R. v. Pilon (R.),

• Jurisdiction: Ontario
• Judge: Doherty, Simmons and Gillese, JJ.A.
• Neutral Citation: 2009 ONCA 248
• Citation: (2009), 247 O.A.C. 127 (CA),2009 ONCA 248,243 CCC (3d) 109,64 CR (6th) 356,247 OAC 127,(2009), 247 OAC 127 (CA),247 O.A.C. 127
• Date: 20 March 2009
• Court: Court of Appeal (Ontario)

R. v. Pilon (R.) (2009), 247 O.A.C. 127 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MR.091

Her Majesty the Queen (respondent) v. Robert Pilon (appellant)

(C45791; 2009 ONCA 248)

Indexed As: R. v. Pilon (R.)

Ontario Court of Appeal

Doherty, Simmons and Gillese, JJ.A.

March 20, 2009.

Summary:

The accused appealed from his conviction for first degree murder, arguing that: (1) the trial judge erred in excluding evidence relevant to the deceased's propensity for violence and his habit of carrying a gun; (2) the trial judge erred in failing to instruct the jury on the defence of self-defence as defined in s. 34(2) of the Criminal Code; and (3) the trial judge erred in failing to instruct the jury on the defence of provocation.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The accused appealed from his conviction for the first degree murder of McKinnon - The accused argued that the trial judge erred in taking the defence of self-defence as set out in s. 34(2) of the Criminal Code from the jury - The accused submitted that the trial judge improperly dissected the ongoing confrontation between the accused and McKinnon into segments and examined the fatal final confrontation in isolation from the earlier events and without regard to the history between the parties and McKinnon's reputation for violence - The Ontario Court of Appeal dismissed the appeal - While the trial judge properly considered the entirety of the record, she correctly focussed on the evidence concerning the accused's state of mind when the fatal shots were fired - The court stated that "The events leading up to the shooting, the prior history between the parties, McKinnon's habit of carrying a gun, and his violent disposition provide important context. However, the justification for killing as defined in s. 34(2) must exist when the fatal shot is fired. It is irrelevant to the availability of the defence that on the evidence the defence may have been available at some earlier point in the confrontation" - See paragraphs 65 to 66.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The accused appealed from his conviction for the first degree murder of McKinnon - The accused argued that the trial judge erred in taking the defence of self-defence as set out in s. 34(2) of the Criminal Code from the jury - The accused's counsel referred to the trial judge's description of the accused as the "attacker" when he shot and killed McKinnon - Counsel submitted that the trial judge erred in law in holding that the accused forfeited any claim to self-defence because he was the "attacker" when he fired the fatal shot - The Ontario Court of Appeal found no error in this part of the trial judge's analysis - When the trial judge used the word "attacker" she was not referring to which of the two individuals was the initial aggressor in the confrontation - Rather, she was focusing on the evidence pertaining to the accused's state of mind when he leapt from his vehicle and ran toward a restaurant in pursuit of McKinnon - The court stated that "In describing the appellant as the 'attacker' the trial judge was indicating that his conduct could not reasonably be seen as defensive in any sense of the word much less motivated by a reasonable apprehension of death or grievous bodily harm at the hands of McKinnon and a reasonable belief that he could not otherwise preserve himself from that fate except by killing McKinnon" - See paragraphs 67 to 69.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The accused appealed from his conviction for first degree murder, arguing that the trial judge erred in taking the defence of self-defence as set out in s. 34(2) of the Criminal Code from the jury - The accused submitted that the trial judge unfairly limited the subjective component of the s. 34(2) defence when she declined to factor into her assessment the attitudes and beliefs of the criminal sub-culture in which the accused lived - The Ontario Court of Appeal rejected the argument - The court stated that "It may well be, given the criminal sub-culture in which the appellant operated, that he lived by the motto 'kill now or be killed later'. In assessing the reasonableness of the appellant's conduct, however, the jury cannot accept that motto. To do so would be to effectively eliminate the 'reasonableness' requirement from the defence of self-defence. Instead of reflecting community values and the community perception of when a killing is justified, the validity of the self-defence justification would lay entirely in the eye of the killer" - See paragraphs 70 to 75.

Criminal Law - Topic 1289

Offences against person and reputation - Murder - Provocation - Evidence and proof - The accused appealed from his conviction for the first degree murder of McKinnon - The Ontario Court of Appeal held that the trial judge did not err in failing to instruct the jury on the defence of provocation - The court stated that "the trial judge reviewed the evidence, including the appellant's own evidence in which he testified that he fully expected an attack by McKinnon and never actually intended to kill McKinnon. The air of reality inquiry does not require that an accused's testimony support a particular defence. There may be an evidentiary basis upon which to leave a defence with the jury even where an accused's own testimony disavows that defence ... That said, it cannot be denied that an accused's own evidence is an important consideration in the air of reality inquiry. The appellant's evidence offered no support for a provocation defence. Nor was there any other evidence that gave the defence an air of reality" - See paragraphs 81 to 83.

Criminal Law - Topic 1293

Offences against person and reputation - Murder - Defences - Self-defence - General - [See all Criminal Law - Topic 239 ].

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - [See all Criminal Law - Topic 239 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5528 ].

Criminal Law -Topic 5528

Evidence and witnesses - Evidence respecting the victim - Character of victim - The accused appealed from his conviction for the first degree murder of McKinnon - The accused argued that the trial judge erred in excluding evidence from three police officers relevant to McKinnon's propensity for violence and his habit of carrying a gun - The trial judge had found that the potential probative value of the evidence was clearly outweighed by its prejudicial effect - The Ontario Court of Appeal dismissed the appeal - By the time that all of the evidence had been heard, both the Crown and the defence had accepted that McKinnon had a violent disposition and that he habitually carried guns - In summary, McKinnon's disposition and his habit of carrying a gun were no longer in dispute by the end of the evidence - The dispute was over what to make of that evidence in the context of the events on the day of the shooting - The evidence of the police officers would not have assisted the jury in determining what inference should be drawn - It was open to the trial judge to conclude that the excluded evidence would not materially assist the jury in deciding whether McKinnon was armed when shot by the accused and that it could prejudice the jury in its effort to arrive at a true verdict - See paragraphs 32 to 61.

Cases Noticed:

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 32].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161, refd to. [para. 32].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 33].

R. v. Scopelliti (1981), 34 O.R.(2d) 524 (C.A.), refd to. [para. 33].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 30 O.R.(3d) 161 (C.A.), refd to. [para. 33].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 55].

R. v. Duguay (2001), 155 C.C.C.(3d) 407 (Que. C.A.), refd to. [para. 55].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81, refd to. [para. 62].

R. v. D.L. and R.S. (2004), 185 O.A.C. 242; 185 C.C.C.(3d) 524 (C.A.), refd to. [para. 62].

R. v. Reilly, [1984] 2 S.C.R. 396; 55 N.R. 274; 6 O.A.C. 88, refd to. [para. 62].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1, refd to. [para. 64].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371, refd to. [para. 64].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 66].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402; 30 O.R.(3d) 483 (C.A.), refd to. [para. 66].

R. v. Currie (S.M.) (2002), 159 O.A.C. 290; 166 C.C.C.(3d) 190; 3 C.R.(6th) 377 (C.A.), refd to. [para. 66].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 69].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [para. 72].

R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319, refd to. [para. 76].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 46 O.R.(3d) 161 (C.A.), leave to appeal denied (2000), 263 N.R. 391 (S.C.C.), refd to. [para. 76].

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68; 81 O.R.(3d) 456 (C.A.), leave to appeal denied (2006), 361 N.R. 389 (S.C.C.), refd to. [para. 76].

R. v. Gill (R.) (2009), 246 O.A.C. 390; 2009 ONCA 124, refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34(2) [para. 62].

Authors and Works Noticed:

Watt's Manual of Criminal Evidence (2008), pp. 25, 26 [para. 33].

Counsel:

Marie Henein and Jordan Glick, for the appellant;

Howard Leibovich, for the respondent.

This appeal was heard on February 3 and 4, 2009, before Doherty, Simmons and Gillese, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., and was released on March 20, 2009.