- DATE: 20020617 DOCKET: C33955
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) - and - ERROL ANTHONY BROWN (Appellant)
BEFORE:
MOLDAVER, GOUDGE and GILLESE JJ.A.
COUNSEL:
David E. Harris
For the appellant
Kenneth L. Campbell
For the respondent
HEARD:
June 3, 2002
On appeal from conviction for first degree murder by Justice Harry LaForme, sitting with a jury, dated December 9, 1999.
E N D O R S E M E N T
- [1] The appellant raises various grounds of appeal in support of his submission that a new trial should be ordered following his conviction for first degree murder.
Section 231(5)(e) of the Code
[2] The appellant submits that the trial judge erred in leaving s. 231(5)(e) to the jury as a basis for finding him guilty of first degree murder.
[3] We disagree with this submission.
[4] On the facts of this case, once the jury determined that the appellant was guilty of second degree murder, it was open to them to find that in the course of unlawfully confining the deceased, the appellant bound him and either shot or participated in shooting him in the leg, such that when the deceased was delivered up to the shooter (referred to as "no-mask"), he could not flee or otherwise defend himself. Viewed that way, the appellant's role could properly be characterized as that of the executioner's henchman and his acts could be regarded, in accordance with R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306, as a substantial and integral cause of the death. Accordingly, the trial judge did not err in leaving s. 231(5)(e) to the jury.
[5] We also reject the companion submission that the trial judge erred in failing to adequately explain the Harbottle causation test and that he further erred in failing to adequately summarize the evidence relevant to that issue.
[6] In our view, the trial judge accurately conveyed the governing principles from Harbottle and he alerted the jury to the salient features of the evidence bearing on the s. 231(5)(e) issue. His instructions in each instance were adequate and he was not required to go further.
Planning and Deliberation
[7] The appellant submits that the trial judge's instructions on planning and deliberation were faulty in several respects.
[8] First, he maintains that the trial judge failed to make it clear that to find him guilty of first degree murder on the basis of planning and deliberation, it was essential that the jury be satisfied that he either participated in the actual planning and deliberation of the murder or that he knew of it and took positive steps to assist in its implementation. According to the appellant, the instruction given by the trial judge was deficient because it may have led the jury to believe that so long as the murder was planned and deliberate, the appellant could be found guilty of first degree murder even though he did not participate in formulating the plan or have knowledge of it.
[9] Admittedly, this aspect of the trial judge's charge could have been clearer. However, when the charge is read fairly and as whole, we are not persuaded that the jury would have been misled as the appellant suggests. In particular, we think that in the trial judge's exemplary summation of the position of the parties, he made it perfectly clear that to convict the appellant of first degree murder on the basis of planning and deliberation, the jury had to be satisfied beyond a reasonable doubt that when he and his cohorts went to the victim's apartment, they had determined and agreed beforehand that if the victim did not produce drugs or money or both, he was to be executed. On the other hand, it was made equally clear to the jury that if they believed or had a reasonable doubt that this was, as the appellant suggested, a robbery gone awry, the appellant could only be found guilty of manslaughter.
[10] That is the basis upon which the case was left to the jury and we are satisfied that if the jury had entertained a reasonable doubt about the appellant's knowledge of and/or participation in the plan to murder the victim, they would not have convicted him of first degree murder on the basis of planning and deliberation.
[11] The appellant further submits that the trial judge misdirected the jury on the evidence relating to planning and deliberation. We see no merit in this submission. In our view, the trial judge properly drew the jury's attention to the salient features of the evidence bearing on this issue.
The Evidence of Detective Briggs
[12] The appellant submits that the evidence of Detective Briggs, to the effect that the circumstances surrounding the crime pointed more towards a planned murder than a robbery gone awry, should not have been admitted because it effectively usurped the function of the jury. We disagree.
[13] The impugned opinion was not elicited by the Crown in chief. On the contrary, in chief, Detective Briggs spoke generally about the type of violence that one sees when upper level drug dealers have a falling out. Admittedly, his evidence changed in re-examination and became specific, but this was only after defence counsel, in cross-examination, had opened the door by attempting to have the officer agree that the circumstances of this case pointed more towards a robbery gone awry than a planned murder.
[14] Having opened the door, it does not lie with the appellant to now contest the admissibility of Detective Briggs' opinion that the circumstances pointed more towards a planned murder. Although the appellant seeks to characterize the cross-examination that "opened the door" as damage control, we see it differently. Experienced defence counsel [not Mr. Harris] did not object to Detective Briggs' evidence and this appears to have been a tactical decision made in the belief that the appellant could gain significant mileage on his "robbery gone awry" theory through Detective Briggs.
[15] We also disagree with the appellant's further submission that the trial judge misdirected the jury on the approach they should take in assessing the worth and value of expert evidence in general. In our view, the trial judge's instructions were perfectly proper and he was not required, as the appellant suggests, to carve out Detective Briggs' evidence for a special limiting instruction. The jury was told that if certain preconditions were met, they should not reject an expert's opinion without good reason. The jury was then instructed in clear terms that they were at liberty to reject the expert's opinion if, after considering the whole of the evidence, they did not accept it. The trial judge also told the jury that they were not to be overwhelmed by "the aura of scientific [in]fallibility" attaching to such evidence. In the circumstances, the instructions were appropriate and nothing more was required.
Common Sense Inference
[16] The appellant submits that the trial judge erred in instructing the jury that in determining whether in his capacity as a party he had the requisite intent for murder, they could take into account the common sense inference that "people normally intend the natural consequences of their actions". According to the appellant, this instruction was "wholly inappropriate" in this case, when his liability for murder fell to be determined under s. 21(1) of the Code.
[17] We see no merit in this submission. The impugned instructions were appropriate in the circumstances of this case. They were designed to assist the jury in their deliberations as to whether the appellant's actions were "for the purpose of aiding or abetting" and whether the appellant had the necessary intention for the offence of murder. The trial judge made it clear that this was a permissive inference, not a mandatory one, and that the jury could draw it if they considered it appropriate in light of all of the evidence. Accordingly, we would not give effect to this ground of appeal.
Conclusion
[18] In our view, the appellant received a fair trial. His position that this was a robbery gone awry, though rejected, was put to the jury fully and fairly. The case for the Crown that this was a planned and deliberate execution was very strong and in the absence of evidence from the appellant, the jury's verdict is, in our view, unassailable. Accordingly, we would dismiss the appeal from conviction.
_____ Signed: "M.J. Moldaver J.A."
_____ "S T. Goudge J.A."
_____ "Eileen Gillese J.A."
