Court of Appeal for Ontario

Date: June 15, 2017

Docket: C60220 and C60429

Judges: Laskin, Watt and Hourigan JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Christopher Newton Appellant

and

Shaquille Collins Appellant

Counsel

Delmar Doucette and Lauren Wilhelm, for the appellant Christopher Newton

Christopher Hicks, for the appellant Shaquille Collins

Nadia Thomas and Frank Au, for the respondent

Heard: April 11, 2017

On appeal from: The convictions entered by Justice Jane A. Milanetti of the Superior Court of Justice, sitting with a jury, on June 12, 2014.

Decision

Laskin J.A.:

A. Overview

[1] In 2012, in the middle of the day on Monday of the Victoria Day long weekend, in a residential neighbourhood in Hamilton, the appellant Shaquille Collins ran into Justin Beals, who was with his girlfriend Amber Thorogood. Collins was 19 years old and Beals was 34. Collins was angry at Beals because seven months earlier when both were inmates at the Hamilton-Wentworth Detention Centre, Beals and a few others had assaulted Collins. Collins tried to goad Beals into a fight. Beals turned away until Collins took a swing at Thorogood. Then, Beals and Collins started fighting. The fight took place over several city blocks. Finally Collins ran away. Beals and Thorogood went to her cousin Brandon Hackett's apartment at 16 Milton Avenue.

[2] But the fight was not over. Collins called his friends Shamar Tynes and the appellant Christopher Newton for help. Newton called a taxi. He and Tynes got in the taxi and picked up Collins. The three young men then headed for 16 Milton. The taxi stopped 50 metres away. All three got out. Collins took a Colt.45 semi-automatic handgun from Tynes, racked it, and started running toward 16 Milton. Newton briefly followed. When Collins arrived at 16 Milton, he went down an alley beside the building and fired five shots. One shot struck Beals; although he was badly wounded he survived. Another shot struck the building's landlord James Bajkor, an innocent bystander, who was roofing his shed. Bajkor was killed; he was only 21 years old.

[3] Collins and Newton were jointly charged with a planned and deliberate first degree murder. The Crown alleged Collins intended to murder Beals and murdered Bajkor by mistake. Newton aided or abetted the murders. In other words, he assisted or encouraged Collins to commit murder.

[4] After a five week trial before a judge and jury, Collins was found guilty of first degree murder and attempted murder. On his murder conviction he was sentenced to mandatory life imprisonment without eligibility for parole for 25 years; on his attempted murder conviction he was sentenced to 20 years in custody (less time for pre-trial detention) to be served concurrently. Newton was acquitted of first degree murder but found guilty of second degree murder and attempted murder. On his murder conviction he was sentenced to mandatory life imprisonment and the trial judge fixed the period of parole ineligibility at 15 years; on his attempted murder conviction Newton was sentenced to 12 years in custody to be served concurrently.

[5] Both Collins and Newton appeal their convictions and their sentences. On their conviction appeals each has raised several grounds of appeal, mainly alleging errors in the trial judge's charge to the jury.

[6] Because of my view of these appeals I will address only two issues:

1. Did the trial judge err by failing to relate the evidence to the issues the jury had to decide?

2. Are the verdicts of second degree murder and attempted murder against Newton unreasonable, thus entitling him to acquittals?

[7] For the reasons that follow, I would answer "yes" on the first issue, and "no" on the second issue. I would therefore allow both appeals, set aside the convictions against Collins and Newton and order a new trial.

B. The Issues

(1) Did the trial judge err by failing to relate the evidence to the issues the jury had to decide?

[8] Over the course of the five week trial, 20 witnesses testified, including several expert witnesses. In her charge to the jury the trial judge reviewed the evidence of most of the witnesses. She did so by reading her notes of their testimony, roughly in the order each witness gave evidence.

[9] Collins and Newton submit that by reviewing the evidence this way – witness by witness – the trial judge failed in her duty to relate the important evidence to the issues the jury had to resolve. Consequently, the jury would not have had a sufficient understanding of how any of the evidence had a bearing on the many issues they had to decide. The Crown acknowledges that the trial judge's approach to her review of the evidence was "unorthodox". But the Crown contends that the trial judge's charge was adequate, especially in the light of her telling the jury in detail the defence's position and defence counsel's failure to object to her approach. I agree with Collins' and Newton's submission.

[10] A trial judge's obligation when charging a jury and the standard for appellate review of the charge are well established, the product of many judgments in the Supreme Court of Canada and provincial appellate courts across the country. In this court three of my colleagues in particular have extensively reviewed a trial judge's obligation and the standard of appellate review: Doherty J.A. in R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.); Watt J.A. in R. v. B.(P.J.), 2012 ONCA 730, 298 O.A.C. 267; and Strathy J.A. in R. v. Minor, 2013 ONCA 557, 303 C.C.C. (3d) 382. It is unnecessary here to repeat their extensive review.

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

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

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

iii. the material evidence relevant to these issues;

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

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

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

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

[14] In this case I would answer "no" to the question posed in Jacquard and Cooper. The trial judge's charge did contain most of the components of an ideal charge – the charge adequately included components one, two, four and five. But her charge failed adequately to address the important third component. She failed to charge the jury on the material evidence they should consider on each of the issues they had to resolve. Instead, she simply recited the evidence from her notes, witness by witness. A summary outline of the structure of her charge will illustrate how she reviewed the evidence. Her charge took approximately 200 transcript pages. It went as follows:

• pp. 1507-1539: review of general duties of juries and rules of evidence
• pp. 1566-1580: elements of each offence, what the Crown had to prove, decision tree
• pp. 1579-1580: did Collins have the state of mind for murder
• pp. 1581-1597: detailed review of evidence of Amber Thorogood, Beals' girlfriend
• pp. 1597-1598: evidence of Michelle Bayards, an eyewitness
• pp. 1598-1601: evidence of Iris Buckingham, a resident on Barton Street and another eyewitness
• pp. 1601-1611: evidence of John Hanrahan, a tenant at 16 Milton and another eyewitness
• pp. 1611-1613: evidence of John Bennett, who lived at 18 Milton Avenue
• pp. 1615-1630: evidence of Brandon Hackett, another tenant at 16 Milton and Thorogood's cousin
• pp. 1630-1655: evidence of Justin Beals
• pp. 1655-1660: evidence of several police officers
• pp. 1660-1663: evidence of Michael Plaxton on the video analysis of the surveillance tapes
• pp. 1663-1664: questions jury had to answer on the liability of Collins – did Collins have the state of mind for murder and did Collins have the intent to murder Beals but killed Bajkor by mistake
• pp. 1665-1667: was the murder planned and deliberate
• pp. 1667-1673: evidence of Benjamin Sampson, a firearms expert from the Centre for Forensic Sciences
• p. 1673: trial judge tells the jury "[y]ou might consider any of the other evidence that I have already reviewed for you in connection with this element of planning and deliberation as well"
• pp. 1674-1678: liability of Newton as an aider or abettor
• pp. 1679-1681: evidence of Thorogood on the liability of Newton
• pp. 1681-1683: evidence of Brandon Hackett
• pp. 1683-1685: evidence of Beals
• pp. 1685-1686: evidence of Plaxton
• pp. 1687-1688: evidence of Benoit Thibodeau, a police officer, regarding the cellphone searches
• pp. 1688-1692: evidence of Kristi Tayles and analysis of the cellphone records
• pp. 1692-1717: objections to the charge
• pp. 1718-1719: Beals' statement to the police
• pp. 1720-1724: elements of attempted murder of Beals
• pp. 1724-1728: evidence of Frank Baillie, a surgeon and an expert in trauma
• pp. 1728-1732: what the Crown had to prove on each charge against each accused
• pp. 1732-1734: theory of the Crown
• pp. 1734-1738: theory of the defence

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

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

[17] In R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), aff'd, [1994] 2 S.C.R. 310, Chief Justice Scott of the Manitoba Court of Appeal warned against a witness by witness recitation of the evidence at para. 39:

This review of the authorities makes it clear that it is not the function of a trial judge to simply review at length all of the evidence (in reality the judge's notes of the evidence) that the jury has heard. Rather, the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language. Even in long complex trials such as this temptation to simply summarize all of the evidence should be avoided, thereby facilitating the task of the jury and reducing the necessity for the jury to ask repeatedly for clarification on issues of evidence and law as occurred in this case.

[18] And, in R. v. B.(P.J.) Watt J.A. emphasised the importance of relating the evidence to the issues at para. 44:

The responsibility of the trial judge to relate the evidence to the issues raised by the defence involves two components. The first is a review of the evidence. The second is a relation of the evidence to the position of the defence. Except in rare cases, where it would be unnecessary to do so, a trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury appreciates the value and effect of that evidence: Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-498. Typically, trial judges review the evidence in the context of the various issues and indicate what parts of the evidence support the positions of the respective parties on those issues: MacKinnon, at para. 29. Judicial review of the evidence refreshes the jurors' memory of the evidence given. Judicial relation of the evidence to the issues improves jurors' understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case. [Emphasis in original.]

[19] As Watt J.A. pointed out, there may be a rare case where an appellate court will deem a witness by witness recitation adequate: a simple case, a short trial, only a few witnesses.

[20] Unquestionably, this was not one of those rare cases. It was not a simple case; it was not a short trial; and many witnesses testified. The issues were numerous and some were difficult. Collins' main defence was that he did not plan and deliberate on the killing so he should not be found guilty of first degree murder. A considerable amount of evidence was relevant to the issue of planning and deliberation. The jury needed help to assess this evidence. Unfortunately, the trial judge did not help it to do so. Collins' secondary position was that he lacked the mens rea or mental state for murder – he was just stupidly firing bullets to scare Beals. Again the trial judge did not discuss the evidence bearing on that issue.

[21] The charges against Newton also raised difficult issues. The Crown claimed that he either aided or abetted the murder and attempted murder. But the trial judge failed to discuss the evidence that either supported or gave rise to reasonable doubt whether Newton aided or abetted Collins, knowing that Collins intended to kill Beals, and intending to assist or encourage Collins to do so.

[22] Not only was the trial judge's charge unhelpful, it was confusing. For example, the trial judge summarized the evidence of the firearms expert Sampson right after she spent three pages discussing the elements of planning and deliberation, which the Crown had to prove to obtain a first degree murder conviction against Collins. Yet Sampson's evidence was irrelevant to the issues of planning and deliberation. It was, however, highly relevant to whether Collins had the intent for murder. But the trial judge did not relate Sampson's evidence to the issue of intent. Instead, most of the evidence she did recite, following her outline of the elements of an intentional killing, had nothing to do with whether Collins had the necessary intent for murder.

[23] I accept, as the Crown points out, that the trial judge ended her charge with a summary of the defence position given to her by counsel for Collins and counsel for Newton. That summary included the facts and inferences from the facts the defence relied on. But a summary from a partisan advocate is not a substitute for a review by an independent and neutral arbiter.

[24] I also accept that defence counsel did not object to the trial judge's approach to the review of the evidence. A failure to object to a trial judge's charge is a relevant consideration for an appellate court. But I would hold that the failure to object is not determinative in this case, where convictions for first degree murder were at stake, and the trial judge's error undermined the fairness of the appellants' trial. I adopt what Doherty J.A. said in R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516, leave to appeal refused [2007] 3 S.C.R. xi (note), at para. 97:

There was no objection by counsel for the appellant at trial. The failure to object can inform this court's assessment of the adequacy of a trial judge's instruction, especially where the appellant relies on non-direction. However, as I am satisfied that it was essential to a fair trial that the trial judge relate the evidence to the issue of planning and deliberation, counsel's failure to object is no answer to this ground of appeal.

See also R. v. Pintar (1996), 30 O.R. (3d) 483, at p. 519 (C.A.).

[25] I would hold that the trial judge erred in her charge by failing to relate the evidence to the issues the jury had to decide. Her failure deprived both Collins and Newton of a fair trial. On this ground alone I would set aside Collins' and Newton's convictions and order a new trial.

(2) Are the verdicts of second degree murder and attempted murder against Newton unreasonable?

[26] On my view of the first issue, Newton is entitled to a new trial. But he asks this court to go further and enter acquittals on the ground the verdicts against him are unreasonable. When an appellant seeks an acquittal on the basis of an unreasonable verdict, an appellate court asks: is the verdict one that a properly instructed jury could reasonably have rendered? See R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. If the answer is no, the verdict is unreasonable.

[27] At trial, the Crown contended that Newton was a party to Collins' murder of Bajkor and attempted murder of Beals. Newton either aided or abetted Collins; that is he either assisted or encouraged Collins to commit murder by accompanying him to 16 Milton and acting as an "enforcer" or "muscle" in case something went wrong. To prove Newton's guilt as a party, the Crown had to prove that Newton assisted or encouraged Collins to commit murder, knowing that Collins intended to commit murder, and intending to assist or encourage Collins to do so.

[28] Newton submits that he did not engage in an act of aiding or abetting, and that he had no intent to assist Collins to commit murder. On either basis the verdicts against him are unreasonable. Newton's submission proceeds in two stages: the first stage takes place when Newton ordered a taxi and relies on the jury's acquittal of Newton on the charge of first degree murder. The second stage takes place at the scene of the murder and relies on the uncontradicted surveillance evidence.

[29] Before he arrived at the scene of the murder, Newton called a taxi and picked up Collins en route to 16 Milton. He contends that if he knew Collins intended to kill Beals, he would have known Collins planned and deliberated on the murder. But the jury found Newton not guilty of aiding or abetting a planned and deliberate murder. So, the jury must have based its verdict of guilt for second degree murder on what happened at the scene.

[30] Once the taxi driver arrived at the scene, he parked in front of a Siemens factory about 50 metres away from 16 Milton. Surveillance footage from the factory showed that Newton got out of the taxi, took a few steps towards 16 Milton, and then backtracked, all the while apparently sending text messages to a person unconnected to the crime. Newton says the evidence showed that he never went with Collins to 16 Milton and his presence near there was not enough to show that he assisted or encouraged Collins to commit murder while knowing that Collins intended to murder Beals, and intending to assist or encourage Collins to do so.

[31] Further, the circumstantial evidence suggests that Newton did not have the requisite knowledge and intent to aid or abet Collins because Newton's mind was otherwise occupied. He was exchanging text messages and then, after getting out of the taxi, was standing apart from Collins and Tynes. Thus, Newton submits the verdicts against him are unreasonable.

[32] I do not accept Newton's submission. In my opinion the verdicts against him are ones that a properly instructed jury could reasonably have rendered. As a starting point, I agree with the Crown's submission that the reasonableness of the verdicts against Newton must be considered by looking at all the evidence against him and not just what he did at the scene of the murder. Separating Newton's conduct before and after his arrival at 16 Milton is artificial.

[33] Before his arrival at the scene, Newton called a taxi for Collins and then accompanied Collins to 16 Milton. Those acts were very relevant to Newton's conviction for second degree murder. And his acquittal for first degree murder did not make them irrelevant. His acquittal simply meant the jury had a reasonable doubt that Newton knew Collins' intent to murder Beals was a planned and deliberate murder.

[34] A planned and deliberate murder is a carefully thought out murder. The perpetrator weighs the advantages and disadvantages of committing the act. Yet only a minute elapsed from the time Collins called Tynes for help and Newton called a taxi. This short timeframe suggests the jury could well have had a reasonable doubt whether Newton knew Collins had planned and deliberated on Beals' murder. In other words, when Newton called a taxi, he could have known about Collins' intent to kill or inflict grievous bodily harm on Beals without knowing the extent to which Collins "deliberated" on his intended act.

[35] Then Newton went with Collins to 16 Milton. The jurors would undoubtedly have asked themselves, why did Newton go there, he must have gone there for a reason. The obvious answer was to support Collins, knowing that Collins intended to kill Beals. It would have been immaterial to the jury that Newton never reached 16 Milton. He took several steps towards 16 Milton after Collins had taken the handgun from Tynes and racked it. By then Collins intent to kill Beals was readily apparent. Newton knew what Collins intended to do and he followed behind as Collins ran towards Beals.

[36] It seems to me that Newton's decision to follow Collins once the gun was out in the open and Collins had racked it and then run towards Beals is a highly significant piece of evidence. From this evidence the jury could reasonably infer that Newton knew all along, from the time he phoned for a taxi, that Collins intended to kill Beals and that Newton intended to assist or encourage Collins by accompanying him to the scene of the murder.

[37] Equally significant, on the evidence the jury was entitled to find that Newton did not retreat until the shooting was over. And from this evidence the jury could also reasonably infer that Newton was not surprised; he knew from the outset that Collins intended to kill Beals and he was determined to assist or encourage Collins to do so.

[38] The verdicts against Newton are thus ones that a properly instructed jury could reasonably have rendered. I would therefore not give effect to Newton's submission that the verdicts against him are unreasonable.

C. Conclusion

[39] The verdicts against Newton are not unreasonable. However, the trial judge erred in her charge to the jury by failing to relate the evidence to the issues the jury had to resolve. Her error deprived Collins and Newton of a fair trial. I would allow their appeals, set aside their convictions, and order a new trial.

Released: June 15, 2017

"John Laskin J.A."

"I agree. David Watt J.A."

"I agree. C.W. Hourigan J.A."

Footnote

[1] Separately Tynes was allowed to plead guilty to manslaughter.