COURT OF APPEAL FOR ONTARIO DATE: 20210727 DOCKET: C67014

Simmons, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Odain Gardner Appellant

Counsel: Delmar Doucette and Cara Barbisan, for the appellant Robin Flumerfelt, for the respondent

Heard: May 25, 2021 by video conference

On appeal from the conviction entered by Justice Antonio Skarica of the Superior Court of Justice, sitting with a jury, on May 10, 2018.

Simmons J.A.:

Introduction

1Neil Harris was shot and killed at his Hamilton barbershop at around 4:18 p.m. on February 18, 2016. Two men wearing hoodies were seen entering the barbershop shortly before the shooting and fleeing the scene immediately after. Surveillance video confirmed that, in all, the duration of the incident from the time the two men entered the barbershop until they left was between 15 to 18 seconds.

2Mr. Harris was killed by a single bullet that passed through his right arm, entered the right side of his chest, and then exited the left side, causing fatal injuries to his heart, aorta, lungs, and pulmonary artery.

3The appellant and Erick Reid were arrested and tried together for the first degree murder of Mr. Harris. Following a multi-day trial, the jury found the appellant guilty of first degree murder and Mr. Reid not guilty of first degree murder, but guilty of manslaughter.

4Two witnesses at trial identified the appellant as the shooter and gave evidence implicating Mr. Reid as his accomplice. One of these witnesses, Devon Edwards, was sitting on a couch in the barbershop at the time of the shooting. He knew Mr. Reid and was acquainted with the appellant. He claimed that, upon entering the barbershop, Mr. Reid put a gun to his side and told him not to move while the appellant approached, and then shot, Mr. Harris. The second witness, Justin Dumpfrey, claimed to have heard both the appellant and Mr. Reid make inculpatory statements following the shooting; to have seen the appellant with a gun soon after the shooting; and to have observed Mr. Reid give a third man, Tyrone Abrahams, some clothing, including the hoodie it was later established Mr. Reid was wearing at the time of the shooting. Both Mr. Edwards and Mr. Dumpfrey had criminal records. Neither identified the appellant or Mr. Reid as being involved in the shooting until being charged with unrelated criminal offences. Moreover, after being arrested as a suspect within hours of the shooting, Mr. Edwards told police he could not identify the perpetrators.

5In late February 2016, police recovered the hoodie Mr. Reid was wearing at the time of the shooting from the home of Sarah Bernard, Mr. Abrahams’ then-girlfriend. Mr. Reid’s DNA was found on the collar, and fibres from the hoodie were indistinguishable from fibres found on the undershirt Mr. Harris was wearing when he was shot.

6Mr. Reid testified at trial and admitted he accompanied the shooter to the barbershop. He claimed the shooter offered to connect him with a marijuana supplier and that he went to the barbershop solely to buy weed and possibly get a haircut.

7According to Mr. Reid, the shooter entered the barbershop first and approached Mr. Harris while he (Mr. Reid) stayed at the door. He recognized Mr. Edwards, who he knew, and nodded to him. As the shooter approached Mr. Harris, Mr. Reid heard something drop and then a shot. Mr. Harris ran and bumped into Mr. Reid as he went out the door. Mr. Reid ran away with the shooter. Although Mr. Reid knew who the shooter was, he would not identify him at trial because he feared for his life and the safety of his family. However, he acknowledged that he got a call from the shooter just before meeting him and going to the barbershop. Mr. Reid did not dispute that was the last telephone call he received before the shooting. He declined to say who he was talking to during that call, but cell phone records revealed that the last telephone call to his cell phone before the shooting (as opposed to the last text message) was from a cell phone the appellant had been known to use. However, Mr. Reid denied the Crown’s suggestions that he went to the barbershop with the appellant to assist the appellant in carrying out the execution of Mr. Harris.

8The appellant did not testify at trial. His position at trial focused on identity. He claimed he was not one of the two men who entered the barbershop. A statement he gave to the police about three weeks after the killing in which he denied any involvement was introduced as evidence at trial.

9No physical evidence tied the appellant to the killing. However, cell phone records showed Mr. Reid’s phone and one of several cell phones the appellant was known to use were in communication shortly before the shooting and on several days thereafter. Both cell phones had gaps in usage around the time of the shooting. As noted above, the last telephone call to Mr. Reid’s cell phone before the shooting came from a cell phone the appellant had been known to use.

10By the end of the trial, neither the Crown nor the appellant was taking the position Mr. Reid was the shooter. In his closing address, Crown counsel asserted that Mr. Reid’s liability for first degree murder arose from the fact that he aided the appellant in committing a planned and deliberate murder. In the alternative, the Crown asserted Mr. Reid agreed to participate in a robbery with the appellant, knowing the appellant was armed with a gun and knowing that murder was a probable consequence of their common unlawful purpose, thus making him guilty of second degree murder.

11In his charge to the jury, the trial judge instructed the jury on first degree murder, second degree murder, manslaughter and party liability. Under the heading “Parties”, he explained that, in addition to actually committing an offence, a person can be guilty of an offence under the aiding (s. 21(1)(b)) or common purpose (s. 21(2)) provisions of the Criminal Code, R.S.C. 1985, c. C-46.

12When dealing with the substantive offences and the liability of the principal, i.e., the shooter, the trial judge appeared to leave it open to the jury to consider whether either the appellant or Mr. Reid was the shooter. However, when addressing “Parties” (and in the decision trees and verdict sheet), he clarified that Mr. Reid’s potential liability arose only under the aiding or common purpose provisions of the Criminal Code.

13The trial judge reviewed the bulk of the trial evidence (the evidence of 23 of the 27 witnesses) when dealing with causation, the first of the four elements of the standard charge for first degree murder (causation; unlawful act; intent for murder; planning and deliberation).

[14] The appellant raises two issues on his conviction appeal: i.) the trial judge erred in failing to properly relate the material evidence to the issues to be determined by the jury; and ii.) the trial judge gave an erroneous after-the-fact conduct instruction.

15For the reasons that follow, I would dismiss the appeal.

Background

(1) The Witnesses at Trial

16In total, 27 witnesses testified at trial: 25 for the Crown; Mr. Reid on his own behalf; and Ms. Bernard on behalf of the appellant.

17In her closing address to the jury, trial counsel for the appellant (not appellate counsel) divided the trial witnesses into five categories. I will follow trial counsel’s approach but provide additional detail.

18The category one witnesses comprised what trial counsel referred to as the helpful, truthful, and innocent witnesses. These were: Tanya Harris, the deceased’s widow; Gregory Richards, a friend and former co-worker of the deceased who testified to Mr. Harris’ limited marijuana sales to his inner circle; and five neighbourhood witnesses. [1] The neighbourhood witnesses described various aspects of what could be observed about the incident from outside the barbershop, including the following:

• two men wearing hoodies entering the barbershop;
• the two men in hoodies and the barber emerging from the barbershop;
• the barber falling to the ground after what appeared to be a brief tussle;
• the two men wearing hoodies fleeing in a southerly direction, the larger of the two men (later acknowledged to be Mr. Reid) pumping his arms as he fled, the smaller man appearing to be concealing something under his clothing; and
• subsequently, two other men, later identified as Mr. Edwards and Jevais Dunkley, emerging from the barbershop and heading north.

19None of the five neighbourhood witnesses who saw the two men wearing hoodies enter or exit the barbershop or flee the scene could identify them. Nor could the surveillance video.

20Trial counsel for the appellant described the category two witnesses as the “lying manipulative witnesses who [were] only there to help themselves.” The first of the category two witnesses was Mr. Edwards; the second was Mr. Dumpfrey.

21Mr. Edwards testified he was sitting on a couch in the barbershop playing a game on his phone when the two men entered. He knew Mr. Reid and had met the appellant a few times. He claimed Mr. Reid approached him, put a gun to his side and told him not to move and to keep his head down. Meanwhile, the appellant approached Mr. Harris. Although Mr. Edwards had his head down, he was able to see that the appellant had a gun. Nothing was said; Mr. Harris batted at the appellant’s hand and ran for the door. He was shot as he did so.

22Mr. Edwards was confronted at trial about many inconsistencies and potential frailties in his evidence. Although he was arrested as a possible suspect within hours of the shooting, he told police at that time that he kept his head down after seeing a gun and that he could not identify the assailants. While asserting that his conscience bothered him over the next five months, Mr. Edwards did not tell the police what he claimed he knew until July 2016. This occurred only after he was arrested and charged with multiple offences relating to automobile thefts. Following the preliminary inquiry in relation to these offences, he was allowed to plead guilty to a fraction of the charges. He was sentenced to one day in jail, based on a joint submission that took into account the one night Mr. Edwards spent in jail following his arrest and his cooperation in this matter.

23Mr. Edwards acknowledged that by July 2016, he had heard talk on the street that the appellant was the shooter. He also acknowledged variations in his prior statements and evidence, including his evidence concerning whether the two men put on masks, where they were when he was able to see their faces, and what the person who approached him was wearing. Nonetheless, he maintained all versions of his statements and evidence were true.

24A second witness, Mr. Dumpfrey, identified the appellant as the shooter and Mr. Reid as the shooter’s accomplice. Mr. Dumpfrey had a lengthy criminal record. He made an initial statement implicating the appellant and Mr. Reid only after being arrested for unrelated offences in May 2016.

25According to Mr. Dumpfrey, he overheard inculpatory statements by the appellant and Mr. Reid at a Hamilton house/hangout known as “the office” shortly after the shooting. He claimed he was waiting for Mr. Reid at the office to buy some weed. Mr. Abrahams arrived about half an hour after he arrived. About five minutes later, the appellant and Mr. Reid arrived. Mr. Abrahams told them they had “fucked up” and they were “hot”. Mr. Abrahams, the appellant, and Mr. Reid went into an adjacent room. The appellant suggested Mr. Abrahams had given him a broken gun. Mr. Abraham took the gun from the appellant, unjammed it, and told the appellant it was jammed, not broken. The appellant and Mr. Reid had a heated discussion. Among other things, Mr. Reid told the appellant it was supposed to be a robbery, and no one was to get killed. The appellant responded that Mr. Reid was supposed to watch the door; he wasn’t supposed to let “the guy” run out of the barbershop. Mr. Reid answered his job was to rob everyone who was sitting in the barbershop. Mr. Dumpfrey also said he saw Mr. Reid give Mr. Abrahams the clothing he (Mr. Reid) was wearing at the time of the shooting. Police later recovered Mr. Reid’s hoodie during a search of Ms. Bernard’s home.

26In addition, Mr. Dumpfrey testified that the appellant made inculpatory statements while the two shared a jail cell in July 2016. Among other things, he said the appellant blamed Mr. Reid for causing the shooting because Mr. Reid failed to block the barbershop doorway. Further, he claimed that, at the appellant’s request, he invited Mr. Abrahams, who was also then incarcerated, to their cell. According to Mr. Dumpfrey, the appellant and Mr. Abrahams had a lengthy and heated conversation about what Mr. Abrahams may have told Ms. Bernard and, at one point, the appellant pulled out a shank and threatened to stab Mr. Abrahams.

27Closely associated with category two, the category three witness, Mr. Dunkley, was what trial counsel called a reluctant witness. Mr. Harris was cutting Mr. Dunkley’s hair while Mr. Dunkley sat in a barber’s chair near the back of the shop when the two men wearing hoodies entered. At trial, Mr. Dunkley was reluctant to testify, claiming he had already given an account of the events. He said the perpetrators were masked, but he had little other recall of the event. His preliminary inquiry testimony was admitted on consent under KGB. [2] At the preliminary inquiry, he testified that he was facing the door when two masked men entered, and one stayed at the door while the other approached Mr. Harris. No words were spoken prior to the shooting, and it was the man who approached Mr. Harris who shot him.

28Trial counsel described the category four witnesses as police, forensic, cell phone, and professional witnesses. This category consisted of eight police officers or police employees, one correctional officer, the pathologist who conducted the autopsy, two forensics experts who testified about the DNA and fibre evidence, and three cell phone company witnesses.

29Although there were intervening witnesses, the police/corrections witnesses testified in the following order:

• Michael Plaxton, a forensic video analyst who compiled the surveillance evidence presented at trial;
• Sergeant Timothy O’Keefe, the exhibits officer, who among other things, produced photographs of the murder scene, including depictions of a discharged semi-automatic cartridge, a spent bullet, and what he described as a probable bullet strike mark on a wall;
• Detective Constable Tamara McGillivray, who attended the autopsy;
• Detective Kwabena Saffu, who recovered Mr. Reid’s hoodie from Ms. Barnard’s home;
• Sergeant Jonathyn Murphy, the lead investigator who testified concerning various exhibits and Mr. Edwards’ and the appellant’s statements to the police, and confirmed what information had or had not been told to Mr. Edwards and that police did not assist him in obtaining bail;
• Anthony Veith, a jail security manager for the Barton Street Jail (where the appellant, Mr. Dumpfrey, and Mr. Abrahams were incarcerated), who testified that corrections officers would have noted it had there been a heated exchange involving a third person in the cell occupied by the appellant and Mr. Dumpfrey;
• Officer Anthony Volpe, a firearms specialist, who testified that if a gun jams after the successful firing of a bullet and ejection of the cartridge, this indicates a failed effort to fire again;
• Sergeant John Tselepakis, who testified about extracting photographs of Mr. Reid wearing a hoodie from a cell phone; and
• Jovan Krasulja, an investigative crime analyst who analyzed the cell phone records produced as evidence.

30The category five witnesses were the defence witnesses: Mr. Reid, who testified in his own defence, and Ms. Bernard, who testified that the hoodie police found at her house did not belong to Mr. Abrahams. In cross-examination she also described, among other things, various contacts she had with the appellant through Mr. Abrahams.

(2) The Structure of the Trial Judge’s Jury Charge

31The main issue raised by the appellant on appeal relates to the manner in which the trial judge summarized the evidence for the jury and related it to the issues the jury had to determine. To appreciate the appellant’s position concerning the issue, it is important to understand the structure of the trial judge’s jury charge.

32In total, the trial judge’s charge spans approximately 258 pages of transcript. [3] As is customary, the trial judge gave the jury standard instructions relating to many general issues before turning to the elements of first degree murder. The standard instructions begin on p. 10 of the transcript and continue to p. 110. Notably, they include standard instructions with detailed examples concerning the following issues:

• previous convictions of a non-accused witness relating to the evidence of Mr. Edwards (nine convictions), Mr. Dunkley (three convictions), Mr. Dumpfrey (approximately 40 convictions in addition to youth court findings of guilt), and Ms. Bernard (five convictions);
• prior inconsistent statements of a non-accused witness, with a nine-page example relating to Mr. Edwards’ evidence;
• a Vetrovec [4] caution, concerning the evidence of Mr. Edwards, Mr. Dunkley, and Mr. Dumpfrey, spanning about nine-and-one-half pages;
• an instruction about the dangers of eyewitness identification evidence, linked also to the Vetrovec caution, concerning Mr. Edwards’ evidence, totaling about nine pages; and
• a caution relating to outstanding charges against a prosecution witness (Mr. Dumpfrey), who, at the time of trial, was facing charges for drug trafficking and second degree murder.

33Following the standard instructions, at p. 113 of the transcript, the trial judge turned to planned and deliberate first degree murder. From pp. 113 to 117, he described the offence charged against the appellant and Mr. Reid as set out in the indictment and the four elements of first degree murder (causation, unlawful act, intent for murder, and planning and deliberation). He framed the questions the jury had to answer as follows:

For you to find any of the two particular accused, Odain Gardner and/or Erick Reid, guilty of first degree murder, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

(1) that the particular accused, Odain Gardner and/or Erick Reid, caused the death of Neil Harris;

(2) that the particular accused, Odain Gardner and/or Erick Reid, caused the death of Neil Harris unlawfully;

(3) that the particular accused, Odain Gardner and/or Erick Reid had the state of mind required for murder; and

(4) that the particular accused, Odain Gardner and/or Erick Reid’s murder of Neil Harris was both planned and deliberate.

34The trial judge began his review of the evidence relating to the first element of first degree murder, causation, at p. 117 of the transcript. He began with the question of the medical cause of death and the evidence of the pathologist. He then reviewed the evidence of the following witnesses in the following order and with the headings or introductions noted below. Where noted, the trial judge reviewed a particular witness’ evidence by summarizing portions of the examination-in-chief, cross-examination by each defence counsel, and re-examination (where applicable).

Witnesses to Scene of Shooting

• Each of the five neighbourhood witnesses in the order in which they testified (Ms. Mack, Mr. Lamothe, Ms. Bell, Mr. Scott, Mr. Thetrault): five pages in total;
• Mr. Edwards (chief, cross, re-exam): 10 pages; and
• Mr. Dunkley (chief, Crown-cross, defence cross): four pages.

Witnesses Post Shooting

• Mr. Dumpfrey (chief, cross, re-exam): 10 pages;
• lead investigator, Sergeant Murphy (chief, cross): three pages; and
• jail security manager, Mr. Veith: one page.

Forensic Evidence

• Exhibits officer, Sergeant O’Keefe: one page;
• search warrant officer, Detective Saffu: half a page;
• DNA expert, Kelly Jo Walden: one page;
• fibre collection expert, Barbara Doupe: two pages; and
• firearms specialist, Officer Volpe: one page.

Cell Phone Evidence

• Freedom Mobile security analyst, Gord Kent (Mr. Dumpfrey’s cell phone): two pages;
• Telus Communications security analyst, Rebecca O’Grady (Mr. Reid’s cell phone): one page;
• Rogers Communications senior investigator, Danielle Fortier (the appellant’s cell phone): one-and-one-quarter pages;
• cell phone photograph extraction officer, Sergeant Tselepakis: half a page; and
• Jovan Krasulja, an investigative crime analyst who analyzed the cell phone records produced as evidence.

Evidence Solely Admissible for or Against Odain Gardner

• Statements by Mr. Gardner to Mr. Dumpfrey (chief, cross, re-exam): four-and-one-half pages.

Evidence Solely Admissible for or Against Erick Reid

• Statements by Mr. Reid to Mr. Dumpfrey (chief, cross): three-and-one-half pages.

Defence Evidence

• Ms. Bernard (chief, cross, re-exam): two-and-one-half pages; and
• Mr. Reid (chief, cross): 14 pages.

35The trial judge completed his review of the evidence related to element one (causation) at the top of p. 200 of the transcript. Before turning to element two he gave the jury the following instruction, essentially telling the jury that if they were not satisfied that a particular accused caused Mr. Harris’ death, their deliberations in relation to that accused under this section would be over:

If you are not satisfied beyond a reasonable doubt that the particular accused, Odain Gardner and/or Erick Reid caused Neil Harris’ death, you must find that [sic] the particular accused, Odain Gardner and/or Erick Reid not guilty. Your deliberations would be over for that particular accused.

If you are satisfied beyond a reasonable doubt that the particular accused, Odain Gardner and/or Erick Reid caused Neil Harris’ death, you must go on to the next question with respect to that particular accused. [Emphasis added.]

36Concerning element two, unlawful act, the trial judge described the unlawful act alleged as follows: “Neil Harris was assaulted by a gunshot at a relatively close range.” In his evidence review, he told the jury to consider the surveillance videos, the pathologist’s evidence concerning the cause of death, and the evidence summarized under element one.

37Concerning element three, intent for murder, in addition to standard instructions explaining this element (including the common sense inference that a person usually knows the predictable consequences of their conduct and intends to bring them about), the trial judge told the jury to consider for both the appellant and Mr. Reid the evidence already summarized under elements one and two (other than the after-the-fact conduct evidence), and nine other listed items, one of which was evidence admissible only for or against Mr. Reid.

38Concerning element four, planning and deliberation, in addition to the standard instructions, the trial judge told the jury to consider for both the appellant and Mr. Reid the evidence already summarized under elements one, two, and three (other than the after-the-fact conduct evidence), the short time frame during which the shooter and Mr. Reid were in the shop, and eight of the nine items he had listed under element three.

39After completing his instructions on the elements of first degree murder, [5] the trial judge turned to his instructions on “Parties”. He explained that a person commits an offence if he does everything necessary to constitute the offence and also if he does anything for the purpose of helping another person to commit it. The trial judge confirmed that the Crown’s position was that the appellant was a principal to the first degree murder of Mr. Harris, that is, the appellant was the shooter, and further, that Mr. Reid aided the appellant in that first degree murder. The trial judge also confirmed it was the position of the defence that neither accused had the required mental state to commit first or second degree murder and that neither was involved in the shooting of Mr. Harris. Following his discussion of aiding, the trial judge discussed common purpose liability under s. 21(2) of the Criminal Code.

40Before completing his charge, the trial judge provided the jury with a decision tree to assist them in their deliberations. He explained that the decision tree addressed the appellant and Mr. Reid separately. The decision tree relating to Mr. Reid dealt with liability solely as an aider under s. 21(1) of the Criminal Code or through common purpose under s. 21(2). The trial judge completed his charge by setting out the positions of the Crown, the appellant, and Mr. Reid.

Issues

(1) Did the Trial Judge Err in Failing to Properly Relate the Material Evidence to the Issues to be Determined by the Jury?

(a) Overview of the Appellant’s Position on Appeal

41The appellant points out there are two aspects to a trial judge’s duty to assist a jury by relating the material evidence to the factual issues to be determined to reach a true verdict. First, the trial judge must distill the evidence to what is material to the issues that are still in play at the end of the trial. Second, the trial judge must relate the relevant parts of the material evidence to the particular issues to which the evidence relates.

42In this case, by the end of the trial, the live issues for the two accused were distinctly different. The fundamental issue for the appellant was identity – was he the shooter who caused Mr. Harris’ death? If the appellant was found to be the shooter, the additional issues were whether he possessed a murderous intent and whether the killing was planned and deliberate.

43On the other hand, for Mr. Reid, there was no issue that he was the shooter. Rather, as the person who was admittedly with the shooter, the issues were whether he acted as a party under either s. 21(1)(b) or s. 21(2) of the Criminal Code and, if he did, whether he was a party to a planned and deliberate murder.

44The appellant acknowledges that the trial judge had discretion to structure his charge as he saw fit, including by providing a single review of the evidence for both accused and by incorporating evidence by reference into his discussion where material evidence was relevant to more than one issue. However, the appellant submits that, in this case, the trial judge erred in two ways.

45First, the trial judge failed to distill the evidence to that which was material to the live issues still in play at the end of the trial. Second, he erred in failing to make clear for the jury which parts of the material evidence were to be considered in relation to the live issues for each of the two accused.

46The appellant’s submissions focus on the trial judge’s review of the evidence in relation to element one, causation. However, while the appellant submits that the trial judge’s erroneous approach to reviewing the evidence under element one is sufficient to warrant a new trial, he contends that the trial judge made further errors in his review of the evidence for elements two (unlawful act), three (intent for murder), and four (planning and deliberation). I will discuss the appellant’s position regarding each element in turn. Before doing so, I will review the general principles relating to appellate review of the structure of a criminal jury charge.

(b) Appellate Review of the Structure a Criminal Jury Charge

47In R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 11 to 13, Laskin J.A. summarized the necessary components of a trial judge’s instructions to the jury in a criminal jury trial. He also explained that trial judges have a broad discretion in structuring a jury charge; that the standard of review on appeal is adequacy, not perfection; and that appellate courts must adopt a functional approach in reviewing jury instructions that assesses the adequacy of the instructions against their purpose. The further question is whether the trial judge’s instructions provided the jury with a sufficient understanding of the facts as they related to the various issues:

In brief, trial judges have a broad discretion in how to charge a jury. Their decision about how much evidence to review, what structure to use and how to organize the charge falls within that discretion. But, ideally, the charge should contain some basic components. In addition to general instructions on the presumption of innocence, the burden of proof, how to assess the credibility and reliability of witnesses’ testimony and the like, the charge on the particular case should contain the following five components:

i. the legal framework, typically the elements of the offence or offences with which the accused is charged;

ii. the factual issues arising out of the legal framework that the jury must resolve;

iii. the material evidence relevant to these issues;

iv. the position of the Crown and defence on these issues; and

v. the evidence supporting each of their positions on these issues.

A charge containing these five components best enables the jury to appreciate “the value and effect of that evidence, and how the law is to be applied to the facts as they find them” (emphasis in original). See Azoulay v. The Queen, [1952] 2 S.C.R. 495, at p. 498.

On appeal, the standard of review is adequacy, not perfection. An appellate court’s approach is “functional”. It assesses the adequacy of the charge in the light of its purpose. Even if a trial judge strays from the ideal, the fundamental question an appellate court must ask is: has the jury been “left with a sufficient understanding of the facts as they relate to the relevant issues”. See R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 14. Or, are we satisfied “that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”. See R. v. Cooper, [1993] 1 S.C.R. 146, at p. 163. If the answer to either question is “yes”, then the charge will be upheld on appeal, despite any imperfections. If the answer is “no”, then the accused will have been denied a fair trial and any convictions must be set aside. [Emphasis added.]

48Particularly where, as here, trial counsel had a full copy of the trial judge’s instructions to the jury prior to making her closing address, the failure to object to the manner in which the trial judge reviewed the evidence can be of some significance on appeal: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 54-58; R. v. P.J.B., 2012 ONCA 730, 97 C.R. (6th) 195, at paras. 44-49.

(c) The Trial Judge’s Review of the Evidence Relating to Element One, Causation

(i) The Appellant’s Position

49As I have said, by the end of the trial, causation boiled down to whether the Crown had proven identity beyond a reasonable doubt, i.e., was the appellant the shooter? There was no live issue concerning the cause of death, nor did anyone take the position that Mr. Reid was the shooter.

50However, in reviewing the evidence in relation to causation, the appellant submits that, with minor exceptions, the trial judge reviewed all of the evidence from the trial in the order in which was presented, much of which he claims was irrelevant to element one.

51As set out above, the trial judge began by reviewing the pathologist’s evidence concerning cause of death, which was not a live issue. According to the appellant, the trial judge then proceeded with a witness-by-witness review of the remaining witnesses, essentially in the order in which they testified. The only witnesses omitted were the deceased’s widow, Mrs. Harris; the deceased’s friend, Mr. Richards, who gave evidence relevant to motive; and two police witnesses called to prove exhibits (Detective Constable McGillivray, who attended the autopsy, and Mr. Plaxton, the forensic video analyst). The appellant claims that the only witnesses whose evidence the trial judge reviewed out of order were three police witnesses who testified about statements they took or the operation of semi-automatic weapons.

52The appellant submits that by proceeding in this fashion, the trial judge erred in both failing to distil the evidence to what was material at the end of the trial and in failing to relate material evidence to the issue to which it was relevant. He submits that the trial judge should not have reviewed the evidence of the following witnesses at all under element one, because they had no relevant evidence to give concerning the key issue on causation, i.e., whether the appellant was the shooter:

• the pathologist (cause of death);
• the five neighbourhood witnesses (could not identify the shooter);
• Mr. Dunkley (could not identify the shooter);
• Sergeant O’Keefe (forensic evidence from the scene);
• Detective Saffu (seized Mr. Reid’s hoodie);
• Ms. Walden (DNA evidence regarding Mr. Reid);
• Ms. Doupe (fibre evidence regarding Mr. Reid’s hoodie);
• Officer Volpe (firearms evidence regarding a gun that jams);
• statement evidence regarding statements made by Mr. Reid to Mr. Dumpfrey;
• Ms. Bernard (evidence regarding Mr. Reid’s hoodie); and
• Mr. Reid (in his own defence).

53The appellant contends that including the evidence of witnesses that had no relevant evidence to give concerning a particular issue could only have led to confusion on the part of the jury.

54The appellant likens this case to R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101, a multiple-accused first degree murder trial presided over by the same trial judge who presided over the appellant’s trial. The appellant submits the trial judge used essentially the same methodology to review the evidence in this case as he did in Barreira, at para. 28, and ultimately set aside the first degree murder convictions of the alleged principal and two parties, at para. 28:

[T]he trial judge proceeded [under Element 1] to review the evidence of each and every witness at the trial, over 145 pages of transcript. The trial judge did not make any effort to relate any of this evidence to particular elements of the offence or to particular issues raised. Instead, the trial judge simply repeated the evidence from start to finish. [Emphasis added.]

55The appellant also relies on this court’s comments in Newton, at paras. 15 and 16, another murder case from the same jurisdiction (but presided over by a different trial judge), in which this court quashed the convictions and ordered a new trial:

A witness by witness recitation of the evidence is almost always ineffective. It is ineffective for at least two reasons. First the recitation tends to be unnecessarily detailed, as was the trial judge’s recitation. When a trial judge simply recites all the evidence of each witness, instead of trying to distill it for the jury, the jurors will naturally have difficulty processing what evidence is important and what evidence is not.

The second and most important reason a witness by witness recitation is ineffective is that the summary of the evidence bears no relationship whatsoever to the issues in dispute. We are not court reporters. The evidence at trial has to be organized for the jury according to its relevance to the issues. Otherwise the jury will not appreciate its significance. [Emphasis added.]

(ii) Discussion

56On the facts of this case, I am not satisfied that the trial judge committed reversible error by reviewing the bulk of the trial evidence when addressing causation, the first of the four elements of first degree murder. Nor am I satisfied that the trial judge’s review of the evidence under element one was simply a holus bolus regurgitation of virtually the whole of the trial evidence, unrelated to the issues presented to the jury, which would have left them with an insufficient understanding of the evidence as it related to those issues.

57The trial judge presented the case to the jury as if either the appellant or Mr. Reid was a potential principal, i.e., the shooter. In oral argument on appeal, the Crown acknowledged that it would have been preferable had the trial judge not done so but argued that the appellant was not prejudiced in the result. I agree. In my view, the trial judge overcomplicated his instructions by proceeding in this fashion. Nonetheless, on the facts of this case, the issues relating to whether the appellant was the shooter were obvious and the trial judge reviewed the evidence relating to those issues repeatedly. Further, it would have obvious to the jury what evidence reviewed under element one related to Mr. Reid.

58The contentious issue vis-à-vis the appellant under element one was identity. In the context of this case, the identity issue boiled down to questions of credibility and an assessment of the cell phone evidence.

59Two witnesses identified the appellant as the shooter. Both knew him. One, Mr. Edwards, was present when the shooting took place. He initially told the police he could not identify the assailants, but changed his story following his arrest on serious charges. The other witness, Mr. Dumpfrey, claimed to have seen the appellant and Mr. Reid arrive at “the office” shortly after the shooting, to have seen the appellant with a gun, and to have heard both the appellant and Mr. Reid make inculpatory statements at that location. He also claimed to have heard the appellant make additional inculpatory statements when the two were subsequently incarcerated. The credibility of Mr. Edwards and Mr. Dumpfrey was thus central to the issue of the identity of the shooter.

60The cell phone evidence was also central to the Crown’s case concerning the identity of the shooter. On one interpretation of the evidence, Mr. Reid acknowledged in his evidence that the last telephone call he received on his cell phone before the shooting – being the call he received at approximately 4:06 p.m. on February 18, 2016 – was from the shooter. Cell phone records demonstrated that this call came from a cell phone with which the appellant was known to be associated.

61In my view, considering the trial judge’s charge as a whole, I am satisfied the jury would have understood that the central issues relating to whether the appellant was the shooter were the credibility of Mr. Edwards and Mr. Dumpfrey and the assessment of the cell phone evidence.

62The jury would also have appreciated the frailties in Mr. Edwards’ and Mr. Dumpfrey’s evidence and the caution they were required to exercise in evaluating that evidence. The trial judge cautioned the jury repeatedly concerning the frailties in Mr. Edwards’ and Mr. Dumpfrey’s evidence, both in his Vetrovec caution and in his instructions on the following matters: previous criminal records of non-accused witnesses; prior inconsistent statements; eyewitness identification evidence; and outstanding charges against a non-accused witness.

63As set out above, the trial judge organized his recitation of the evidence under headings or introductions, such as the following:

• Medical Cause of Death;
• Witnesses to Scene of Shooting;
• Witnesses Post Shooting;
• Forensic Evidence;
• Cell Phone Evidence;
• Evidence Solely Admissible for or Against Odain Gardner (statements to Mr. Dumpfrey);
• Evidence Solely Admissible for or Against Erick Reid (statements to Mr. Dumpfrey); and
• Defence Evidence.

64Much of this evidence followed the sequence in which the witnesses testified at trial. However, contrary to the appellant’s submissions, in my view, the trial judge organized the evidence in an intelligible manner, which would have allowed the jury to appreciate what issues each witness’ evidence pertained to: the medical cause of death; whether the appellant was the shooter and the reliability and credibility of the witnesses who claimed that he was; Mr. Reid’s participation in the shooting and how his evidence reflected on the reliability and credibility of the identification witnesses; and the impact of the cell phone evidence.

65The fact that the medical cause of death was not a contentious issue by the end of the trial does not mean the trial judge erred in reviewing the pathologist’s evidence under element one. Cause of death was not conceded. Moreover, the pathologist’s evidence about lack of stippling demonstrated that the shooter and the barber were at least one metre apart, potentially supporting Mr. Edward’s evidence that Mr. Harris tried to run away.

66The evidence of the scene witnesses who could not identify the assailants, including Mr. Dunkley, nonetheless provided context for the jury to evaluate the reliability and credibility of Mr. Edwards’ evidence. Some, including Mr. Dunkley, testified about whether they saw masks. Some testified about what they heard or saw Mr. Edwards say or do as he exited the barbershop. This provided not only a backdrop from which the jury could evaluate Mr. Edwards’ evidence, but also evidence relevant to specific aspects of his evidence. Moreover, the very fact that these witnesses could not identify the assailants was relevant to the question whether identity had been proven.

67The two post-shooting witnesses whose evidence the trial judge reviewed in addition to Mr. Dumpfrey’s (Sergeant Murphy and Mr. Veith), provided context for the jury to evaluate the reliability and credibility of the identification witnesses. The review of Sergeant Murphy’s evidence related primarily to the police contact with Mr. Edwards and what, if any, information or help they gave him. The review of Mr. Veith’s evidence cast suspicion on Mr. Dumpfrey’s evidence concerning the appellant’s interaction with Mr. Abrahams while in jail.

68I agree that most of the witnesses’ evidence that the trial judge reviewed under the heading “Forensic Evidence” pertained to identifying Mr. Reid, a matter not in issue by the end of the trial. However, that that evidence pertained solely to identifying Mr. Reid as a possible shooter would have been obvious to the jury. I fail to see how it could have confused them when, at least in this segment of his charge, the trial judge was treating Mr. Reid as a possible shooter. Sergeant O’Keefe’s evidence, also reviewed under the “Forensic Evidence” heading, once again provided the jury with context in which to evaluate the reliability and credibility of both Mr. Edward’s and Mr. Dumpfrey’s evidence. Sergeant O’Keefe provided photographs of the scene and gave evidence about finding a cartridge case and probable bullet strike mark at the scene. This evidence was relevant to Mr. Edwards’ evidence concerning how events unfolded (thus his credibility) and to Mr. Dumpfrey’s evidence about the gun jamming.

69The appellant does not contest the propriety of the trial judge reviewing the evidence of the cell phone witnesses, save for Sergeant Tselepakis, who extracted a photograph of Mr. Reid wearing a particular garment from a cell phone. Once again, I am confident the jury would have easily understood that this evidence related to the identification of Mr. Reid, and that it did not prejudice the appellant.

70As for the evidence the trial judge reviewed under the headings “Evidence Solely Admissible for or Against Erick Reid” and “Statements Made by Erick Reid to Justin Dumpfrey”, this evidence related to statements Mr. Reid allegedly made to Mr. Dumpfrey two days after the shooting, when Mr. Dumpfrey again met Mr. Reid to buy weed. The alleged statements included assertions that the appellant “fucked up” Mr. Reid’s life, that the shooting was not supposed to happen, and that Mr. Reid felt the murder was a hit based on someone paying the appellant to do it. Undoubtedly, the trial judge reviewed this evidence because, in this section of the charge, he treated Mr. Reid as a potential principal to the offence of first degree murder. Once again, I acknowledge that it would have been preferable had the trial judge not done so. However, I reiterate that given the manner in which the trial judge structured his charge, I am confident the jury would have understood this evidence related solely to Mr. Reid’s participation and, equally important, that this evidence was not admissible against the appellant.

71As for the defence evidence reviewed under element one, in addition to treating Mr. Reid as a potential principal in this section of the charge, I conclude it was open to the trial judge to review Mr. Reid’s evidence to provide a context for the jury to assess the reliability and credibility of Mr. Edward’s and Mr. Dumpfrey’s evidence, specifically as it related to the shooting and events immediately preceding and following it. Ms. Bernard’s evidence went primarily to the identification of Mr. Reid. However, she was also cross-examined by the Crown and gave evidence relevant to the cell phone number used by the appellant.

72Reviewing the charge as a whole, I am satisfied that the jury would have understood that the issues relating to the appellant’s identity as the shooter centred on the credibility of Mr. Edwards and Mr. Dumpfrey and an assessment of the cell phone evidence. I am also satisfied that the jury would have understood that they were required to determine those issues, not by examining that evidence in isolation, but by examining it in the context of the evidence of other witnesses who gave evidence relevant to it. I am not satisfied the jury would have been confused by the evidence relating to the identification of Mr. Reid. The trial judge charged the jury as if Mr. Reid was a potential principal to the offence of first degree murder, i.e., the shooter. It would have been obvious to the jury that evidence relevant to his identity pertained to that issue.

73In my view, this case is distinguishable from this court’s decisions in both Barreira and Newton, on which the appellant relies.

74Unlike this case, in Barreira, the shooter admitted through counsel that he was the person who shot the deceased. He took the position that he had done so instinctively as a reaction to the deceased punching him. The remaining defendants admitted through counsel to being present at the shooting, but denied they were parties to it. In Barreira, the trial judge reviewed the evidence of all the witnesses at trial in the order in which they testified under element one of first degree murder (causation). However, in Barreira neither causation nor identity were in issue. Concerning intent for murder and planning and deliberation – the two live issues at the trial for the shooter – this court plainly found the trial judge’s evidentiary review inadequate. In relation to intent for murder, the trial judge told the jury only to consider the evidence already summarized and “then made brief reference to the issue of intoxication and one reference to a piece of post-offence conduct”: at para. 34. After setting out the evidence the trial judge reviewed under element four, planning and deliberation, this court said, at para. 35: “None of this had any potential to assist the jury in terms of the issues they had to decide.”

75In Newton, again the shooter admitted his identity, but asserted the murder was not planned and deliberate and also claimed he lacked the intent for murder, as he had just been shooting randomly. This court noted that the trial judge reviewed the evidence of most of the witnesses who testified but did so by reading her notes of their evidence, roughly in the order each witness gave evidence. This court stated, at para. 20, in part:

The issues were numerous and some were difficult. [The shooter’s] main defence was that he did not plan and deliberate on the killing so he should not be found guilty of first degree murder. A considerable amount of evidence was relevant to the issue of planning and deliberation. The jury needed help to assess this evidence. Unfortunately, the trial judge did not help it to do so. [The shooter’s] secondary position was that he lacked the mens rea or mental state for murder – he was just stupidly firing bullets to scare [one of the victims]. Again the trial judge did not discuss the evidence bearing on that issue. [Emphasis added.]

76In this case, the trial judge conducted the bulk of his evidentiary review in relation to the main issue for the shooter, i.e., his identity. Again, I agree that it would have been preferable had the trial judge not referred to Mr. Reid as a potential principal to first degree murder and not reviewed the evidence relating to Mr. Reid’s identification under element one, or under the remaining elements of first degree murder. That said, there was no objection to the trial judge’s approach in that respect, and having reviewed the charge as a whole, I am satisfied that the jury would have understood the issues relating to the shooter’s identity and the evidence they had to consider in determining those issues.

77The instructions concerning element one were not perfect. By instructing the jury as if Mr. Reid were a potential shooter and then taking that option away, the trial judge made his instructions to the jury more complicated than was necessary. However, taking a functional approach to these instructions, I conclude they were adequate in the circumstances of this case, where the issues concerning whether the appellant or Mr. Reid was the shooter and the evidence relevant to those issues were obvious. Adequacy is the standard to be met.

(d) The Trial Judge’s Review of the Evidence Relating to Element Two, Unlawful Act

(i) The Appellant’s Position

78Under element two, unlawful act, the trial judge instructed the jury to consider the surveillance recordings, the pathology evidence, and the evidence that he had already summarized under element one.

79The appellant submits that this approach was both unnecessary and wrong. It was unnecessary because the question whether Mr. Harris was killed unlawfully was not a live issue by the end of the trial. It was wrong because much of the evidence summarized under element one was irrelevant to the question whether the homicide was unlawful. Although the appellant acknowledges that this instruction caused him no harm, he submits that it demonstrates the continuation of the trial judge’s erroneous approach.

(ii) Discussion

80I agree with the appellant that he was not prejudiced by the manner in which the trial judge reviewed the evidence relating to element two. While the issue was not conceded, no issue was raised at trial that shooting Mr. Harris was somehow lawful. However, the evidentiary review consisted of only three paragraphs and focused on the pathologist’s evidence of the gunshot wound Mr. Harris suffered. The trial judge’s remaining instructions to consider the circumstances of each accused, the nature of the act alleged, anything said around the time of the incident, the surveillance evidence, and the evidence reviewed under element one, were in accordance with standard instructions that a jury should not consider evidence in isolation and should bear in mind the whole of the evidence.

(e) The Trial Judge’s Review of the Evidence Relating to Element Three, Intent for Murder

(i) The Appellant’s Position

81Concerning element three, intent for murder, after setting out the standard instructions, the trial judge instructed the jury to consider, with respect to both the appellant and Mr. Reid, the evidence he had already summarized under elements one and two (other than the after-the-fact conduct evidence) and nine other listed items, including Mr. Reid’s evidence that his only purpose in going to the barbershop was to buy weed and possibly get a haircut. The appellant contends that the trial judge committed reversible error by proceeding in this way.

82As a starting point, the appellant argues that much of the evidence summarized under element one was irrelevant to the shooter’s intent. More importantly, since no one took the position Mr. Reid was the shooter, the issue concerning his intention had to be dealt with when addressing party liability. The requisite intent for a party under ss. 21(1)(b) or 21(2) and a principal is different. Accordingly, it was an error to identify Mr. Reid’s intention as an issue in this section of the charge and review evidence relevant to his intention. The appellant submits this was not a harmless error vis-à-vis him because evidence relevant to Mr. Reid’s intent was not material to the intent of the shooter.

83Finally, the trial judge’s erroneous approach to reviewing the evidence relevant to element three was compounded by his use of “and/or” language. Overall, the trial judge used the phrase “and/or” 23 times when discussing this element. Use of this language was improper and could only have increased the potential for the jury to use irrelevant evidence to assess the shooter’s intention: R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at paras. 46-58.

(ii) Discussion

84Concerning element three, intent for murder, the focus of the appellant’s complaints is on the trial judge’s review of the evidence relating to Mr. Reid’s intent and the trial judge’s use of and/or language in relation to the appellant and Mr. Reid. The appellant submits this created a risk the jury would have relied on evidence irrelevant to his intent to decide whether he had the intent for murder.

85I would not accept these submissions. As I have said, I agree the trial judge overcomplicated the charge by including Mr. Reid in his instructions concerning a principal’s liability for first degree murder. However, overall, I am not satisfied the appellant was prejudiced by this approach.

86The trial judge began this section of his charge with the following instruction:

Did the particular accused, Odain Gardner and/or Erick Reid have the state of mind required for murder?

87He repeated the and/or language throughout his discussion of the intent issue (and throughout his discussion of the liability of a principal for first degree murder).

88As I have said, in my view, it would have been obvious to the jury that in the section of his charge dealing with the liability of a principal for first degree murder, the trial judge was treating both the appellant and Mr. Reid as a potential principal, i.e. as a possible shooter. By the time the jury reached element three of first degree murder, they would have determined that the appellant was the shooter and it would have been obvious to them that evidence relating to Mr. Reid’s intent was not relevant to that issue. As this court explained in Josipovic, at para. 44, and/or language is not in and of itself improper. Jury instructions must be evaluated “by reference to the overall meaning conveyed, having regard to the context of the evidence and the trial as a whole”: at para. 44.

89The appellant also submits that the trial judge’s instruction to consider the evidence reviewed under elements one and two (save for the after-the-fact conduct evidence previously discussed) was simply wrong. Much, if not all, of such evidence was irrelevant to the issue of the shooter’s intention.

90I would not accept this submission. The trial judge highlighted for the jury evidence that was specifically relevant to the intent of the shooter. I am not persuaded the jury would have been confused by references to additional evidence.

91Under the heading “Evidence Admissible for or Against Both Accused”, in addition to his instructions to consider the evidence already reviewed under elements one and two (apart from the after-the-fact conduct evidence), the trial judge instructed the jury to consider the following evidence admissible for or against both accused:

• the surveillance videos, phone records, and contact by the various accused prior to the shooting;
• Mr. Edward’s evidence that upon entering the barbershop Mr. Reid shoved a gun in his side while the appellant pulled a gun on Mr. Harris who slapped at the gun and ran – the appellant then shot Mr. Harris and both accused ran away;
• Mr. Dunkley’s evidence that one of the two masked men who entered the barbershop approached him and “H”, there was a moment of silence, no words were exchanged, the barber just ran and got shot;
• Mr. Dumpfrey’s evidence that he overheard an argument between the appellant and Mr. Reid at the office in which each blamed the other for the shooting;
• the forensic evidence demonstrating the hoodie recovered by police contained Mr. Reid’s DNA and that fibres from that hoodie were indistinguishable from fibres found on the undershirt Mr. Harris was wearing when he was shot;
• Officer Volpe’s evidence that a jammed gun after a successful first shot indicates a failed attempt to fire another shot; and
• Mr. Reid’s evidence that his only purpose in going to the barbershop was to buy weed and possibly get a haircut, that he was not involved in any plan to rob or shoot Mr. Harris, and that he did not know the shooter had a gun or that he would use it to shoot Mr. Harris.

92Concerning the appellant, the trial judge also instructed the jury to consider Mr. Dumpfrey’s evidence that, while the two were in jail, the appellant told Mr. Dumpfrey that he blamed Mr. Reid for the shooting and said the shooting would not have been necessary had Mr. Reid done his job.

93I acknowledge that much of the evidence reviewed under elements one and two and the forensic evidence identifying Mr. Reid would not have been relevant to the shooter’s intent and that the surveillance evidence would have had marginal, if any, relevance to that issue. However, the remaining items specifically reviewed by the trial judge, as well as the pathologist’s evidence, Mr. Dumpfrey’s evidence about the jammed gun, and the exhibit officer’s evidence relating to the scene of the crime, would have been very relevant to that issue.

94Given the specific items of evidence that the trial judge did review, I see little likelihood that the jury would have been in any way confused about the evidence that was relevant to this issue. In other words, given that the trial judge specifically reviewed evidence relevant to determining the issue of intent, I am not convinced the jury would have been confused by an instruction to bear in mind the whole of the evidence.

95Finally, I observe that on the facts of this case, the question of the shooter’s intent was barely, if at all, a live issue. Mr. Harris was shot in the chest at relatively close range. While not conceding intent, appellant’s counsel did not raise any issues in her closing suggesting how the jury might find a reasonable doubt concerning at least the secondary intent for murder.

(f) The Trial Judge’s Review of the Evidence Relating to Element Four, Planning and Deliberation

(i) The Appellant’s Position

96Concerning element four, after explaining the concepts of planning and deliberation, the trial judge instructed the jury to consider the evidence he had summarized under elements one to three (other than the after-the-fact conduct), the short time frame during which Mr. Reid and the shooter were in the barbershop, and eight of the nine items he had listed under element three. Once again, the appellant submits that the instruction to consider the evidence summarized under element one was an error because much of that evidence was irrelevant to planning and deliberation. Moreover, use of the and/or language under this element improperly suggested either that Mr. Reid and the shooter had both committed a planned and deliberate murder, or that at least one of them had done so.

(ii) Discussion

97I would not accept these submissions. The specific items of evidence the trial judge did review were very relevant to the question of planning and deliberation and would have provided the jury with a clear understanding of the type of evidence that was relevant to that issue.

98The appellant’s specific objection to the trial judge’s use of and/or language under this heading is that the 15 times the trial judge used such language in this section of the charge may have misled the jury into thinking either both (the “and” of the phrase) or at least one of them (the “or” of the phrase) committed a planned and deliberate murder. In other words, the jury may have understood they were required to find at least one of the accused committed a planned and deliberate murder.

99However, the trial judge’s opening statement to the jury under this heading reads:

Was the particular accused, Odain Gardner and/or Erick Reid’s murder of Neil Harris both planned and deliberate?

100Nothing about this question suggests at least one of the named accused must have committed a planned and deliberate murder. In any event, the trial judge closed his instructions on this issue with the following statements:

If you are not satisfied beyond a reasonable doubt that the murder of Neil Harris was both planned and deliberate, you must find the particular accused, Odain Gardner and/or Erick Reid not guilty of first degree murder, but guilty of second degree murder.

If you are satisfied beyond a reasonable doubt that the murder of Neil Harris was both planned and deliberate, you must find the particular accused, Odain Gardner and/or Erick Reid guilty of first degree murder. [Emphasis added.]

101In my view, the first of these statements made it clear that the central question was whether the murder was planned and deliberate. If it was not, the jury was required to find whichever person they were considering not guilty of first degree murder.

(2) Did the Trial Judge Err by Giving an Erroneous After-the-Fact Conduct Instruction?

(a) The Appellant’s Position

102In his factum, the appellant submitted that two aspects of the trial judge’s after-the-fact conduct instruction amounted to reversible error: i) the “Flight from the Scene” instruction; and ii) the “Lies to the Police” instruction. In oral argument, the appellant abandoned his argument about the lies to the police instruction. However, he maintained his position that, vis-à-vis him, the trial judge erred in his after-the-fact conduct instruction concerning flight from the police.

103As part of his after-the-fact conduct instructions, the trial judge told the jury they could find that “any, all or some of the accused’s flight from the scene” was circumstantial evidence that an accused “was a participant to the unlawful act of shooting Neil Harris”. The appellant acknowledges that this instruction was correct concerning Mr. Reid: his flight from the scene was some evidence that he was not an innocent dupe but rather a knowing participant in the shooting. However, the appellant submits that the instruction was not correct vis-à-vis him. Only if the jury found that the appellant was the shooter could they then find that he fled from the police because he was conscious of being a participant in the shooting – and only then could they consider his flight as circumstantial evidence that he was the shooter. Since the jury had to find the appellant was the shooter before it could use his flight as circumstantial evidence that he was the shooter, vis-à-vis him, the instruction was wrong. Such circular or tautological reasoning is improper: see R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras. 141-43, leave to appeal refused, [2010] S.C.C.A. No. 499.

104The appellant submits that this ground, standing alone, constitutes reversible error warranting a new trial.

(b) Discussion

105I would not accept this submission.

106The impugned instruction from Hall reads as follows:

If you do not or cannot find that Carl Hall did or said those things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or helping you decide that Carl Hall committed the offence charged. On the other hand, if you find that anything Carl Hall did or said afterwards was because he was conscious of having done what is alleged against him, you may consider this evidence together with all of the other evidence in reaching your verdict. [Emphasis added.]

107This court’s concern in Hall was that the jury was invited to jump directly to the issue of guilt as a precondition to deciding the use they would make of the after-the-fact conduct. Nonetheless, in Hall, this court found that this flaw in the instructions, standing alone, did not constitute reversible error.

108In this case, the trial judge did not use the impugned language from Hall. Instead, prior to giving the instruction with which the appellant takes issue, the trial judge told the jury that before they used the after-the-fact conduct evidence for any purpose, they first had to decide if the appellant (or Mr. Reid) had engaged in the conduct alleged:

You may find it helpful to approach this evidence of what the accused are alleged to have said or done afterwards in two steps.

The first step requires you to decide whether any of the accused actually did or said what he is alleged to have said or done after the offence was committed.

If you find that a particular accused did not do or say what he is alleged to have done or said after the offence was committed, you must not consider this evidence in reaching or helping you reach your verdict.

109These instructions would have made it clear to the jury that to consider the appellant’s flight from the scene as after-the-fact conduct, they first had to conclude that he was one of the men seen fleeing in a southerly direction immediately after the shooting. The subsequent instruction that, if they were so satisfied, they could use the after-the-fact conduct evidence to find the appellant was a participant in the shooting, may have been both unnecessary and circular, but it did not prejudice the appellant. In any event, as Hall makes clear, such an instruction, standing alone, does not constitute reversible error.

Disposition

110Based on the foregoing reasons, I would dismiss the appeal.

Released: July 27, 2021 “J.S.” “Janet Simmons J.A.” “I agree. E.E. Gillese J.A.” “I agree. Grant Huscroft J.A.”

[1] The five neighbourhood witnesses were: Melody Mack, Daniel Lamothe, Shirley Bell, Paul Scott, and Adam Thetrault. [2] R. v. B.(K.G.), [1993] 1 S.C.R. 740. [3] The charge begins at p. 10 of the transcript of proceedings for May 15 and 16, 2018 and ends on p. 268. There were various breaks during the course of the charge and comments by counsel on at least one occasion. [4] Vetrovec v. The Queen, [1982] 1 S.C.R. 811. [5] The trial judge addressed second degree murder and manslaughter as part of this discussion.