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PROCEDURE - Trial judge's duties - Charge or directions - Defences

Friday, March 29, 2019 @ 8:33 AM  


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Appeal by the accused, Johnson, from convictions for attempted murder and second-degree murder. A melee broke out during an attempted robbery of door receipts at an after-hours bar. The bouncer intervened. As the bouncer returned to the entrance to the bar, an individual ran up behind him. Following a brief struggle, the bouncer subdued the man using a headlock. Upon release by the bouncer, the man pulled a gun and fired three shots. The shots missed the bouncer. Two bystanders were hit, one of whom was fatally wounded. Identification of the shooter was the primary issue. Police obtained surveillance footage from inside and outside of the bar and concluded that the accused was the sole person who fit all the identifying characteristics of the shooter. DNA evidence linked the accused to the struggle with the bouncer. A jury was satisfied beyond a reasonable doubt that the accused was the shooter. The accused appealed on the basis the trial judge erred in ruling expert opinion evidence regarding the surveillance video inadmissible and failed to instruct the jury on the statutory partial defence of provocation.

HELD: Appeal allowed. The trial judge correctly refused to admit the proposed opinion evidence, as it failed to satisfy the necessity requirement at the threshold stage of the admissibility analysis. The surveillance video was available to the jury. No special learning, skill or expertise was required to interpret the portion of the video at issue. The proposed evidence also failed the gatekeeping stage of analysis, as its focus on whether a medallion allegedly worn by the shooter remained stationary during a short interval diverted from the jury's obligation to determine the identification issue based on the whole of the evidence. However, the trial judge erred in failing to instruct the jury on the statutory partial defence of provocation. There was evidence from which the jury could infer that the objective and subjective elements of the defence were present with respect to the bouncer's immobilization of the shooter and the shooter's response upon release. The conviction was set aside, and a new trial was ordered.

R. v. Johnson, [2019] O.J. No. 942, Ontario Court of Appeal, D. Watt, G.I. Pardu and L.B. Roberts JJ.A., February 25, 2019. Digest No. TLD-March252019010