R. v. Hay, 2009 ONCA 398
COURT OF APPEAL FOR ONTARIO
Moldaver, Blair and MacFarland JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Leighton Hay and Gary Eunick
Appellants
Philip Campbell for the appellant Leighton Hay
Gregory Lafontaine and Vincenzo Rondinelli for the appellant Gary Eunick
Susan Reid for the respondent
Heard: March 30 and 31, 2009
On appeal from convictions for first degree murder and attempted murder by Justice David McCombs of the Superior court of Justice, sitting with a jury, dated May 29, 2004.
Moldaver J.A.:
1The appellants Gary Eunick and Leighton Hay were jointly charged with first degree murder in relation to Collin Moore and attempted murder in relation to Roger Moore. Following a six-week trial before McCombs J. of the Superior Court of Justice and a jury, the appellants were found guilty as charged on both counts. They appeal from their convictions.
OVERVIEW OF FACTS
2In the early morning hours of July 6, 2002, two gunmen entered the kitchen area of a Toronto nightclub and shot and killed Collin Moore. The gunmen also shot at Collin’s brother, Roger Moore, but he escaped with a slight graze wound to his forehead.
3On the evening of the shooting, Collin was hosting a monthly social and fund-raising event at the club. The event was popular within the Guyanese community and attracted a more sedate “middle-aged” crowd. Throughout the evening, Collin’s wife Jennifer, and his brother Roger, were stationed at the entrance door selling tickets and collecting money.
4Sometime after midnight, three or four men and a woman showed up at the club and refused to pay the $10 cover charge. Security approached to frisk them, but the men resisted and started pushing their way into the club. Collin and Roger Moore intervened to stop the intruders from entering and a fight broke out. One of the intruders was the appellant Gary Eunick. He was wearing a distinctive orange vest and the owner of the club recognized him as a club patron and a distant relative. The owner also recognized Gary’s brother Norval as one of the intruders. Norval was wearing a black bomber jacket and a white shirt with red stripes.
5A third intruder who participated in the fight was wearing a blue plaid shirt. He was someone the owner did not recognize.
6Collin’s wife Jennifer also knew Gary and Norval Eunick. She had seen them at the club on prior occasions and was aware that they had caused problems for her husband at the door. She too noticed a third intruder in the fight. He was wearing a blue plaid shirt, but she had not seen him before and did not know his identity.
7Other patrons who were in attendance also described the fight between the intruders and Collin and Roger Moore. Although the scene was one of mayhem, with large numbers of people milling around the lobby, many, if not most of the patrons, identified three of the intruders by their clothing – one in an orange vest (known to be the appellant Gary Eunick), one in a black bomber jacket (known to be Norval Eunick), and a third in a blue plaid shirt (alleged to be the appellant Leighton Hay).
8During the fight, beer bottles were broken and the glass door leading into the club was smashed. Gary Eunick left the fight cut and bleeding. Outside in the parking lot, he was seen by the club owner “fidgeting” with a gun and apparently loading it. The owner was on the phone to 911 at the time and he provided the operator with Eunick’s name and a full physical description, including the distinctive orange vest Eunick was wearing.
9Following the fight in the lobby, the Moore brothers retreated to the kitchen area of the club. Minutes later, Gary Eunick and two other men returned to the club. Gary was still dressed in his distinctive orange vest. One of the other men was wearing a blue plaid shirt and he and Gary were each wearing a glove. Gary was armed with a semi-automatic revolver and the other man was carrying a long-nosed “barrelled” revolver. The two men were observed by witnesses walking purposefully towards the kitchen. They were overheard to ask if the other was “ready”. Moments later, they burst through the kitchen door, chased down the Moore brothers and shot and killed Collin Moore. They also shot at Roger Moore, but he escaped with a slight graze wound to his forehead.
10Collin’s wife Jennifer was in the kitchen at the time. She recognized Gary Eunick as one of the shooters and selected his photograph from a photo lineup later that day. Jennifer did not recognize the second shooter dressed in the blue plaid shirt – but she was not alone in the kitchen. Leisa Maillard was there as well. Ms. Maillard was a close friend of Collin and Roger’s sister and she had gone to the kitchen looking for her once the fight in the lobby had ended.
11As the gunmen burst through the kitchen door, Ms. Maillard confronted the man in the blue plaid shirt. She pleaded with him not to shoot Collin because “he has a wife and kids”. The man looked directly into her face, pointed his gun at her and said “shut your blood clot before I kill you”. He was about six feet away at the time. The kitchen was fully lit and she had a clear, unobstructed view of his face and body. Amongst other things, she noted that he was wearing a white shirt underneath the blue plaid shirt.
12The man then continued into the kitchen and he and Gary Eunick began firing at Collin and Roger Moore. Ms. Maillard kept her eyes trained on the shooter in blue the whole time. After several shots were fired, she fled through the kitchen door and found a hiding place in the main area of the club. Moments later, she saw the two gunmen pass by her as they left the kitchen. Once again, she had a clear view of the man in blue. She estimated that from the time he entered the kitchen to the time he passed by her, she had her eyes trained on him for a period of approximately 16 seconds.
13Later that day, before the police had arrested anyone, Ms. Maillard selected Leighton Hay’s picture from a twelve-person photo lineup prepared by the police. The police had included Hay’s picture in the photo lineup because the owner of the club had seen Gary Eunick leaving the club in a car with a licence plate registered to Hay’s mother. As well, although the jury was not made aware of it, the police learned that Hay had a prior firearms conviction.
14When Ms. Maillard selected Hay’s photo, she indicated that she was 80 percent certain that the person in the photo was the man in the blue plaid shirt who had threatened her and then shot Collin. At trial, she testified that the person in the photograph was “the person [she] saw shoot Collin”. As for the seeming contradiction, she explained that because the photograph was a “photocopy” and not necessarily “a current photograph” and because of its “colour” and the fact that it did not “pick up the facial hair”, she had been cautious in using the 80 percent figure. She gave that figure to the police officer in charge of the photo lineup because he “asked [her] to express it in those terms”. However, her “personal reaction” upon seeing the photograph was “that this was the man that shot Collin”.
15At around noon on July 6, the police arrested Gary Eunick and Leighton Hay at 6927 Chigwel Court in Mississauga. Hay lived there with his mother and his sister Lisa, who also happened to be Gary Eunick’s girlfriend.
16At the home, which the police had under surveillance from shortly after 1:00 a.m. on the morning of the 6th until the time of the arrest, the police discovered various items of evidence that were potentially capable of confirming Eunick and Hay’s involvement as the shooters.
17In Eunick’s case, his blood-soaked orange shirt and blue jeans were located in a child’s knapsack deposited behind the Chigwel home. They had been wrapped in plastic bags and forensic testing revealed particles of gunshot residue on them. As well, Eunick’s shoes were located at the home and they contained particles of glass that were consistent with the glass from the broken door at the club.
18In Hay’s case, the police searched a laundry hamper in his bedroom and underneath various items of clothing, they located bullets secreted in a sock wrapped in a purple plastic bag. According to the Crown’s firearms expert, one of the unfired bullets in the sock had been cycled through the semi-automatic handgun that one of the killers had used to shoot Collin Moore.
19In the same laundry hamper, the police located a white t-shirt. On it, the police found a particle of gunshot residue. No other gunshot residue was found on any of the remaining items of clothing in the hamper, including the sock in which the bullets had been secreted. Ms. Maillard, it will be recalled, had described the second shooter as wearing a white shirt underneath a blue plaid shirt.
20The police also found a newspaper in a bathroom garbage can that had been used to wrap small (less than a centimetre) curly hairs. No hairs were found in Hay’s bedroom, nor in the bathroom where the newspaper was located. However, beside Hay’s bedside table, the police found an electric razor with a cord wrapped around some clippers. On the clippers, the police located hairs that were also less than a centimetre in length.
21Upon arrest, Hay’s head was shaved. A sequential photo lineup shown to Ms. Maillard several weeks after Hay’s arrest contained a picture of Hay taken on the day of his arrest. Ms. Maillard was unable to recognize Hay, in part, she explained, because the man in the blue shirt had picky dreads on his head approximately two inches long. Nor was Ms. Maillard able to pick out Hay at the preliminary hearing. Indeed, she selected Gary Eunick, who was seated with Hay in the prisoner’s dock, as the man she had seen in the blue shirt. Evidence presented to the jury showed that Hay had gained a lot of weight from the date of his arrest to the date of the preliminary hearing.
22Hay did not testify at trial; nor did he call any witnesses on his behalf. Gary Eunick on the other hand did testify, along with his girlfriend Lisa Hay.
23Eunick admitted that he was at the club on the night of the shooting and he was present in the lobby when the fight broke out. He denied taking part in the fight. When the fight erupted, he fell down in the vestibule near the entrance to the club. As the fight approached him, he went to the front door and when it would not open, he kicked the glass out – which explained the cuts to his neck and arm and behind his ear. Once outside, he found his girlfriend, Lisa Hay, and she drove him to her home in Mississauga. Upon arriving at Lisa’s home, he went immediately to the washroom adjacent to Leighton Hay’s bedroom. Both he and Lisa claimed that Hay was in bed asleep and Lisa closed the door leading from Hay’s bedroom to the bathroom to avoid disturbing him. She then left Gary in the washroom and a few minutes later, he joined her in the basement. Lisa cleaned the blood off of Gary and then wrapped his clothes and threw them away because she did not want her mother to see the blood. Neither Gary nor Lisa mentioned anything about entering Hay’s bedroom and they were not questioned about the bullets that turned up in Hay’s laundry hamper.
24In cross-examination, Lisa acknowledged as truthful her evidence from the preliminary hearing in which she testified that on the day of the murder, her brother Leighton’s hair was “maybe 3 or 4 millimetres” long, possibly a little bit longer than Gary Eunick’s. She was then shown some photographs of Gary and her brother Leighton taken before the murder. Both men had hair but she felt that Gary’s was longer.
25After viewing those photographs, Lisa immediately began to backtrack, volunteering that at the preliminary hearing she had been “guessing” about the length of her brother’s hair and while she had not been “lying”, she really could not recall the exact length of his hair at the time of the murder. When Crown counsel [not Ms Reid] suggested to her that her brother had shaved his head in the early morning hours of July 6, prior to his arrest that day, Lisa replied: “I don’t believe that Leighton has a tool to shave his hair. He has a shaver for his face but not for his hair”. That evidence was belied by the clippers found in Leighton’s bedside table. Moreover, Lisa acknowledged that her boyfriend Gary Eunick worked at a hair salon and knew how to cut hair.
26In both his factum and in oral argument, Hay placed little weight on the testimony of Eunick and Lisa. Indeed, he described the strength of the Crown’s case against Eunick as “overwhelming” and stated that it was “difficult to see that there was any meaningful issue for the jury to resolve in respect of Eunick, so conclusive was the evidence against him”. He further characterized the evidence given by Lisa and Eunick as “so palpably false that even if their exculpation of [him] were true [that he was in bed asleep when they arrived home from the club], the jury would not credit it”.
POSITION OF THE PARTIES ON APPEAL
Leighton Hay
27Hay submits that the verdicts against him are unreasonable. He seeks to have them set aside and replaced with verdicts of acquittal. Alternatively, he submits that the trial judge committed several errors in his instructions on eye-witness identification evidence and he seeks a new trial. Finally, he submits that the trial judge erred in his instructions on planning and deliberation and, if all else fails, he asks that the appeal from his conviction for first degree murder be dismissed and a verdict of second degree murder substituted.
Gary Eunick
28Eunick’s primary position on appeal is that the trial judge erred in his instructions on planning and deliberation. His submissions on that issue largely mirror those of Hay. Eunick also raises an issue touching on his identity as one of the shooters. Although he seeks a new trial on that issue, his primary goal on appeal is to have the first degree murder conviction replaced by a conviction for second degree murder.
ANALYSIS OF THE ISSUES
29As mentioned, there is some overlap in the grounds of appeal relating to planning and deliberation. I propose to address those grounds after I have addressed the grounds unique to each appellant.
GROUNDS UNIQUE TO LEIGHTON HAY
Unreasonable verdict
30Hay submits that on the evidence adduced at trial, no reasonable jury, acting judicially, could convict him. He characterizes Ms. Maillard’s eye-witness identification evidence as all but worthless and he portrays as speculative the so-called confirmatory evidence found at his residence. With respect, I disagree.
31Ms. Maillard’s eye-witness evidence was not worthless. She had a clear view of the shooter for an extended period of time and she was able independently to select Hay’s photograph from a photo lineup shown to her hours after the event. As for her inability to identify Hay’s photograph on arrest, her explanation – that his appearance had changed from the night of the murder – was a matter for the jury, both in terms of assessing the reliability of her observations at the murder scene and as after-the-fact evidence capable of confirming Hay’s guilt. The jury likewise had her explanation for selecting Eunick as opposed to Hay at the preliminary hearing. It was for the jury to decide how, if at all, this would impact on the worth of her evidence implicating Hay as one of the shooters.
32In sum, while Ms. Maillard’s eye-witness testimony required careful scrutiny, it was far from worthless. Whether it could have sustained a conviction on its own is something I need not decide. Contrary to Hay’s submission, her eye-witness evidence did not stand alone. The evidence located at Hay’s residence was, in my view, capable of confirming it.
33In particular, the jury was entitled to consider as confirmatory the bullets hidden in Hay’s laundry hamper and the particle of gunshot residue found on the white t-shirt in the same hamper. As well, the jury was entitled to consider the hair clippings, in conjunction with Lisa Hay’s evidence about the length of her brother’s hair on the evening of the shooting, as evidence of an after-the-fact attempt by Hay to alter his appearance.
34In my respectful view, the analysis that Hay puts forward in relation to those items of evidence is misconceived. Absent any direct evidence from Lisa or Gary Eunick on the subject, Hay submits that Eunick may have put the bullets in the laundry hamper and that in doing so, he may have accidentally transferred a particle of gunshot residue onto the white t-shirt. While I accept that the evidence could support those inferences, it is equally capable of supporting the inferences suggested by the Crown – that Hay and Eunick were joint participants in the killing. For purposes of deciding whether a jury verdict is unreasonable, evidence that is capable of supporting an inference of guilt must be placed on the Crown’s side of the ledger, regardless of the fact that it might also be susceptible to an innocent explanation.
35The same reasoning applies to the hair clippings. While it is true that the clippings may have belonged to someone other than Hay and/or been present in the home before the night of the murder, the evidence is equally capable of supporting the inference that Hay shaved his head after committing the murder in order to alter his appearance. Lisa Hay’s evidence about the length of his hair at the time of the murder is particularly telling in that regard, as is her evidence that he did not possess hair clippers to shave his head. Indeed, in my view, Lisa’s evidence very much tips the scales in favour of the inference sought by the Crown – that Leighton Hay shaved his head after the murder to disguise his appearance.
36And that is a powerful inference. Combined with Ms. Maillard’s evidence, it is enough, in my view, to tip the scales and put this case over the unreasonable verdict threshold. Mr. Campbell, with his usual candour, does not strenuously argue otherwise.
37But there is more. When the bullets in the hamper and the gunshot residue on the white t-shirt are added in, this case clearly crosses the unreasonable verdict line – and that is without factoring in, as I might have, Hay’s failure to testify in the face of prima facie proof establishing his involvement as one of the killers: see R. v. LePage, 1995 123 (SCC), [1995] 1 S.C.R. 654, at para. 29.
38Before leaving this ground, I note that in his factum, Hay places considerable emphasis on the fact that Gary Eunick’s brother, Norval, was injured in the original scuffle at the door and therefore was much more likely than Hay to have been the second shooter.
39In oral argument, Mr. Campbell effectively abandoned that submission – and with good cause. Jennifer Moore, who was present in the kitchen when her husband was shot, knew Norval Eunick and could readily have identified him, as she did Gary, had he been the second shooter.
Alleged Errors in the Charge - Instructions on Eye-witness Identification
40I begin this section with the general, but important, observation that the charge as a whole was a model of fairness and balance. The trial judge went to great lengths to accommodate the parties and he stated their positions evenly and accurately, without favouring one over the other. It is against that backdrop that I consider the alleged deficiencies and errors in the charge, none of which competent trial counsel saw fit to raise with the trial judge.
41Hay submits that the trial judge committed three errors in his instructions on eye-witness identification.
42First, he submits that the trial judge erred in instructing the jury that they could convict on the eye-witness evidence of Ms. Maillard alone.
43I would not give effect to this ground. The trial judge did not tell the jury that they could convict on the eye-witness evidence of Ms. Maillard alone; rather, in the course of his general instructions on eye-witness identification evidence, he told the jury that they were “entitled to convict on the evidence of even a single eye-witness if you accept that witness’ identification and find that it proves guilt beyond a reasonable doubt. But you should exercise real caution before convicting on this type of evidence alone”.
44The impugned instruction is a correct statement of the law: see R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197 per Cory J. for the majority, at para. 23. Moreover, it applied in this case to the identification of Gary Eunick as one of the shooters. Jennifer Moore identified him as such and Hugh Robinson, the owner of the club, put a gun in his hands moments before the shooting. Both witnesses recognized Eunick from their past dealings with him and both selected him as one of the gunmen from a photo lineup within hours of the shooting. In the circumstances, the jury needed nothing more to convict Eunick of murder.
45In his specific instructions to the jury about the eye-witness identification given by Ms. Maillard, the trial judge distinguished her evidence from that of Hugh Robinson and Jennifer Moore, stating that “she [Ms. Maillard] had never seen the person she picked out of the lineup – Leighton Hay – before. Her evidence must, therefore, be approached with greater caution”.
46In directing the jury to proceed in Ms. Maillard’s case with “greater caution”, the trial judge was reinforcing his earlier instructions to the jury that they should proceed with considerable caution before convicting on eye-witness testimony and should look for confirmatory evidence before acting on eye-witness testimony alone. In so instructing the jury, he explained time and again that eye-witness testimony is inherently frail, that human observations and recollections in this area are notoriously unreliable, that honest witnesses who appear convincing can be mistaken, that persons have been wrongfully convicted because eye-witnesses have made mistakes, and that many miscarriages of justice have been occasioned by eye-witnesses “whose honesty was not challenged and who had ample opportunity for observation, but whose identifications subsequently proved to be erroneous”.
47Moreover, in relation to Ms. Maillard, the trial judge specifically addressed the frailties in her evidence, including her inability to select Hay’s arrest photo and her misidentification of Eunick as Hay at the preliminary hearing. He reminded the jury of these frailties a second time in his detailed review of defence counsel’s closing address to the jury. Finally, after alerting the jury to the frailties of eye-witness testimony in general and to the particular frailties associated with Ms. Maillard’s testimony, the trial judge instructed the jury as follows:
You must be very careful of the evidence of Ms. Maillard because of the problems that I have pointed out. You should look for other evidence confirming her identification. [Emphasis added.]
48In the face of those instructions, it is fanciful to think that the jury would have convicted Hay solely on the eye-witness testimony of Ms. Maillard. On the contrary, they would have looked for confirmatory evidence – in accordance with the trial judge’s instructions – and found it in Hay’s laundry hamper and in his after-the-fact attempt to disguise his identify.
49Second, Hay submits that the trial judge erred in instructing the jury as follows:
Now, balanced against that, [the fact that at the initial photo lineup, Ms. Maillard was only 80 per cent sure that Hay was the shooter and that she did not identify Hay from his arrest photo or at the preliminary hearing] as I have said, is the fact that she [Ms. Maillard] picked Leighton Hay’s photograph out of the lineup before the police found him in the house. There is no evidence that she knew anything about Leighton Hay. Was this just an unlucky coincidence for Mr. Hay or was her identification shortly after the homicide accurate? That will be for you to determine, bearing in mind the caution that you must show and the obvious circumstances of frailty in this witness’ identification evidence.
50According to Hay, that instruction was “deeply misleading with respect to the reliability of the Maillard photo lineup” because the absence of contamination “does nothing at all to ensure against an erroneous (though sincere) mis-identification”.
51I would not give effect to that submission. The impugned instruction was given, to the knowledge of Hay’s counsel, in response to counsel’s inappropriate closing remarks to the jury that the police suffered from “tunnel vision” and had arrested Hay because he was a young black male who happened to reside at the Chigwel residence.
52That, of course, was not the case and defence counsel knew it. The police arrested Hay because Ms. Maillard selected his photograph from a photo lineup. His photograph appeared in that lineup because the police quickly learned that he lived at the address to which the getaway car was registered and he had a prior firearms conviction. To the extent, if any, that the impugned remarks may have prejudiced Hay, the prejudice, in our view, would have been greater had the jury learned of his prior firearms conviction – something the Crown, to Hay’s knowledge, could have led had his counsel pursued the tunnel vision theory in cross-examination with the police.
53More importantly, in the particular circumstances of this case, I am not persuaded that the impugned instruction caused the damage alleged, nor indeed, that it was improper.
54In assessing the reliability of Ms. Maillard’s selection of Hay as the shooter, I believe it was open to the jury to consider that in the absence of any possible taint, she selected a person who was closely affiliated with the person (Gary Eunick) who came with three other men into the club, who engaged in the fight in the lobby, and who eventually shot and killed Collin Moore. The trial judge quite properly left it to the jury to decide whether in Hay’s case, this was “just an unlucky coincidence” (or as Hay’s counsel put it in his closing address: “[Leighton’s] bad luck to be the brother of Lisa, whose boyfriend was Gary”) or whether, in the context of the whole of the evidence, it attested to the accuracy of Ms. Maillard’s identification. In the somewhat unusual circumstances of this case, I see nothing wrong with the impugned instruction.
55Finally, Hay submits that the trial judge erred in characterizing Ms. Maillard’s evidence as “identification” of him as the shooter in the blue plaid shirt. According to Hay, this characterization “significantly overstated both her testimony and the outcome of the photo lineup since she never purported to identify [Hay] as the shooter …” (emphasis in original).
56I see no merit in this ground of appeal. The trial judge’s reference to Ms. Maillard’s “identification” of Hay as one of the shooters was a fair and accurate characterization of her evidence. Moreover, the word was not used in a conclusory sense; rather, it was accompanied throughout by a review of the strength and weaknesses of her testimony and the need for the jury to be “very careful” before acting on it and to “look for other evidence confirming her identification”.
GROUNDS UNIQUE TO EUNICK
The Crown and Defence Firearms Experts
57Eunick raises two issues with the charge that his co-appellant Hay has not raised.
58The first relates to a conflict in the testimony of the Crown and defence firearms experts and in particular, whether in his charge, the trial judge left the jury with the erroneous impression that they could only act on the defence expert’s evidence if they “accepted” it.
59In oral argument, although Mr. Lafontaine did not abandon this ground, he did not pursue it and we did not call upon the Crown to address it.
60In his charge, the trial judge made it clear on numerous occasions that there was no obligation on Eunick to prove anything and that if the jury believed or had a reasonable doubt on the evidence, including the evidence given by the defence firearms expert, that Eunick was not one of the shooters, he was entitled to be acquitted. This ground accordingly fails.
Post-offence Conduct
61The second issue relates to the trial judge’s failure specifically to instruct the jury that they could only consider Eunick’s post-offence conduct in assessing the issue of his identity as one of the gunmen, and not the degree of his liability should identity be established. Once again, Mr. Lafontaine did not pursue this ground in oral argument and we did not call upon the Crown to respond to it.
62The trial judge only referred to Eunick’s post-offence conduct in the context of his instructions on identity. He made no mention of it in his instructions on planning and deliberation.
63While the trial judge could have given a specific instruction that Eunick’s post-offence conduct had no bearing on his degree of guilt, his failure to do so, in my view, was not fatal. The trial judge’s instructions on the use the jury could make of Eunick’s post offence conduct were clear and they focused exclusively on the issue of identity. As such, it is speculative to think that the jury would have used the evidence found at the Chigwel residence for any other purpose. Hence, this ground of appeal fails.
COMMON GROUNDS OF APPEAL
64Eunick and Hay raise two common complaints about the trial judge’s instructions on planning and deliberation.
65First, they submit that the trial judge instructed the jury on those factors in the evidence that supported a finding of first degree murder, but failed to instruct the jury on the factors that pointed away from that characterization.
66I would not give effect to this ground. The trial judge properly instructed the jury on the twin elements of planning and deliberation and he provided the jury with the classic definitions of both terms.
67At a later point in his charge, the trial judge reviewed with the jury “some of the factors that could, depending on the view you take of them, support a finding of planned and deliberate first degree murder”. The factors mentioned are set out below, in summary form:
- The passage of time between the fight and the shooting.
- The fact that the shooters went to the parking lot to arm themselves with guns.
- The observations made by the club owner that Eunick appeared to be loading the revolver that Hay eventually used in the shooting.
- That each shooter was wearing a glove.
- That the shooters were attempting, to some extent, to conceal their identities by pulling up their shirts or pulling something up over their heads.
68After identifying these factors, the trial judge reiterated his earlier instruction that “the factors that I have referred to and others that I have not referred to, could cause you to conclude that the killing was planned and deliberate …”. He then continued as follows:
The defence argues that these factors are also consistent with a spontaneous decision to commit murder and do not support an inference of planning and deliberation beyond a reasonable doubt. That is a responsible submission, just as the submission made by the Crown is a responsible submission. Both are worthy of careful consideration and you, ladies and gentlemen, have the responsibility to weigh and consider the evidence and the submissions on that issue and arrive at your own conclusions based upon the evidence. [Emphasis added.]
69Several pages later, having told the jury that the defence position was a “responsible” one, the trial judge reviewed in considerable detail Eunick’s submissions on the issue of planning and deliberation as follows:
Mr. Boutzouvis [counsel for Eunick] began with a discussion of planning and deliberation. He submitted that the Crown had not proved a calculated scheme or design that had been thought out and the consequences considered.
Mr. Boutzouvis submitted that this was an impulsive act, not a considered act, not one where the killers took time to weigh the consequences as is required for a deliberate act.
Mr. Boutzouvis pointed to the following factors that suggest, in his submission, this was not a planned and deliberate killing. He said that it happened fairly quickly after the bottle was used as a weapon in the initial fight. It happened within minutes of the fight ending, thus reducing the likelihood that this was planned and deliberate.
He said that the mere fact, if you conclude it to be so, that there was acquisition of guns from a car in the parking lot, Mr. Boutzouvis submitted to you, that that fact does establish that this was not planned and deliberate, because it is consistent with a spontaneous decision to kill as well.
The same thing is true, in Mr. Boutzouvis’ submission, of the evidence of passing the gun to another person, likewise with the loading of the gun and putting on the gloves, concealing the features, none of these factors, in Mr. Boutzouvis’ submission, establishes that the killing was planned and deliberate. The same is true of having a third party lookout or by pulling the shirts over their heads on the way out.
So Mr. Boutzouvis said: Look, even if you find that Mr. Eunick did all these things, even then you should not be satisfied beyond a reasonable doubt that this was a planned and deliberate murder. If you conclude all that, then the proper verdict is second degree murder, not first degree murder.
70The trial judge did not do a similar review for Hay because Hay’s counsel had not argued the issue of planning and deliberation in his closing address, choosing instead to focus on the issue of identity. Be that as it may, the trial judge’s instructions encompassed both accused and the jury would have realized that the submissions made on behalf of Eunick applied equally to Hay.
71Although the appellants make the general complaint that the factors referred to by the trial judge were one-sided in favour of the Crown, their specific complaint is that the trial judge failed to bring home to the jury the fact that the accused were two young men who had just been involved in a fight and who, in a highly emotional state, acted improvidently, out of anger, rather than in the calm, reflective, thoughtful state “which the law calls ‘deliberation’”.
72I reject this submission for several reasons.
73First, the trial judge was not obliged to mention every conceivable factor that might impact on the jury’s decision. The jurors were not born yesterday and they surely would have considered the emotional state of the appellants in arriving at their conclusion. They knew only too well that the appellants had just come out on the losing end of a fight at the entranceway to the club
74Second, neither counsel objected to the instructions given by the trial judge. Had they done so, the trial judge might well have mentioned the factors that counsel on appeal submit he should have. But had the trial judge done so, in fairness to the Crown, he would also have had to remind the jury of the evidence of various witnesses who described the appellants as calm, collected and focused. As for the improvidence of their actions in carrying out the murder in front of so many witnesses, the trial judge could have left it to the jury to consider whether the appellants were simply arrogant and believed that the witnesses would be too intimidated to come forward.
75In short, further instructions along the lines suggested by counsel on appeal may have benefited the Crown more than the appellants, especially since the only evidence on the subject came from Crown witnesses – not Eunick, who denied any involvement in the killing and not Hay, who chose not to testify.
76The second common issue of the appellants on the instruction on planning and deliberation is that the trial judge erred in contrasting first degree murder with a “sudden impulse” killing and leaving it to the jury to choose “between those two ‘models’ of homicide”. In other words, according to the appellants, the jury should not have been invited to find that if the murder was not committed on “sudden impulse”, this meant that it must have been “planned and deliberate”.
77I reject that submission for two reasons.
78First, in using the words “sudden impulse” the trial judge was effectively tracking the language used by counsel for Eunick in his closing address. In particular, counsel told the jury that “a murder committed on a sudden impulse and without prior consideration … is not a deliberate murder” and that “the particular act [here] was committed on an impulse, and on a spur of the moment, in front of a whole room full of people”.
79In view of those remarks, it is little wonder that competent trial counsel did not raise the objection that counsel on appeal complain about.
80But of greater importance, the trial judge provided the jury with the following definition of “deliberate”:
“Deliberate” is also a word that we use everyday but it has a little bit different meaning here than it does in our everyday lives. Usually when we say something is deliberate in our everyday lives we mean that it was intentional. When discussing what must be proved for first degree murder, however, deliberate means more than that the killing was intentional. Deliberate in this context means “considered” rather than “impulsive”; “carefully thought out, not hasty or rash”; “slow in deciding”; “cautious”.
So a deliberate act in this context is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder starts. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a deliberate murder.
81Thereafter, to the extent that the trial judge may have juxtaposed a murder committed on “sudden impulse” with a “deliberate” murder, in my view, he was merely giving the jury a shorthand version of the full definition of “deliberate” which the jury had earlier received. The trial judge was not required to repeat the full text every time the subject was broached. Competent trial counsel no doubt appreciated that and were content with the shortened version. Had they felt that it prejudiced their clients, surely they would have raised the matter with the trial judge.
CONCLUSION
82The appellants received a fair trial. The verdicts against Hay are not unreasonable. Accordingly, I would dismiss both appeals.
Signed: “M. J. Moldaver J.A.”
“I agree R. A. Blair J.A.”
“I agree J. MacFarland J.A.”
RELEASED: “MJM” May 12, 2009
