Court of Appeal for Ontario
Date: May 7, 2018 Docket: C55613
Justices: Doherty, van Rensburg and Nordheimer JJ.A.
Between
Her Majesty the Queen Respondent
and
Lenworth Spence Appellant
Counsel
For the Appellant: Catriona Verner and Lance Beechener
For the Respondent: Elise Nakelsky
Heard
April 5, 2018
Appeal
On appeal from the conviction entered by Justice Peter H. Howden of the Superior Court of Justice on September 23, 2011, with reasons reported at 2011 ONSC 5587.
Judgment
Doherty J.A.:
I. The Facts
[1] On the morning of March 7, 2007, two vehicles stopped on the side of a country road north of Barrie. Lenworth Spence (the "appellant") and Terrence Walker were in one car. Tafari Williams, Gregory Millar, Andrew Turner and Jonathan Chambers were in the other. Turner and Chambers exited their vehicle. Turner shot Chambers several times in the head. Turner got back into the vehicle he had exited and the two vehicles drove away, leaving Chambers dead near the roadside. His body was discovered later that day.
[2] The police eventually charged everyone in the two vehicles. Turner, Walker and Millar pled guilty to manslaughter. Williams was charged with and pled guilty to being an accessory after-the-fact to murder. The appellant was tried on a charge of first degree murder by a judge alone.[1] He was convicted on that charge and sentenced to the mandatory term of life imprisonment without eligibility for parole for 25 years.[2] He appeals his conviction only. For the reasons that follow, I would dismiss the appeal.
II. The Evidence at Trial
[3] The case for the Crown relied to a large extent on the evidence of Williams, Walker and Millar. All three had entered into plea agreements and had co-operated with the prosecution in exchange for reduced sentences. All three led criminal lifestyles and were involved in the events culminating in Chambers' murder. Different parts of the evidence of each were shown by independent reliable evidence to be demonstrably false. Both Walker and Millar recanted the statements they had given to the police during their testimony. Millar then recanted part of the recantation. The trial judge ultimately admitted the out-of-court statements made by Walker and Millar for the truth of their contents.
[4] The trial judge examined the evidence of the three accomplices at length. He was alive to the many frailties in their evidence. In the end, he concluded that Williams was credible. The trial judge accepted significant parts of Williams' evidence, which he found to be confirmed in material ways by evidence independent of Williams (paras. 416 and 424).[3] With respect to Walker, the trial judge found that, while parts of his evidence were confirmed by independent evidence, his evidence still had to be approached with caution (paras. 354-55). In respect of Millar, the trial judge was blunt, writing at para. 356:
Apart from an instance where Gregory Millar's evidence is supported by an objective credible source, I will not rely on his evidence or his B.(K.G.) statement for any conclusion that I draw factually. His testimony in court was a disgrace to himself and to rely on it would only compound the insult his performance posed to the court.
[5] The appellant did not testify, but the defence called two witnesses. Only one, Quentin Gibon, testified about the relevant events. He was present at Turner's residence with the appellant, Chambers and others the night before the murder. The trial judge found Mr. Gibon to be biased in favour of the appellant. The trial judge rejected most of his evidence, although he did conclude that it confirmed, to some extent, Williams' evidence about the appellant's anger toward Chambers the night before the murder (paras. 320-25).
III. The Narrative
[6] The narrative that unfolded in the evidence of the three accomplices, especially Williams, began a few days before the murder. Chambers, a drug dealer, was trying to arrange for two associates to purchase a kilogram of cocaine. He approached Williams. He and Williams were long-time friends and had dealt drugs together in the past. Williams was an accomplished, large-scale drug dealer. He was higher on the drug dealing hierarchy than either Chambers or the appellant.
[7] Williams did not have enough cocaine readily available to fill the order. He contacted the appellant to see if he could provide the cocaine. Williams and the appellant were friends with a history of working together in drug transactions. By the early evening of March 6, the details of the drug transaction had been worked out. The appellant, in possession of 1.5 kilograms of cocaine, was on his way with Chambers to meet the purchasers who had agreed to pay $52,000 for the cocaine.
[8] The appellant and Chambers met the purchasers at around 8:30 p.m. near the appellant's condominium. Chambers got into the buyers' car. He turned over the cocaine and received what he believed to be $52,000 in cash. The buyers left with the cocaine and the appellant and Chambers returned to the appellant's condominium. When the appellant looked at the bundles of "cash", he realized that he had been duped. There were a few genuine bills on the outside of the bundles, but the rest of the "cash" consisted of paper cut to the size of bills.
[9] After an aborted attempt to catch up to the purchasers, the appellant called Williams, who was at Turner's apartment in Brampton. The appellant and Chambers went to Turner's apartment to talk with Williams about the "rip off". The appellant was angry and made it clear that he believed that Chambers was involved in the "rip off". Williams was more sanguine and was concerned primarily with recovering the lost cocaine or the unpaid purchase price.
[10] A number of people gathered at Turner's apartment during the evening of March 6. Some, like Walker, were closely associated with Williams. Others, like Millar, were associated with the appellant.
[11] During the evening, Chambers was threatened, both physically and with a gun, tied up and repeatedly assaulted. He insisted he was not party to any "rip off". Phone calls were made by Chambers, at the insistence of the appellant and others, to friends and associates of Chambers, demanding that they come up with the cash that had been lost in the transaction.
[12] Williams testified that during the evening, the appellant produced a handgun and threatened Chambers. The appellant gave the handgun to Turner at one point in the evening. Turner also assaulted Chambers. On the Crown's theory, this was the gun used to murder Chambers the next day.
[13] Williams testified that the appellant told him during the evening of March 6 that he wanted to kill Chambers as a lesson to others who might be inclined to cheat him. Williams indicated that he tried to convince the appellant that they should focus on getting the money. Williams believed that as the evening went on the appellant calmed down and agreed that they should concentrate on the money. When Williams went to bed that night, he thought they were going to take steps to get the money the next day. He did not anticipate that anything would happen to Chambers.
[14] The next day, shortly after 8:00 a.m. on March 7, the appellant, Williams, Chambers, Walker, Millar and Turner all left Turner's apartment. Williams testified that he believed they were headed to Toronto to meet a person who could help them get to the bottom of the "rip off" the night before. After the six men exited the apartment building, Turner, Chambers, Williams and Millar got into one vehicle. Millar was driving. Williams was in the front seat. Chambers and Turner were in the backseat. Walker and the appellant got into the second vehicle. Walker was driving and the appellant was sitting in the front seat.
[15] The two vehicles drove in tandem south to Highway 407 and then east toward Toronto. At the Highway 400 exit, Millar's vehicle took the exit north toward Barrie. Walker's vehicle followed right behind.
[16] Williams testified that he was surprised when the vehicles headed north towards Barrie. He had no idea where they were going and did not inquire. Walker testified that he turned north following Millar's vehicle. Meanwhile, the appellant was on the cellphone constantly. Walker indicated that he pressed the appellant for some explanation of what was going on, but the appellant only told him that Chambers had messed up the drug deal the previous evening.
[17] Millar testified that he had no idea why he was driving north towards Barrie and that he was following Williams' instructions. In his statement to the police, subsequently admitted for the truth, Millar had said the appellant gave all of the instructions.
[18] The vehicles proceeded north until they pulled over one behind the other on an isolated country road north of Barrie. Williams testified that Turner and Chambers got out of the vehicle. He could not recall any conversation. By this point, Williams expected that something bad was going to happen to Chambers, but he said nothing. Turner shot Chambers in the head and returned to the vehicle. There was no conversation. The vehicles left the scene and drove back to Toronto in tandem.
[19] Walker testified that he pulled up behind the Millar vehicle and saw Turner and Chambers get out of the vehicle. Neither he nor the appellant got out of their vehicle. Walker indicated that he was shocked when Turner shot Chambers, but that the appellant had no reaction. According to Walker, he was angry on the drive back to Toronto because he was now implicated in a murder that he was not involved in and wanted nothing to do with.
[20] The two vehicles drove back to Walker's residence in Toronto. There were discussions about the gun. Walker said he would hold it subject to further instructions. Walker testified that Williams was upset about the shooting, but the appellant insisted that there was no chance that they would recover the money from Chambers and that it was important to send a message to other drug dealers. In Millar's statement, he also indicated that Williams described the killing as "unnecessary". The appellant replied, "it is what it is".
IV. The Crown's Case
[21] The case for the Crown rested on five evidentiary building blocks. First the Crown argued that the appellant had motive. He had a financial interest in the failed drug transaction. All, or a significant part, of the cocaine belonged to the appellant and he was out $52,000. The appellant was also embarrassed by the way he had been duped. He had strong reason to seek retribution against Chambers and to send "a message" to others in the drug dealing community by killing Chambers.
[22] Second, the Crown argued that the appellant was very angry with Chambers during the evening of March 6 and the early morning of March 7. The appellant assaulted and threatened Chambers, both physically and with a gun. The appellant demanded that Chambers act immediately to recover the drugs or the money and became upset when Chambers' efforts failed.
[23] Third, the Crown relied on the evidence placing the appellant in the group of men that left Turner's apartment with Chambers and drove away. The Crown contended that the evidence showed that the appellant was involved in coordinating the trip north with his good friend, Millar, who was driving the lead vehicle. Millar knew the Barrie area.
[24] Fourth, the Crown relied on the evidence placing the appellant at the scene of the murder, the absence of any reaction by him to the shooting, and the appellant's return to Walker's residence with the murderer, Turner, and others after the murder.
[25] Finally, the Crown argued that the gun used to commit the murder belonged to or at least came from the appellant.
V. The Defence Case
[26] The defence focused primarily on the credibility of the three main Crown witnesses and the unreliability of their evidence. The defence argued that their evidence was demonstrably untrue in many respects and that absent independent confirmation, the trial judge should not rely on any of it. The defence submitted that Williams was caught in several lies and had changed substantial parts of his evidence when confronted with other independent reliable evidence, such as cellphone records showing that his initial testimony was false.
[27] The defence submitted that Walker and Millar were aware of Williams' testimony before they gave statements to the police as part of their "plea bargains". They were anxious to have those statements conform to Williams' testimony, as they understood his statement to reflect the position of the prosecution. The defence argued that the evidence of Walker and Millar could not be regarded as independent of Williams' evidence and therefore capable of confirming Williams' evidence.
[28] The defence accepted that Chambers' murder was planned and deliberate, and connected to the "drug rip off" the night before. The defence maintained, however, that the evidence pointed to Williams as the person most likely to have directed the murder. The defence relied on evidence showing that Williams was the seller of the drugs and therefore the person with the strongest financial and reputational interest in killing Chambers. The defence argued that Williams was the boss among the various drug dealers at Turner's residence and in the car on March 7. He was in the lead car with Chambers and the shooter, Turner, who was his very good friend. Turner hardly knew the appellant.
[29] In addition to pointing the finger at Williams, the defence also relied on evidence suggesting Millar had a motive to kill Chambers. Millar had a violent temper and there was evidence that part of the cocaine belonged to him. Millar drove the vehicle in which Chambers and Turner were seated and Millar knew his way around the back roads in the Barrie area.
VI. Trial Judge's Findings
[30] The trial judge made a careful and exhaustive review of the evidence. He ultimately made several material findings of fact, including the following:
The appellant was the person "ripped off" in the drug transaction, even if Williams also had an interest in the transaction. It was the appellant who was "on the hook for the money" (see paras. 336, 419 and 422);
The appellant was very angry with Chambers during the evening of March 6. He assaulted and threatened Chambers in the course of the evening (see paras. 337 and 342);
A decision was made by the appellant to kill Chambers sometime after he and Chambers arrived at Turner's residence on the evening of March 6 (see paras. 371-78, 426 and 432);
The appellant was in the group of people that left Turner's residence and headed north with Chambers. He was at the scene of the execution (see paras. 347, 351 and 425-26);
The appellant, perhaps with the help of others, orchestrated and directed the trip northward (see paras. 426-27); and
The appellant was in possession of the murder weapon on the evening of March 6 and gave the weapon to the shooter, Turner (see paras. 391-92 and 425).
VII. The Grounds of Appeal
A. Could the Evidence of Walker or Millar Confirm the Evidence of Williams?
[31] The appellant accepts that the trial judge properly instructed himself that Williams, Walker and Millar were "Vetrovec" witnesses and that it was dangerous to rely on their evidence, absent independent confirmatory evidence that gave the trial judge confidence that he could rely on any material part of their evidence. The appellant does not quarrel with the trial judge's description of the applicable legal principles (paras. 44-76). He does, however, contend that the trial judge failed to properly apply one of those principles to the evidence.
[32] The appellant acknowledges that the evidence of one "Vetrovec" witness can sometimes confirm the evidence of another "Vetrovec" witness: see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 39; R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 67. He submits, however, that to be confirmatory, the evidence must be independent of the evidence that it seeks to confirm. The appellant asserts that the evidence of Walker and Millar was not independent of the evidence of Williams and the trial judge therefore erred in using parts of their evidence to confirm material parts of the evidence of Williams: see R. v. Pollock (2004), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 161. The appellant points to four occasions in which he argues the trial judge improperly used the evidence of Walker and Millar as confirmatory. He contends that as the Crown's case depended largely on Williams' evidence, this error necessitates the quashing of the conviction.
[33] The argument that the evidence of Walker and Millar was not independent of the evidence of Williams rests on the uncontested evidence that Walker and Millar heard Williams' testimony before they chose to enter guilty pleas to included offences. Both men were present at the preliminary inquiry when Williams testified. Further, both men testified that when they gave statements to the police, they appreciated that it was important for them to conform to the prosecution's theory, as reflected in Williams' testimony.
[34] The appellant maintains that the willingness of Walker and Millar to shape their statements to conform to Williams' testimony is evident in the similarity of their evidence to Williams' testimony and, in Millar's case, in his repetition of parts of Williams' evidence that were later shown to be false. The appellant argues that in the face of this evidence, the trial judge was obliged to conclude that the evidence of Walker and Millar was "tainted" and incapable of constituting independent evidence confirming any part of Williams' testimony.
[35] The appellant further submits that although the trial judge appreciated that a witness's evidence could be "tainted" by some connection with the evidence of the "Vetrovec" witness so as to negate the requisite independence, he failed to appreciate that the entirety of the evidence of Walker and Millar was tainted by their knowledge of Williams' testimony and their willingness to offer testimony consistent with Williams' evidence.
[36] There can be no gainsaying the risk that the evidence of Walker and Millar was tainted by their knowledge of Williams' testimony and their interest in testifying in conformity with his evidence. The trial judge was alive to the evidence that Walker and Millar had heard Williams' testimony and saw a need to conform with it in their own evidence. He recognized that this evidence negatively impacted on the reliability of evidence given by Walker and Millar (e.g. see para. 415). The appellant is correct, however, that the trial judge did not specifically identify the evidence of tainting as relevant to his determination of whether anything Walker or Millar said in their evidence could confirm the testimony of Williams.
[37] The appellant refers to the following passage, at para. 182, to support his claim that the trial judge used the evidence of Walker and Millar to confirm Williams' evidence:
… Nevertheless, the cellphone evidence and later evidence from Walker and Gregory Millar does lend support to Tafari Williams' evidence as to the overall course of events, the humiliation and anger of Lenworth Spence, the presence of the named people in the apartment that night, and on the road to Oro-Medonte in the morning, and the disguised pattern of phone contact by Spence with Millar before, leading up to, and after the shooting.
[38] With respect, the appellant's reliance on the extract from the judgment quoted above demonstrates the error in examining one passage from the trial judge's reasons in isolation from the rest of the reasons. The reasons were lengthy, detailed and, in my view, carefully constructed.
[39] The passage quoted above appears in the part of the reasons in which the trial judge examined, at length, the evidence of Williams. After reviewing the cross-examination and noting the many deficiencies that it disclosed in Williams' testimony, the trial judge went on to observe that other parts of the evidence, including evidence from Walker and Millar, "lend[s] support" to Williams' testimony.
[40] The trial judge was not discussing confirmatory evidence in the "Vetrovec" sense in para. 182 of his reasons. He devoted a later lengthy section of his reasons to that specific topic. The trial judge was indicating only that, despite the significant problems with the reliability of Williams' evidence, there were parts of the evidence, including evidence from Walker and Millar, that lent some credence to his testimony. Paragraph 182, standing alone, does not advance the appellant's argument. The submission requires an examination of the parts of the reasons which expressly address the "Vetrovec" concerns.
[41] The trial judge was alive to the very real dangers inherent in relying on the evidence of Williams, Walker and Millar. He addressed the existence of confirmatory evidence at length in his reasons (see paras. 305-356 and 393-412). I begin with some preliminary observations about those parts of the reasons that do not speak directly to the appellant's submissions.
[42] The trial judge began this part of his reasons by reminding himself that confirmatory evidence had to be independent and "sufficiently material or relevant so as to restore confidence in the witness's otherwise questionable credibility" (para. 305). The trial judge searched for potentially confirmatory evidence as it applied to each of the three "Vetrovec" witnesses. He looked for confirmation of evidence relevant to the material features of the case advanced by the Crown. He examined these features separately, looking for confirmatory evidence. For example, at paras. 337-42, he considered whether there was confirmatory evidence of Williams' testimony about the events at Turner's residence during the evening of March 6 and the early morning of March 7. At paras. 350-51, he considered whether there was evidence confirmatory of Williams' evidence placing the appellant at the scene of the murder.
[43] The trial judge took a granular approach in his analysis of the evidence. His reasons lay bare the minutiae of his thought process. He rejected various items of evidence offered by the Crown as confirmatory, either because they were ambivalent (e.g. see paras. 311 and 339), or because the evidence was not truly independent from the evidence of the "Vetrovec" witness (e.g. see para. 338).
[44] Ultimately, the trial judge determined that the evidence of Williams, as it related to each of the central features of the Crown's case, was confirmed by a great deal of independent evidence, most of it from sources other than Walker and Millar. For example, in finding that Williams' evidence about the events at Turner's apartment was confirmed by other evidence, the trial judge referred to four areas of evidence, only one of which involved the evidence of either Walker or Millar. In that single instance, although the trial judge referred to the evidence of Millar as confirmatory, he noted that there was evidence from another source, the defence witness Gibon, that also provided confirmation (see paras. 337-42).
[45] It is also significant that even when the trial judge was prepared to accept Millar's evidence as confirmatory to some extent of Williams' evidence, he took into account the very serious problems with Millar's credibility. Thus, while he was prepared to accept that Millar's evidence was confirmatory of Williams' evidence about the appellant's animus toward Chambers during the evening of March 6 and the early morning of March 7, he was not prepared to accept Millar's evidence of specific statements made by the appellant demonstrating that animus, as those statements were unconfirmed by any other source (see para. 328).
[46] I come now to the appellant's submission that the trial judge erred in treating any of the evidence of Walker and Millar as confirmatory of Williams' testimony. There is no doubt that the trial judge did find some parts of Williams' evidence to be confirmed by evidence given by Walker and Millar. In addition to the example referred to above, there were others. For example, the trial judge found that Williams' evidence that the drugs lost in the "rip off" belonged to the appellant was confirmed by Walker's evidence of statements made to him by the appellant on the trip north to Barrie (see para. 331).
[47] It is also clear that the evidence of Walker and Millar was potentially tainted in the sense that they had prior knowledge of the substance of Williams' evidence and had reason to give evidence that was consistent with Williams' testimony.
[48] The presence of tainting does not automatically disqualify a witness's evidence from being confirmatory of the evidence of another witness. The taint is a factor, albeit an important factor, to be considered by the trier of fact when assessing whether one witness' evidence can play any role in restoring the trier of fact's faith in the veracity of the evidence given by a "Vetrovec" witness. That assessment is situation-specific. It is the trier of fact, as the arbiter of the credibility of witnesses and the reliability of evidence, who must ultimately decide whether the evidence of one witness restores the trier's confidence in the reliability of the evidence of another: see R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.), at p. 609; R. v. Magno, 2015 ONCA 111, 321 C.C.C. (3d) 554, at paras. 29-30; R. v. Tse, 2013 BCCA 121, at paras. 108-18.
[49] The settled law is well put in Magno, at para. 30:
Therefore, collusion among Vetrovec witnesses does not necessarily prevent the evidence of one such witness from confirming the evidence of another. It is not enough that the unsavoury witnesses are tainted by allegations of collusion; the evidence they provide and that is potentially confirmatory of each other's evidence must be so tainted by collusion that it loses its required independence and cannot reasonably be used as confirmation. This is a matter for the jury to decide. [Emphasis added.]
[50] Tainting may render one part of a witness' evidence insufficiently independent from the evidence of the "Vetrovec" witness to provide confirmation of that part of the witness' testimony. However, that taint may not have the same effect on another part of the witness' evidence. Similarly, there may be other factors relevant to the assessment of a witness' credibility and reliability that sufficiently counteract the tainting and lead the trier of fact to conclude that despite the tainting, some part of that witness' evidence does confirm a material part of the testimony of the "Vetrovec" witness.
[51] For example, the trial judge concluded that Walker's evidence about a statement made to him by the appellant in the car ride north was confirmatory of Williams' evidence that the drugs lost in the "rip off" belonged to the appellant. The trial judge observed that Walker was "obviously" attempting to protect the appellant throughout his testimony. Consequently, evidence from Walker that implicated the appellant had some inherent reliability. The trial judge took that reliability into account when considering whether Walker's evidence could confirm a particular aspect of Williams' testimony (see para. 331).
[52] This was a trial by judge alone. It was for the trial judge, as the trier of fact, to ultimately decide whether parts of the evidence of Walker and Millar could confirm parts of the evidence of Williams, despite the evidence of tainting. While it is true that the trial judge did not expressly address the specific evidence of tainting in the context of considering whether Walker's and Millar's evidence was independent, his reasons, as a whole, reflect an appreciation of that risk. He referred to the evidence of tainting more than once. He resorted to the evidence of Walker and Millar to confirm Williams' testimony only in respect of specific parts of Williams' testimony and only when there was other confirmatory evidence of the same parts of Williams' testimony.
[53] The trial judge's reasons reveal a full and careful analysis of the evidence of Williams, Walker and Millar. He was alive to the need to look for evidence that could confirm material aspects of their testimony. To the extent that he concluded that he could rely on parts of the evidence of Walker and Millar to confirm material parts of Williams' testimony, the trial judge made no error in law. To the extent that he actually found confirmation in their evidence, his findings are fully explained in his reasons and fall within his purview as the trier of fact.
B. Did the Trial Judge Misapprehend the Evidence?
[54] The appellant submits that the trial judge misapprehended the evidence in several respects and that, cumulatively, those errors satisfied the test for reversal based on material misapprehension of the evidence. As stated in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2:
The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".
[55] In his factum, the appellant refers to eight specific instances in which he contends the trial judge materially misapprehended the evidence. I do not propose to examine each individually. None warrant reversal.
[56] Most of the alleged misapprehensions of evidence are, on closer examination, complaints that the trial judge preferred the Crown's submissions as to the proper interpretation of certain evidence over the defence's submissions. For example, the appellant contends that the trial judge misapprehended the evidence about Williams' delay in contacting the appellant concerning Chambers' request to purchase cocaine. The appellant argues that evidence of this delay, if properly understood by the trial judge, demonstrated that it was Williams, and not the appellant, who was the source of the cocaine to be sold to the purchasers introduced by Chambers.
[57] This same argument was put to the trial judge (paras. 310-11). The trial judge reviewed the relevant evidence and concluded that the relevant events occurred over a shorter period of time than urged by the defence and that this evidence was "ambivalent" as to who was to be the supplier of the cocaine. Both findings were available on the evidence.
[58] A second example in which the appellant alleges a misapprehension of the evidence, but actually argues about the inferences the trial judge chose to draw from the evidence, relates to the trial judge's finding that the gun used to commit the murder belonged to the appellant. The appellant argues that the trial judge based this finding exclusively on a telephone call between Walker and the appellant on March 8, the day after the shooting. Walker had testified that he took possession of the gun on March 7, after he and the others had returned from the shooting. According to Walker, he told all present, including the appellant and Williams, that he would hold the gun and await instructions as to what he should do with it. The Crown submitted that the call by the appellant on March 8 was in reference to the gun being held by Walker.
[59] The appellant submits that the trial judge improperly inferred from the single telephone call that it was the appellant who was calling Walker about the gun. The appellant argues that there was also evidence that Williams called Walker after Walker agreed to hold the gun. How, the appellant asks, could the trial judge infer that it was the appellant's call, and not Williams' call, that related to the gun?
[60] The trial judge reviewed the evidence of these phone calls (paras. 411-12). His finding that the appellant called Walker about the gun is supported by other evidence. The appellant and Walker were not friends. Williams and Walker were close friends. It was reasonable for the trial judge to infer that the only reason the appellant had to speak to Walker the day after the murder was in connection with the gun that Walker said he would hold, pending further instructions.
[61] The inference that the appellant was calling Walker about the gun was also supported by conversations involving the appellant several months later. These conversations were intercepted pursuant to a wiretap order. Walker had been charged with possession of a restricted firearm and the appellant was upset. In one conversation, he indicated that Walker did not get rid of the gun as he was supposed to do (paras. 400-08). It was open to the trial judge to infer from the entirety of this evidence that the gun belonged to the appellant.
[62] Two of the appellant's submissions do reveal a misapprehension of evidence by the trial judge. The first arises out of the evidence concerning the instructions that passed between the two vehicles as they turned north toward Barrie. The trial judge, relying on the timing of certain cellphone calls, found that the appellant, in the second car, gave Millar, the driver of the first car, an instruction to turn north immediately before Millar's vehicle turned north toward Highway 400 (para. 426).
[63] In making this finding, the trial judge relied on cellphone records providing the time the call was sent from the cellphone in Walker's vehicle. The trial judge, however, failed to consider the records pertinent to the time at which the cellphone in the Millar car received the call. Based on the time the call was received, Millar's vehicle was headed north seconds before the call was received. I agree with the appellant that the trial judge misapprehended this evidence.
[64] I do not agree, however, that the error was material in that it played an essential part in the trial judge's reasoning process: Lohrer, at para. 2. In his reasons, the trial judge immediately after reviewing the evidence of the timing of that call, went on to indicate at para. 427:
Even if Mr. Spence did not direct events and Millar did, or if they did so together, there is no doubt that from their frequent communications up to and after the killing, and from the ownership and transfer of possession by Spence to Turner of his gun, and Spence's presence at the scene of the shooting, ensuring that it would be done without any chance for escape, that he promoted and encouraged the execution of Jonathan Chambers.
[65] As is apparent from the trial judge's reasons, his finding that the appellant was directing, either alone or with others, the trip north, did not turn on his finding of the timing of a single specific communication between Millar and the appellant. There were many factors that led the trial judge to conclude that the appellant, alone or perhaps with Millar, orchestrated the trip north.
[66] The second error made by the trial judge arises out of his finding that the appellant "used Turner, a mentally compromised young man who was known to be easily manipulated by others, to cause the death of Jonathan Chambers" (para. 432).
[67] The only reference to Turner's mental state in the trial evidence[4] came in a single answer given by Williams. Williams referred to the appellant as taking advantage of Turner "cause of his mental situation". There is no evidence that the appellant knew anything about Turner's mental state. Williams' testimony is not evidence that Turner was "mentally compromised", much less that the appellant took advantage of that circumstance.
[68] However, the trial judge's characterization of Turner's mental state had no significance to any essential finding of fact made by the trial judge. There was no suggestion that Turner acted alone in shooting Chambers. Someone, the Crown said the appellant and the defence said Williams, put Turner up to the shooting. Whether Turner agreed to shoot Chambers for money, or because he was easily manipulated, or for some other reason, did not matter to the trial judge's finding that it was the appellant who solicited Turner's assistance as the shooter in the execution of Chambers.
[69] It is not surprising that, after a long trial involving lengthy and often conflicting evidence, the trial judge made a few factual errors in his lengthy recitation and analysis of the evidence. None of those errors were material to the outcome. Nor do the inferences he drew after his analysis of the evidence warrant the finding that he misapprehended any evidence in a material way.
C. The Trial Judge's Treatment of the Evidence of the Defence Witness, Gibon
[70] The trial judge rejected most of Gibon's evidence because of what the trial judge concluded was Gibon's obvious determination to say what he could to help his close friend, the appellant. The trial judge found that some of Gibon's evidence describing specific events at Turner's residence during the evening of March 6 and the morning of March 7 was "implausible". However, the trial judge did accept Gibon's evidence that the appellant was "hot" at Chambers and demanded that Chambers get his money back (see paras. 320-25, 391 and 429).
[71] This court defers to a trial judge's credibility findings. I do not understand the appellant to argue that it was not open to the trial judge to reject most of Gibon's evidence for the very reason given by the trial judge. Nor, in my view, is it surprising that the trial judge would find parts of Gibon's evidence that implicated the appellant more credible than the rest of his evidence. This assessment flows logically from the trial judge's observation that Gibon was doing whatever he could to exculpate the appellant.
[72] Perhaps the trial judge did overstate Gibon's commitment to assist the appellant when he described Gibon as treating the appellant "as a kind of lord to be obeyed" (para. 429). That literary flourish, even if unwarranted, however, does not demonstrate any error by the trial judge in his assessment of Gibon's evidence.
VIII. Conclusion
[73] I would dismiss the appeal.
Released: May 7, 2018
Doherty J.A.
I agree K.M. van Rensburg J.A.
I agree I.V.B. Nordheimer J.A.
Footnotes
[1] The trial judge's ruling that the appellant's trial would proceed without a jury is not a ground of appeal: see R. v. Spence, 2011 ONSC 5587, at paras. 10-13.
[2] The appellant was also found guilty of kidnapping, however, the trial judge stayed that conviction based on the principle against punishment for multiple convictions: see R. v. Kienappple, [1975] 1 S.C.R. 729.
[3] All paragraph references in these reasons refer to the trial judgment.
[4] It may be that the trial judge heard more detailed evidence about Turner's mental state in the course of a motion brought during the trial.