studied the videos, extensively testified to several characteristics he determined
the person had, one of which was that the person was wearing a medallion on
a chain. The accused was wearing a medallion when he was arrested. The accused
denied that he was the man in the video. The Crown submitted that a white spot
that was visible on the front of the shooter’s vest was a chain and medallion worn
by the accused. The defence sought to adduce the expert evidence of a physicist
that the white spot was unlikely to be a chain and medallion because it did not
move between two frames of the video. The trial judge excluded the proposed evidence on the bases that it did not meet the necessity threshold and alternatively
that it should be excluded as part of the gatekeeping function of a trial judge as the
potential prejudicial effect far outweighed the value of the evidence. Despite the
fact that defence counsel directed few questions to eyewitnesses to lay an evidentiary foundation for the partial defence of provocation, he raised provocation
during the pre-charge conference, arguing that the wrongful act relied on was
the bouncer’s manhandling of the shooter and that the events recorded on the
surveillance video gave the defence an air of reality. The trial judge rejected that
argument and declined to leave provocation with the jury. The accused appealed
Held, the appeal should be allowed.
The trial judge did not err in excluding the proposed expert evidence. The proposed evidence failed to satisfy the necessity requirement at the threshold stage of
the admissibility analysis. The expert’s observations of the surveillance videos
were fundamental to his opinion. The videos were available to the jury for their
review. No special learning, skill, or expertise was required to determine whether
the white spot moved or remained stationary between frames. The proposed evidence also failed at the gatekeeping stage of the analysis. Dressed up in scientific
language and awash in a sea of mathematical formulae and calculations, its potential effect on the trier of fact far outstripped its probative value.
The trial judge erred in not leaving provocation with the jury. The events recorded on the surveillance video and the testimony of the bouncer satisfied the air
of reality threshold. It was open to the jury to infer that the bouncer’s conduct —
putting the shooter in a headlock, immobilizing his hands and arms and taking
him forcefully to the ground — was a wrongful act, and to infer that the bouncer’s
conduct could cause an ordinary person to lose the power of self-control. It was
also open to the jury to infer that the shooter’s response to the bouncer’s wrongful
act was sudden, before the passion aroused by that wrongful act had time to cool.
What controlled the trial judge’s obligation to submit the partial defence of
provocation to the jury was the capacity of the evidence adduced at trial to support the inferences essential to give effect to the defence. The evidence in this
case met that standard. It was not for the trial judge to say whether the defence
of provocation was likely, somewhat likely, very likely or not at all likely to succeed as a matter of fact.
Cases referred to
Kelliher (Village) v. Smith,  S.C.R. 672,  S.C.J. No. 47,  4 D.L.R.
102; R. v. Abbey,  2 S.C.R. 24,  S.C.J. No. 59, 138 D.L.R. (3d) 202,
43 N.R. 30,  1 W. W.R. 251, J.E. 82-762, 39 B.C.L.R. 201, 68 C.C.C. (2d) 394,
29 C.R. (3d) 193, 8 W.C.B. 81; R. v. Abbey (2009), 97 O.R. (3d) 330,  O.J.
No. 3534, 2009 ONCA 624, 254 O.A.C. 9, 246 C.C.C. (3d) 301, 68 C.R. (6th) 201
[Leave to appeal to S.C.C. refused  S.C.C.A. No. 125]; R. v. Bingley, 
1 S.C.R. 170,  S.C.J. No. 12, 2017 SCC 12, 407 D.L.R. (4th) 383, 345 C.C.C.
(3d) 306, 35 C.R. (7th) 1, 4 M.V.R. (7th) 1, 135 W.C.B. (2d) 356, EYB 2017-276538,
2017EXP-643; R. v. Bonisteel,  B.C.J. No. 1705, 2008 BCCA 344, 61 C.R.