R. v. Johnson, 2013 CanLII 148676 (ON CA)

Her Majesty the Queen v. Johnson

[Indexed as: R. v. Johnson]

Ontario Reports

Court of Appeal for Ontario,

Tulloch J.A. (in Chambers)

October 18, 2013

117 O.R. (3d) 708

Case Summary

Criminal law — Counsel — State-funded counsel — Accused convicted of second degree murder, attempted murder and discharging firearm with intent following shooting outside nightclub — Accused's application for order under s. 684 of Code appointing counsel for his appeal dismissed — Motion judge accepting that accused indigent but accused denied state-funded counsel as failing to show that had arguable grounds of appeal — Evidence against accused overwhelming including evidence from three eyewitnesses, videotape of murder and accused's DNA being taken from deceased's jacket — Criminal Code, R.S.C. 1985, c. C-46, s. 684.

The accused was convicted of second degree murder, attempted murder and two counts of discharging a firearm with intent to endanger life. The charges arose out of a shooting outside an after hours nightclub. The evidence relied on by the Crown to establish the identity of the shooter included viva voce evidence of three witnesses, a surveillance video which captured the shooting and DNA evidence. The accused sought leave to appeal his conviction and sentence. When his application for legal aid was refused, he brought an application for an order under s. 684 of the Criminal Code appointing counsel for his appeal.

Held, the application should be dismissed.

The accused was impecunious. However, he had not discharged his burden of demonstrating that it would be in the interests of justice to appoint counsel in the circumstances. There was no merit to his appeal. The evidence against the accused was overwhelming, especially once the video surveillance and DNA evidence were taken into account. No arguable ground of appeal arose from the trial judge's rejection of proposed defence expert evidence relating to identification because the trial judge was entitled to conclude, in his gatekeeping role, that the jury could decide this point without expert assistance. The trial judge did not err in his charge to the jury on the DNA expert evidence regarding the accused's saliva being found on the deceased's coat and instructed the jury to consider all of the evidence, including the [page709] videotape which showed the killer holding the deceased in a headlock. The fact that the first trial judge permitted provocation to go to the jury did not demonstrate, as the accused argued, that the trial judge in his second trial erred by refusing to leave it to the jury on the basis that there was no air of reality to that defence.

Cases referred to

R. v. Abbey (2013), 115 O.R. (3d) 13, [2013] O.J. No. 1460, 2013 ONCA 206, 303 O.A.C. 335; R. v. Bernardo, 1997 CanLII 2240 (ON CA), [1997] O.J. No. 5091, 105 O.A.C. 244, 121 C.C.C. (3d) 123, 12 C.R. (5th) 310, 37 W.C.B. (2d) 34 (C.A.); R. v. Cinous, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 2002 SCC 29, 210 D.L.R. (4th) 64, 285 N.R. 1, J.E. 2002-576, 162 C.C.C. (3d) 129, 49 C.R. (5th) 209, 52 W.C.B. (2d) 368; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 83 D.L.R. (4th) 193, 128 N.R. 81, J.E. 91-1312, 48 O.A.C. 81, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117, 6 C.R.R. (2d) 35, 13 W.C.B. (2d) 624

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 675 [as am.], 684, (1)

APPLICATION for an order appointing counsel on the appeal from the conviction entered on October 20, 2010 and the sentence imposed on November 30, 2010 by Nordheimer J. of the Superior Court of Justice.

Mark C. Halfyard, for appellant.

Frank Au, for respondent.

1Endorsement of TULLOCH J.A. (in Chambers): — The appellant seeks an order pursuant to s. 684 of the Criminal Code, R.S.C. 1985, c. C-46 appointing counsel for his appeal.

2Following a trial by judge and jury, the appellant was convicted of second degree murder, attempted murder and two counts of discharging a firearm with intent to endanger life. On conviction for second degree murder, the appellant was sentenced to life imprisonment with an 18-year period of parole ineligibility. He also received concurrent sentences of ten years on the attempted murder conviction and ten years on the discharging a firearm convictions, less credit for time served. He now seeks to appeal from conviction and sentence.

3At trial, the appellant was represented by counsel on a legal aid certificate. He applied to legal aid for the assistance of counsel on his appeal, but his application was refused. He subsequently appealed this decision to the legal aid provincial office, but that too was refused.

4The appellant now asks this court to consider appointing counsel on his behalf based on the strength and complexity of the proposed grounds of appeal, the seriousness of the sentence imposed by the trial judge and the appellant's financial [page710] circumstances. The appellant submits that he has neither the financial means nor the family support to fund his appeal.

5The Crown takes no issue with the appellant's assertion that he cannot fund the appeal. However, the Crown submits that the application should be dismissed because the proposed grounds of appeal do not have sufficient merit to warrant the appointment of counsel. The Crown also submits that, even if the court finds that the proposed grounds of appeal are arguable, they are insufficiently complex for the appointment of counsel.

The Facts

6The facts are not seriously contested. The charges arise out of a shooting that occurred on July 2, 2006 outside of an "after hours" nightclub called Whispers, located on Weston Road in Toronto. At about 4:00 a.m., the appellant, Mr. Peter Johnson, and a male accomplice attempted to rob the nightclub of its door receipts. After the robbery, both men exited the nightclub into the parking lot. One of the nightclub's bouncers, Mr. Anthony Albert Grant, followed the two men into the parking lot.

7The majority of the incident was caught on surveillance video. The video did not capture a brief portion of time after the appellant, his friend and Mr. Grant entered the parking lot. When Mr. Grant returned to the surveillance video's range a very short time later, he was holding a man in a headlock, moving toward the front door of the nightclub. As the men approached the door, Mr. Grant loosened his grip on the other man. At that point, the man was holding a gun and fired three shots at Mr. Grant. None of these shots hit their intended target, but two bystanders were struck. One was killed and the other was seriously injured.

8The critical issue at trial was whether the appellant was the shooter seen in the surveillance video. The evidence relied on by the Crown to establish the identity of the shooter included

(1) viva voce evidence of Mr. Albert Grant, the bouncer;

(2) viva voce evidence of Ms. Tamesha Martin, the cover charge attendant robbed by the appellant and his accomplice;

(3) viva voce evidence of Mr. Simeon Chase, the bystander who was shot and seriously injured;

(4) the surveillance video, which taped both the interior and exterior of the nightclub, and captured the robbery, the [page711] altercation between Mr. Grant and the shooter, and the shooting itself; and

(5) DNA evidence taken from Mr. Grant's jacket, which indicated that the major profile, and the only profile suitable for comparison, was that of the appellant.

9The defence argued that the identity of the shooter had not been proven beyond a reasonable doubt.

10At the conclusion of trial, the appellant was found guilty and convicted on all charges. As mentioned, he now seeks an order pursuant to s. 684 of the Criminal Code appointing counsel for his appeal from conviction and sentence.

11The appellant raises three proposed grounds of appeal:

(1) the trial judge erred in refusing to admit expert evidence called by the defence on the issue of whether a white spot seen on the surveillance video was the appellant's chain and medallion;

(2) the trial judge erred in his instructions to the jury on the evidence of the DNA expert; and

(3) the trial judge erred in failing to make available to the jury the defence of provocation.

12For the reasons that follow, I see no merit to any of the proposed grounds of appeal. As such, the application to appoint counsel is refused.

Governing Principles

13Section 684(1) of the Criminal Code provides as follows:

684(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

14The phrase "interests of justice" used in s. 684(1) contemplates a judicial discretion exercisable on a case-by-case basis: R. v. Bernardo, 1997 CanLII 2240 (ON CA), [1997] O.J. No. 5091, 121 C.C.C. (3d) 123 (C.A.), at para. 16.

15An accused who appeals against conviction for an indictable offence under s. 675 must be afforded a meaningful opportunity to establish the merits of the grounds of appeal he or she advances. The court to which the appeal is taken must equally be able to fully and properly exercise its broad review [page712] jurisdiction at the conclusion of the appeal: Bernardo, at para. 20; R. v. Abbey (2013), 115 O.R. (3d) 13, [2013] O.J. No. 1460, 2013 ONCA 206, at para. 30.

16The test on a s. 684 application is predicated on the merits of the appeal or, in other words, whether the appeal is "arguable". In Bernardo, Doherty J.A. articulated the principle as follows, at para. 22:

In deciding whether counsel should be appointed, it is appropriate to begin with an inquiry into the merits of the appeal. Appeals which are void of merit will not be helped by the appointment of counsel. The merits inquiry should not, however, go any further than a determination of whether the appeal is an arguable one. I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal.

17Once an appellant advances arguable grounds, a second inquiry to determine whether the appellant can effectively advance the grounds of appeal without the assistance of counsel becomes necessary. This second stage requires an examination of the complexities of the arguments to be advanced and the appellant's ability to make legal arguments in support of the grounds of appeal to be advanced: Abbey, at para. 33.

Analysis

18Applying these principles to the present case, I am not satisfied that the appellant has established an arguable case for any of the grounds of appeal.

19While I am satisfied that the appellant is impecunious and is without support to fund his appeal, I am not satisfied that he has discharged his burden of demonstrating that it would be in the interests of justice to appoint counsel in the circumstances. In my view, there is no merit to this appeal. The main issue at trial was the identity of the shooter. I agree entirely with the submissions of the Crown that the evidence against the appellant is overwhelming, especially once the video surveillance and DNA evidence are taken into account.

A. Exclusion of the proposed defence expert evidence

20The appellant argues that the trial judge erred in denying the defence the opportunity to call the evidence of Mr. Jason Harlow, a senior lecturer in physics from the University of Toronto. The proposed evidence that the defence sought to adduce through Mr. Harlow was that, contrary to the Crown's [page713] position, the white spot on the front of the shooter's neck visible in the surveillance image was unlikely to be the appellant's medallion. According to the appellant, it was Mr. Harlow's opinion that the white spot did not appear to move between the two frames of the video surveillance in which it was visible.

21The trial judge provided detailed reasons for excluding the proposed expert evidence. At the first stage of the admissibility inquiry, the trial judge correctly found that the purported evidence went beyond the proposed witness' area of expertise. The proposed evidence that it was possible, but unlikely, for the white spot to be the appellant's medallion was not sufficiently probative of the core issue. The evidence also failed the threshold of necessity as the jury was not required to decide the specific issue of whether the white spot was in fact the appellant's medallion. There was other evidence available to the jury to decide whether the appellant was the shooter. In any event, the jury was capable of forming an opinion on this point without the assistance of expert evidence. At the second stage of the admissibility inquiry, the trial judge properly exercised his "gatekeeper" function in excluding the evidence and his decision is entitled to a high degree of deference.

22The appellant argues that the trial judge did not advert to the more stringent test for the exclusion of relevant defence evidence, as set out by the Supreme Court of Canada in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62. As a result, the appellant submits that there is an arguable ground of appeal arising from the trial judge's ruling on this evidence.

23I disagree. The trial judge applied the appropriate test for the admissibility of expert evidence. No arguable ground of appeal arises from the fact that the trial judge did not refer to Seaboyer in excluding this proposed expert evidence.

B. Charge to the jury on the DNA expert evidence

24Dr. Trevor Claxton tested the upper-left quadrant of the jacket that Mr. Grant was wearing at the time of the shooting. This portion of the jacket was pressed against the shooter's face when Mr. Grant had him in a headlock. Dr. Claxton found DNA in three loonie-sized oval stains and in a crusty, white stain. Two of the oval stains contained only the appellant's DNA. The third oval stain and the crusty, white stain contained a mixture of DNA, but in both cases the major DNA profile was the appellant's. [page714]

25In his charge to the jury, the trial judge stated the following with respect to the expert evidence from Dr. Claxton:

In considering whether any of those other ways of depositing saliva explain the presence of saliva on the jacket, you would also have to consider why it is that the saliva that is found in this particular area of the jacket has solely or predominantly the DNA of Peter Johnson as opposed to any other persons with whom Mr. Grant had similar contact.

(Emphasis added)

26The appellant contends that the trial judge erred in his charge to the jury by using words such as "solely or predominantly" to describe the expert evidence of the DNA profile found in saliva stains on Mr. Grant's jacket. The appellant argues that this language overstated the expert evidence. Dr. Claxton never used the word "predominant" and there was no evidence, argued counsel, that the existence of a major DNA profile meant anything more than a profile that was the largest contributor.

27The appellant also argues that the trial judge erred in assuming that, because the appellant's DNA was found in the saliva stain, it was necessarily the appellant's saliva. In the appellant's submission, the jury ought to have been instructed that they had to consider all of the evidence and determine whether the appellant's saliva was on the jacket.

28Again, I disagree with the appellant's submissions. I see no issue with the trial judge's charge to the jury on this point. Dr. Claxton tested Mr. Grant's jacket and found DNA in four stains. Two of these stains contained only the appellant's DNA. In my view, the trial judge properly characterized these results using the word "solely". The other two stains contained a mixture of DNA, but the predominant DNA profile was the appellant's. This, too, was correctly captured by the trial judge's use of the word "predominantly".

29Furthermore, as the Crown points out, the trial judge cautioned the jury that they were not bound by his view of the significance of various pieces of evidence. The trial judge stated:

You must make your own decisions as to what is the important evidence in this case. It is for you to determine the weight to be given to the evidence, and, consequently, the true facts of this case.

You have heard the evidence of Dr. Trevor Claxton regarding the significance of Peter Johnson's DNA being found on Albert Grant's jacket. You may conclude from that evidence that at some point, Peter Johnson and Albert Grant were in close contact. You will have to consider whether saliva with [page715] Peter Johnson's DNA came to be on Albert Grant's jacket because he was the person who Mr. Grant had in a headlock as we see on the surveillance video immediately before the shooting or whether it came to be on Mr. Grant's jacket at some other point during the time that Peter Johnson was at Whispers.

(Emphasis added)

In my view, the trial judge's charge to the jury on this point was balanced and has not been impugned by the appellant's criticisms.

C. Availability of the provocation defence

30The appellant was tried twice on the same set of charges. In the first trial, the trial judge left the defence of provocation with the jury. That trial resulted in a hung jury. The appellant was tried again in a second trial. The trial judge in the second trial refused to leave the defence of provocation with the jury on the basis that there was no air of reality to this defence. That trial resulted in a conviction. The appellant acknowledges that, on the existing record, it is difficult to assess whether there was a foundation for the provocation defence. Nevertheless, the appellant submits that the trial judge erred in refusing to leave the provocation defence with the jury in the second trial. The evidence at both trials was substantially the same and therefore the contrary rulings by the two trial judges could form the basis of an arguable ground of appeal.

31In my view, the appellant has not demonstrated that this is an arguable ground of appeal. As the Crown rightly observes, the availability of the provocation defence at the appellant's first trial may have been based on nuances in the evidence adduced by the parties. The mere fact that the trial judge in the first trial reached a different decision on the provocation defence does not, in itself, amount to an arguable ground of appeal in the second trial. Before putting a defence to a jury, the trial judge must assess whether the evidence relied upon is reasonably capable of supporting the inferences required for the defence to succeed: R. v. Cinous, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 2002 SCC 29, at para. 83. The air of reality test requires an examination of the sufficiency of the evidence. Here, there was no support for the proposition that the evidence in both trials was identical. The first ruling is therefore irrelevant to the determination at the second trial that the defence of provocation did not have an air of reality.

32In all of the circumstances, I am not satisfied that there is an arguable ground of appeal or that it is desirable in the [page716] interests of justice for the appellant to be represented by counsel in this appeal. The application is therefore dismissed.