I would accordingly dismiss the appeal with costs of the
appeal to the respondent, in the agreed sum of $25,000, inclusive
of disbursements and HST. As per the above, costs awarded below
are varied to $18,000, inclusive of HST and disbursements, in
favour of the respondent.
Appeal from dismissal of motion dismissed;
costs appeal allowed in part.
Her Majesty the Queen v. Johnson
[Indexed as: R. v. Johnson]
2019 ONCA 145
Court of Appeal for Ontario, Watt, Pardu and L.B. Roberts JJ.A.
February 25, 2019
Criminal law — Defences — Provocation — Crown adducing surveillance video at trial that showed bouncer putting shooter in headlock
and taking him to ground before shooting — Accused denying that he
was person shown in video — Defence counsel not laying evidentiary
foundation for partial defence of provocation but raising defence during
pre-charge conference — Trial judge erring in refusing to leave provocation with jury — Events recorded on surveillance video and testimony of
bouncer satisfying air of reality threshold for provocation.
Criminal law — Evidence — Expert evidence — Identity of shooter
central issue at trial — White spot visible on front of shooter’s vest on
surveillance video — Crown submitting that white spot was chain and
medallion worn by accused — Defence seeking to adduce expert evidence of physicist that white spot was unlikely to be chain and medallion as it did not move between two frames of video — Trial judge not
erring in excluding proposed evidence — Evidence failing to satisfy
threshold necessity requirement — No special learning or expertise
required to determine whether spot moved and within competence of
everyday experience of jurors — Evidence also failing at gatekeeper
stage of analysis as its potential effect on trier of fact far outweighed its
The accused was convicted of second degree murder and attempted murder.
After intervening in an attempted robbery, a bar bouncer put a man in a headlock,
used an extendable baton to lock the man’s hands behind his back, and pulled him
to the ground. When the bouncer released him, the man pulled out a gun and fired
three shots, missing the bouncer and hitting two bystanders. One died, and the
other survived. At trial, the Crown adduced surveillance video that showed
the altercation between the shooter and the bouncer. The video was of poor quality
and there some gaps between the two cameras that captured the images, and the
cameras captured images intermittently, not continuously. A police officer, who had