Court of Appeal for Ontario

Date: 20211124 Docket: C66627

Before: Hourigan, Paciocco and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent And: Steven Vanroy Browne, Appellant

Counsel: Delmar Doucette and Anne Marie Morphew, for the appellant Jessica Smith Joy, for the respondent

Heard: June 23, 2021 by video conference

On appeal from the conviction entered on March 24, 2017, by Justice Steven A. Coroza of the Superior Court of Justice, sitting with a jury.

Hourigan J.A.:

I. Introduction

1On November 1, 2012, Dwayne Thompson was shot dead in a parking lot of an apartment building in Mississauga. The jury found the appellant and a co-accused, Amal Greensword, guilty of manslaughter but acquitted another co-accused, Adrian Williams.

2On appeal, the appellant seeks to substitute an acquittal for the conviction or, in the alternative, obtain an order for a new trial. His primary submission is that the jury’s verdict was unreasonable. In addition, he argues that the trial judge erred in admitting evidence about him giving his phone numbers to his probation officer.

3As I will explain, I am not persuaded by these arguments. The verdict is not unreasonable, as it was available to the jury on the evidence. Further, I reject the submission that the trial judge erred in law regarding the admission of the evidence about the phone numbers. The provision of those numbers was not compelled and did not violate s. 7 of the Canadian Charter of Rights and Freedoms. Consequently, I would dismiss the appeal.

II. Background Facts

4To put the issues raised in their proper context, I will first review the facts surrounding the shooting. Then I will consider the evidence adduced at trial relevant to the issues raised on this appeal. That evidence relates to various themes, including the use of mobile phones, car rentals, DNA evidence and the appellant’s appearance. I note that none of the defendants testified or called any evidence.

(a) The Events Surrounding the Shooting

5On the day of the shooting, Mr. Thompson communicated by phone with someone known as "Scarface" who arranged to buy a substantial amount of cocaine from Mr. Thompson. Later that day, Mr. Thompson travelled to an apartment building on Darcel Avenue, Mississauga, to meet Scarface. Accompanying Mr. Thompson were Shawn Edwards, who drove, and a friend of Mr. Thompson's, Margaret Warner.

6Mr. Edwards remained in the vehicle at the Darcel Avenue property while Mr. Thompson and Ms. Warner walked down the driveway and through the parking lot to the apartment building. Ms. Warner testified that as they walked through the lot, she saw three or four males running to a white car.

7The video surveillance recording from the building lobby confirmed three men entered the lobby at around 10:03 or 10:04 p.m. and left it at around 10:12 p.m., moments before Mr. Thompson and Ms. Warner entered. All parties agreed that the appellant was not one of these three men, and the jury was charged accordingly.

8Mr. Thompson and Ms. Warner entered the building and looked in the back lobby for Scarface. When they did not locate him, Mr. Thompson called Scarface’s phone but got no answer. As they waited in the lobby, Ms. Warner noticed the white car travel back and forth in front of the lobby. When Scarface did not attend, Ms. Warner and Mr. Thompson decided to leave and return to the vehicle where Mr. Edwards was waiting.

9Mr. Thompson and Ms. Warner left the back lobby at around 10:27 p.m. Ms. Warner testified that the white car, with its doors open, was parked south of the lobby. She further testified that a man stood by the front passenger-side door holding a handgun, a second man stood by the curb, and a third man stood by the front driver-side door. Ms. Warner did not see a fourth man in or near the car.

10According to Ms. Warner, the man with the gun rushed toward Mr. Thompson and, with one hand on the grip and his second hand steadying the other, put the gun to Mr. Thompson’s head. A second man came off the curb and began to pat Mr. Thompson down. A short argument ensued, and at one-point Mr. Thompson was heard to say"no, brah, no, brah, I don’t have anything on me.”

11A few seconds later, as Ms. Warner continued to move quickly toward the vehicle and was no longer looking back, she heard a shot, the thud of Mr. Thompson's body hitting the ground, and then additional shots. Mr. Edwards heard the shots and began to pull out from where he was parked. When Ms. Warner ran up to his vehicle, he let her in and they sped off.

12Ms. Warner testified that all four car doors of the white car were open. However, she said that she saw only three men by the vehicle and that the men in the parking lot were the same three men she had seen earlier coming out of the lobby. At the time of observing the men, Ms. Warner was not wearing her glasses for distance. She described the three men as all in all-dark clothing, wearing hats or hoods and added the following:

• The first man (the gunman who shot Mr. Thompson) was a light-skinned Black man, about 5’8”-5’9” and about 180 pounds, with “scruffy facial hair” and dreads or braids poking out below his hood.
• The second man (who rushed down off the curb and frisked Mr. Thompson) was described as a “very black” and “ugly” Black man, about 5’10-5’11”, who appeared to be “chunky” and weighed about 200 pounds. She called him “a fatty,” but suggested that he might have been wearing puffy clothing.
• The third person (who stood by the front driver-side door) was described as a Black man in dark clothing.

13A resident of the apartment building, Neville Henry, testified that he was on his balcony and saw four people in the parking lot before he heard gun shots. Shortly after the gun shots, he observed the four people running. Two fled to a white Chrysler and two ran toward the building. He was unable to provide a description of the people he observed but testified that they moved like males. He described the two people who ran toward the building, indicating that both were between five to six feet and in dark clothing.

14Mr. Thompson suffered four gunshot wounds, and his body was located approximately 160 feet from the area where Ms. Warner said they initially encountered the men. Using the numbering of the Crown’s expert, Dr. Pollanen, (which did not necessarily reflect the order of the shots), the “first” shot was to the left side of the head and traversed the brain. This wound was fatal. The “second” shot entered the left lower jaw and lodged in the back of the neck. This wound was potentially fatal. The “third” shot entered the back and went through his spleen, a lung and the heart. This wound was fatal. The “fourth” shot entered the back and lodged in the spine. This wound was not in and of itself fatal.

15If the wounds were received in quick succession, as described by Ms. Warner and the residents in the building who heard the shots, Mr. Thompson would have dropped quickly and been rapidly incapacitated. There was no evidence on the body as to the range of the shots.

(b) Mobile Phones

16On October 23, 2012, after his release from custody, the appellant told his probation officer his contact phone number was 647-862-9200. On November 26, 2012, he provided a different number, 647-537-2507, to his probation officer.

17At trial, it was an admitted fact that on October 18, 2012, Mr. Greensword, one of the co-accused, told his probation officer that his phone number was 647-606-9424, which was the same number as the “Scarface” number contacted by Mr. Thompson.

18On November 1, 2012, there were eight texts between Mr. Thompson's BlackBerry and "Scarface." The evidence also established that Mr. Greensword's Scarface phone, the phone of Mr. Williams, and the appellant’s 9200 phone were near the scene at the time of the shooting.

(c) Car Rentals

19The trial judge found that Mr. Greensword was in possession of a white Dodge Avenger on November 1, 2012. The car had been rented on October 31, 2012, by a Mr. Gilbert Johnson, who then let Mr. Greensword access the vehicle. The trial judge found that the white Dodge Avenger was the car that Ms. Warner identified as traveling back and forth in front of the lobby.

20Mr. Johnson and Mr. Greensword returned the Avenger to the rental agency approximately one week after renting the vehicle. They replaced it with a white Chrysler 200. Mr. Greensword used this car until November 9, 2012, when the police impounded it.

(d) DNA Evidence

21Fingernail clippings were taken from Mr. Thompson during his autopsy and sent to the Centre of Forensic Science (“CFS”) for DNA testing. The clippings were received as sealed items, with clippings from each hand sealed in separate envelopes. One swab was used to collect material from the underside of the fingernail clippings from the left hand and another for the right. Both swabs were then submitted for DNA analysis.

22Two DNA profiles, one major and one minor, were found on the clippings from Mr. Thompson’s left hand. Mr. Thompson was the source of the major DNA profile. The appellant could not be excluded as the source of the minor DNA profile. Dr. Maja Popovic, a scientist who works at the CFS, noted that the random match probability that someone other than the appellant was the source of the minor DNA profile found on Mr. Thompson’s fingernails was one in 1.6 trillion.

23Dr. Popovich testified that direct transfer with bodily fluid is the most common way that a significant amount of foreign DNA would be transferred to a person’s fingernails. It was Dr. Popovich’s opinion that the amount of the appellant’s DNA deposit on Mr. Thompson's fingernails was beyond a trace amount. She testified that, while it is not uncommon to find foreign DNA under fingernails, it is rare to detect foreign DNA in sufficient amounts to generate a useable DNA profile suitable for comparison, and a secondary transfer would be rare in this scenario.

(e) Appellant’s Appearance

24Ms. Success Akonzee, the appellant’s former girlfriend, testified that when the appellant returned to the Toronto area around October 20, 2012, he had dreadlocks almost to his shoulders. Police surveillance suggested he had his hair cut sometime before November 26, 2012. Given the lack of evidence showing a temporal connection between the shooting and the haircut, the trial judge instructed the jury not to use the haircut as after-the-fact conduct.

(f) Verdict

25The appellant and his co-defendants, Mr. Greensword and Mr. Williams, were tried for first-degree murder in Mr. Thompson’s death. The jury found the appellant and Mr. Greensword not guilty of first-degree murder but guilty of the lesser included offence of manslaughter. They found Mr. Williams not guilty of any offence.

(g) Reasons for Sentence

26In his reasons for sentence, the trial judge was obliged, according to R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, to find facts consistent with the jury’s manslaughter verdict to the extent that it was necessary to enable him to sentence the appellant and Mr. Greensword. He concluded that, given the manslaughter verdict, the jury found that the appellant was present and was one of the three men whom Ms. Warner described approaching Mr. Thompson after their exit from the lobby, but that he was not the shooter.

27The trial judge found that the appellant was the darker male who came off the curb and frisked Mr. Thompson. In making this finding, he recognized that Ms. Warner’s description of the man who came off the curb was inconsistent with the appellant's appearance. However, he took into account that Ms. Warner's observations were made while she and the men were in motion, the parking lot was dark, and Ms. Warner was not wearing her corrective lenses.

28The appellant was found to have aided the man with the gun by accompanying him, approaching Mr. Thompson, and accosting and confronting the deceased. Further, the trial judge concluded that the appellant would have appreciated that bodily harm was the foreseeable consequence of the dangerous activity undertaken by the man holding the gun.

(h) Grounds of Appeal

29The appellant raises two grounds of appeal: (i) the verdict was unreasonable, and (ii) the evidence that the appellant gave the 9200 number to his probation officer was inadmissible.

III. Analysis

(a) Unreasonable Verdict

(i) Legal Principles

30The law regarding an unreasonable verdict ground of appeal is well settled. A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered. In applying this standard, the appellate court should engage in a limited weighing of the evidence in light of the standard of proof and consider the effect of the evidence. Where the Crown’s case depends on circumstantial evidence, as in this case, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

31In assessing an unreasonable verdict ground of appeal, the appellate court may consider an appellant’s failure to testify: Corbett v. R., [1975] 2 S.C.R. 275, at pp. 280-81, and R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 164.

32The existence of forensic evidence in an unreasonable verdict appeal is often important in establishing an accused’s connection with a crime. However, the reviewing court must first consider whether the whole of the evidence permits the inference that the forensic evidence was deposited in connection with the offence and not at some other time and place. Second, it must determine whether the appellant’s guilt is the only rational conclusion available on the totality of the evidence or lack of evidence: R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 19; R. v. D.D.T., 2009 ONCA 918, at para. 15.

(ii) Application of Legal Principles

33The appellant asserts two arguments in support of his unreasonable verdict ground of appeal. First, he says that there is no evidence capable of supporting a finding beyond a reasonable doubt that he was at the scene and participated in the attack on Mr. Thompson. Second, he argues that the identification evidence was exculpatory.

34I would not give effect to the submission that there was insufficient evidence placing the appellant at the scene of the shooting. In my view, there was substantial evidence supporting the jury's finding that he was there.

35First, there was the DNA evidence, which suggested physical contact between the appellant and Mr. Thompson. There is nothing to support the speculative arguments advanced by the appellant that it could have been deposited at some other time or place and then somehow transferred to Mr. Thompson. The suggestion that it might be the result of a secondary transfer is also contrary to the testimony of Dr. Popovic, who testified that the most common way to transfer significant amounts of DNA would be through direct transfer and that secondary transfer of such amounts would be rare.

36In addition, there is no compelling evidence that suggests that the appellant and Mr. Thompson knew each other and that there were other, prior opportunities for direct transfer. Certainly, the appellant did not testify that he had a prior association with Mr. Thompson. Furthermore, the mobile phone records adduced at trial do not show any contact from Mr. Thompson's phone to any phone associated with the appellant. Further, Ms. Akonzee testified that she had never seen the appellant with Mr. Thompson, nor did she know his name or nickname.

37Consistent with the jurisprudence discussed above, the trial judge correctly instructed the jury regarding the DNA evidence that “[t]he significance of this evidence will depend upon other evidence…heard in this trial.” In my view, additional evidence supported the inference that the appellant's DNA was deposited during the homicide of Mr. Thompson. Further, that evidence is also responsive to the unreasonable verdict ground of appeal.

38The mobile phone evidence supports a finding of guilt. The appellant advised his probation officer on October 23, 2012, that the 9200 number was his current phone number. Both the 9200 phone number and the phone number associated with Mr. Greensword were using the cell tower closest to the Darcel Avenue property in the lead-up to the shooting.

39Further, between October 21, 2012, and November 8, 2012, there were 448 communications between the 9200 number and Ms. Akonzee. The latter date was the day when the appellant activated a new phone. Finally, from October 26, 2012, to November 1, 2012, there were 98 contacts between the 9200 number and Mr. Greensword’s number.

40I recognize that in the period between October 29, 2012, at 8:07 p.m. and November 1 at 5:32 p.m., the appellant contacted Ms. Akonzee via a different phone number. However, communications resumed with Ms. Akonzee via the 9200 phone number on November 2, 2012, two hours after the shooting.

41The next body of circumstantial evidence to support the inference that the DNA was deposited at the time of the shooting is the association evidence between the appellant and Mr. Greensword.

42The evidence established that Mr. Greensword was exclusively using the white Avenger rental car at the time of the shooting. There is a video from a Petro Canada station in Toronto on the evening of November 2, 2012, which appears to show Mr. Greensword and the appellant arriving in the Avenger and then purchasing gas. At the time of the video, the 9200 number was using a cell tower in the vicinity of the Petro Canada station.

43On November 9, 2012, police conducted a routine traffic stop of the Chrysler 2000. Mr. Greensword was driving it. The person in the front passenger seat would not identify himself but was later identified as the appellant. A subsequent search of the vehicle disclosed, among other things, the appellant’s probation order, a receipt in the name of Ms. Akonzee, and a receipt from the Petro Canada station with a date and time that correspond with the date and time of the video surveillance. In addition, mobile phone records show that the appellant’s new phone was using a cell tower located within 100 meters of the traffic stop.

44Finally, there is the post offence conduct. The Crown submitted that the appellant changed his phone on November 8, 2012, in an effort to distance himself from the shooting. The appellant provided the new number to his probation officer on November 26, 2012, and there were regular and ongoing communications between it and Ms. Akonzee.

45The jury was instructed that they could consider this evidence if they found (i) that the appellant did change phone numbers after Mr. Thompson was killed and (ii) that this change in phone numbers was related to the offence charged. If these findings were made, the jury was entitled to consider this evidence to assist in determining whether the appellant participated in the shooting. The appellant does not challenge this instruction. Consequently, it was open to the jury to find that the change of phone number was related to his participation in the shooting and supportive of the inference that his DNA was deposited at that time.

46Given this evidence, the appellant’s argument that there was an insufficient evidentiary basis to find that he was at the scene is unpersuasive. The next question is the reasonableness of the jury's findings regarding the role played by the appellant. I agree with the trial judge that based on the verdict of manslaughter, the jury could not reasonably have found the appellant was the shooter, given that the nature of the shots fired disclosed the requisite mens rea for murder.

47The appellant argues that the theory of the Crown throughout the trial was that he was the shooter. Therefore, he submits that a verdict of manslaughter was unreasonable in the circumstances of the case. In support of this argument, the appellant makes much of the evidence of Ms. Warner regarding her descriptions of the assailants. He relies on Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 47, for the proposition that where there is a material inconsistency between an eyewitness description of a perpetrator and the known appearance of the accused at the time, there is no identification. According to the appellant, Ms. Warner gave uncontradicted exculpatory identification evidence, rendering the jury's verdict unreasonable. I would not give effect to this submission.

48The rule in Chartier applies to cases in which there is a clear dissimilarity in the witness's identification coupled with a lack of supporting evidence: R. v. Dimitrov (2003), 68 O.R. (3d) 641 (C.A.), at para. 18. In the case at bar, as discussed, there was ample evidence tying the appellant to the shooting beyond the identification evidence, including the DNA and mobile phone evidence.

49It is also important to remember that Chartier was not a jury case and is not authority for the proposition that in a jury trial, it is the trial judge's function to decide whether there are significant discrepancies in appearance. These are factual questions that arise out of the evidence and, like other factual questions, are for the jury to decide: R. v. Savoury (2005), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 13. The evidence of Ms. Warner was not clear and reliable regarding her description of the assailants. She was not wearing her glasses at the time and saw the men only briefly. In any event, the jury was instructed that Ms. Warner’s descriptions and the appearance of the defendants could be used to raise a reasonable doubt. It was up to the jury to weigh this evidence along with the other evidence adduced at trial.

50Ultimately, I am satisfied that the manslaughter verdict was reasonable. I note that the parties agreed that manslaughter was an available verdict. Further, the non-trace amount of the appellant’s DNA was consistent with him physically attacking Mr. Thompson. Ms. Warner did not purport to see all the events leading up to the shooting or the shooting itself. Given the limitations of Ms. Warner’s evidence and the existence of other evidence tying the appellant to the scene, a reasonable trier of fact could have been satisfied beyond a reasonable doubt that the appellant was present and one of the men who participated in the attack but have a reasonable doubt about whether he was the shooter. The jury was not obliged to accept the Crown theory that the appellant was the shooter and was not obliged to acquit when they did not accept this theory.

(b) Admission of Phone Numbers

51The appellant was in custody on unrelated charges until his release on October 20, 2012. He then became subject to the conditions of a probation order, including the condition that he report in person to his probation officer within two days of his release. At the time of his release, a probation officer explained to the appellant that he could be prosecuted for breaching his probation order.

52When the appellant reported to his probation officer on October 23, 2012, the probation officer requested the appellant provide his address and phone number. Pursuant to this request, the appellant gave his 9200 phone number. On November 26, 2012, he provided a different number to his probation officer. Mr. Greensword also gave his mobile phone number to his probation officer. The police obtained the phone numbers from the probation officers and obtained production orders for the records associated with those numbers.

53The appellant and Mr. Greensword brought an application seeking to exclude the evidence regarding the phone numbers on the grounds that: (i) the Crown had not proven that the phone numbers were provided voluntarily to the probation officers; (ii) the disclosure of the phone numbers by the probation officers to the police violated the s. 8 Charter rights of the accused; and (iii) the statements to the probation officers were compelled statements, and the admission of this evidence infringed s. 7 of the Charter.

54The appellant’s probation officer testified on the voir dire that the provision of a phone number was not required as part of the probation order, and failure to provide a phone number would not result in a breach of the probation order. Neither the appellant nor Mr. Greensword testified on the voir dire.

55The trial judge first considered whether the phone numbers were voluntarily provided. Relying on R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, he correctly observed that the appellant had an evidentiary burden to establish that the receiver of the statement was in a position of authority. The trial judge was not satisfied that when the appellant made the statements regarding his phone numbers that the probation officer was acting in concert with or for the police. He noted that when the 9200 number was given, the shooting had not yet taken place. When the second number was given, there was an existing investigation, but the trial judge found that the probation officers were not involved in the investigation, apprehension and prosecution of a criminal offence. Consequently, he ruled that the Crown was not required to establish the voluntariness of any statements made by the appellant to the probation officer relating to his phone numbers.

56Regarding the alleged s. 8 breach, the trial judge ruled that the phone numbers do not reveal core biographical data that constitute intimate and private information about the accused. Furthermore, he noted that the appellant did not testify, and thus there was no evidence of his subjective belief that he had a reasonable expectation of privacy. The trial judge also concluded that neither the police officers nor the probation officers violated the Ministry of Correctional Services Act, R.S.O. 1990, c. M. 22, in exchanging the information about the phone numbers. Accordingly, he found that there was no s. 8 breach.

57Concerning the alleged s. 7 breach, the trial judge focused on the core issue of whether the appellant held an honest and reasonable belief that he was required by law to provide the phone numbers, noting that the appellant had the onus on the s. 7 application.

58The trial judge found that the appellant had not met his onus, as there was no evidence that he had a subjective and reasonably held belief that he must provide a phone number and, objectively, there was no evidence that would suggest the statement was compelled. In support of this conclusion, the trial judge relied on the following:

• First, since that the appellant did not testify, there was no direct evidence of his subjective belief.
• Second, there was no requirement for a phone number on the probation orders, and there could be no charge of breach of probation for failing to provide the number. Thus, there is no evidence that the appellant believed that a failure to provide the phone number would have led to a breach charge.
• Third, he was not satisfied that the direction provided to each accused, as part of their intake, to provide a phone number objectively meant that the accused were compelled to make the statements to the probation officer, because the intake interview and direction did not have the force of a probation order.
• Fourth, he did not find that the probation officers created any psychological or emotional pressure on the appellant to make the statements. In that regard, he observed that probation officers simultaneously perform two distinct functions, rehabilitation and enforcement.

59On appeal, the appellant submits that the trial judge erred in not finding that his provision of the phone numbers was a compelled statement taken in violation of s. 7. He submits that the trial judge failed to consider that two probation officers explained to him that he could be prosecuted for violating his probation order. Further, he argues that he was subjected to a high level of coercion to provide his phone number and that he was in an adversarial relationship with the probation officers.

60These submissions are unpersuasive. The trial judge carefully considered these issues, and I concur with and adopt his analysis. As noted, the appellant did not testify, and thus there was no direct evidence that he felt coerced to provide his telephone number. Nor am I satisfied that coercion can be inferred in the circumstances. The intake form filled out by the appellant indeed included a section that asked for a "telephone number, where you can be reached." However, the probation officer testified that the order did not have a term that a phone number be provided. Further, she testified that she did not tell the appellant that the failure to provide a phone number would be considered a breach of the probation order.

61The appellant’s reliance on R. v. Charles, 2013 ONSC 6704, aff’d 2016 ONCA 892, is misplaced. Charles had provided the probation office with several phone numbers in a probation intake form. In a subsequent voice mail message, he also left a mobile phone number (the “mobile phone number”). The link between Charles and the mobile phone number was incriminating. At his trial, Charles sought the exclusion of evidence that he had provided the mobile phone number to the probation officer, claiming that he had done so under coercion. The trial judge disagreed and admitted the evidence. In explaining that decision, the trial judge contrasted Charles’ provision of his home phone numbers in the probation intake form, commenting that Charles had a reasonably held belief that the provision of his home phone number on the probation intake form was mandatory: Charles, at para. 32. This obiter comment by the trial judge is of no assistance to the appellant. The cases are factually distinguishable. In Charles, the evidence of the probation officer was that the provision of a phone number was mandatory if a client was attending counselling: at para. 17. Moreover, the appellant, in that case, testified that he felt coerced.

62Based on the foregoing, I would not give effect to this ground of appeal.

IV. Disposition

63I would dismiss the appeal.