Court of Appeal for Ontario

Date: 2023-10-19 Docket: C68803 Judges: Benotto, Roberts and Favreau JJ.A.

Between: His Majesty the King, Respondent and Rachard Holder, Appellant

Counsel: Jeffery Couse, for the appellant Roger A. Pinnock, for the respondent

Heard: October 5, 2023

On appeal from the conviction entered on May 2, 2018, and the sentence imposed on September 13, 2018, by Justice Mario D. Faieta of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

1The appellant, Rachard Holder, was convicted by a jury of one count of attempted murder, one count of pointing a firearm and one count of intentionally discharging a firearm. Following the jury verdict, the trial judge also convicted the appellant of one count of his being in possession of a firearm in breach of an order made under s. 109(2) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge sentenced the appellant to life in prison.

2The appellant appeals his convictions and his sentence.

3After hearing the appellant’s submissions, the panel did not call on the Crown and advised that the appeal was dismissed with reasons to follow. These are the reasons.

A. Conviction Appeal

(1) Factual Background

4On September 10, 2016, Steven Cseko, who was a 30-year-old competitive bodybuilder at the time, was staying in a motel in Toronto. Mr. Cseko heard screaming from the room adjacent to his. The room was occupied by the appellant and his girlfriend at that time, Malaika Dennis.

5After hearing the screaming, Mr. Cseko knocked on the door of the appellant’s room. Ms. Dennis then emerged from the room, and Mr. Cseko stood between her and the appellant. Mr. Cseko suggested that the two stay apart for the night to cool down.

6The three of them then went to the front desk of the motel together. Ms. Dennis left in a taxi. The appellant requested a refund, which the receptionist at the front desk refused. At that point Mr. Cseko told the appellant to stop harassing the receptionist. This led to an exchange of words between the appellant and Mr. Cseko, in the context of which Mr. Cseko says the appellant said he would “come back for him” later with a friend.

7Later that evening, Mr. Cseko was sitting on the patio at a bar near the motel. Mr. Cseko was approached by a man who shot him. Mr. Cseko was seriously injured, leaving him with permanent impairments and several life-threatening complications.

8In a phone call to his father immediately after the shooting, Mr. Cseko identified the shooter as the man with whom he had a confrontation at the motel. He also told a police officer who attended the scene that night that the person who shot him was the man with whom he had a confrontation earlier that evening. Mr. Cseko subsequently identified the appellant as the shooter during a police interview two months after the shooting and again at the preliminary inquiry.

9The appellant was tried by a jury and found guilty of the charges referred to above, including attempted murder.

(2) Analysis

10The appellant’s conviction appeal focuses on one aspect of the jury charge, namely the trial judge’s instruction regarding Mr. Cseko’s identification evidence. The appellant argues that the trial judge erred in instructing the jury that they could rely on Mr. Cseko’s identification of the appellant in the statement he gave to the police two months after the shooting and at the preliminary inquiry. He says that the trial judge’s instructions on this point did not comply with this court’s decision in R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.).

11In Tat, Doherty J.A. discussed the evidentiary value of prior identification statements. Unlike other prior consistent statements, Doherty J.A. explained that, in the context of identification evidence, “the entire identification process which culminates with an in-court identification” is probative: Tat, at para. 36. He further explained the rationale for this approach, at paras. 36-37, as follows:

Clearly, the evidence of the prior descriptions given and prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of the identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification.

If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior description will be central to that assessment. [Emphasis added.]

12The appellant’s argument on appeal focuses on the following portion of the jury charge:

You heard evidence that before trial that Steven Cseko told PC Middleton at the scene that he had been shot by Rachard Holder. You also heard evidence that Mr. Cseko gave the same evidence to police two months after he was shot and at the preliminary hearing that was held. What he said then about who shot him is consistent with what he said in his testimony at trial.

Evidence that a witness said something or gave a statement about an event consistent with his testimony at trial about who shot him on September 10, 2016 may only be used, though, for the limited – for a limited purpose in deciding whether Crown counsel has proven the accused’s guilt of an offence beyond a reasonable doubt. Just because a person has said the same thing about the same event more than once, in this case both before and at trial, does not make what he said about it more likely to be true. Repetition and accuracy are not the same thing. A false statement remains a false statement no matter how many times who made it up has repeated it. The only purposes for which you may use this out-of-court statement are, one, as part of the narrative, that is, for the fact that such statements were made; two, to the extent they are inconsistent with his evidence at trial, for the purpose of determining the credibility and reliability of Mr. Cseko’s evidence; three, evidence of previous identifications made and descriptions given can help you assess the value and weight of Mr. Cseko’s identification. [Emphasis added.]

13The appellant argues that the trial judge erred in referring to Mr. Cseko’s identification of the appellant in his police statement and at the preliminary inquiry because these identifications were not sufficiently close in time to the incident. He submits that they have no added probative value because they are not part of the identification process, and they bear the same risks of prejudice as other types of prior consistent statements.

14We see no error in the trial judge’s instruction.

15The part of the charge dealing with Mr. Cseko’s prior statements identifying the appellant are entirely consistent with Tat. The appellant was not able to point to any authorities distinguishing between identification statements made immediately following an incident and identification statements made between the time of the incident and the trial. In effect, this would be contrary to the direction in Tat that “the entire identification process” may be probative.

16As noted in Tat, at fn. 5, and consistent with general principles of evidence law, “trial judges, of course, retain a discretion to exclude evidence of prior identification where its prejudicial effect outweighs its probative value”. In effect, there may be circumstances where it would be appropriate to instruct a jury that some instance of a witness’s repeated identification of an accused should not be considered as part of the identification process because its prejudicial value outweighs its probative value. However, in this case, trial counsel did not object to the part of the charge dealing with Mr. Cseko’s prior identification statements, including the reference to the police statement and the preliminary inquiry. ¹ Even on appeal, the appellant did not point to any specific prejudice caused by the reference in the impugned passage of the jury charge to Mr. Cseko’s identification of the appellant in his police statement and at the preliminary inquiry.

17The instruction at issue must be placed in context. In the previous section of the charge, the trial judge gave a lengthy standard instruction regarding the risks and frailties of identification evidence. He then carefully reviewed Mr. Cseko’s evidence identifying the appellant as the shooter. In that context, the trial judge emphasized that Mr. Cseko’s opportunity to identify the appellant as the shooter at the bar was brief. He also pointed to an inconsistency between Mr. Cseko’s evidence at trial and at the preliminary inquiry; namely, he reminded the jury that, at trial, Mr. Cseko could not remember whether the shooter was wearing grills on his teeth whereas he had testified at the preliminary inquiry that he was wearing grills.

18Appellate courts are to take a functional approach when reviewing a jury charge by looking at the alleged errors in the context of the evidence, the entire charge, and the trial as a whole: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21. In this case, we see no error in the jury charge. The jury was well equipped to understand the caution they were to take in assessing the identification evidence, including the significance of Mr. Cseko’s prior statements identifying the appellant as the shooter.

19At the hearing, the appellant abandoned his ground of appeal regarding an alleged error in the portion of the jury charge dealing with the lack of gun powder residue on the appellant’s clothing.

20Accordingly, the conviction appeal is dismissed.

B. Sentence Appeal

21The appellant argues that the trial judge made two errors in principle in his sentencing decision. First, he argues that the trial judge erred in taking his lack of remorse as an aggravating factor. Second, he argues that the trial judge erred in referring to the likelihood of the appellant’s future dangerousness.

22We reject both arguments.

23Prior to sentencing, the appellant wrote a letter in which he acknowledged the impact the shooting had on Mr. Cseko and his family, and in which he addressed the impact it had on him and his relationship with his daughter. The trial judge did not accept that the letter showed any real remorse.

24The appellant argues that the trial judge then went on to rely on his finding that the appellant did not show remorse as an aggravating factor. This position is not borne out by a review of the trial judge’s reasons.

25In his reasons, the trial judge explicitly acknowledged that he could not rely on the appellant’s lack of remorse as an aggravating factor. In doing so, he quoted the following passage from this court’s decision in R. v. Shah, 2017 ONCA 872, at para. 8:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2. [Emphasis added.]

26The trial judge went on to state that:

I find that the circumstances, particularly in [the appellant’s] absence of remorse indicates a lack of insight into the crime that he committed and demonstrates a substantial likelihood of future dangerousness, notwithstanding that he has taken certain programs while in custody. In my view, the objectives of denunciation and deterrence must be the primary objectives that inform the appropriate approach to sentencing in this case. [Emphasis added.]

27It is evident from this passage of his reasons that the trial judge did not rely on the appellant’s lack of remorse as an aggravating factor, but rather as evidence of his lack of insight into the crime that he committed and the likelihood of his future dangerousness. The use of lack of remorse for these purposes is explicitly contemplated in Shah. In addition, in the subsequent portion of his decision, the trial judge set out the aggravating factors that he did find relevant, and notably he did not refer to the appellant’s lack of remorse. Accordingly, we see no basis for finding that the trial judge improperly relied on the appellant’s lack of remorse as an aggravating factor.

28The appellant’s related argument is that the trial judge erred in relying on his risk of future dangerousness as relevant to his sentencing decision. He argues that this is a factor only properly considered on a dangerous offender application. There is no merit to this position. Again, as referred to above, the risk of future dangerousness can be relevant to sentencing, especially in relation to the objective of deterrence. The trial judge reasonably identified deterrence as one of the primary sentencing objectives in this case. Accordingly, we see no error in his reference to concerns over the appellant’s risk of future dangerousness.

29At the hearing of the appeal, the appellant did not pursue the argument in his factum that the sentence was unfit. In any event, given the circumstances of the offence, which involved a calculated and unprovoked violent shooting that has left Mr. Cseko permanently and seriously disabled, and given the appellant’s prior criminal record which includes other violent offences, the sentence imposed by the trial judge was entirely fit, and proportionate to sentences imposed in similar circumstances.

C. Disposition

30The appeals from conviction and sentence are therefore dismissed.

Footnotes

1. 1The trial judge added the part of the jury charge at issue at the Crown’s request. It is unclear from the record whether counsel had a chance to review the updated jury charge before the charge was read to the jury. However, trial counsel did not object to the Crown’s request nor to the charge after it was read to the jury.