Court of Appeal for Ontario
Date: 2022-02-02 Docket: C66593
Judges: Simmons, Pepall and Roberts JJ.A.
Between: Her Majesty the Queen, Respondent and Chad Noureddine, Applicant (Appellant)
Counsel: Carol Cahill, for the appellant Amy Alyea, for the respondent
Heard: December 9, 2021
On appeal from the conviction entered on June 7, 2017, by Justice Edward Then of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
1The appellant appeals his conviction for the second degree murder of Andre Pelliccione following a trial before a judge and jury.
2Mr. Pelliccione's body was found in a dumpster in Toronto on August 27, 2008. The appellant and four others were initially charged with first degree murder.
3The appellant and Richard Sheridan were tried together. The other three accused pleaded guilty to manslaughter. Bryan Smith was sentenced to eight years of imprisonment; Jennifer Dunsford to five years; and Michelle Sterling to two years. All three testified for the Crown at the appellant's trial. Their testimony was the only evidence implicating the appellant in the killing.
Background Facts
4The appellant’s co-accused, Mr. Sheridan, was addicted to, and trafficked in, crack cocaine. Mr. Sheridan befriended the owner of Don Yards, a movie trailer storage facility in Toronto’s east end. The owner allowed Mr. Sheridan to reside in one of the recreational vehicles situated on the lot in order to provide security services for the premises. Mr. Sheridan in turn permitted the appellant, as well as Mr. Smith, Ms. Sterling, and Ms. Dunsford, to reside on the premises from time to time. They too were addicted to crack cocaine. They purported to assist Mr. Sheridan in providing security but actually worked in his crack cocaine operation. Mr. Sheridan was the undisputed leader of the crack cocaine operation.
5On the evening of August 22, 2008, Mr. Pelliccione came to the Don Yards and encountered Mr. Sheridan. An argument ensued between the two men. Mr. Sheridan, the appellant, and Mr. Smith confronted Mr. Pelliccione and he was ordered to leave. According to Mr. Smith’s testimony, Mr. Pelliccione agreed to leave, but threatened to return with men and weapons and kill them all. Mr. Sheridan ordered the gates locked, knocked Mr. Pelliccione to the ground, and pepper sprayed him. Mr. Smith testified that Mr. Sheridan ordered the appellant, Mr. Smith and Ms. Dunsford to kick and punch him, which they did. The beating continued in another area behind some dumpsters. The group kept kicking and punching Mr. Pelliccione, now also using rocks. He was then dragged to another area where the beating continued at Mr. Sheridan’s direction. The appellant hit the deceased in the head with a rock, as did Mr. Smith and Ms. Dunsford. Mr. Pelliccione meanwhile begged for his life.
6According to Mr. Smith, he suggested to Mr. Sheridan that they end the beating. The three main Crown witnesses testified [1] that Mr. Sheridan stated, “you are either with us or with [Pelliccione]”, or words to that effect. Ms. Dunsford testified that the group knew, at this point, that Mr. Pelliccione had to be killed; it was decided he was going to have to die. No one disagreed. He was then dragged to another area. Ms. Sterling emerged from a trailer and observed the appellant and Mr. Smith beating Mr. Pelliccione. Mr. Sheridan ordered that Mr. Pelliccione be placed in another trailer, trailer T19, which he was. At this stage, Mr. Pelliccione was drifting in and out of consciousness. While Mr. Pelliccione was still alive, Mr. Sheridan ordered the two women “to do what needed to be done.” They both testified that they were threatened with death if they did not comply. They proceeded to drop a 19-pound rock on his head, which was provided by the appellant. Mr. Smith testified that he heard loud thumps come from the trailer when the appellant, Ms. Dunsford and Ms. Sterling were inside.
7In the hours that followed, the appellant collected and disposed of the bloody clothes of the two women. Everyone showered to eliminate traces of blood. Mr. Sheridan subsequently attempted to frame the owner of the Don Yards by ordering the women to spread Mr. Pelliccione’s blood on the owner’s clothing. This attempt did not prove to be a success.
8Two days after the murder, the appellant, Ms. Sterling and Mr. Sheridan attempted to dispose of the body by placing it and the 19-pound rock in a dumpster on the premises. Mr. Pelliccione’s body was found five days later.
9According to the testimony of Dr. Pollanen, the forensic pathologist who conducted the autopsy of Mr. Pelliccione, his ultimate cause of death was blunt force injury to the face and head and the mechanism of death was blood loss or obstruction of the upper airways and sinuses. Mr. Pelliccione had several skull fractures, a broken nose, dislocated cheek bones, and significant defensive bruising. Mr. Pelliccione was not reported to have struck a single blow in self-defence.
10As mentioned, the five people involved were all initially charged with first degree murder and the three Crown witnesses were in custody on those charges when they gave their police statements.
11The appellant and Mr. Sheridan were convicted of second degree murder after their first trial but successfully appealed the convictions. Their second trial again resulted in convictions for second degree murder, and the appellant’s conviction following the second trial is the subject matter of this appeal.
12At trial, Ms. Dunsford, Mr. Smith and Ms. Sterling gave different accounts of what had happened. The jury heard extensive evidence of their discreditable backgrounds, the withdrawal of each of their first degree murder charges in exchange for manslaughter plea deals, and that they were each heavily addicted to crack cocaine which impaired their ability to remember.
13The appellant's position at trial was that the evidence of these three Crown witnesses concerning his participation in the beating was neither credible nor reliable. All three had participated in the killing, all three were charged with first degree murder when they made statements to the police, and all three acted in their own self-interest to minimize their individual roles and embellish the roles of others. Further, there were specific problems with the evidence of each of them.
14For instance, Ms. Sterling admitted to perjury at the appellant's first trial. She also lied to the police in the first 85 pages of her police statement claiming she was not present at the killing. Further, she was not forthcoming in her evidence at the second trial. Ms. Dunsford had given many inconsistent statements, she had a poor memory that was exacerbated by persistent heavy drug use, including drug use on the evening in question. Nonetheless, she maintained her present memory was more accurate than a previous version of the events. Mr. Smith was an unsavoury witness with a lengthy criminal record that began when he was age twelve.
Grounds of Appeal
15The appellant raises four grounds of appeal, all related to the trial judge’s jury instructions: (1) the trial judge erred by limiting the use the jury was entitled to make of Mr. Smith’s criminal record; (2) the trial judge provided an insufficient Vetrovec instruction [2]; (3) the trial judge failed to set out the defence position on intent and motive; and (4) the trial judge erred in leaving with the jury an alternate path to conviction that had not been included in the Crown’s closing submissions. The appellant submits that this was not a balanced charge and that these errors, either individually or taken together, resulted in an unfair trial.
16We do not agree and, for the following reasons, dismiss the appeal.
Use of Mr. Smith’s Criminal Record
17The appellant submits that the trial judge erred in limiting the use the jury could make of Mr. Smith’s criminal record to the fact, number, and nature of the convictions when assessing his credibility and the weight to be given his testimony. At trial, the appellant’s position was that Mr. Smith minimized his involvement in Mr. Pelliccione’s death and exaggerated the appellant’s involvement. On appeal, the appellant submits that the trial judge should have instructed the jury that, in addition to the fact, number and nature of Mr. Smith’s convictions, they could consider Mr. Smith’s disposition to minimize his wrongdoing when assessing whether he was similarly downplaying his role in Mr. Pelliccione’s death and exaggerating that of the appellant. To quote appellant’s counsel on appeal, when questioned about his criminal record, Mr. Smith “became the valiant hero of his own stories.”
18We do not accept this submission. The trial judge’s instruction to consider the fact, number, and nature of previous convictions must be considered in the context of the charge as a whole. The trial judge gave a lengthy, detailed and thoughtful charge and gave a comprehensive instruction on how to assess a witness’s testimony. When he came to the instruction on criminal records, he advised the jury that the three Crown witnesses each had a criminal record and referenced many entries for Ms. Dunsford and Mr. Smith in addition to the manslaughter convictions. When instructing on the previous convictions of the three, he told the jury what they could consider and that some convictions, such as those involving dishonesty, may be more important in their assessment than others. The jury was also told to consider the age of the convictions. However, overall, the prior convictions were just one of many factors for the jury to consider in evaluating a witness’ evidence and they were encouraged to use their experience and common sense in their evaluation.
19The trial judge also gave a special instruction with respect to Mr. Smith, Ms. Dunsford and Ms. Sterling on the “significant risk” that “an accomplice may be falsely minimizing his or her involvement”, and that the accomplice may be giving evidence favourable to the Crown because the Crown had consented to a favourable plea bargain. He gave a further instruction on the increased care required for the evidence of Mr. Smith because he was an unsavoury witness given his extensive criminal record. Considered in context, the trial judge’s instruction on the use to be made of Mr. Smith’s criminal record would not have improperly limited the jury’s consideration of his credibility. Nor would it have in any way foreclosed the jury’s consideration of a tendency to minimize his wrongdoing at the expense of others.
20Moreover, Mr. Smith was cross-examined at length on the facts of his convictions and his tendency to portray himself as a victim. The jury would have understood the thrust of this cross-examination. The closing addresses of both defence counsel also highlighted Mr. Smith’s shortcomings and tendency to describe himself in a favourable light and to minimize his involvement in the killing of Mr. Pelliccione. For example, counsel for Mr. Sheridan argued, Mr. Smith’s “memory is clearly unreliable and, at times, his evidence, I think doesn’t really accord – it doesn’t make sense and he has a real tendency to portray himself as a victim of every bad circumstance he finds himself in.” He went on to describe Mr. Smith’s evidence on his past convictions as “preposterous”. The trial judge in his charge reiterated the appellant’s closing submission that the evidence of the three main Crown witnesses was manifestly unreliable.
21We are satisfied that any concerns relating to any tendency by Mr. Smith to downplay his role at the expense of the appellant were fully addressed and would not have been lost on the jury. We dismiss this ground of appeal.
Vetrovec Instruction
22Second, the appellant takes issue with the trial judge’s Vetrovec instruction. There are two components to this submission.
23As part of his instruction on the criminal records of the three main Crown witnesses, the trial judge stated that it was fair to say that none had been convicted of any other offences since the related conviction for manslaughter in 2010 and that the jury would note the efforts made by all three with respect to rehabilitation. The Vetrovec instruction followed shortly afterwards.
24The appellant submits that the Vetrovec instruction was watered down by the trial judge’s comments on the time gaps in the criminal records and rehabilitation efforts. He also argues that the trial judge further erred by failing to mention other specific concerns relating to the veracity of the evidence of these three Crown witnesses. These concerns included Mr. Smith’s and Ms. Dunsford’s inconsistent statements and Ms. Sterling being an admitted perjurer and lying to police.
25We do not accept these submissions. Trial judges are owed considerable deference in framing a Vetrovec caution as they are better situated than appellate courts to determine how to provide an effective and balanced caution tailored to the circumstances of the case: R. v. Zebedee, 81 O.R. (3d) 583 (C.A.), at para. 83. Moreover, a Vetrovec instruction should not be reviewed in isolation: R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 106. Here, read in the context of the proceedings and the rest of the charge, the warning served its cautionary purpose. The trial judge gave considerable guidance on the evidence of the three main Crown witnesses. He addressed their guilty pleas to manslaughter and their negotiated plea agreements, their prior criminal records, their prior inconsistent statements, and gave a special instruction relating to their role as accomplices and the danger of relying on their evidence in the absence of any confirmatory evidence. The trial judge also described additional reasons why the utmost care and caution should be exercised including the effect of the witnesses’ addiction to crack cocaine on their credibility and reliability.
26Concerning the watering down argument, one of the factors to be considered with respect to criminal records is whether they are dated. The trial judge noted that the prior convictions were just one of many factors for the jury to consider and the brief reference to rehabilitation and the time gaps served to provide a balanced charge. When defence counsel raised an objection to this instruction at trial, the trial judge considered the issue overnight and declined to say anything further. We see no basis on which to interfere with the trial judge’s exercise of discretion. We also note that the trial judge’s brief comments about rehabilitation and the time gaps were followed by a strong Vetrovec warning, and several specific references to inconsistencies in the evidence of the three main Crown witnesses, and defence counsel’s submissions. We are satisfied the jury would not have been left in any doubt about the serious shortcomings in the evidence of these three Crown witnesses.
27As for the appellant’s complaint that the trial judge failed to mention other specific concerns relating to the veracity of the evidence of these three Crown witnesses, this is not borne out by the charge. Apart from his more generalized instructions on how to assess the witnesses’ testimony, as mentioned, the trial judge also provided a specific instruction on accomplices and specific examples of inconsistencies and concerns relating to each witness. In particular, without objection by the Crown, the trial judge included a list of inconsistencies provided by defence counsel and advised the jury that it could be of assistance to them. We do not accept that the trial judge was required to do more. The assessment of the Crown witnesses’ credibility and reliability was squarely within the jury’s purview. We are satisfied they were well equipped to fulfill that responsibility.
28Lastly, concerns relating to the credibility and reliability of the three were self-evident. As Watt J.A. stated in R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at para. 136: “Where an appellant claims that a Vetrovec caution is deficient because a trial judge failed to provide an exhaustive catalogue of the reasons for the caution, we should consider whether the characteristics omitted were latent or self-evident.” It was abundantly clear that the credibility and reliability of the three main Crown witnesses were very much in issue and that their testimony was potentially dangerous given that they were accomplices who had secured plea agreements.
29We reject the submission that the effectiveness of the Vetrovec caution was diminished in any way.
30We dismiss this ground of appeal.
Relating Defence Position on Intent and Motive
31On the issue of intent, the Crown’s position in part was that the appellant “was present while Sheridan led the discussion that they were all part of a family and Pelliccione had to die. He did not dissent. [The appellant] formed the fixed intention along with that of [Sheridan] that Pelliccione had to die.” Ms. Dunsford had described this discussion in her testimony at trial.
32The appellant submits that the trial judge erred in failing to alert the jury to the flaws and weaknesses in the Crown’s evidence on intent. The appellant argues that there was no evidence that he was present during the discussion, was aware of what was being said, or agreed that Mr. Pelliccione had to die. The appellant also submits that the trial judge erred in leaving the question of intent with the jury because any inference that he was present for the discussion on which the Crown relies was speculative.
33We do not accept these submissions. The trial judge began his instructions relevant to the issue of intent with a brief summary of the positions of the Crown and the defence. He then proceeded to review how intent was relevant to the different modes of participation, the relevant evidence and then reviewed in further detail the positions of counsel. This included the defence position that the Crown had not led any evidence of the appellant’s intent and that the evidence was so weak as to amount to no evidence at all.
34Ms. Dunsford had testified that in the group discussion, it was decided that Mr. Pelliccione was going to have to die and that no one disagreed. An inference of intent was clearly available especially given that there was evidence that the appellant had been present during each escalating step of the beating, had been an active participant, including hitting and throwing rocks at Mr. Pelliccione, and had provided Ms. Dunsford and Ms. Sterling with the 19-pound rock used to hit him in T-19. The trial judge made no error in leaving this issue with the jury; an inference of intent was available on the evidence and was not speculative. Furthermore, as already discussed, the jury would have been well aware of the problems associated with Ms. Dunsford’s evidence.
35On the issue of motive, the appellant submits that the trial judge erred by failing to state to the jury the defence position that there was no evidence that the appellant was aware of Mr. Pelliccione’s threat that he would return with men and weapons and kill them or that he took this threat seriously. As with the issue of intent, the appellant submits that the jury would have had to speculate to infer motive.
36Again, we are satisfied that the inference that the appellant was present and aware of this threat was available on the evidence, particularly given the evidence of Mr. Smith. The trial judge exercised his discretion not to recharge the jury, having concluded that the jury was fully equipped to address this issue. We agree and would not give effect to this ground of appeal.
Use of Crown Summary
37Both the defence and the Crown provided written summaries of their positions to the trial judge following their closing addresses. The trial judge read their summaries to the jury. The defence objected, stating that the Crown had articulated an alternative path to conviction that had not been addressed in their closing, namely that the appellant had played a supervisory role and remained in the trailer to ensure that the two women killed Mr. Pelliccione. He argued that the jury should be instructed to disregard that theory, but the trial judge did not do so. Now before this court, the appellant argues that the Crown was in effect provided with a right of reply to the defence closing, deprived the defence of the opportunity to respond, and this resulted in trial unfairness.
38We reject this ground of appeal.
39The Crown made it clear in his pre-charge submissions that the Crown theory was that the appellant was liable for either manslaughter or second degree murder, as his participation from beginning to end was a substantial contributing cause of Mr. Pelliccione’s death. The Crown also made it clear that the appellant and Mr. Sheridan were potentially liable as either co-principals or parties to the offence. Then in his closing submissions, which were made prior to the written summaries being provided to the trial judge, the Crown stated to the jury that “Chad Noureddine provided the rock and was there to make sure they did what they were told.”
40A trial judge has “a duty to instruct the jury on all routes to liability which arise on the evidence”: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 19; R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445, at para. 168. Moreover, as noted by Cory J. in R. v. Rose, [1998] 3 S.C.R. 262, at para. 103, “there is no evidence that an accused who addresses the jury first is less able to defend against the persuasive aspects of the Crown jury address than an accused who goes last.”
41The defence was alerted to the Crown’s position and the trial judge was obliged to instruct on all routes to liability. We are not persuaded that a corrective instruction was required or that any trial unfairness ensued.
Disposition
42For these reasons, we dismiss the appeal.
“Janet Simmons J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”
1Although all three main Crown witnesses testified they heard this statement, their evidence concerning when it was made was inconsistent.
2Vetrovec v. The Queen, [1982] 1 S.C.R. 811.