COURT OF APPEAL FOR ONTARIO
CRONK, GILLESE and ARMSTRONG JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
David M. Tanovich for the appellant (Respondent)
- and -
ROSHAN NOROUZALI
David Finley for the respondent (Appellant)
Heard: February 18, 2003
On appeal from the convictions imposed by Justice Harry LaForme of the Superior Court of Justice, sitting with a jury, dated March 20, 1998.
1Following a trial with a jury, the appellant Roshan Norouzali was convicted of two counts of first degree murder; two counts of robbery; use of a firearm; four counts of attempted murder; and, possession of a prohibited weapon. He was sentenced to life imprisonment with no parole eligibility for twenty-five years. The appellant appeals from the convictions.
2The appellant was tried with a co-accused, Ronald Woodcock, who was convicted of first degree murder and several other offences. The co-accused also appeals from the convictions. Reasons for judgment on the co-accused’s appeal are being released contemporaneously with these reasons.
3The appellant raised a number of grounds of appeal but pursued only two at the hearing of the appeal. First, he argues that the trial judge’s instructions to the jury on the meaning of proof beyond a reasonable doubt were fatally flawed. Second, he contends that the trial judge erred in his instructions to the jury on first degree murder during the course of forcible seizure.
4For the reasons that follow, I would dismiss the appeal.
OVERVIEW
5On September 14, 1994, Ken Thomas was shot and killed near the Pickering Nuclear Generating Station. Thomas’ car was used later the same day as the getaway vehicle for a robbery at Gagnon Sporting Stores (“Gagnons”). Two people committed the Gagnons robbery. During the robbery, one of the perpetrators fired six shots from a rifle equipped with a silencer, killing the store owner and injuring three others. The same firearm had been used to kill Thomas. The second perpetrator smashed a gun case and stole eleven handguns. The robbers took only guns from Gagnons. They did not demand money.
6The robbers fled from Gagnons in Thomas’ car. The appellant’s blood was found at Gagnons on glass fragments from the gun case and in Thomas’ car.
7On March 10, 1995, the appellant, Woodcock and a third person, Deryck Thompson, were arrested after robbing a National Grocers store in St. Thomas, Ontario. During the robbery, all three were armed with loaded handguns. The handguns possessed by the appellant and Thompson were two of the guns stolen from Gagnons. Woodcock was armed with a .38 revolver, which he used to shoot an employee in the leg. The .38 was not linked to any other robbery. The appellant, Woodcock and Thompson all pleaded guilty to various charges arising from this incident.
8The trial judge admitted, as similar fact evidence, evidence of five armed robberies committed between September 19, 1994 and March 10, 1995. The fifth robbery, committed on March 10, 1995, was the robbery described in the immediately preceding paragraph. The appellant and two co-accused were convicted of the March 10th robbery prior to the trial at issue in the instant appeal.
THE FACTS
The Killing of Ken Thomas
9Ken Thomas was last seen alive on the morning of September 14, 1994. There was evidence that he was in Richmond Hill around noon that day.
10A fisherman found Thomas’ body on January 21, 1995 near the Pickering Nuclear Generating Station. There was no discernible reason for Thomas to be at this location. However, in the past he had worked as a carpenter at the generating station and would have had access to the paths in the vicinity.
11Thomas’ body was found in a clump of trees approximately fifteen to twenty feet inside the chain link fence that surrounded the generating station. The fence was six feet high and topped with barbed wire. There was a nearby gate in the fence but it was padlocked. There was also a nearby gap in the fence caused by a drain way under which one could crawl. Security personnel guarded all other entrances. The first police officer to examine the scene reached the body by throwing a jacket over the barbed wire and climbing the fence. Once inside the fence, the area leading to the body was rugged scrubland with dense undergrowth.
12Thomas had been shot once in the back of the neck and three times through the left side of his head. One bullet was found in his skull and another three embedded in the ground near his skull. Expert evidence was led to the effect that Thomas had been executed at the site where his body was found.
13At the time of his disappearance, Thomas owned a 1989 two tone dark maroon Chevrolet Caprice. His car was identified as being parked at Gagnons at about 2:00 p.m. on the day of the robbery. The gun used to kill Thomas was the same gun that was used in the Gagnons robbery.
The Robbery and Shootings at Gagnons
14On September 14, 1994, shortly after 5:00 p.m., two masked men entered Gagnons. One of the men was armed with a rifle. The armed man yelled “Okay, this is it. This is a hold-up. Everybody get down”. An employee responded “You must be joking”. The same man responded “This ain’t no fuckin’ joke” and shot the employee in the arm. The sound was muffled by a silencer, as were the subsequent gunshots. Roger Pardy, the owner of the store, was on the phone when the robbers entered. The shooter yelled at him “I told you to get down and I’m not fuckin’ kidding” and then shot him twice. The first shot hit him in the right back shoulder. The second shot struck him in the right temple and killed him.
15Two other people at Gagnons were injured by three separate bullets. Forensic testing showed that the six .22 calibre shell casings recovered from the scene were from the same firearm.
16While the shootings occurred, the second perpetrator smashed a display case containing handguns. Prior to reaching the cabinet, this person had yelled out “Everybody get down. If anybody moves, kill them”.
17Eleven handguns were stolen including a Colt .45 (the “Colt”) and a Ruger .45 (the “Ruger”) calibre handgun. Despite its availability, no money was taken from the store or demanded. The events took place in a period of approximately 90 seconds or less.
18Several witnesses to the Gagnons robbery gave various descriptions of the two robbers. None of the witnesses could identify the appellant or Woodcock. Descriptions of the shooter ranged from 5’4” to a person over 5’9” with a thick build and a deep voice. The second robber was described as being slightly taller than the shooter. The booking officer testified that at the time of their arrest, Woodcock was 5’6” tall and 150 pounds and the appellant was 5’9” and 165 pounds.
19A car consistent with the description of Thomas’ car was seen near Gagnons from about 2:00 p.m. and on into the afternoon.
20A witness observed two individuals leave this vehicle and enter Gagnons. The driver was masked and his visible hand was wrapped. The driver appeared to be about 5’7” to 5’8” and was stockier than the passenger. The witness called 9-1-1.
21Witnesses who saw the two robbers leaving Gagnons also gave various descriptions. One witness described them both as 5’10” and well built, in the 200 pound range, and the driver as clean shaven and white. Another witness described the driver as dark with some facial hair that was greying.
22On September 15, Thomas’ car was located behind an apartment building in Oshawa approximately 1 kilometre from Gagnons. The vehicle was impounded and held for expert examination. Blood smears were found in the vehicle. DNA analysis showed it was the appellant’s blood.
23Blood found on the smashed display case in Gagnons matched the appellant’s DNA. No forensic evidence linked Woodcock to either Gagnons or Thomas’ car.
24On the morning of September 15, 1994, the appellant and Woodcock were seen together in London, Ontario.
25The trial judge admitted, as similar fact evidence, evidence of 5 other robberies upon which the Crown relied to establish the identity of the appellant and Woodcock. The admissibility of such evidence is not challenged in this appeal.
ANALYSIS
ISSUE #1 THE JURY INSTRUCTION ON REASONABLE DOUBT
26The appellant alleges three defects in the trial judge’s instruction on the meaning of proof beyond a reasonable doubt. He contends that:
the trial judge ought to have told the jury that proof beyond a reasonable doubt was reached when they were “sure” of the accused’s guilt;
the trial judge erred when he instructed the jury that a reasonable doubt was not a “possible doubt”; and,
the trial judge failed to instruct the jury that proof beyond a reasonable doubt was more than proof on a balance of probability and, in fact, closer to absolute certainty.
27The trial judge’s initial instruction on the meaning of reasonable doubt reads as follows:
It is a matter of law that a person accused of a crime is presumed to be innocent. This means that that you must start with the presumption that each of Mr. Woodcock and Mr. Norouzali is innocent. This presumption of innocence continues throughout the trial and entitles the defendant to a verdict of not guilty unless you are satisfied beyond a reasonable doubt that they are guilty.
Every crime is made up of parts referred to as elements. The Crown must prove each element of the crime beyond a reasonable doubt. The defendant or the accused is not required to prove his innocence, or, for that matter, to do anything except deny his guilt and each has done that by pleading not guilty. If you find that the Crown has not proven every element of an offence beyond a reasonable doubt, then you must find the defendant not guilty of that offence.
A reasonable doubt in a criminal trial is a fair, honest doubt growing out of the evidence or lack of evidence. It is rarely possible to prove anything with absolute or mathematical certainty and so the burden of proof on the Crown is to prove guilt beyond a reasonable doubt but not to the degree of absolute or mathematical certainty. A reasonable doubt is not merely an imaginary or possible doubt. Rather, it is a doubt based on reason and common sense. So in the end, a reasonable doubt is just that: a doubt that is reasonable after a logical, careful and considered examination of the facts and circumstances of this case [emphasis added].
28In R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1, the Supreme Court of Canada set out the essential components of a charge on the meaning of reasonable doubt and warned against the inclusion of others. Justice Cory gave the following summary of what the definition of reasonable doubt should contain (at p. 13):
The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
The burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
A reasonable doubt is not a doubt based on sympathy or prejudice;
Rather, it is based upon reason and common sense;
It is logically connected to the evidence or absence of evidence;
It does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
More is required than proof that the accused is probably guilty—a jury which concludes only that the accused is probably guilty must acquit.
29Subsequent decisions have held that appellate courts should take a broad approach in determining whether a charge complies with the Lifchus standard. In R. v. Avetysan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at 84, Major J. stated the “substantial compliance” test for appellate review of a jury charge in this way:
A jury charge given before or after the Lifchus decision should not be faulted merely for imprecise language. Rather, as was stated in Starr, supra, it should be reviewed to determine whether it substantially complies with the Lifchus principles. As applied in Russell, supra, and Beauchamp, supra, the basic question remains: Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? If not, the charge is adequate [emphasis added].
30It is clear that, in many respects, the trial judge’s charge in the instant appeal complies with Lifchus. The relationship between the presumption of innocence and the Crown’s burden to prove its case beyond a reasonable doubt is clearly set out, as is the fact that the burden never shifts to the accused. Further, the trial judge states the need to logically examine the facts of the case before determining whether there is a reasonable doubt. The trial judge also states that a reasonable doubt is based on “reason and common sense” and does not require “mathematical certainty”.
31The first error alleged by the appellant is the trial judge’s failure to instruct the jury that it could convict only if sure of the accused’s guilt. I do not agree that this omission constitutes an error.
32Justice Cory concludes his suggested charge in Lifchus with the instruction that “… if, based upon the evidence before this court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt”. However, for several reasons, I do not find that the failure to instruct a jury that they may convict only if they are “sure” the accused is guilty constitutes an error.
33In his analysis of what should be in the definition of reasonable doubt, Cory J. states (at p. 12):
In the United Kingdom juries are instructed that they may convict if they are “sure” or “certain” of the accused’s guilt. Yet, in my view that instruction standing alone is both insufficient and potentially misleading. Being “certain” is a conclusion which a juror may reach but, it does not indicate the route the juror should take in order to arrive at that conclusion.
It is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that a jury may be advised that they can convict if they are “certain” or “sure” that the accused is guilty [emphasis added].
34It is clear from the above passage that references to the word “sure” do not assist a jury in understanding the meaning of proof beyond a reasonable doubt. Rather, it is the meaning of reasonable doubt that a jury must consider before determining whether they are “sure” that the accused is guilty.
35Further, Cory J. states only that a jury “may” be advised that they can convict if they are sure that the accused is guilty. I do not read the instruction as being mandatory. He does not refer to the jury being “sure” when he summarizes what should be explained to the jury. I would note, as well, that while Cory J. does include the reference in his model charge, the introduction to that charge makes clear that a charge which is consistent with the principles set out will suffice regardless of the particular words used by the trial judge (at pp. 13 – 14).
36In the instant appeal, the trial judge scrupulously referred to the onus and burden on the Crown to prove each of the elements of each offence beyond a reasonable doubt throughout his charge to the jury. There can be no concern that the jury did not understand that it had to be “sure” of the appellant’s guilt before it could convict in the sense that it had to first conclude that the Crown had proven its case beyond a reasonable doubt.
37The second alleged error lies in the trial judge’s statement that “a reasonable doubt is not merely an imaginary or possible doubt.” The appellant argues that this instruction could mislead jurors into believing that if they felt it was only “possible” that the appellant had not committed the alleged offence, they must nonetheless convict.
38I accept that references to “possible” doubt should be avoided. In R. v. Campbell (1977), 1977 1191 (ON CA), 38 C.C.C. (2d) 6, for example, this court considered an instruction that if the evidence left only a remote possibility in favour of the accused, which possibility could be dismissed because “of course it is possible but not in the least probable”, then the case was proved beyond a reasonable doubt. This court found the instruction objectionable as it could have led the jury to conclude that “a reasonable doubt must be founded on probabilities as opposed to possibilities, whereas reasonable possibilities in the accused’s favour may give rise to a reasonable doubt” (at p. 22).
39However, in my view, the trial judge’s reference to a “possible doubt” in the instant appeal does not raise a risk that the jury would have misunderstood the standard it was to apply. The word “possible” is juxtaposed with that of an “imaginary” doubt and follows the trial judge’s explanation that the Crown need not prove its case to the degree of “absolute or mathematical certainty”. In this context, a juror would understand the reference to “possible doubt” as simply another way of articulating that the Crown need not prove its case to an absolute certainty. For the same reason, I do not accept the argument that a juror might have understood the word “possible” to apply to his or her consideration of the appellant’s innocence.
40The last alleged error on the reasonable doubt instruction is the trial judge’s failure to state that proof beyond a reasonable doubt is a higher standard than the balance of probability. In this respect, the charge does not strictly comply with the terms in Lifchus. However, for the reasons that follow, I do not find that this omission constitutes a reversible error.
41In R. v. Rhee (2001), 2001 SCC 71, 158 C.C.C. (3d) 129 (S.C.C.) at 139, Arbour J. applied the substantial compliance standard of review as articulated in Avetysan, stressing that evaluating the consequence of errors in a charge on reasonable doubt is a case specific exercise and shortcomings must be assessed in the context of the entire trial.
42In Rhee, the trial judge did not instruct the jury that probable guilt was insufficient. However, Arbour J. found that this deficiency was cured by the trial judge’s instructions on circumstantial evidence. Regarding circumstantial evidence, the trial judge in Rhee instructed the jury that “you must be satisfied beyond a reasonable doubt that where it is relied upon to support a guilty verdict the guilt of the accused is the only reasonable inference to be drawn from the facts you have found them to be.” Arbour J.A. concluded that “any concern that the jury may have applied a probable guilt standard disappears upon consideration of these instructions with regard to circumstantial evidence” (at p.143).
43In the instant appeal, at trial the Crown relied on circumstantial evidence in the crucial aspects of its case against the appellant. The trial judge delivered a thorough and careful charge on the permissible use of this evidence, including the following passage:
With respect to circumstantial evidence, the Crown does not discharge the burden of proof beyond a reasonable doubt unless you are satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the proven facts is the guilt of the accused. In this case, circumstantial evidence bears particularly on the issue of identity of each of Mr. Woodcock and Mr. Norouzali.
44The trial judge gave similar “only reasonable inference” and “no other rational conclusion” instructions on four subsequent occasions. For example, in his charge on attempt murder, the trial judge instructed the jury that “since the evidence of intent is circumstantial, you may infer that intent to kill only if you are satisfied beyond a reasonable doubt that inference is the only reasonable inference to be drawn from the proven facts.”
45In my view, whether the alleged errors are considered singly or in combination, a consideration of the charge as a whole, the nature of the case against the appellant, the trial judge’s instruction on circumstantial evidence and his introductory charge on reasonable doubt leads me to conclude that there is no reasonable likelihood that the jury misapprehended the standard of proof.
ISSUE #2 -- FIRST DEGREE MURDER DURING THE COURSE OF FORCIBLE SEIZURE
46The trial judge instructed the jury that they could find the appellant guilty of first degree murder in the death of Ken Thomas either by way of planning and deliberation or murder committed in the course of a forcible confinement. He said the following:
Irrespective or regardless of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused while committing or attempting to commit the offence of forcible seizure. Therefore, and this will only apply to the murder of Kenneth Thomas, if the Crown has proven beyond a reasonable doubt that Mr. Woodcock or Mr. Norouzali murdered him, it will be first degree murder if it occurred during the commission of or attempted commission of the forcible seizure of Kenneth Thomas. A forcible seizure occurs where a person is taken or grasped or snatched without the person’s consent by the use of force or threats of force. The seizure must include an element of unlawful control over that person that is more than momentary grasping or apprehension. Thus, if the Crown has proven murder beyond a reasonable doubt, it must also prove beyond a reasonable doubt that it occurred during the commission or attempted commission of the offence of forcible seizure of Kenneth Thomas.
The Criminal Code provides that forcible seizure becomes first degree murder when the death of the person seized is caused by that person while committing or attempting to commit forcible seizure. The words “by that person” ordinarily limit the application of the provision to the person who actually caused the death; for example, the shooter. Generally speaking, therefore, a co-accused could not be convicted of first degree murder under this provision solely on the basis that he aided and abetted and was a party to the offence of forcible seizure of Kenneth Thomas. However, both Mr. Woodcock and Mr. Norouzali can both be convicted under this provision if you find both were substantial causes of Kenneth Thomas’ death. That is the Crown must establish beyond a reasonable doubt that both committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of death. Each of them must have played a very active, usually physical, role in the killing.
By way of summary, for the Crown to satisfy you that Mr. Woodcock and Mr. Norouzali or both is guilty of first degree murder of Kenneth Thomas, under this provision of law, the Crown must prove beyond a reasonable doubt that Mr. Woodcock or Mr. Norouzali or both forcibly seized or attempted to forcibly seize Kenneth Thomas and, two, while forcibly seizing or attempting to forcibly seize Kenneth Thomas, Mr. Woodcock or Mr. Norouzali or both murdered Kenneth Thomas. Thereafter, if the Crown proves beyond a reasonable doubt the identity of the person who actually caused the death, that is the shooter, but the other was not a substantial and integral cause of death, you would find the shooter guilty of first degree murder and the other not guilty of first degree murder but guilty of second degree murder. Or, if the Crown cannot prove beyond a reasonable doubt which of them actually caused the death of Mr. Thomas but proves that one of them did and if the Crown proves beyond a reasonable doubt that each of them was a substantial and integral cause of Kenneth Thomas’ death, you would find them both guilty of first degree murder [emphasis added].
47No objection to the instruction was made. Both defence counsel specifically approved of the trial judge’s instruction now challenged on appeal. However, after a question from the jury as to the difference between first and second degree murder, defence counsel did request a recharge to the effect that, if either of the accused was a substantial participant in the forcible seizure but the jury had a doubt as to which one may have done it, first degree murder could not lie with respect to either accused. The emphasized portion of the above excerpt was read again to the jurors in response to their question.
48The appellant contends that the trial judge erred in failing to make clear that, if the jury was in doubt as to which of the two accused shot Thomas and they were not convinced beyond a reasonable doubt that the murder was planned and deliberate, neither accused could be convicted of first degree murder under s. 231(5)(e).
49The appellant’s argument is based on the assertion that there was no evidence that would have supported an inference that the appellant, although a party to Thomas’ forcible seizure, had been “a substantial and integral cause” of Thomas’ death within the meaning ascribed to that phrase in R. v. Harbottle (1993), 1993 71 (SCC), 84 C.C.C. (3d) 1 (S.C.C.). I disagree.
50In Harbottle, the appellant was found guilty of first degree murder for his role in the victim’s death. He held the deceased’s legs so that she could not defend herself while the co-accused strangled her. Justice Cory, writing for the court, established the substantial causation test under s. 214(5) [now s. 231(5)], in these words (at p. 13):
In my view, an accused may only be convicted under the subsection if the Crown establishes that the accused has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of death.
The substantial causation test requires that the accused play a very active role – usually a physical one – in the killing. Under s. 214(5), the actions of the accused must form an essential, substantial and integral part of the killing of the victim.
51At p. 14, Cory J. gave two examples of other situations where a person might be held to have played a substantial and integral part in a murder despite not actually having caused the victim’s death. First, “if one accused with intent to kill locked the victim in a cupboard while the other set fire to that cupboard, then the accused who confined the victim might be found to have caused the death of the victim pursuant to s. 214(5) [now s. 231(5)]”. Second, “an accused who fought off rescuers in order to allow his accomplice to complete the strangulation of the victim might also be found to have been a substantial cause of the death.”
52On the facts of this case, the jury was entitled to conclude that the appellant was a substantial and integral cause of Thomas’ death. Thomas’ body was found in a clump of trees approximately fifteen to twenty feet inside a fenced area at the Pickering Nuclear Generating Station. The six foot high fence was made of chainlink and topped with barbed wire. The undergrowth at the time of death would have been dense. Had there only been one assailant, whether Thomas was forced to climb over the fence or crawl through the nearby gap in the fence caused by a drain way, he would have been in a position to run away when the assailant climbed the fence or crawled through the drain way. The jury was entitled to conclude that it took both the shooter and the non-shooter to get Thomas to the execution site.
53In my view, the facts in this case are similar both to the very facts in Harbottle itself and to those posited in the second example. All of the evidence of the events of the day supports the inference that the appellant acted in concert with his co-perpetrator throughout the day. Thomas’ robbery and murder was a joint venture. It took both the appellant and the co-accused to forcibly escort Thomas to his execution site. Assuming that Thomas was shot by a single person and that the appellant was the non-shooter, the appellant prevented Thomas’ escape. As such, he committed an act or series of acts of such a nature that they could be regarded as a substantial and integral cause of death. The appellant “caused” Thomas’ death because he participated in the murder in such a manner that he was the substantial cause of Thomas’ death. His role was as substantial as that of the accused in Harbottle itself. The “back up” role that the appellant played was as integral to Thomas’ death as that of the shooter.
54In the circumstances, it was open to the trial judge to instruct the jury in the manner that he did. There was ample evidence upon which the jury could have found the accused guilty of first degree murder on the basis that Thomas’ murder was planned and deliberate. If the jury was not convinced beyond a reasonable doubt that there was planning and deliberation and they found that the co-accused shot Thomas, they had to find that the appellant played a substantial and integral role in Thomas’ death. If unable to determine which of the two men shot Thomas, they had to find that both accused played a substantial and integral cause in Thomas’ death in order to find them guilty under s. 231(5). In the instant case, it was entirely open to the jury to conclude that both the shooter and the non-shooter played a substantial and integral role in Thomas’ murder. I would, therefore, reject this ground of appeal.
DISPOSITION
55Accordingly, I would dismiss the appeal.
Released:
“AUG 19 2003” “E.E. Gillese J.A.”
“EAC” “I agree E.A. Cronk J.A.”
“I agree Robert P. Armstrong J.A.”
