Court of Appeal for Ontario
DATE: 20221121 DOCKET: C65757
Feldman, Roberts and Paciocco JJ.A.
BETWEEN
His Majesty the King Respondent
and
Dwayne Gordon Appellant
Counsel: Peter Thorning, for the appellant Katie Doherty, for the respondent
Heard: April 22, 2022
On appeal from the conviction entered by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury, on May 3, 2018, and from the sentence imposed on July 25, 2018.
1The appellant appeals his conviction by a jury of second degree murder and the sentence imposed by the trial judge of life imprisonment with no eligibility for parole for 14 years.
2The 19-year-old victim was found dead in his home. He had suffered multiple stab wounds. There was no forensic evidence that identified the perpetrator and no evidence of forced entry.
3The appellant was a friend of the victim and also his supplier of marihuana for sale. The Crown theory was that the appellant killed the victim because of a dispute over the drug business. The link between the appellant and the murder was based on circumstantial evidence of the movements of a person said to be the appellant that day on a bus trip to and from the victim’s home that coincided with the time when the victim was likely killed, as well as a taxi ride ordered to go to the appellant’s house after he got off the bus. That evidence was made up of surveillance video as well as cell phone records. The video showed what the person was wearing on the way to the victim’s home, with different clothes on the way back, with the plaid shirt identified as possibly belonging to the victim, and a backpack that was disposed of along the way. In addition, there was an alleged confession by the appellant on a wiretap, and an alleged adopted admission by him to a friend. Identification was the main issue in the case.
4Three issues are raised on the conviction appeal: 1) whether the trial judge gave adequate instructions to the jury on the identification evidence; 2) whether the trial judge erred by instructing the jury that they could apply the doctrine of adopted admission to the appellant’s response to a comment made to him by a friend; and 3) whether the trial judge erred by failing to discharge a juror who came forward with an issue regarding his ability to distinguish colours.
5On the sentence appeal, the appellant submits that the trial judge erred in law by considering a youth court disposition and/or a conditional discharge as constituting a criminal record, and taking that into account in imposing the 14-year period of parole ineligibility.
6For the reasons that follow, I would dismiss the appeal from conviction, grant leave to appeal the sentence but dismiss the appeal.
Facts
7The victim, Andrew Dacosta, lived in the home on Zia Dodda Crescent with his mother, Allison Stewart, his older sister Christine Stewart, and her daughter. He was found dead from multiple stab wounds by Christine Stewart, when she returned from work in the late afternoon of October 19, 2012. He had been dead for several hours. The victim had been observed by friends in the morning of October 19 between 10:00 a.m. and 10:30 a.m.
8When she arrived home after 5:00 p.m., Christine Stewart was told by her daughter that there was blood on the bathroom door. She followed that to the victim’s room which was in disarray with clothes and items all over and drawers open. She then proceeded to Allison Stewart’s room where the door was closed. When she opened it she saw her brother lying on the floor in a pool of blood with a chair on him and with blood all over.
9The forensic evidence disclosed that the cause of death was multiple stab wounds including 8 stabs and 12 incised cuts. The time of death ranged from 2 to 12 hours before the discovery of the body. The blood belonged to the victim. The appellant was excluded as contributing to a minor DNA profile in one blood swab from the blood trail. There was also a minor contributor to two bloodstains in the bathroom which could not be identified. There were blood transfer stains on a glass jar in the victim’s bedroom as well as fibers on the grip marks from a wet glove or fabric. The victim had kept money and marihuana in a glass jar. There were no signs of forced entry and no fingerprints of significance to the investigation were developed.
10The victim and the appellant were friends from school. At the time of the murder, the victim was a marihuana dealer and the appellant was his supplier. The victim had recently begun regular employment at a local manufacturing company.
11Both men knew Ms. Kaycia Merraro, who was 16 at the time of the victim’s death. She and the victim met when she was 14 and he was 17 and they developed a relationship. The victim introduced her to the appellant in November or December, 2010. A few months later, she wanted to run away from home where her mother would not find her and asked the appellant if she could stay at his house. She first said that she stayed there for one week but at trial said it was three weeks. She said that she had sexual intercourse with the appellant a couple of times but she did not want a relationship with him. He also gave her money. When the victim learned she was living with the appellant, he broke up with her. She left the appellant’s home after he became angry and thought people were stealing from him. However, they kept in touch after that on the phone and through social media.
12Following the murder, there was a community memorial where Ms. Merraro attended but she did not see the appellant.
13She tried to call him over the next few days but he did not answer. During that time people at school were saying that the appellant was responsible for the murder. On November 19, 2012, the appellant called Ms. Merraro. She testified that she asked him why he was not at the memorial or the funeral, and he responded that those places were not for him. She testified that she then told him that she was hearing that he had killed the victim, and that he responded right away saying: “Shut up, shut up, shut up” and “this was not a conversation to be had on the phone.”
14Ms. Merraro reported this to the police the next day. She had a further meeting with the police on December 1, 2015, where they showed her still photographs of a person that had been taken from video surveillance from two buses. She identified the sweater the person was wearing, the backpack he was carrying, and the jeans he was wearing with white stitching embellishments on the back pockets as belonging to the appellant based on her knowledge from living at his house. She also identified the person as the appellant but not with 100 percent certainty. She also identified the appellant’s voice on an audio recording from February 20, 2013, that had been obtained as a result of a police wiretap authorization. At the discovery proceeding, she was also shown the videos from the buses, and identified the person on both videos as the appellant.
15The police obtained cell phone records for the number associated with the appellant’s cell phone. These records disclosed calls to A1 Taxi on the morning of October 19, 2012, for pickup at a Petro Canada gas station at Airport Road and Sandalwood Parkway, which led the police to gather surveillance video from the taxi, the businesses at the pickup location, as well as from buses.
16The surveillance video from bus 924 showed a male travelling first from Brisdale Drive and Sandalwood Parkway to Via Romano Way just north of Zia Dotta Crescent where the victim lived, getting on at 9:10 a.m. and getting off at 10:08 a.m. He was wearing a black and grey plaid hoodie, jeans with white stitching on the back pockets, white Adidas shoes, a red flat backpack and little knit gloves, one black and one red, with yellow boxer shorts showing above the waist of the jeans.
17The surveillance video from bus 634 showed a male boarding at the northwest corner of Cottrelle Boulevard and Via Romano Way at 10:50 a.m. Constable Ashby testified that the male appeared to be wearing different clothing, but this male appeared to be the same male who had travelled to Zia Dotta Crescent. Constable Ashby described him as wearing a darker plaid jacket, jeans with no white stitching on the back pockets and no gloves. He was carrying a red backpack that looked fuller than before. He had a braid down the back of his head. He exited the bus across from the Petro Canada gas station at Sandalwood Parkway and Airport Road at 11:08 a.m.
18The male is picked up on surveillance video from the plaza, first from a grocery store and then from the Petro Canada gas station. He is seen running in front of the grocery store with the red backpack but then on the next camera he is seen entering Petro Canada without the backpack. The police searched for the backpack but did not find it. There were cell phone calls from the appellant’s phone to A1 Taxi around this time and at 11:17 a.m. a cab picked up the male who asked to go to 69 Roadmaster Lane, which is the appellant’s address. He got out on Creditview Road near Roadmaster Lane.
19These were the videos that were shown to Ms. Merraro to see if she could identify the appellant or the clothes.
20Still pictures from the videos were shown to Allison and Christine Stewart to see if they recognized any of the clothes. They were shown to them by the victim liaison officer who was assigned to them and who had befriended them. He showed them the same copy of the pictures although he did it individually. Allison Stewart was first shown the photos and did not recognize the clothing and wrote that on the back of the photo. Christine Stewart recognized the plaid shirt jacket as the victim’s and wrote that on the back of the photo. After speaking with the officer, they looked for the plaid shirt in the victim’s clothing and were not able to find it.
21A few weeks later, Allison Stewart did recall the plaid shirt, which she believed the victim had purchased using a Christmas gift card at the mall. She told Christine Stewart and two weeks later she told the officer at one of their regular meetings. He told them that he did not think her recent recollection would be much use given the passage of time and the fact that she had likely spoken with Christine Stewart about it.
22The police also conducted a wiretap investigation of the appellant from January to March 2013. This included his cell phone, his home and the cars he used. In order to stimulate conversation, the police took steps including speaking with friends and family of the victim and of the appellant. To identify the appellant’s voice, the police tendered conversations recorded where the appellant identified himself. Constable English, the wiretap coordinator, testified that he identified the appellant’s voice on a call from February 12, 2013, when the appellant said: “Hello Caroline, it’s Dwayne Gordon speaking”.
23On February 20, 2013, in a recorded conversation where Ms. Merraro identified the appellant speaking, he said:
Oh, oh, gonna be on the (unintelligible) but da man Costa (ph) was fucking crazy and I killed him bro. I was trying if he wanted the weed bro but he didn’t want to take the dro (ph). He never wanted to take kush (ph) from me bro, that’s just wrong so yeah.
24It should be noted that the defence argued in its closing submissions that the appellant was not referring to the victim in this intercepted communication, but to another individual by the name of “Diego Gomes DaCosta” to whom the appellant was dealing drugs at the time. Defence counsel argued that in this conversation, the appellant was not confessing to the murder of Andrew DaCosta but rather referring to cutting off Diego DaCosta because he was tired of Diego DaCosta constantly asking him for free drugs.
25In a recording on March 5, 2013, from the bedroom probe, the appellant was speaking about getting off a bus from his house and going to the Sandalwood area, going into a store, and taking a taxi.
Issues
26The appellant raises three issues on the conviction appeal.
a) Did the trial judge err in his charge to the jury on the issue of identification i) by failing to specifically review the frailties of the identification evidence, or ii) in his instructions on recognition evidence?
b) Did the trial judge err by charging the jury on adoptive admissions?
c) Did the trial judge err by failing to discharge a juror who told the court that he had trouble distinguishing colours?
Issue a) Did the trial judge err in his charge to the jury on the issue of identification i) by failing to specifically review the frailties of the identification evidence, or ii) in his instructions on recognition evidence?
27This was not a case where a stranger observed a perpetrator of an offence and then identified that person later from photographs, with all of the concerns that eyewitness identification of that type raises. Instead, there were four significant areas of evidence that the Crown relied on to identify the appellant as the perpetrator of the murder. Two involved recognition of the appellant on video and audio by a friend, Ms. Merraro. The third was the identification of the plaid shirt worn by the person on the bus travelling after the murder by the victim’s mother and sister as belonging to the victim.
28The fourth was the opinion evidence of Constable Ashby, the officer who gathered and analyzed the video surveillance evidence, that the person on the first bus and on the second bus were the same person based on his shoes, his yellow boxer shorts and the red backpack. The jury was instructed that it was not to consider Constable Ashby’s opinion that the person on the buses was in fact the appellant. However, it could rely on “Constable Ashby’s opinion that the person she has pointed out on the various videos that she has reviewed is the same person.”
29These four aspects of identification evidence were accompanied by other circumstantial evidence of identification, including evidence that the male picked up by a taxi at the Petro Canada gas station asked to be dropped off at 69 Roadmaster Lane, the appellant’s address.
30The appellant has two complaints regarding the charge on identification evidence. The first is that the trial judge failed to explain in detail the problems with each of the four types of identification evidence relied on by the Crown and then to link those frailties to his instructions on identification evidence. The second is that the trial judge erred by suggesting in respect of Ms. Merraro’s evidence, that where a person knows the person being identified, that person’s recognition is more reliable than identification by a stranger.
31Counsel for the appellant raised these concerns with the trial judge in the pre-charge conference and the trial judge made some additions to the charge as a result. The appellant submits that the charge remained deficient and that that deficiency amounts to an error in law.
i. The trial judge’s review of the frailties of the identification evidence
32With respect to the first alleged error, the appellant submits that as the identification of the person on the bus as the appellant was the key issue for the jury to decide, the trial judge was required to identify the specific weaknesses in each piece of identification evidence. His failure to do so resulted in a jury instruction that did not focus the jury’s attention on those weaknesses.
33The trial judge organized the jury charge by explaining the legal issues in the context of the evidence in the first part. Later in the charge he gave a lengthy and detailed witness by witness summary of the evidence to assist the jury. The following is the portion of the charge on identification evidence:
The case against Mr. Gordon, to some degree, depends on witness identification testimony, including the identification of Mr. Gordon by Ms. Merraro on the surveillance videos from the buses and from the Mian Grocery and Petro Canada videos. She identified the jacket -- and we have heard it referred to as a jacket or a coat or a sweater. In all cases, we are talking about the same thing. In any event, she identified the jacket, as well as other clothing, worn on the second bus and the backpack, and identified a voice she heard on the intercepts as that of Mr. Gordon. Officer English, who knew Mr. Gordon was a suspect, identified Gordon’s voice on the intercepts on the strength of the intercepts known as voice identifiers.
Christine and Allison Stewart provided identification evidence in regards to, again, the shirt or sweater observed on an individual observed in a picture. The view from the picture is one looking through glass doors and the person’s face and lower body were redacted or covered over.
Generally, you must be cautious about relying on identification testimony to find Mr. Gordon guilty. In the past, there have been miscarriages of justice, innocent persons have been wrongly convicted, because eye witnesses or identification witnesses have made honest mistakes in identifying persons or individuals. Identification evidence may seem more reliable than it actually is because it is given by a credible and convincing witness who honestly, but perhaps mistakenly, believes that the accused is the person he or she identified.
Identification testimony is an expression by a witness of their belief or impression. It is quite possible for an honest witness to make a mistake in identification. An apparently convincing witness can be mistaken. Little connection exists between the great confidence of the witness in the correctness of his/her identification and the accuracy of the identification. Even a very confident witness can make a mistake.
The reliability of identification evidence is especially suspect in circumstances in which a witness is identifying a stranger. For example, a customer in a jewellery store who witnesses a robbery of the store and is asked to identify the robber whom he or she had never seen before.
However, such is not the case in this trial. In this matter and in regards to the identification of Mr. Gordon, the identification evidence is what we call recognition evidence. Mr. Gordon was known to the witnesses who were called upon to identify Mr. Gordon or a picture of him, especially Ms. Merraro. They were familiar with him. Their identification evidence is likely more reliable as a result of that familiarity.
Nevertheless, the same concerns apply and caution must be taken in assessing the reliability of such evidence, notwithstanding the person or thing identified is known to the witness.
For example, Allison and Christine Stewart gave identification evidence in regards to the shirt or jacket worn by a person seen on a still picture taken from a video recording. Initially, while Christine identified the shirt as one worn by her brother, Andrew, Allison was unable to identify it. She later identified it, some weeks later, perhaps after talking to Christine. She told Officer Vaughan of her change in belief at a meeting at a Tim Horton’s. The officer opined that in the circumstances Allison’s identification evidence had little worth.
Nevertheless, it was Allison’s evidence that she was 100 percent sure.
When you decide how much or little to believe of or rely upon this evidence, everything that I told you earlier about assessing evidence applies to identification witnesses. Keep in mind the circumstances of their identification.
When considering such evidence, take into account the circumstances in which it was given. Was the witness coached or influenced in any way? Did anything occur which would taint the identification?
In regards to pictures and videos, what was their quality? Were they in focus?
How familiar was the witness to Mr. Gordon?
Was there anything hindering a witness’ view?
Was there other evidence which corroborated identification evidence?
Officer Ashby testified that the person of interest she observed on the bus videos was one and the same, that is, the same person on both buses. Consider her evidence as to why she held that belief.
In regards to the jacket or sweater worn by the individual seen on the second bus, consider the variations in the descriptions of it by various witnesses regarding colour and whether or not it had a hood and, if so, the colour of the hood.
Consider Ms. Merraro’s familiarity with Mr. Gordon. She testified she lived in his home for three weeks and that she was intimate with him. She talked on the phone with him on a semi-regular basis after she moved out. She had talked to him twice in the week leading up to Andrew’s death.
Ultimately, though, it is up to you to decide these issues of identification. Consider the evidence as a whole.
Crown counsel must prove beyond a reasonable doubt that it was Mr. Gordon who committed the murder. It is not necessary that an identification witness be free from doubt about the correctness or certainty of his or her identification. What is required, however, before you find Mr. Gordon guilty is that you be satisfied beyond a reasonable doubt, on the whole of the evidence, that it was Mr. Gordon who committed the murder.
34As an example of the trial judge’s alleged failure to point out to the jury the weaknesses with the identification evidence, the appellant submits that he identified the following frailties in Allison and Christine Stewart’s identification of the plaid shirt worn by the person on the second bus, and compares those with what the trial judge instead told the jury. The appellant identified the following frailties of the identification:
Stewarts’ identification of the clothing
- The initial non-identification;
- The un-recorded discussions with the Stewarts discussing the identification of the sweater;
- The material differences between the sweater they knew the deceased to own and the one in the picture;
- The quality of the image was poor;
- The failure to conduct the identification procedure separately.
35In the charge, the trial judge said the following:
For example, Allison and Christine Stewart gave identification evidence in regards to the shirt or jacket worn by a person seen on a still picture taken from a video recording. Initially, while Christine identified the shirt as one worn by her brother, Andrew, Allison was unable to identify it. She later identified it, some weeks later, perhaps after talking to Christine. She told Officer Vaughan of her change in belief at a meeting at a Tim Horton’s. The officer opined that in the circumstances Allison’s identification evidence had little worth.
Nevertheless, it was Allison’s evidence that she was 100 percent sure.
36I do not agree with the appellant’s submission that the trial judge’s charge was deficient in pointing out the frailties in the identification evidence to the jury. First, the judge’s summary in the context of the legal instruction on identification focused the jury on the issue of the initial inconsistency between the mother and sister on whether the shirt belonged to the victim. Second, when he was reviewing the detailed evidence of each witness, the trial judge highlighted many of the specific concerns identified by the appellant with respect to the identifications by Allison Stewart, Christine Stewart, Ms. Merraro and Constable Ashby. Third, in his closing address to the jury, defence counsel also reviewed these frailties in context and in detail. The jury’s attention was sufficiently directed to all the concerns it was required to consider and weigh in assessing the identification evidence.
37The trial judge included an express direction to the jury that they must be cautious about relying on identification testimony which can be erroneous or mistaken even by the most certain and honest witness and alerted them to past miscarriages of justice based on mistaken identification testimony. In his explanation of how to approach identification evidence, the trial judge identified the various considerations they should take into account including Allison and Christine Stewart’s identification evidence regarding the plaid shirt observed in the still photo from the surveillance video.
38Taken as a whole, the charge, which followed after counsel’s lengthy and detailed closing submissions, would have sufficiently instructed and informed the jury about the cautious and careful approach they were to take regarding identification testimony and the details of the frailties in the evidence they heard. I would therefore not give effect to this ground of appeal.
ii. The trial judge’s instructions on recognition evidence
39The appellant also submits that the trial judge erred in law by instructing the jury that recognition evidence by a person familiar with the person being identified is more reliable than identification by stranger. This applied particularly to Ms. Merraro who identified the appellant’s voice on recordings, his face on some of the videos, and the clothes worn by the person on the first bus ride. The trial judge observed that her familiarity was based on her having lived at the appellant’s home for three weeks and been intimate with him, as well as talking to the appellant on the phone semi-regularly after she moved out. Ms. Merraro had testified that she had talked to him twice in the week before the victim’s death.
40The trial judge instructed the jury that the recognition evidence in this particular case was likely more reliable than stranger identification evidence as a result of the familiarity. But he followed that immediately with a caution that the same concerns about mistakes in identification evidence apply to recognition identification and the same caution must be taken with it. He also emphasized that the evidence must be considered as a whole.
41The appellant submits that the trial judge’s instruction constituted an error in law by overvaluing the recognition factor, and violated this court’s holding in R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783. In that case, the trial judge told the jury that identification of a known person is “different” from identification of a stranger. The court held that that statement had the effect of negating the identification instruction and was wrong in law. The court explained, at para. 29:
Recognition evidence is not “different” from identification evidence. It is subject to the same frailties and the same risks. This is significant where, as here, a jury may be quick to assume that, because the witness knows the person, the identification must be correct. A trier of fact could intuitively place undue reliance on the evidence of recognition without a clear instruction outlining the frailties. The trier of fact, whether judge or jury, must approach the evidence of recognition with the same caution as identification evidence and the evidence must have the same level of reliability.
42The court also quoted the principles from R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 38-39:
Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
It must be remembered however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.
43In my view, the trial judge did not err in his charge dealing with the principles that apply to recognition identification evidence. He did not say that that evidence is different. He explained why, in the circumstances of this case, it would likely be more reliable than stranger identification but included the proper caution in accordance with the case law from this court. The appellant’s position was clear that Ms. Merraro was not really familiar with the appellant, that she only lived in his house for one week not three, having changed her story on that, that it was years earlier, and that she could not have really been familiar with his clothes from that time. While the degree of Ms. Merraro’s reliability and credibility as to her ability to recognize the appellant was properly left to the jury, the trial judge did not err in observing that she stood in a different position than a complete stranger. The judge gave the jury clear and correct instructions regarding how to approach and assess the credibility of the witnesses to which no objection is taken.
44The appellant also objects that the trial judge erred by applying the doctrine of recognition erroneously to clothing. I do not agree. The only basis for Allison and Christine Stewart’s potential identification of the shirt worn on the second bus was if they recognized it as belonging to the victim. That would have been well-understood by the jury. The fact that Allison Stewart changed her mind as to whether she recognized the shirt demonstrated to the jury the potential for misremembering and for error.
45I would not give effect to this ground of appeal.
b) Did the trial judge err by charging the jury on adoptive admissions?
46The appellant submits that the appellant’s response of “[s]hut up, shut up, shut up” and that this was not a conversation for the phone, to Ms. Merraro’s comment to him that she had heard rumours at school that he was responsible for the victim’s death, could not amount in law to an “adoptive admission”. Therefore, the trial judge erred in law by instructing the jury that they could treat his response as an adoptive admission, and further erred by giving them an unbalanced instruction which did not give them the option of another interpretation.
47The following is the trial judge’s instruction on the issue:
Adoptive Admissions
This instruction relates to the telephone conversation Ms. Merraro testified she had with Mr. Gordon a month after Andrew’s death.
Immediately after his death, she tried to call and speak to Mr. Gordon but her calls went unanswered.
Perhaps because of police suggestion and/or because of the rumour she heard at school, which was that Mr. Gordon killed Andrew, Ms. Merraro testified that her purpose for contacting Mr. Gordon changed and she continued to try to reach him without success.
However, on November 19th, 2012, she received a call from Mr. Gordon. The following day, November 20th, she went to the police and advised them of the conversation. Her police statement was recorded.
She advised the police that the following exchange took place.
Ms. Merraro said to him, “You know I have something to tell you...there’s rumours that you killed Andrew.” After a short pause she said, “Yeah like that’s the rumour.”
Mr. Gordon responded by telling her to “shut up, shut up” and “this was not a conversation to be had on the phone.
The discussion then turned to other subjects and to when Ms. Merraro would come see him.
The Crown argues that a reasonable person, if innocent, would have denied the allegation that he killed someone. It is submitted that by not doing so and by giving the answer he did, Mr. Gordon made an admission of guilt by adoption.
An adoptive admission is a statement made by a third party, in this case Ms. Merraro, in the presence of and adopted by another, Mr. Gordon. There is only adoption to the extent that the person, in this case Mr. Gordon, assents to the truth of the statement expressly or impliedly.
Assent can be inferred from, in this case, Mr. Gordon’s words, actions, conduct or demeanour. Assent can also be inferred from silence or an equivocal or evasive denial.
An accused’s silence, in the sense that they do not take issue with the statement, may lead to an inference of an adoption of a statement made to an accused in circumstances where the accused could reasonably have been expected to reply and deny the accusation.
To utilize this legal principle, you must find as facts that this conversation took place in the manner in which Ms. Merraro testified that it did.
When silence is the manner of the alleged adoption, there are several conditions that must be met even to consider whether or not the allegation was adopted. Mr. Gordon must have heard the statement; the statement must be about a subject matter of which Mr. Gordon would be expected to reply; and Mr. Gordon must not be suffering from any disability or confusion.
However, in considering the doctrine of Adoptive Admission you must exercise a cautious approach. A party’s silence may be ambiguous. You must be satisfied that Mr. Gordon remained silent, that is, did not take issue with the statement, in circumstances where a denial would be reasonably expected if Mr. Gordon was not responsible.
Suggestions as to how an accused should respond in such circumstances may be inaccurate. You must use care before finding that Mr. Gordon has implicitly adopted a statement by virtue of his failure to respond in any particular way.
Consider any other explanations for Mr. Gordon’s response.
48This issue was fully canvassed at the pre-charge conference. The trial judge was persuaded that the Crown’s position that the appellant’s response could be viewed by the jury as an adoptive admission was correct and therefore gave the above instruction. As with any jury instruction, the trial judge’s role is to determine whether a finding may be legally available based on the evidence. If so, it is up to the jury to apply the legal principles as instructed by the trial judge in order to determine whether the inference should in fact be drawn.
49An inference of adoption may be available to be drawn based on a person’s words, actions, conduct, or demeanor in response to a statement made by another person and heard by the person whose response is being considered. Silence in the face of statements made by others, or an equivocal or evasive denial, may also constitute an adoptive admission where the circumstances give rise to a reasonable expectation of reply: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 247; R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-58.
50As with any piece of evidence, the first issue is whether the jury accepts that it occurred. In this case, if they accepted Ms. Merraro’s testimony about this conversation, the next issue was for them to determine whether the appellant’s response constituted an adoptive admission that the rumours were true. The Crown’s theory was that the normal and expected reaction of a person who was told that there are rumours that he killed his friend would be to deny it if he was not responsible. Here, when confronted with those rumours, the appellant instead told Ms. Merraro to shut up and that this was not a conversation to be had on the phone.
51I see no reviewable error in the trial judge’s decision to leave this issue with the jury on the basis that an adoptive inference that the rumours were true was an available interpretation of the appellant’s response. It was up to them to decide whether the appellant’s response amounted to a failure to deny the truth of the rumours when that is what one would expect from an innocent person in all the relevant circumstances, and that that failure to deny amounted to an adoptive admission.
52The appellant also argues that if it was not an error to leave the issue with the jury, the charge on the principle and its potential application in this case was deficient. It failed to instruct the jury that the appellant’s response was equally consistent with anger or surprise or a denial. In addition, the trial judge did not advert to the contentious relationship between the appellant and Ms. Merraro, nor the fact that the appellant’s response could have been based on being a young black man who was surveillance-conscious regarding the police.
53I agree with the appellant that the trial judge should ensure the jury is alerted to the fact that an accused’s reaction to a statement about him may have different meanings, and that it should consider all the relevant circumstances, including the social context of anti-Black racism where it may impact an accused’s response, before drawing the inference of an adoptive admission: R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at paras. 145-146, leave to appeal refused, [2021] S.C.C.A. No. 362.
54However, in this case, the trial judge’s charge did include the potential for another meaning. I refer in particular to the last three paragraphs quoted above. The jury was told to take a cautious approach to considering the adoptive admission, that a party’s failure to take issue may be ambiguous, and to consider other explanations. The appellant did not testify. However, his response demonstrated that he was conscious of telephone surveillance, arguably by police, and that informed his response. The jury would have been well aware of that from the words themselves and from defence counsel’s closing submissions, which drew the jury’s attention to what he submitted were all the relevant circumstances, including the difficult relationship between the appellant and Ms. Merraro, the fact that the appellant might be hesitant to speak to Ms. Merraro on the phone about other criminal activity like drug dealing, and the fact that it was equally possible that the appellant’s response was due to anger or being tired of denying everything. When the charge is reviewed in the context of the trial as a whole, including the closing addresses, the jury would have been equipped to grapple with the issue whether to draw the inference of an adoptive admission: R. v. Lawlor, 2022 ONCA 645, at para. 65.
55In my view, the trial judge did not err by charging the jury on the principle and availability of an inference of an adoptive admission. In addition, the contents of the instruction were appropriate and fair.
56I would therefore not give effect to this ground of appeal.
c) Did the trial judge err by failing to discharge a juror who told the court that he had trouble distinguishing colours and by questioning the juror about the evidence?
57On the third day of evidence, following the testimony of Allison and Christine Stewart, Juror #6 sent the trial judge a note which read:
Your Honour, I wish to bring to your attention the following - I have some difficulty in identifying colours. Not totally colour blind. Since the colour of the shirt in evidence has been discussed, should it matter. Juror #6. [Signed.]
58Counsel for the appellant submitted that the juror should be excused. Crown counsel’s position was that it was premature to make that decision.
59The juror was called separately into court and the judge asked him some questions about what colours he was able to see and distinguish in the exhibits including the images of the plaid shirt. The juror said he could distinguish the colours in the shirt “to some extent” and answered questions about what colours he could see in it. At that point, after counsel for the appellant objected to the nature of the questioning, the trial judge asked more general questions, in response to which the juror said he had difficulty identifying some “borderline colours” like red and browns, or blue and violet. He testified that he could distinguish light and dark colours. He said he would not consider himself colour blind because he “can see the colours but not name it properly.” In his absence, further submissions were made regarding whether the juror should be discharged. One of the Crown’s concerns was to lose a juror so early in a long trial. The trial judge brought the juror back in and asked him whether “your difficulty with colours, in your opinion, does it impact your ability to be -- to hear the evidence and determine the case?” His response was “no”.
60After further submissions, the trial judge ruled that he would not discharge the juror at that point and concluded:
On the evidence to date and the submissions of counsel, I do not believe the juror’s colour issue will reasonably affect his ability to discharge his duties. He has properly brought the issue forward and believes he can fulfill his duties and I accept that. I agree with the Crown that the issue can be monitored and readdressed if necessary. I do not believe this issue will influence the opinion of other jurors or impact on their decision. Accordingly, the juror is not discharged.
61The juror was then brought back in and told that he was staying on the jury and that “if at any time circumstances change, please let us know. All right? Do you understand?”. He responded “yes”. The issue was not raised again.
62The appellant raises two issues on the appeal, one relating to the process undertaken and one relating to the decision not to discharge the juror. The appellant submits that the trial judge erred in law by questioning the juror about his impression of the evidence. He also submits that the trial judge should have found that the juror was unable to carry out his duties and had to be discharged.
63Section 644(1) of the Criminal Code allows a judge to discharge a juror in the course of a trial where the judge “is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act”. A trial judge’s decision under this section is owed significant deference on appeal. In R. v. Kossyrine, 2017 ONCA 388, 138 O.R. (3d) 91, at para. 51, this court stated:
[I]n exercising the discretion under s. 644(1), a trial judge is in a far superior position to that of an appellate court. The trial judge is able to observe the juror, see how the juror answers questions and listens to instructions and watch how the juror reacts to what is going on in the courtroom. An appellate court has none of these advantages.
64The test is whether the decision was unreasonable: Kossyrine, at para. 44; R. v. Gordon, 2012 ONCA 533, 103 W.C.B. (2d) 398, at para. 8; R. v. Bankole, 2008 ONCA 669, at para. 7.
65In R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, this court explained that while there is no fixed procedure for carrying out an inquiry of a juror under s. 644(1), the minimum requirements are that the process must: 1) be fair to all parties and all the jurors; 2) be conducted in open court, on the record, and in the presence of the accused and counsel; 3) enable a determination of the true basis for the claim and to resolve it; and 4) preserve the integrity of the trial process and the impartiality of the jury: at paras. 140-141, citing R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 35, leave to appeal refused, [2006] S.C.C.A. No. 211.
66A new trial may be ordered where the inquiries “result in an intrusion on the confidentiality of the jury’s deliberation process, threaten the integrity of that process, or result in the appearance of unfairness in the trial”: R. v. Kum, 2015 ONCA 36, 320 C.C.C. (3d) 190, at para. 49, citing Giroux, at para. 35.
67The appellant submits that by questioning the juror in relation to his perception of evidence already given, the trial judge threatened the integrity of the process resulting in the appearance of unfairness.
68I do not accept this submission. The trial judge was obliged to ask questions to determine the seriousness and extent of the juror’s self-perceived inability to distinguish colours in the context of his own concern after hearing the evidence he had heard. The trial judge pivoted to general questions about colours following objection by counsel. The questions and answers were not about the juror’s deliberations, but about whether he could discern the evidence. They occurred at an early stage of the trial and did not give the appearance that the juror would not be open to persuasion by the evidence or submissions to come later in the trial: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 104. The juror understood the purpose of the questions and that they were being asked as a result of his note. He would not have forgotten or ignored the instruction to the jury at the opening of the trial to keep an open mind throughout and not to come to any conclusions about the case until after the evidence, closing submissions and charge to the jury were complete.
69The appellant further submits that the decision of the trial judge not to discharge the juror was an unreasonable one in the circumstances of this case where the colour of clothing formed a significant issue on the evidence, and impacted credibility and reliability assessments that were required to be made regarding the observations of certain witnesses. The appellant submits that this juror was not capable of carrying out his duties and by not discharging him, the trial was rendered unfair.
70In my view, it cannot be said that the decision of the trial judge made on the third day of trial not to discharge Juror #6 was an unreasonable one. Although colour played a role in the evidence, in the end, there were no live disputes regarding colour among the witnesses. With respect to the plaid shirt in particular, the issue of whether the colours described by Christine and Allison Stewart matched the shirt captured on surveillance abated when the Crown conceded in closing submissions that the shirt shown on the videos was not the exact shirt they recalled the victim owning, given the “clear differences” between their memory and the shirt seen on video. While various colours were discussed by the parties in their closing argument, it was not with respect to issues that depended on the juror’s perceptions of those colours.
71More significantly, the trial judge determined that the concern raised by the juror himself did not lead that juror to believe that he could not listen to and observe the evidence and decide the case fairly. The trial judge was entitled to accept that assessment by the juror himself. He also left it open for the juror to change his mind if he became concerned later in the trial. That did not occur.
72As a result, there is no appearance of unfairness and no basis to order a new trial on this ground.
Sentence Appeal
73The appellant was sentenced to life in prison with no eligibility for parole for 14 years. He appeals the 14-year parole ineligibility period on the basis that the trial judge erred in law by finding and taking into account that the appellant had a criminal record when he did not. The appellant had a conditional discharge and a youth court disposition, neither of which were criminal convictions and neither of which should have been considered as a criminal record by the sentencing judge.
74The appellant submits that based on other case law provided to this court, an ineligibility period between 10 and 13 years should have been imposed.
75On sentencing, the Crown tendered a copy of the appellant’s CPIC as well as providing the court with updated information regarding additional charges that the appellant had resolved since the offence was committed. The Crown argued as an aggravating factor that the appellant was on probation at the time of the offence and under a weapons prohibition. Appellant’s counsel acknowledged the appellant’s record at the time of sentencing, but noted that he had no criminal convictions at the time of the offence. The Crown asked for a period of 14-16 years, while defence asked for 10-12 years. The jurors had been asked to make individual recommendations for the period of parole ineligibility, and the following responses were received: two jurors recommended 10 years, one juror recommended 16 years, one juror recommended 17 years, two jurors recommended 20 years, and one juror recommended 25 years. Five jurors made no recommendation.
76The trial judge gave detailed reasons for sentence including findings of fact that he made from the evidence and the verdict of the jury. He also referred to information tendered on sentencing including the victim impact statements and the appellant’s criminal history.
77In order to determine the period of parole ineligibility, the trial judge considered the three criteria mandated by s. 745.4 of the Criminal Code, the character of the offender, the nature and circumstances of the offence and the recommendations of the jury.
78It was when considering the character of the appellant that the trial judge referred to the fact that he was 19 at the time of the offence and had a criminal record including a youth court disposition for assault with a weapon from 2008 for which he was placed on probation. The trial judge erroneously described this youth disposition as the appellant being “convicted of” this offence. The appellant was also found guilty of weapons possession in August 2012, two months before the murder. He received a conditional discharge with 12 months’ probation and a discretionary weapons prohibition. The appellant was arrested for the murder in November 2015. At that time, he was in possession of a gun and drugs. He pleaded guilty to gun and drug related charges and received a sentence of seven years in jail. The trial judge acknowledged that he could not consider crimes committed after October 2012 for sentencing purposes, except as evidence of character. For that purpose, the trial judge noted that the appellant had a criminal lifestyle at age 19, that he carried a knife to commit the murder while prohibited from possessing weapons, and that he carried on his drug business from his home.
79The appellant submits that the trial judge erred in law by referring to his youth court disposition and the conditional discharge he received at age 19 as a criminal record. The Crown points out that this was the nomenclature that was used when the CPIC report was presented on sentencing.
80There was no basis placed before this court to find that the youth court disposition was properly adduced in accordance with the youth record access provisions in the Youth Criminal Justice Act, S.C. 2002 c.1. The trial judge should not have considered it.
81While the trial judge should not have treated the conditional discharge as a previous conviction, he was entitled to consider the fact that the appellant was on probation and subject to a weapons prohibition at the time of the offence: R. v. Barclay, 2018 ONCA 114, 44 C.R. (7th) 134, at para. 49. He was also entitled to consider this past conduct and the “factual reality” that the offence before the court was not the first incident: R. v. Montesano, 2019 ONCA 194, 145 O.R. (3d) 474, at para. 11, leave to appeal refused, [2019] S.C.C.A No. 148; R. v. Naraindeen (1990), 75 O.R. (2d) 120 (C.A.).
82The trial judge also considered the character references that were submitted on behalf of the appellant, the fact that on release he would have the support of his family, the fact that he pleaded guilty to the drug and gun offences and that because of his young age, he has the potential for rehabilitation, all as part of the character considerations.
83The trial judge erred by considering the appellant’s youth court disposition or conditional discharge to be a criminal record. However, the Supreme Court of Canada has held that an error in principle will not justify appellate intervention unless “such an error had an impact on the sentence”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. In this case, the trial judge’s reasons with respect to the character of the offender focused on the appellant’s participation in the drug business, that the appellant was breaching both his probation and a weapons prohibition at the time he committed the murder, and that the appellant had continued to engage in crimes after the murder. I am satisfied that the errors with respect to the appellant’s criminal record did not have the effect of increasing the parole ineligibility period imposed. He set the period of parole ineligibility at the low end of the range suggested by Crown counsel and within the range reflected in the jury recommendations.
84I would grant leave to appeal sentence but dismiss the appeal.
Result
85I would dismiss the conviction appeal, grant leave to appeal sentence but dismiss the appeal, except to set aside the victim fine surcharge in accordance with the decision of the Supreme Court of Canada in R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.
Released: November 21, 2022 “K.F.” “K. Feldman J.A.” “I agree. L.B. Roberts J.A.” “I agree. David M. Paciocco J.A.”
