Court of Appeal for Ontario
Date: 2025-05-28
Docket: C70253
Coram: Fairburn A.C.J.O., MacPherson and Gillese JJ.A.
Between:
His Majesty the King (Respondent)
and
Travis Babbington (Appellant)
Appearances:
Nathan Gorham, for the appellant
Deborah Krick and Deepa Negandhi, for the respondent
Heard: May 16, 2025
On appeal from the conviction entered by Justice William M. LeMay of the Superior Court of Justice, sitting with a jury on March 10, 2020.
Reasons for Decision
Introduction
1The appellant, Travis Babbington, was convicted of the first degree murder of Jahsavior Reid on February 20, 2017. Following a trial before Justice LeMay of the Superior Court of Justice, sitting with a jury, the appellant was sentenced to life imprisonment with no possibility of parole for 25 years. The appellant appeals the conviction. He argues that the trial judge erred by:
- Admitting the appellant’s statement to police following his arrest on May 8, 2017;
- Failing to properly instruct the jury following their question on the issue of planning and deliberation;
- Failing to instruct the jury that prior consistent statements of a witness cannot be used to bolster their credibility; and
- Failing to properly instruct the jury on eyewitness identification.
2At the hearing, we dismissed the appeal with reasons to follow. These are our reasons.
Background
3The murder of Mr. Reid took place at a Motel 6 in Brampton. The appellant was seen at this motel on various occasions before the events of February 20, 2017.
4On February 10, 2017, Melanie Lee, an employee at Motel 6, called police after an individual asked for a key card for a room that was not registered in his name. After Ms. Lee refused the request, the man entered the room through a window. The police arrived and identified the man as Mr. Babbington. He was wearing a distinctive white jacket with an embroidered dragon on the back. The police officers investigated the incident as a civil trespass. They told the appellant to leave the premises.
5Ten days later, on February 20, 2017, the appellant and three other men came to the same Motel 6. The appellant was identified as one of the four men by comprehensive motion-sensitive cameras throughout the motel, a woman in a motel room who knew the appellant, and his ex-girlfriend who testified at the trial. The appellant appeared to be wearing the same distinctive white jacket he had worn at the motel ten days earlier.
6The four men moved through the hotel, knocked on a hotel room door and, when it was opened by Mr. Reid, shot him with 17 or 18 bullets.
7After a six-week trial, the jury found the appellant guilty of first degree murder.
Discussion
(a) The trial judge did not err in concluding that the appellant’s May 8, 2017 statement to police was voluntary
8The appellant’s first ground of appeal relates to a statement he made to the police on May 8, 2017, after he was arrested.[1] The trial judge ruled that the Crown could use the statement for cross-examination if the appellant chose to testify.[2]
9The appellant contends that the trial judge erred by concluding that the statement was voluntary. He points to three factors that should have led to a conclusion that the statement was not voluntary: the police refused to allow the appellant to speak to his lawyer a second time, the inadequacy of the police response to the appellant’s request to use the washroom more often than he was allowed, and police exploitation of the appellant’s fatigue and his relationship with his son.
10We are not persuaded by this submission. The trial judge was well aware of the overarching principles relating to the voluntariness of statements made by accused persons. In his ruling on voluntariness, he said, at para. 44:
The leading case on the voluntariness of statements is R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.). In that decision, the Supreme Court outlined the four requirements for a statement to be voluntary:
a) There cannot be any threats or inducements offered to the person making the statement.
b) There cannot be oppression. A statement cannot be voluntary if the will of the person making it has been overborne.
c) The accused person must have an operating mind.
d) There cannot be any police trickery.
11After the appellant was arrested, he was provided with, and exercised, his right to counsel. However, as the lengthy police interview continued, on about 60 occasions he asked to speak to his lawyer again. The police did not accede to his request.
12We see no error in the trial judge’s conclusion that the appellant exercised free will throughout the interview.
13There is no constitutional right for an accused to speak to counsel a second time, absent certain recognized exceptions. For instance, a second opportunity to speak to counsel may arise if there are changed circumstances resulting from new procedures involving the detainee, a change in the jeopardy facing the detainee, or reason to believe that the first information provided was deficient: R. v. Sinclair, 2010 SCC 35, at para. 2. None of these was present in the police interview of the appellant.
14Accordingly, the trial judge was entitled to conclude as he did in his ruling on voluntariness, at para. 97:
The accused has a right to remain silent. However, Singh, supra also recognized (at paragraph 28) that the importance of police interrogation was also a consideration, and that there was no right “not to be spoken to” by the police. I view [the interviewing officer’s] conduct as well within the proper boundaries of police interrogation pursuant to Singh.
15We see no error in the trial judge’s conclusion that the appellant knew the jeopardy he faced when he spoke to his counsel the first time and that, quite simply, his will was not overborne.
16The appellant’s submission relating to inadequate access to bathroom breaks during the interview at the police station is very weak. As the appellant said, he “leaked” into his pants shortly after his arrest and he urinated three times into a cup during the interview. However, the appellant was drinking a large amount of water and he had frequent bathroom visits during the interview. When the appellant used a cup in the interview room, he gave the police virtually no notice that he needed to urinate. Indeed, the appellant had been taken to the washroom five times to urinate before he first used a cup. That cup was used not even two hours after the fifth washroom break and after the officer told the appellant to “sit tight” and then left the room for a short bit. Prior to urinating, the appellant sang for a bit, tapped on the table, yelled out “Ah. Sir. Fuck.” And then loudly yelled, “I’m gonna pee in a cup” and then seconds later, urinated in a cup.
17In his voluntariness ruling, the trial judge dealt with this issue at some length. He concluded at para. 114:
When I step back and look at all of the issues relating to washroom breaks, I conclude that the officers provided appropriate washroom breaks, and that there was no conduct that was oppressive or would otherwise have affected the voluntariness of the accused’s statement.
18We agree with this conclusion.
19The appellant’s third submission on his first ground of appeal is that during the interview at the police station, the interviewing officer engaged in two improper courses of action: he exploited the appellant’s relationship with his son and he ignored the appellant’s high level of fatigue.
20There is no merit in either of these claims. With respect to the police invocation of the appellant’s son, we agree with the trial judge’s analysis:
[The interviewing officer] is using nothing more than moral inducements in order to get the accused to talk. There is no quid pro quo. [The interviewing officer] is only asking the accused to think of what his son would want and/or think, which is not something that [the interviewing officer] has any control over. There is also no promise, express or implied, that the accused will be allowed to see his son if he talks to [the interviewing officer].
21With respect to the tiredness issue, the video evidence of the appellant singing and dancing during breaks in the police interview belies any realistic attempt to make this a serious issue.
(b) The trial judge did not err in his instructions on planning and deliberation
22The appellant’s second ground of appeal is that the trial judge failed to properly instruct the jury with respect to their questions on the issue of planning and deliberation. The jury questions were:
Question one: There’s a fine line between planned, and deliberate, can you help define this? Examples, where does deliberate start and planned stop.
Question 2: Please define deliberate in reference to this trial, examples!!
23The trial judge consulted with defence and Crown counsel and answered the jury’s questions in this fashion:
First, I’ll give you a further definition of the separate terms of planning and deliberation. The words planned and deliberate have separate meanings. For first degree murder, you must find that the murder was both planned and deliberate.
A planned murder is a murder that was conceived and thought before it was committed. In other words, it is a murder for which is [sic] scheme, plan, or design for committing the murder has been created, before the murder is carried out. The scheme or plan can be formulated long before the murder or very shortly before the murder. Thus, a planned murder is a murder that was committed as a result of the plan or scheme that was formulated before the murder was committed. It is important to note that a murder can be intentional without being planned. A person can intentionally kill someone without having planned to kill that person. For example, a person may get into an argument with someone, lose their temper, and intentionally kill that person on the spur of the moment. In that example, the murder was intentional, but it was not planned.
The meaning of deliberate. The word deliberate also means something more than intentional. It means carefully thought-out, slow, cautious and not hasty, rash or impulsive. A person commits deliberate murder when he or she takes the time before committing the murder to consider or think about the consequences and weigh the advantages and disadvantages of his or her intended acts of murder. The time for careful thought need not be long, but before you can convict of first-degree murder, you must be satisfied beyond a reasonable doubt that the killing was done after careful thought, and not on the spur of the moment, suddenly or impulsively, under the influence of some emotion or passion. You must be satisfied that the killing was done after real consideration.
In giving you those definitions, I would also note four other points. One, these concepts are separate and both must be present in order to convict of first-degree murder. Two, there is naturally some overlap between the two concepts, especially when you are considering what evidence applies to your analysis of each issue, so it is difficult to explain precisely where one starts and the other stops. They can also coexist at the same time. Three, another way to think of planning is the organization or logistics of the killing. How is it going to be done? Where is it going to take place? When is it going to take place? These are just examples of things that could be, but do not have to be, part of a plan. Four, another way to think of deliberation is to think about whether to do this.
Review the second question that you've asked as being answered by this description and we also note that the evidence has been summarized already, and we aren’t, in terms of the evidence, going to provide you with any further examples. Thank you. You may go back to deliberations.
24The appellant submits that the trial judge erred by failing to answer the jury’s second question. We disagree. At the trial, Crown and defence counsel agreed with the trial judge’s proposed approach and answer, including not providing the jury with examples of deliberation from the trial. The answer assisted the jury in understanding the difference between planning and deliberation without falling into the danger of suggesting to the jury how to connect the evidence and find the appellant guilty. The answer was careful, fair and did not trespass on the jury’s fact finding role.
(c) The trial judge made no error in instructing the jury on prior consistent statements
25The appellant’s third ground of appeal is that the trial judge erred in failing to instruct the jury that prior consistent statements of a witness cannot be used to bolster their credibility. This issue arises in relation to the testimony of Alexis Connolly, who was in the motel bedroom with Mr. Reid when he was shot and killed. The issue is grounded in Ms. Connolly’s testimony about how many men were in the hallway when Mr. Reid opened the bedroom door, what Mr. Reid said when he opened the door, and how many men entered the bedroom once the door was open.
26We see no error in the trial judge’s charge on this issue relating to Ms. Connolly. He outlined for the jury the proper procedure when a witness’s prior statement is used to refresh their memory, and properly instructed the jury that the prior statement does not become evidence. Defence counsel at the trial made no objection to this component of the jury charge. Moreover, even though Ms. Connolly was the only witness to the shooting, extensive video evidence showed four men moving together through the motel and forensic evidence established that Mr. Reid was shot with at least four firearms.
(d) The trial judge made no error in his instruction on eyewitness identification
27The appellant’s fourth ground of appeal is that the trial judge did not properly instruct the jury with respect to both eyewitness and in-dock identification. This issue relates to the evidence of three women: (i) Karen McIntosh, a woman who knew the appellant and let him and three other men enter her room at Motel 6 shortly before the murder in a different room took place; (ii) Dejaunte Blake, the appellant’s girlfriend from 2016-2017; and (iii) Melanie Lee, the Motel 6 employee who saw the appellant in the motel, wearing the distinctive white jacket, ten days before the murder.
28We see no issue in the trial judge’s charge on the two components of identification evidence that were in play at the trial. The extensive video evidence available at the hotel and, incredibly, the very distinctive jacket the appellant chose to wear to Motel 6 on two occasions ten days apart meant that there was not really a live identity issue at the appellant’s trial.
Conclusion
29The appeal is dismissed.
“Fairburn A.C.J.O.”
“J.C. MacPherson J.A.”
“E.E. Gillese J.A.”
1The appellant abandoned his ground of appeal related to the voluntariness of his statement to police on February 10, 2017, concerning the police investigation for civil trespass.