad things. Nor did it tell the jury not to use it to negative self-defence. [ 36 ] Just before lunch the jury retired to deliberate. The jury made several requests, according to the transcript. One was for a

summary of an exhibit. One was for more instruction about manslaughter. Another was for a full trial transcript. But none existed, and the jury was so told. They were invited to request any specific parts of the trial which interested or concerned them.

[37] Shortly after, the jury requested one part and one only of the trial. It was to have reread to them Ms. Ohokak’s evidence, which ofcourse included the conversation about Mr. Bishop’s supposed previous shootings. The Court immediately handed the jury a transcriptof Ms. Ohokak’s evidence. Soon after that, the jury convicted Mr. Bishop on all five counts. [38] The jury gave their verdict before the time planned for supper. IV. DEFENCE EVIDENCE ABOUT THE INVADERS EXCLUDED A. Law of self-defence [39] Plainly there was a live arguable issue of self-defence here.

It is agreed that the jury had to be asked to evaluate it. And that in lawthe Crown kept the onus of disproving self-defence throughout. [40] In such a case, evidence of the previous violent character of the person killed or wounded is legally admissible in twocircumstances. One is if the accused knew enough about that previous bad conduct. Whether the parts known were enough to make theprevious violent history of the invaders admissible here, is hotly disputed. [41] That brings one to the second circumstance.

Even where the accused had no, or insufficient, prior knowledge of the previousviolence of the person later injured, the evidence may still be admissible. The purpose is not, of course, to prove the accused’s subjectiveapprehension. Instead the prior violence is admissible to prove or confirm the actual violence experienced during the event beinglitigated. See R v Scopelliti (1981) (ON CA), 34 OR (2d) 524, 63 CCC (2d) 481 (CA), at pp 492-93 (paras 30-36),quoting Wigmore on Evidence; R v Sims (1994) (BC CA), 87 CCC (3d) 402, 420-27, 28 CR (4th) 231 (BC CA). B.

Grounds to exclude the Defence evidence [42] The trial judge’s grounds for excluding such evidence here were not entirely clear, as the trial judge did not give formal reasons(oral or written). As the Crown says, the trial judge’s reasons to reject this Defence evidence “emerged during his discussion withcounsel” (factum, para 40). One of the trial judge’s reasons seems to be lack of knowledge by Mr. Bishop of the invaders’ previouscrimes. As noted, that was not an accurate

summary of the leading authority, nor an accurate statement of Mr. Bishop’s knowledge. Itwas wrong in law and fact. [43] No one testified at the voir dire, but Defence counsel then told the trial judge (without objection) the following. At the time of theinvasion, Mr.

Bishop knew that the invaders had ill-will toward him and a history of violence or break-ins, but not the details of theirprevious crimes (transcript, pp 427, 429). [44] A ground which the trial judge mentioned was that the Defence evidence was not really necessary, because the Crown had admittedthere had been a home invasion (transcript, pp 431 and 477).

It is possible that the trial judge also found lack of factual relevance, as hementioned relevance (cf p 476). [45] Those grounds were spontaneous and did not reflect Crown objections, though after the trial judge ruled, the Crown then agreedwith them (transcript, p 477). [46] These are not valid grounds to exclude evidence. The authorities do not bar such evidence of past behavior where there is alreadybefore the court evidence of violence in the event being litigated.

Indeed, some authorities require that there be some present violence;evidence of previous violence is a sort of confirmation of the present evidence. See R v Scopelliti, supra (para 32); R v Hamilton, 2003BCCA 490, 186 BCAC 282, 180 CCC (3d) 80 (para 37).

[47] Besides, necessity is not usually a precondition to admitting any kind of evidence. No rule of law forbids a party to lead two piecesof evidence to prove the same thing, nor forbids him to adduce evidence to confirm evidence which someone else has given.

The Crowndoes not dispute that very basic proposition. [48] In a trial before a jury about a dramatic situation like the present, it is important to let the accused confirm and strengthen the casefor his innocence, especially when there is evidence against him on related issues, or other types of evidence apparently against him.Details, repetition, or concrete examples in evidence may affect jurors’ weighing more than it might affect a legally-trained judge’s. [49] If there is no jury, a trial judge is the finder of fact, and so can tell counsel that he needs no more evidence of a point, or that heunderstands a fact not to be contested.

But a jury of 12 lay people may not think in such watertight compartments. And they cannot anddid not here tell counsel their thinking in advance. C. Relevance [50] Did the trial judge mean that this important Defence evidence lacked factual relevance (as opposed to relevance in law)? But thisDefence evidence had obvious factual relevance. Self-defence law requires the threatened person to assess the risk, and past performanceof the aggressor is very relevant to that. It is like considering whether the barking dog has bitten before.

Besides, the test of relevance toadmit any evidence is lax: Morris v R (SCC), [1983] 2 SCR 190, [1984] 2 WWR 1; R v Watson (1996) (ON CA), 92 OAC 131, 30 OR (3d) 161, 171-72 (CA) (paras 31-33); R v Arp (SCC), [1998] 3 SCR 339, 232 NR317 (para 38). [51] That has trebled force here. It is very rare that courts will exclude Defence evidence as being unfair or as having more prejudicialeffect than probative value. Denying an accused the right to prove (or raise serious doubt about) his innocence must be approached withgreat caution.

The disparate impact would have to be substantially stronger than the probative value: R v Seaboyer (SCC), [1991] 2 SCR 577, 66 CCC (3d) 321, 388-91 (Parts 1(a)(ii), (iii)); R v Arcangioli (SCC), [1994] 1 SCR 129, 87CCC (3d) 295, 297 (paras 27-31); R v Watson, supra (para 47); R v Sims (1994) (BC CA), 87 CCC (3d) 402, 421, 28CR (4th) 231 (BC CA) (paras 68-70); cf Gonthier J. in R v Bain (SCC), [1992] 1 SCR 91, 118-19, 133 NR 1 (para117). The Defence right to present full answer and Defence is constitutionally protected, and includes the right to call and adduceevidence.

Without it, some defences to a criminal charge would be almost excluded in practice, says the Seaboyer case, supra (paras 29-31). [52] And the reasons which courts have often given to exclude similar fact or bad-character evidence against an accused often amount insubstance to the prejudicial effect or danger outweighing any permissible probative value. [53] Mr.

Bishop’s factum (para 20) cites examples of such defence evidence admitted in other cases, but we will not lengthen thisjudgment by reciting them. [54] We have not mentioned the possible defence of removing a resisting trespasser (on which see R v Alkadri (1986) 1986 ABCA 145, 70 AR 260 (CA), lv den (1986) 72 NR 367 (SCC)). We are not sure that that defence was addressed here, and maybe no oneargued it. If it is relevant, then it would give an additional possible ground to admit this defence evidence. [55] There is a third issue to which this evidence is relevant: provocation.

That topic is explained in Part H.4(b) [VIII.D.ii] below. V. CROWN EVIDENCE ABOUT MR. BISHOP’S ANIMUS [56] At times, this topic tends to get mixed up with the next one (Part F) [VI] in this appeal. But it should not. The Defence did notobject at trial, nor on appeal, to Crown evidence about Mr. Bishop’s pre-existing bad feelings about the soon-to-be-invaders. (See Mr.Bishop’s reply factum, para 5). VI. Alleged former shootings by Mr. Bishop admitted as Crown evidence

A. The evidence [57] Here we analyze the parts of Ms. Ohokak’s evidence which did not deal with the home invasion, and instead alleged former violentacts by Mr. Bishop. See

Part C.2 [III.B] above. [58] No one suggests that the supposed former shootings “in Yellowknife” by Mr. Bishop were of, or directed at, anyone connected withany person in the present invasion or its setting. The five invaders did not live in or anywhere near Yellowknife. They are unrelated to thesupposed former shootings. B. Parties’ arguments [59] The Crown’s factum alleged that this previous “shooting” evidence was admissible as “part of the narrative” (para 23). But thecontentious part of the testimony by Ms. Ohokak was not about the home invasion.

It was about a private conversation about a weekbefore the invasion. So that Crown argument is opaque, and was not pursued in oral submissions to us. [60] Crown counsel conceded to us that this evidence about the supposed shootings in Yellowknife should not have been admitted here(though he argued that it was harmless, as discussed in Part H [VIII] below). [61] Two of the arguments made by the Crown at various times more or less contradict each other. One was that the ‘previous shooting’evidence was relevant and admissible in order to make realistic Mr. Bishop’s pre-invasion statements to Ms.

Ohokak about his dislike ofsome of the future invaders. The other is that this evidence is brief, trivial, and was ignored by everyone because it was mere bravado orhot air, to which no one would pay any attention nor give any credence (Crown factum, para 62). If one argument is correct, the othercannot be. [62] As noted above, the Defence’s stated objection to this evidence was irrelevance. That may be a little vague, but that appears verysimilar (even identical) to lack of probative value. C.

The law [63] It is long-settled law that the Crown cannot ordinarily lead evidence of past misconduct by the accused on other occasions, nor ofhis general bad character (such as bad temper, violence, or dishonesty): R v Morin (SCC), [1988] 2 SCR 345, 88 NR 161(para 86); R v Arp, supra (paras 37-57); R v Handy, 2002 SCC 56, [2002] 2 SCR 90, 290 NR 1 (paras 41-97). Such testimony creates anumber of serious dangers, especially reasoning that someone with bad character or habits was likely to have done it (again) this time.This is commonly referred to as the rule against similar-fact evidence or character evidence.

Though it is regarded as its own rule ofinadmissibility, it is now commonly analyzed as a subset of the rule against evidence whose prejudice to the accused is disproportionateto its probative value for the true issues and for permissible reasoning paths. (See the Morin, Arp and Handy cases, supra.) [64] There is and was a total absence of evidence or argument to show how the evidence of supposed previous shootings in Yellowknifecould be admissible here. It is not similar, let alone strikingly similar.

Suggesting that it negatives a defence such as self-defence does notbypass the modern Canadian rules for admissibility. Before us the Crown did not persist in any such task. Still less could suggesting thatthe evidence could negative one element of self-defence. [65] Besides, the jury charge never suggested use of this evidence for a narrow or limited purpose. Can one say that such a limitinginstruction is unnecessary if the evidence is adduced to show motive, using R v Holtam, 2002 BCCA 339, 168 BCAC 278?

No one soargued on this appeal, and the case was cited only in a factum for a different proposition (and not orally). No one has had a chance todiscuss it on the motive topic. See the Appendix. [66] It is common to order a new trial when inadmissible bad character evidence has been admitted against the accused. See for exampleR v JAT, 2012 ONCA 177, 290 OAC 130.

[67] It is also elementary that admitting evidence which is legally inadmissible is an error of law. It is prima facie a sufficient ground toupset a conviction (unless it was more or less harmless, a topic discussed in Part H below). See R v PLS (SCC), [1991]1 SCR 909, 122 NR 321. [68] If the Defence did not object to such evidence, that is far from conclusive. One could fill a dozen pages with citations of appellatecases holding that even complete failure to object to an evidentiary or procedural misstep at a criminal trial is often no impediment toraising the point on appeal, as a ground of appeal.

See for example R v Arcangioli, supra (para 38); R v Farrah (2004) (ON CA), 187 OAC 76, 186 CCC (3d) 347 (para 5); R v Bryan, 2008 ONCA 301, [2008] OJ #1501 (para 7); R v Chambers (SCC), [1990] 2 SCR 1293, 1319-20, 119 NR 321 (para 59); R v Brown (1992) (AB CA), 127 AR 89, 73CCC (3d) 381 (paras 64-70), per Harradence JA, affd and adopted (SCC), [1993] 2 SCR 918, 155 NR 225, 141 AR163; R v GC (1996) (NL CA), 110 CCC (3d) 233, 250, 144 N & PEIR 204 (Nfld CA); R v JFA (1993) (ON CA), 64 OAC 359 (para 26), 82 CCC (3d) 295, 300 (CA). [69] And here the evidence was objected to, albeit with little detail and in a confusing situation. [70] And if the objection was not clear enough, or was even about another part of Ms.

Ohokak’s evidence, that is natural. There hadbeen a voir dire without evidence and before this witness testified, and the trial judge had overruled the Defence objection to herevidence about the past history. Once a trial judge has ruled, ordinarily the time to argue over admissibility has passed. Cf R v Rose(2001) (ON CA), 143 OAC 163, 53 OR (3d) 417, 424 (para 14). Such an understanding by defence counsel herewould be reasonable. [71] It is doubtful that this evidence of previous shootings in Yellowknife had any probative value at all (apart maybe from the classicforbidden reasoning).

The consistent theme of the Crown has been that self-defence involves a state of mind, and so this evidence isadmissible. With respect, that is fuzzy reasoning. D. Dangers of admitting this evidence [72] The Criminal Code defines the defence of self-defence. The mental elements all are about knowledge and assessment of forces andfacts outside the accused, notably dangerousness (the intent and capabilities) of the attacker (here the invaders), about the possibilities ofescape or non-violent defence, and about how much force was reasonable.

If self-defence applies, or there is reasonable doubt whether itdoes, the accused must be acquitted. [73] If one uses lethal force needed to protect oneself from a violent and very dangerous attack, that is self-defence, whether the attackeris a friend, enemy, relative, neighbor, or stranger.

If someone becomes violently intoxicated and tries to strike one on the head with a fireaxe, force to repel that is self-defence even if the attacker is one’s bitterest enemy, just as it would be if he or she were one’s best friend. [74] To the extent that any of the Ohokak evidence about previous shootings had anything to do with Mr. Bishop’s state of mind, it wentto motive only. Motive is not the same as intent; most often in criminal law motive has no direct relevance. This is not a case where somecollateral event or hope led to possible intent to injure.

See the Appendix. [75] The Crown never has suggested that there was no home invasion, nor that Mr. Bishop faked it, nor that he connived to lure more orless harmless people into a trap, and to use the simulation of self-defence as a cover for premeditated murder. If that were the issue, thesituation might be different (as would the crime). The Crown could not suggest any such thing here, as their own witnesses testified insome detail to the genuineness and strength of the invasion and its forcible deep penetration into the little house. [76] Furthermore, this Crown evidence of Mr.

Bishop’s bad character posed a second danger. Time does not run backwards, and laterevents cannot cause earlier ones. If any later shooting was after the danger ended, that does not remove self-defence for earlier shotswhile the danger still existed. But the jurors might well couple the idea that Mr.

Bishop was a habitual killer with his firing toward or atthe fleeing invaders, to erase or ignore the absolute necessity (existing less than a minute before) for him to use force in the bedroom.The “past shootings” evidence would tend to obscure the fallacy in using the later porch shooting retroactively to import wicked intentinto the earlier bedroom shootings. Otherwise the fallacy would have been obvious.

[77] The third death was the invader who got 44 meters from the house before he died, and at whom Mr. Bishop was seen to shoot,when out on the street. If a juror were inclined to treat the shootings here (of all five invaders) as one monolithic block, then anyquestion of excessive or unnecessary force when the invaders were later fleeing would likely coalesce in that juror’s mind with initial badmotive or initial bad character, and inclination or habit to shoot too readily. That is very dubious reasoning.

It is extremely close to theclassic forbidden reasoning, even identical. [78] There was still a bigger separate danger to Ms. Ohokak’s “previous shooting” evidence: the trial judge unusually injected the issueof loss of self-control, and this evidence would negative loss of self-control. Part H.2(b)(i) [VIII.B] below explains that danger. [79] Besides, in law firing initially at fleeing thieves is not the same thing as continuing to fire a little too long after one has necessarilyand properly fired to save one’s life or prevent grave injury to oneself.

Provocation was an issue, as Part H.2(b)(ii) [VIII.B] belowexplains. VII. COMBINED EFFECT OF TWO RULINGS [80] Counsel for appellants often argue that the combined effect of two or more borderline flaws in a trial is serious. Sometimes they areright. Cf R v Bona (2002) (ON CA), 157 OAC 201, 202 (para 9). [81] The two legal errors here are not borderline. But their combined synergistic effect is much bigger than their mere total. The trialjudge left the jury with evidence and a jury charge about Mr.

Bishop’s animosity and supposed murderous inclinations, but no evidenceor jury charge about the invaders’ documented animosity and violent inclination. Cf R v Sims, supra, at pp 428-29 (CCC). [82] As noted, legal rules exclude character evidence in most criminal cases. But it has been recognized for over a century that it isextremely unfair for one side to lead character evidence against the other side, with no chance for rebuttal (e.g. in England’s CriminalEvidence Act 1898). And rebuttal is not confined to washing mud off one’s own face: one can shine a light on the opponent’s muddyface, in rebuttal.

See R v Corbett (SCC), [1988] 1 SCR 670, 85 NR 81; R v Patterson (2006) (ONCA), 207 OAC 147, 79 OR (3d) 257 (CA). [83] The Defence motion to admit evidence was heard immediately after (or simultaneously with) Brenda Ohokak’s bad characterevidence being admitted. So the basis for the Defence motion was solid and obvious, not hidden. [84] What happened here would have dangers in a trial by judge alone.

The trial judge withheld from 12 lay jurors the dangerouscriminal character of the leading home invaders, and all the detailed police and court records of that, while letting the Crown portray theaccused to the jurors as a habitual killer because of a casual private conversation, with no police or court records. That must be almostunprecedented. The idea that Mr. Bishop was a habitual killer would lap over and flood every compartment of the legitimate issues. Amore lopsided selection of evidence is hard to imagine. [85] Furthermore, it was the Crown with all its resources which led this bad character evidence.

It is hard to believe that the R.C.M.P. inYellowknife would not notice corpses (or seriously injured people) with bullet wounds. So a lay party adducing evidence of such pastshootings, with no details of time or place, or corroboration, might be doubted. But the evidence here (Ms. Ohokak) was uncovered bythe R.C.M.P. and introduced by the Crown. [86] When the trial judge made his ruling on the Crown’s request to adduce Ms. Ohokak’s evidence of supposed previous shootings (v2, p 422, l 20), the judge suggested that possibly the jury should later be instructed to use the evidence for one purpose only.

Even if theevidence was admissible, such a instruction was mandatory: R v Bryan, supra (paras 8-9). [87] But the charge to the jury did not do so. [88] The jury were allowed, and at times invited, to do whatever they wanted with the supposed fact that Mr. Bishop had shot (or killed)people before. Indeed, the trial judge instructed the jury that in deciding on Mr. Bishop’s intent, they should just use their common sense(transcript, p 622, ll 15-20).

[ 89 ] Worse still, the charge contained virtually the opposite of a limiting charge. The trial judge instructed the jury that they could use anything which the accused had said to any of the witnesses. And it could be used for the substance, as evidence going to the truth of what was said (transcript, p 611, ll 17-21). [ 90 ] The jury charge instructed the jurors that self-defence did not apply unless Mr. Bishop had reason to fear death or grievous injury by the invaders.

The charge often strongly suggested to the jurors what inference to draw on various other topics, but it did not suggest any inference on this subject. Though the invaders’ dangerous weapons were once or twice recited in passing, they never were mentioned in the portions of the charge relating to how to analyze and apply the elements of self-defence. [ 91 ] So excluding the evidence of the invaders’ penchant for violence was even more serious here. [ 92 ] The Crown now argues that no limiting instruction is necessary if the similar-fact or character evidence involves the same person as the present charge.

That is the only point for which R v Holtam , supra, was cited. But the alleged shootings in Yellowknife had nothing to do with any of the invaders who were shot here. [ 93 ] Though counsel proposed to the trial judge some contents for the impending jury charge, appellate counsel do not know whether trial counsel got any advance written draft of the charge. Some clues and remarks in the transcript suggest that trial counsel did not. VIII.

SECTION 686’S PROVISO A. Overview [ 94 ] The Crown’s factum relies on this topic with respect to the bad character evidence. Oral argument may have expanded that to excluding the defence evidence as well. [ 95 ] Section 686(1) (b)(iii) of the Criminal Code says that a Court of Appeal may sometimes dismiss an appeal despite clear error at trial, if no substantial wrong or miscarriage of justice resulted. [ 96 ] The facts of this case alone made very influential the mistaken admission of bad character evidence, and the mistaken exclusion of defence evidence.

And various statements to the jury by the prosecutor and the trial judge strongly reinforced that effect. After the jury retired, the jury’s own request and the trial judge’s grant of the request, immediately cemented the fatal effects. [ 97 ] Had the first two counts of murder led to jury acquittals, and the third to a conviction, one might have plausibly speculated that the jury treated different time periods separately and analyzed them critically. But the jury’s across-the-board convictions on all five counts, whose facts vary so much, soon after rereading yet again Ms.

Ohokak’s inadmissible evidence, raises the distinct possibility that the jury thought that they had some evidence common to all counts which made all such distinctions irrelevant. Such a possibility bars use of s 686’s exculpatory proviso. [ 98 ] The policy underlying s. 686’s proviso is simple. On the one hand, an absolutely pointless retrial is to be avoided. But on the other hand, trial or retrial is to be by a properly-instructed jury. Not by a jury misled as to the law or facts, and not by three appellate judges.

So the test under s. 686 has to be somewhat like the test for a nonsuit, seeing what is possible. [ 99 ] The courts have held that that s. 686’s “no substantial wrong [ . . .]” proviso can apply in two situations. See R v Sarrazin, 2011 SCC 54 , [2011] 3 SCR 505 , 422 NR 214 (para 25 ). Neither exists here. B. Crown’s case is not overwhelming

[ 100 ] The first situation is a trial where the Crown’s case, without the impugned procedure or ruling, is overwhelming, so a new trial would be certain to convict on all counts. That is not so here. [ 101 ] The first two invaders were clearly shot in the very act of entering into the bedroom through the final door which they had broken down, armed with dangerous weapons, intending to injure the homeowner, as part of a larger group. The case for self-defence there is very strong. And the onus is on the Crown to disprove self-defence beyond a reasonable doubt.

It is difficult to see a proper conviction of the homeowner of murder there; it is the opposite of inevitable. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety, or to disable his assailant rather than to kill him. Brown v USA (1920) 256 US 335, 343, per O.W. Holmes J. [ 102 ] As noted above, bullet analysis tells little or nothing about where the invaders were when they were wounded.

A bullet lodging in a body or clothing tells nothing about where the wounded person was when wounded, or what he or she was doing. Presence of a pool of blood tells something. But absence of blood on the floor tells nothing, especially when people wore winter clothing. These events occurred in the Arctic in mid-winter. [ 103 ] The two attempted murder charges are based on skimpy evidence as to when or where the wounds were sustained (and indeed of any intent to kill).

Yet the intent necessary to found attempted murder is very narrow and specific. [ 104 ] It is therefore inaccurate to state (as did the jury charge) that acquittal on any charge was impossible except by way of self-defence. (See transcript p 621, ll 14-16.) A jury can always have a reasonable doubt, the onus of proof is on the Crown, and a trial judge should not direct a jury to convict. Not to mention provocation. [ 105 ] The evidence conflicted on whether the injured woman had gone into Mr. Bishop’s house along with the other invaders.

The trial judge directed the jury that if there was doubt that she went in, she was not part of the assault on the accused (i.e. the home invasion) (transcript p 618, ll 6-10; cf p 627). That direction reverses the onus of proof of self-defence, and wrongly reduces aiding and abetting to a test of physical presence. She testified that she was hit while running away, and the physical evidence was confusing. [ 106 ] The other person injured admitted to having invaded the home, and had no idea at what time or location he was injured.

He said he was not shot inside the house, but since he was wounded without knowing it, the place must be speculation. The bullet passed roughly from his front to his back. So conviction of attempted murder on this record is far from inevitable. [ 107 ] The invader who died 44 meters from the house sustained many wounds. Two were serious. Some were post-mortem and so legally irrelevant to the murder charge. Others were not serious wounds. There may well be doubt as to when and where his fatal wounds were sustained. He was likely already dying when some later shots were fired.

For example, one of the two fatal wounds was to his leg. Obviously that would not kill at once, and presumably would kill through later blood loss. And the order of his wounds is unclear. The evidence about blood stains from this man is not at all clear, and in particular does not state where the trail of blood started. [ 108 ] Yet the charge to the jury says nothing at all about causation, nor about which wounds were fatal. See also Part B above.

The jury were never told that a murder conviction must be based on fatal wounds, so that the Crown had to disentangle wounds fired during necessity of self-defence from wounds fired later. Again, if self-defence fails, provocation may yet succeed. [ 109 ] Indeed the trial judge told the jury the opposite. He instructed them that they could “also safety [sic] conclude that [this deceased man] was shot out on the street as he was running away”. In a case with multiple shots one must use more precise language. “Mr. Smith was shot outside” implies that he was only shot there. Such language has no place in this case.

The trial judge’s charge implies that the deceased in question was shot only on the street, or that he incurred the fatal shot then. But there is no evidence of either, and there is strong evidence to the contrary. That invader was shot or shot at while lying on the ground, the eyewitnesses said. That strongly suggests that he had incurred a serious wound earlier. Clearly he wanted to leave, and was trying unsuccessfully to get up. So he was only on the ground because he was already wounded earlier. He could well have been fatally wounded inside Mr. Bishop’s house.

[110] What is more, the live evidence of what occurred inside the home is very skimpy. [111] The charge to the jury encouraged them to draw inferences against Mr. Bishop from the fact that some bullet wounds (not all) werefrom back to front, supposedly implying shooting of someone fleeing. One dead invader had no wound from behind; the fatal wound wasfrom the front. One invader only injured had a grazing wound from the front. Its direction cannot be told. Several of the wounds from theback were to extremities, or were by bullets which also went through the torso laterally, not back to front.

Nor does traversing a corner inthe house corridor, or breaking down a door, force an invader to face forward. There are many ways one can face away from a personbesides fleeing him. [112] There is no reason to conclude that back wounds had to be incurred outside the house. Careful review of the evidence shows thatfive empty shell casings’ locations were never described, and there is reason to think they were inside the house. [113] Furthermore, spent shell casings suggest that Mr. Bishop fired at least two shots in the hallway of his house, fairly close to hisbedroom.

Any person then fired at had to be then still in the house. Two more expended shells were in the entryway, suggesting firingwhile again still in the house. [114] Therefore, convictions on retrial are far from inevitable. C. Errors are not harmless [115] The alternative legal branch of s 686’s proviso is error more or less harmless, error which could not have affected the result of thetrial. The test is well settled. Without the error, must the result necessarily have been the same? R v Arcangioli, supra, at para 46; R vPLS, supra.

The cumulative effect described in Part G above is relevant here: R v Arcangioli, supra, at para 47. This stiff “necessarily”test is not to be relaxed: R v Sarrazin, supra (para 27). [116] Above in Parts D.1, D.2, D.3 and F.4 [IV.A; IV.B; IV.C; VI.D], we discussed the considerable influence which the two mistakenrulings on evidence may have had. In Part G [VII], we discussed the very seriously distorting effect of leading bad character evidenceagainst Mr. Bishop while blocking all evidence of the invaders’ previous violent crimes.

All those discussions apply and govern here. [117] The defence evidence wrongly excluded would confirm the dangerous nature of the home invaders (if admitted). The Crownevidence wrongly admitted could easily be used to convict improperly because of unrelated bad character. [118] The trial judge and prosecutor both repeatedly invited that conclusion. That inadmissible Crown evidence was likely to spill overinto some unrelated issues. [119] Generally the curative proviso in s. 686 cannot cure wrong admission of bad character evidence about the accused.

See R v Duke(1985) 1985 ABCA 187 , 62 AR 204, 22 CCC (3d) 217 (CA); R v Van Eindhoven, 2012 NUCA 5 , 2012 NUCA 05,file 18-07-001 CAP (July 11), especially paras 17, 25, 26, 27, 29, 30, 31. [120] And s. 686 should not be used to cure wrongful exclusion of evidence as to the deceased’s propensity for violence, when used tofound self-defence: R v Patterson, supra (paras 49-52). [121] Under s. 686, the Crown also argues that the Defence did not see the evidence as serious in effect, because it did not object. That isalmost a non sequitur. And in any event, the Defence did object: see

Part C.1 above. [122] The respondent Crown also suggested to us that the Defence viewed the bad character evidence about the appellant and hissupposedly killing other people, as harmless. Since his counsel briefly cross-examined Ms. Ohokak on that evidence (as quoted above inPart C.2 [III.B], para 29), the Crown suggests that harmlessness was the motive for the cross-examination. But there are many reasonswhy counsel may cross-examine on a topic, especially before a jury. One of them is poor judgment or poor guesses about the witness.

Besides, this Crown argument is almost backwards. When counsel cross-examines a witness on a topic which the witness has covered in chief, it is usually to negate, remove, explain, or soften the evidence in chief. Evidence in chief seen as harmless is rarely cross-examined on. [ 123 ] If cross-examination on a topic touched on in chief were a consent to admission, or abandonment of an earlier objection, counsel opposed to the evidence in chief would be left in a cruel dilemma, a virtual Catch 22. Not cross-examining is often said to be close to acceptance of evidence in chief.

But cross-examining on the topic is now argued to produce the same effect. D. Trial judge made the errors bar an acquittal [ 124 ] The trial judge instructed the jury that a defence had to jump over three related hurdles. Any one hurdle would destroy any chance of acquittal for murder or attempted murder if Mr. Bishop was habituated to, or liked, shooting or killing people. Therefore, the admittedly improper bad character evidence of Ms. Ohokak about Mr. Bishop’s conversation had to affect the result, if the jury gave any effect to the trial judge’s charge.

The “previous shootings” became trebly pivotal, indeed fatal. See R v Sims , supra, at p 428 (CCC). That bars use of s. 686: cf R v Guarino, 2012 ONCA 294 , 291 OAC 130 (para 16 ). [ 125 ] Here are the details of the trial judge’s three hurdles. (i). Loss of control [ 126 ] The first hurdle was lost control. At least four times, the trial judge instructed the jury that self-defence was a defence only if Mr. Bishop had lost control, and shot before he regained control. See transcript, pp 617 (ll 5-7), 620 (ll 18-19), 631 (ll 10, 20 and 30), and 632 (ll 2-3). Cf p 623 (ll 2-10).

We have considerable doubt that that is a correct statement of the law of self-defence. Cf R v Graveline, 2006 SCC 16 , [2006] 1 SCR 609 , 347 NR 268 (para 10 ). On conflation of issues, cf R v JS, 2012 ONCA 684 (para 44 ). Mr. Bishop has not made that a ground of appeal, so we need not decide that question of substantive law. [ 127 ] However, the trial judge clearly and repeatedly told the jury that that loss of self-control was pivotal (necessary to the “self- defence” defence). And if Mr. Bishop was used to, and liked, shooting or killing people, that would negative loss of self-control.

If so, that must bar self-defence, the jury were instructed. So admitting Ms. Ohokak’s bad character evidence about Mr. Bishop cannot be harmless error; it could well have affected the result. (ii). Provocation [ 128 ] The trial judge’s second hurdle had to do with the “defence” of provocation. Provocation was argued (transcript, p 599) and was left to the jury here (transcript, pp 623 ff). It had to be, because the first three counts were murder, and the shootings were admittedly triggered by a violent home invasion. That clearly is an assault, as the trial judge properly told the jury.

And one of the things which can create the semi-defence of provocation under the Code is a wrongful act (s. 232). And loss of self-control, and whether the passions have cooled, is a well-settled essential element of provocation. The trial judge properly told the jury that provocation was impossible without such continued loss of self-control. [ 129 ] Defence counsel had an objection to this part of the jury charge because the Crown’s theory was that the four minutes between Mr. Bishop’s two fruitless phone calls to the R.C.M.P. for help negatived [sic] provocation by giving him time to cool off.

The trial judge refused to amend his jury charge. Obviously any evidence of a pre-existing habit of shooting people would augment that problem with the charge. [ 130 ] Later the jury was recharged on manslaughter (at the jury’s request). Again the trial judge told them that provocation had to be in the heat of the moment before passion cooled. That was virtually the last thing which the jury heard orally from anyone. The notice of appeal expressly raises this aspect of the jury charge as a ground of appeal. [ 131 ] And as just noted, such loss of control would be very unlikely if Mr.

Bishop was indeed a habitual and willing killer, as Ms. Ohokak’s inadmissible evidence suggested.

[132] All of the Crown’s written and oral argument on this appeal states or suggests that the only issue on this trial was self-defence. Thatis not so. Provocation was a live contested issue, as noted. Even if one thinks that going out onto the porch and shooting at retreatinginvaders went beyond self-defence, that does not address the very different defence (and elements) of provocation. Self-defence is arational action; but provocation is a semi-defence for irrational emotional ones. It is quite arguable that provocation alone would preventthe third death from being anything greater than manslaughter. (iii).

Jury overriding self-defence [133] The third hurdle for the Defence flows from another power which the trial judge gave to this jury: to override the “self-defence”defence. The trial judge instructed them that because they were the representatives of the community, they could bypass the defence ofself-defence if they found it unreasonable in these circumstances. (See transcript, p 616, ll 20-25.) Yet the Criminal Code makes thatdefence mandatory. That instruction flirts with jury nullification of statute, in favor of the prosecution. That instruction enormouslypotentiated Ms.

Ohokak’s bad-character evidence. [134] We described above in Part G [VII] another parallel portion of the jury charge. It gave the jury permission to do what the jurorsthought proper with the Crown’s bad-character evidence (transcript, p 611). E.

Summary [135] The Crown’s argument that the previous-shooting evidence had low weight, or was harmless error, or was but one tiny passage outof many, cannot overcome any of the last three hurdles. [136] Once a trial judge instructs a jury (correctly or incorrectly) that a certain fact is a necessary legal element, then that fact’s presenceor absence may dictate the results of the case. Any evidence with any significant bearing on that fact made pivotal, may change theresult (unless some other route to the same result is overwhelmingly proved beyond any doubt).

So s. 686’s proviso cannot be used thento deny a new trial. [137] Besides, the Crown itself chose to read the improper evidence to the jury. The prosecution obviously thought it important, and itwas one of the last things which the jury heard from counsel. [138] The trial judge’s charge to the jury a number of times told them to use Ms. Ohokak’s evidence of the previous conversation withMr. Bishop for a number of purposes. (See end of Part G [VII], above.) [139] But the charge did not mention the invaders’ animosity and violent inclination, despite the trial judge’s earlier remarks that thosefacts were obvious.

Those remarks came during the earlier hearing on evidence in the absence of the jury. [140] Then during deliberations, the jury themselves asked to have Ms. Ohokak’s evidence reread to them. The trial judge gave them atranscript of it, as they demanded. It was the last thing they got.

They convicted on every count soon after getting it. [141] All questions from the jury must be considered of significance and importance, more so than the main charge to the jury: R v WDS (SCC), [1994] 3 SCR 521, 171 NR 360 (para 34); R v Naglik (SCC), [1993] 3 SCR 122, 157 NR 161(para 34). [142] In any event, the question is not how legally-trained counsel (or trial judge) viewed the weight of the impugned evidence. Thequestion is how a lay jury may have. That is why the test for s. 686 is “may have affected the result”, not “must have affected”. Nor isthe test “result possibly the same”.

The idea that this evidence could not have affected lay jurors because it is certain that they madenarrow legalistic distinctions, or that they thought habitually shooting people was minor, is fantastic.

Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown out all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. They have their source very often in considerations of administrative convenience, of practical expediency, and not in rules of logic. When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out. Cardozo J., in Shepard v USA (1933) 290 US 96, 104 X.

CONCLUSION [ 143 ] The appeal against conviction is allowed, and all five convictions are set aside. Mr. Bishop seeks only a new trial. There will be a new trial. The sentence appeal becomes academic. Appeal heard on September 25, 2012 Memorandum filed at Iqaluit, Nunavut this 28th day of January, 2013 “ J.A. Côté ? Côté J.A. I concur: “ J. A. Rowbotham” Rowbotham J.A. Appendix 1.

Can one disregard the fact that bad character evidence or similar-fact evidence was led by the Crown with no limiting instruction by the trial judge, on the ground that it was as to motive, citing R v Holtam , 2002 BCCA 339 , 168 BCAC 278 ? 2. The case was not cited by anyone for that proposition here, and barely cited (for a different proposition). Holtam did not come up in oral argument. No party has had a chance to discuss it. 3. The Holtam case is complex, and its facts bear no resemblance to the present case. (A “Mr.

Big” sting there complicated the facts further, and added more bad character issues.) Nothing like self-defence or provocation was in issue there. It was a plain case of planned

and pre-meditated murder. 4. In it Mr. Holtam killed his wife and child, seemingly pointless and hence improbable acts. The Crown led evidence that Mr. Holtam was having a passionate affair with another woman. We see no resemblance to the present case. That was not evidence that Mr. Holtam hated his wife, nor that he had assaulted her before. 5.

Besides, in Holtam , what could a limiting instruction have said? “Do not infer from this evidence that he is a man who likes adultery and will have sexual intercourse with other women”? “Do not infer from this evidence that this man is so immoral that he would even have sexual intercourse outside marriage, and so is likely to kill people”? That would be ridiculous, and that is why the British Columbia court said that a limiting instruction there would do more harm than good (para 45). 6.

Besides the British Columbia court relied on evidence of good non-violent character of the accused which went to the jury there. There was no such evidence here. It was the opposite here. And in Holtam there was a caution to the jury about that bad character evidence. 7. Ordinarily motive is very different from bad character or similar fact evidence. Motive is usually morally neutral, such as being the major beneficiary in someone’s will, or being fearful of ridicule or exposure. Or being coerced or threatened. And evidence of motive is usually about something which would not be obvious to the jury.

Common English usage of the word “motive” does not extend to wanting to do the act for its own sake. Rarely do we not speak of the “motive” of a thief, a counterfeiter, a bullying attacker, or a rapist. 8. Nor does the Holtam case say that telling the jury to act without bias is a sufficient limiting instruction. It merely observes that that was done there (para 42). 9. The biggest point about limiting instructions in Holtam is that they are unnecessary where the evidence impugned is about previous “disreputable conduct relating directly to the victim”, i.e. the same victim (para 43).

But here, the alleged previous shootings in Yellowknife were to totally unrelated people far away. 10. And the new lover was a complicating factor in such “victim” analysis (para 44). DISSENTING MEMORANDUM OF JUDGMENT OF THE HONOURABLE MR. JUSTICE O’FERRALL [ 144 ] I have considered the reasons of the majority but am unable to concur. The issue which I believe the jury was called upon to decide was not whether the appellant acted in self-defence. That was conceded by all.

The issues before the jury were whether or not the appellant believed he could not preserve himself without using the force he did and whether or not that belief was reasonable in the circumstances. The impugned evidentiary rulings by the trial judge had little impact on those issues in my view. [ 145 ] The appellant argues that the trial judge wrongly decided two evidentiary issues during the course of the trial and that, taken together, they warrant a new trial. In my view these issues were correctly decided.

However, if the real issue before the jury was whether the appellant used more force than necessary, then any errors the trial judge may have made by allowing hearsay evidence of what the appellant said to someone else or by excluding character or propensity evidence with respect to two of his assailants could have had no impact on that issue. [ 146 ] There was plenty of properly admissible, primary evidence that the appellant and his assailants had engaged in unlawful acts of violence against each other.

First, a fight in which the appellant gets his cheek bruised and one of the deceased gets his nose bloodied, then a slashing of the tires of one of the deceased’s truck, and then, after a failed attempt to break into the appellant’s home, a smashing of the appellant’s snowmobile by one or more of the deceased. Finally, there was the home invasion and the killings. All of these events took place within one week. To use the vernacular, there was a war going on and both sides showed a propensity to engage in unlawful acts of violence.

[ 147 ] The only issue for the jury was whether the last acts of violence, the shootings on January 6, 2007, were justified. And the answer to that question did not turn on what character evidence the trial judge excluded or failed to exclude.

Rather it turned on whether the appellant believed he could preserve himself without using the force he did and whether that belief was objectively reasonable. [ 148 ] And that issue turned on the evidence of the witnesses who saw some of the shootings, on the evidence of the ballistic expert who identified the trajectory of the initial bullets fired and on the evidence of the forensic pathologist who conducted post-mortem examinations. And, most importantly, the issue of the reasonableness of the force the appellant used turned on the fact that the home invaders were unarmed.

There was some suggestion that they may have had a samurai sword. If they did, they must have picked it up once they entered the appellant’s residence. The samurai sword was his. A witness who saw the deceased enter the appellant’s residence saw no weapons, not even a crowbar. Entry was gained by one of the home invaders, supported by two others, kicking the appellant’s door down. [ 149 ] The evidence was that 25 bullets were fired from the appellant’s semi-automatic SKS-D rifle, a legal weapon that shares a design similar to the AK-47.

The legal size of the detachable cartridge (which holds the bullets for a gun) for that type of weapon was five bullets. The appellant discharged five times that number using a prohibited “banana clip”. A banana clip is specifically designed to permit those engaged in war to shoot as many people as they can as quickly as they can without having to reload. That is why they are prohibited for civilian use. [ 150 ] Of the 25 bullets fired by the appellant, ten entered Costa’s body, five went into Komaksiut’s body, three into Atatahak’s body and three more wounded Pigalik and Bernhardt.

All three deceased were shot in the back; although not all shots were in the back. All three deceased were shot while running away. And both the victims who were wounded were shot while running away. [ 151 ] Based on the evidence of four spent shell casings found there, the appellant fired only four of the 25 shots from inside his bedroom. Only one of those penetrated a human body or bodies.

That is, the bullets which were fired from the bedroom were recovered by the ballistics expert and only one had the characteristics of having entered a human body or bodies before becoming lodged in a wall or couch. [ 152 ] The evidence indicated that after the first four shots fired from the bedroom, the appellant missed hitting a person with a bullet only once with the next 21 shots. There was also the evidence that all those who had entered the appellant’s residence exited it after the initial shots were fired. All died outside.

According to the coroner, the two fatal wounds that killed Costa came from bullets which entered his back and exited his chest. The wound which killed Atatahak was from a bullet which entered his right front chest. The evidence does not disclose when that fatal shot was fired but Atatahak was shot at least once, and likely twice, while outside trying to flee. In other words, the appellant made medical treatment of any prior wound which Atatahak received impossible. At least one of the bullets which killed Komaksiut entered his back and exited his chest.

An eye witness testified that Komaksiut was shot while running away and after he had fallen in the snow from a previous gunshot wound. When he struggled to get up, the appellant aimed and fired again. The bullet found its mark. Komaksiut fell dead. Atatahak and Komaksiut were both shot when they were a considerable distance from the appellant’s residence.

Atatahak’s body was found 9.6 metres from the appellant’s front door and Komaksiut’s body 42 metres from the front door. [ 153 ] In my view, it was open to the jury, on that evidence alone, to find that the appellant could not have reasonably believed the force he used was his only means of protecting himself. [ 154 ] I am also of the view that the two alleged evidentiary issues the appellant complains of were properly decided and no error was made by the trial judge. [ 155 ] The first alleged error was the trial judge’s admission or failure to properly deal with a portion of the evidence of Crown witness, Brenda Ohokak.

In addition to describing the shootings she witnessed, Ms. Ohokak testified about a conversation she had with the appellant when he was said to have boasted that he was unafraid to use his gun because “he had shot a few people before when he was living in Yellowknife” and the deceased were “going to pay for what they did to [him]” (Transcript at p 437/1-10).

The appellant’s argument was that the evidence regarding the Yellowknife shooting was inadmissible as being irrelevant and going solely to his character. [ 156 ] The second evidentiary ruling which the appellant argues was wrongly decided was the trial judge’s refusal to admit police reports concerning instances of the deceaseds’ prior violent acts. They were intended to show the reasonableness of the appellant’s fear when the

deceased invaded his home in the middle of the night. The appellant made a Scopelliti application. The trial judge denied it on the basis the deceaseds’ propensities for violence and illegally entering other people’s homes in a violent and frightening manner were not relevant to the appellant’s state of mind on the night in question because he was unaware of these particular instances of the deceaseds’ violent dispositions.

Just as importantly, the trial judge held that the evidence was not necessary to show that the deceased were the aggressors because that was obvious and conceded by the Crown. [ 157 ] For the reasons below, I have concluded that both of the evidentiary issues the appellant challenges were correctly decided. I will address the issues in the following order: was Brenda Ohokak’s evidence regarding the appellant’s animus toward two of the invaders admissible; and did the trial judge err in excluding evidence of the character of the deceased home invaders? A.

Was Brenda Ohokak’s evidence regarding the appellant’s animus toward two of the invaders admissible? (i). The principles of admissibility of bad character evidence [ 158 ] The Crown typically cannot lead character evidence against an accused because a conviction must be based on the evidence of a crime rather than on an accused’s general disposition. The prejudice to an accused from character or propensity evidence usually manifests as both a reasoning and moral prejudice.

Reasoning prejudice causes jurors to be confused and distracted from the charge that has been leveled against the accused or for the jury to place undue weight on the testimony of the witness testifying to the propensity evidence: R v Handy , 2002 SCC 56 at para 100 , [2002] 2 SCR 908 . Moral prejudice causes the jury to convict an accused based on bad character evidence because they deem the accused to be a person who deserves punishment: ibid. [ 159 ] Bad character or propensity evidence may be admissible in limited circumstances if (

i) it is relevant to some other issue beyond disposition or character; and (ii) its probative value outweighs its prejudicial effect: R v Bomberry, 2010 ONCA 542 at para 26 , 258 CCC (3d) 117 . [ 160 ] This balancing test requires that the probative value be very high because the prejudicial effect of this sort of evidence is quite high: Handy at para 41 . (ii). Ms. Ohokak’s evidence, in context [ 161 ] The majority points to the fact that Ms. Ohokak’s evidence was the last item requested by the jury before the appellant was convicted. But Ms.

Ohokak’s evidence, in addition to containing the impugned character evidence, also consisted of her eyewitness testimony with respect to the shootings. It also appears the jury requested transcripts of the testimony of other witnesses as well. [ 162 ] An appeal court can consider notes from the jury “to see what they were focussing upon”; R v Roberts, 2004 ABCA 114 at para 5 , 346 AR 325 . [ 163 ] The jury initially requested a complete transcript, but were informed that none existed. It then asked: “May we have testimony of Susie Monialuk + Jeffery Komak. Relating to the shooting of Keith Atathak.

Thank you”; Exhibit J-8. [ 164 ] Exhibit J-8 was marked after the jury requested a complete transcript and after it asked for instruction on manslaughter. The judge adjourned proceedings between the request for a complete transcript and the manslaughter instruction request (p 639/10-25). Court reconvened and the request for Ms. Ohokak’s evidence was discussed but no reference was made to the request for Monialuk and Komak’s evidence. However, that request was made an exhibit before the note requesting Ms.

Ohokak’s evidence was marked. [ 165 ] The Monialuk and Komak request (i.e., Exhibit J-8) gives some indication of what the jury was considering during its deliberations. It also suggests a reason for the jury’s request for Ms. Ohokak’s evidence. Ms. Ohokak’s evidence, direct and cross- examination, was 16 pages of transcript (pp 443 448). It gave the clearest and most complete description of the shootings. The evidence of the appellant’s boast of the prior Yellowknife shooting or shootings formed only a small part of her overall evidence. It is therefore worth reviewing the whole of Ms.

Ohokak’s evidence, in context.

[ 166 ] Ms. Ohokak testified that on January 1, she witnessed a group gathering in front of “Duma” (Atatahak) and “Googie’s” (Bernhardt’

s) old place (p 435/17 20). She said that it seemed as though an argument was happening, but she could not recognize anyone (p 435/24 28). She saw five or seven people involved in the altercation, and observed it for less than ten minutes (p 436/1 10). [ 167 ] By this point, the jury had heard from Bernhardt, Atatahak’s common law wife, that a fight had taken place at around 5:30 a.m. on January 1 (p 296/23 25). The fight had been between Patrick Lyle and Clarence (inaudible). Atatahak had stepped in to break up the fight.

Bernhardt went inside and Atatahak came in 15 to 20 minutes later (p 298/10 16), covering his nose and mouth and claiming to have a nose bleed (p 298/19 21). [ 168 ] After witnessing the altercation, Ms. Ohokak testified that she went to the appellant’s home. She joined a group of about seven others who were there (p 436/15 19). She stated that they were drinking and at some point the appellant was staring in the mirror, at a bruise on his cheek. He was saying “they’re going to pay. I don’t care who they are, they’re going to pay” (p 436/24). [ 169 ] Ms.

Ohokak explained what happened next: He [the appellant] handed me a photo album and he said, Look at this, like he was proud to have a photo album. I looked at the pictures and there was pictures of him holding a big gun and he had some gear like army gear and something to cover his face and Desiree Pangnatuk, who was there with me, she saw the pictures too and she was asking some questions like, aren’t you scared to use it? Are you scared to use it? And he said, no, I’m not. He said that he shot a few people before when he was living in Yellowknife, but I wasn’t sure if he was telling the truth or not.

And then he was talking about an argument that went on earlier that night. He said he got into an argument with a couple guys. He said that he gave [Atatahak] a black eye and that [Atatahak] gave him the bruise on his cheek. And then he said [Costa] and [Atatahak], going to pay. Going to pay for what they did to me. p 437/1 10 [ 170 ] Ms. Ohokak testified that after the appellant told them Costa and Atatahak were “going to pay”, the appellant and Malla put on their jackets and concealed knives in their sleeves (p 437/15 20). The appellant told her not to worry (p 437/16).

About five to ten minutes later, they came back, puffing as though they had just been running (p 437/18 20). [ 171 ] This coincides with the fact that Atatahak’s truck tires were slashed at about that time. Bernhardt testified that on January 1, around 1:00 p.m. she awoke to someone knocking at her door (p 299/5 8). The person said he noticed that the tires on Atatahak’s truck had been slashed. The Crown suggested in closing that the appellant and Malla had slashed the tires. [ 172 ] Ms.

Ohokak also testified that between January 1 and 6, her sister told her about the appellant’s skidoo being smashed up by Atatahak and Costa (p 446/22 27) after the tire slashing incident. [ 173 ] Ms. Ohokak’s testimony fast forwarded to the morning of January 6 around 3:00 a.m. She testified that she was sleeping and awoke to people outside being loud (p 437/25 29). She went into the next room to observe what was going on. The distance from her home to the appellant’s was about 40 metres (p 161/5-10). She testified that there were more than five people outside the appellant’s home (p 439/5 7).

Three were standing outside the front door and the others were standing near the steps (p 439/11 15). She did not see the people at or near the door carrying anything in their hands (p 440/19 20). Ms. Ohokak testified that Costa was at the door yelling for “Dennis Lewis” (p 439/19). [ 174 ] Ms. Ohokak testified that no one answered the door and that an individual she believed to be Costa tried to kick the door in but could not. Then, two other people at the door held Costa up by his arms and he kicked the door open (p 440/10).

When the door opened, those at or near the door ran into the appellant’s house (p 440/21 22). A few seconds later, she heard gun shots (p 441/4). The people who had gone in the house came out, screaming (p 441/4). [ 175 ] Atatahak came running out towards her home. Costa fell on the stairs just outside the appellant’s door. Pigalik, who had also entered the appellant’s home, ran out to the south, hiding under a satellite dish. The others ran towards other homes (p 441/10).

[176] As everyone was making their escape, the appellant stepped out onto the porch. He raised his SKS D rifle and shot Atatahak. Ms.Ohokak witnessed Atatahak fall, face first, into the snow, never to get up (p 441/20 25). He died 9.6 metres from the appellant’s home (p163/5-10). [177] The appellant swivelled towards the people running toward the other homes. He leveled the SKS D and opened fire (p 442/24).Ms. Ohokak could not recall how many times he fired to the north. Komaksiut was found shot dead in the snow, 42.3 metres to the north(p 163/10-15). [178] Ms.

Ohokak testified that next Pigalik came out from under the satellite dish and came running around the appellant’s house. Theappellant, still standing on the porch, leveled the SKS D, took aim and fired two bullets at him, one of which wounded him (p 442/5 10). (iii). Ms. Ohokak’s evidence regarding the appellant’s animus or state of mind was highly probative [179] In my view, the evidence of the appellant’s boast that he was unafraid to use his gun because he had done so on a prior occasion inYellowknife was relevant to the issue of self-defence. It was a piece of evidence which tended to negate self-defence.

It was also a pieceof evidence which suggested that the appellant was prepared to use more force than necessary. [180] The entire conversation between the appellant and Ms. Ohokak was relevant and had to be heard in its entirety to understand theappellant’s state of mind towards the invaders. Not only was he declaring an intention to “get” the invaders for what they had done, buthe was also declaring an intention to use a gun to wreak that revenge. His remarks not only reflect his animus towards the soon-to-be-invaders but also contain a veiled threat.

What’s more, the threat specifies the means by which the appellant might carry out that threat. Ifthe appellant had simply said to Ms. Ohokak, “I’m going to shoot the deceased”, the statement’s admissibility, without more, could nothave been contested. In my view, that is precisely the effect of what the appellant threatened.

The conversation was relevant to the issueof the amount of force the appellant was prepared to use. [181] Assessing the probative value of propensity evidence requires that the issue the evidence is tendered to address be identified: R vB(CR), (SCC), [1990] 1 SCR 717 at 731, 107 NR 241; Handy at para 69. The primary issue at trial was notidentification, but rather the reasonableness of the force the appellant used to defend himself. Ms. Ohokak’s testimony was not tenderedfor proof of the appellant’s general disposition. Rather, it provided an insight into the appellant’s mind before the invasion.

The evidenceis highly probative because it demonstrated that the appellant was more than a person roused in the middle of the night reacting to ahome invasion. Instead, Ms. Ohokak’s evidence leads to the suggestion that the appellant was biding his time looking for an opportunityto exact pay-back on Costa and Atatahak. Coupled with the evidence of the ballistic expert and that contained in the pathologist’s reportand the fact that the deceased were relatively unarmed, it was open to the jury to find that the appellant’s intention was more than meredefence of his property and person. Ms.

Ohokak’s evidence was relevant because it offered a strong indication of the appellant’sintentions which negated self-defence. [182] The evidence of the prior shooting in Yellowknife was intertwined with Ms. Ohokak’s evidence that the appellant said he wasunafraid to use the guns he had. Evidence that incidentally demonstrates the bad character of an accused can be relevant to a key elementof the Crown’s theory, such as motive, opportunity or means: R v G(SG), (SCC), [1997] 2 SCR 716 at para 64, 148DLR (4th) 423.

If the evidence is important to the issues in a trial, such as an accused’s state of mind, intent, systematic course of actionor premeditation, it should be admitted: Boulet v The Queen, (SCC), [1978] 1 SCR 332 at 355, 75 DLR (3d) 223. Theevidence that the appellant was unafraid to use his weapon because he had done so in the past was relevant to an assessment of his stateof mind. That is, he indicated an intention to use force which might or might not be reasonable. (iv). The prejudicial effect of Ms. Ohokak’s evidence was not apparent nor significant [183] It cannot be said that the evidence of Ms.

Ohokak regarding the appellant’s boasts about Yellowknife did not have some prejudicialeffect. However, that prejudice was neither obvious nor overwhelming. Defence counsel did not object to it and worked it into his overalltrial strategy. Furthermore, there was no prejudice from the trial judge’s failure to specifically charge the jury as to the possible uses ofthe evidence because it was a part of a threat that spoke to the appellant’s state of mind. Further instruction might have confused the jury.The appellant’s statement that some of the invaders were

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