COURT OF APPEAL FOR ONTARIO DATE: 20230320 DOCKET: C66589 & C66710
Fairburn A.C.J.O., Doherty and Pardu JJ.A.
DOCKET: C66589 BETWEEN His Majesty the King Respondent and Thomas Nagy Appellant
DOCKET: C66710 AND BETWEEN His Majesty the King Respondent and Bradley MacGarvie Appellant
Counsel: Brian H. Greenspan and Michelle M. Biddulph, for the appellant, Thomas Nagy Carter Martell, for the appellant, Bradley MacGarvie Deborah Krick and Katherine Beaudoin, for the respondent
Heard: February 14, 2023
On appeal from the conviction entered on August 25, 2017, by Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury.
Pardu J.A.:
[1] Bradley MacGarvie and Thomas Nagy both appeal from their convictions for the first- and second-degree murder of Alexander Fraser, on or about December 26, 2014. Mr. MacGarvie was convicted of first-degree murder and Mr. Nagy was convicted of second-degree murder.
Factual Background Leading to the Homicide
[2] Mr. MacGarvie, along with others, administered a severe beating to Mr. Fraser on November 13, 2014, approximately six weeks before the homicide. Mr. MacGarvie had lured Mr. Fraser to Mr. MacGarvie’s house. There was evidence that Mr. MacGarvie, Mr. Nagy, and two others punched and kicked Mr. Fraser, leaving him with injuries that led him to seek treatment at a hospital.
[3] Mr. Fraser enlisted the help of friends to come to the Niagara area to confront Mr. MacGarvie in turn. By the evening of December 25, 2014, Mr. MacGarvie was receiving threatening messages. He had been told that Mr. Fraser was arranging for friends to come after him. Mr. MacGarvie devised a plan to have Carol Acker and Victoria Harvey lure Mr. Fraser to an isolated area, so that Mr. MacGarvie could confront him. Mr. MacGarvie asked Mr. Nagy to accompany him. Mr. MacGarvie, Mr. Nagy, Ms. Acker, and Ms. Harvey all left Mr. MacGarvie’s home in a truck driven by Duran Wilson. Ms. Acker and Ms. Harvey were dropped off at a motel to await pickup from Mr. Fraser, as had been arranged.
[4] On December 26, 2014, Mr. Fraser picked up Ms. Acker and Ms. Harvey at the motel. After dropping off Ms. Acker at a Niagara Parkway address for a supposed escort service outcall, Mr. Fraser and Ms. Harvey went to the chosen isolated area, just off the parkway. When Mr. Fraser got out of the car, Mr. MacGarvie, who was awaiting his arrival with Mr. Nagy, took him to the ground and held him down.
[5] There was evidence that Mr. MacGarvie and Mr. Nagy blindfolded Mr. Fraser and pushed him into the backseat of the truck. According to Ms. Harvey, Mr. Fraser’s hands were behind his back, and he had duct tape around his eyes and head, as well as over his mouth. Mr. MacGarvie was yelling at Mr. Fraser in the backseat of the truck, and Mr. Fraser was being hit. Mr. MacGarvie then doused Mr. Fraser’s car with oil and set it on fire.
[6] Mr. Wilson drove Mr. Nagy, Mr. MacGarvie and Mr. Fraser to another area, near some train tracks. Mr. MacGarvie and Mr. Nagy got out of the truck, holding Mr. Fraser, who was standing with his hands behind his back. Mr. MacGarvie told Mr. Wilson to come back in fifteen minutes. Mr. Nagy argued with Mr. MacGarvie, wanting nothing to do with what was happening, and started to walk away from the area.
[7] Mr. MacGarvie saw a path in the woods and told Mr. Fraser to walk towards the path. Mr. MacGarvie testified at trial that he yelled at Mr. Fraser and demanded to know who was coming after him. He said that Mr. Fraser confirmed to him that he had organized an attack on Mr. MacGarvie and, according to Mr. MacGarvie’s evidence, Mr. Fraser said that he hoped the people he had recruited would kill Mr. MacGarvie and his family. According to Mr. MacGarvie, this prompted him to attack Mr. Fraser. Mr. MacGarvie testified that he had not intended to kill Mr. Fraser, but that he did so unintentionally when he exploded in response to those words.
[8] Mr. MacGarvie thought he had killed Mr. Fraser with this beating. He wanted to hide the body, but he had difficulty lifting it. He used zip ties, which he had in his jacket, to bind Mr. Fraser’s wrists and ankles, so that he could lift and move his body. He dragged Mr. Fraser’s body to a nearby bridge and rolled it into the water. Mr. MacGarvie then went back to the road to wait for Mr. Wilson to pick him and Mr. Nagy up. Mr. Fraser’s body was found in a channel near the Niagara River in March 2015.
[9] It is worth noting that, although Mr. MacGarvie testified that he thought that the beating had killed Mr. Fraser, the pathologist could not determine the precise cause of death. It was not clear whether Mr. Fraser died as a result of the beating or by drowning.
[10] At the start of the trial, whether Mr. MacGarvie had been a participant in the killing was in issue. However, after Mr. MacGarvie testified, and acknowledged that he was guilty of manslaughter, the substantial issues for the jury to determine were whether the Crown had proven that Mr. MacGarvie had the intent required for murder and, if so, whether it was first-degree murder, by reason of planning and deliberation, or constructive first-degree murder, committed while Mr. Fraser was unlawfully confined.
[11] Mr. Nagy did not testify and, therefore, everything about his participation in the events was in issue.
Arguments on Appeal
[12] On appeal, Mr. MacGarvie argues that the trial judge erred in three respects:
- By instructing the jury that it could infer guilt from his conduct after the killing without providing the jury with the instructions it needed to be equipped to assess that evidence;
- By refusing to instruct the jury on provocation; and
- By failing to give a Vetrovec warning about the evidence of Ms. Harvey and Ms. Acker.
[13] Mr. Nagy argues that the trial judge erred in four ways:
- By incorrectly defining the mental element for party liability for murder, where the jury was to consider whether the Crown had proven a common unlawful purpose;
- By declining to provide the jury with a decision tree;
- By refusing to exclude his criminal record on his Corbett application; and
- By permitting an employee of the United States Border Patrol to give lay opinion evidence, interpreting the heat signatures on a thermal image video of the shore of the Niagara River.
Conduct After the Killing
[14] There was evidence of steps taken, by each Mr. MacGarvie and Mr. Nagy, following the beating:
- Mr. MacGarvie testified that he thought the beating had killed Mr. Fraser. He bound Mr. Fraser’s wrists and ankles tightly with zip ties and dropped him in the river, all within 15 minutes of being dropped off in the woods by Mr. Wilson. He made no effort to get medical assistance for Mr. Fraser and there was no hesitation in his exertions to dispose of the body.
- After disposing of Mr. Fraser’s body, Mr. MacGarvie and Mr. Nagy burned their clothing.
- Mr. MacGarvie threatened to kill Ms. Harvey and Ms. Acker if they told anyone what had happened, stating that “he would make another person disappear rather than go to jail for 25 to life”.
- Mr. MacGarvie and Mr. Nagy collected Ms. Acker’s and Ms. Harvey’s cellphone and tablet.
- Mr. MacGarvie asked witnesses to provide him with a false alibi and divert suspicion to another person.
- Mr. MacGarvie attempted to flee arrest.
- In the holding cells, during a court appearance on February 4, 2015, Mr. MacGarvie tried to persuade another female detainee, brought from the Vanier Institution, to beat up Ms. Harvey, who was also housed in the same institution.
[15] During the pre-charge conference, the Crown took the position that the above conduct was relevant to Mr. MacGarvie’s state of mind and intent at the time of the killing. Mr. MacGarvie’s trial counsel made no submissions as to the issue of the admissibility or relevance of this after-the-fact conduct evidence.
[16] On appeal, Mr. MacGarvie submits that the after-the-fact conduct evidence was no longer relevant by the end of the trial. While it may have been initially relevant to determine whether Mr. MacGarvie had played any role in the killing, once Mr. MacGarvie admitted to the killing, it no longer had any evidentiary value. He submits that the trial judge ought to have instructed the jury that it had no probative value, and that they should not consider it in assessing Mr. MacGarvie’s level of culpability. Mr. MacGarvie admitted to most of the conduct but gave explanations for why he had acted as he did: to avoid being caught for an unintentional killing.
[17] The trial judge did not explain to the jury how the after-the-fact conduct evidence was relevant. He left it to the jury, in general terms, that the jury could use the evidence to determine whether the Crown had proven Mr. MacGarvie’s or Mr. Nagy’s guilt beyond a reasonable doubt:
In any event, I can advise you that the after-the-fact conduct is simply a type of circumstantial evidence. As with all circumstantial evidence, you must consider what inference, if any, is proper to draw from this evidence. You may use this evidence about what Mr. MacGarvie is alleged to have said and done, as I will direct you, along with all the other evidence as to the essential elements in the case, in deciding whether the Crown has proved his guilt beyond a reasonable doubt. Likewise, you may use the evidence about what Mr. Nagy is alleged to have said and done, as I will direct you, along with all the other evidence as to the essential elements in the case, in deciding whether the Crown has proved his guilt beyond a reasonable doubt. However, you must not infer Bradley MacGarvie’s guilt or Thomas Nagy’s guilt from that evidence unless, when you consider it along with all the other evidence as to the essential elements to be proven, you are satisfied that it is consistent with his guilt and that it is inconsistent with any other reasonable conclusion. Keep in mind that evidence of after-the-fact conduct has only an indirect bearing on the issue of Bradley MacGarvie’s or Thomas Nagy’s guilt. You must be careful about inferring guilt from this evidence because there might be other explanations for the conduct. You may use evidence of after-the-fact conduct to support an inference of guilt only if you have rejected any other explanation for the conduct.
[18] In R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, Moldaver J., writing for the majority, noted that after-the-fact conduct may be relevant to the mental state required for a charged crime. For instance, in Calnen, the accused said that the victim died as a result of a fall down the stairs. After her death, he disposed of her body by burning it. This conduct was relevant, not only to rebut the allegation of accident and to establish causation, but also to determine whether he had the intent for second-degree murder.
[19] In Calnen, the majority expressed agreement with the principles articulated by Martin J. in her reasons, dissenting as to the application of those principles. Determination of relevance is very fact-specific. At para. 112 of Calnen, Martin J. observed:
In order to draw inferences, the decision maker relies on logic, common sense and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence … That there may be a range of potential inferences does not render the after-the-fact conduct null … In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them. “It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct” … [Citations omitted.]
[20] It is important for trial judges to expressly state the possible inferences which might be drawn from after-the-fact conduct and explain the possible chain of reasoning. As noted in Calnen, at paras. 113 and 115:
In addition to being aware of the general principles, it is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it. This often requires counsel and the court to expressly set out the chain of reasoning that supports the relevance and materiality of such evidence for its intended use. Evidence is to be used only for the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required.
While the focus should be on the intended use of the evidence when determining admissibility and crafting jury instructions, it is also important to expressly state the inferences available to the jury. In Rodgerson, this Court made clear that judicial expertise may be required in order to “present the evidence and the available inferences to the jury in a comprehensible form” ….
[21] Here, the conduct immediately after the final beating was relevant to Mr. MacGarvie’s mental state and whether he had the intent required for murder. Burning clothes to destroy evidence and seizing electronic devices, which might contain incriminating evidence, for example, could be viewed as characteristic of a methodical, clear-thinking mind. Possession of zip ties, and their use to bind the victim’s wrists and ankles, could be evidence of the execution of a plan. The immediate disposal of the body, without seeking help or medical assistance, could be more consistent with an intentional killing than an unintentional one. A jury would, of course, have to consider other possible inferences, including Mr. MacGarvie’s evidence that he engaged in these behaviours to avoid being caught for an unintentional killing.
[22] The conduct more remote in time, such as Mr. MacGarvie’s flight to avoid arrest and his attempt to have Ms. Harvey beaten up, had significantly less probative value on the issue of his mental state at the time of the final beating and whether the killing was planned and deliberate. It will be up to the new trial judge to assess whether this evidence should be admitted.
[23] Mr. Nagy’s participation in the events was in issue, as well. His conduct after the killing was relevant to the issue of whether he had participated in the attack on Mr. Fraser. If he had not done so, it is difficult to see why he would have burned the clothes he was wearing or seized the electronic devices from Ms. Harvey and Ms. Acker.
[24] However, in this case, the jury was left without any guidance as to the use of this evidence.
[25] Trial judges are not held to a standard of perfection in their crafting of jury charges. A functional approach to the substance of the charge, by examining errors in the context of the evidence, the entire charge, and the trial as a whole, is required: R. v. Goforth, 2022 SCC 25, at para. 21.
[26] Here, one cannot be left with any confidence that the jury understood the purposes for which the after-the-fact conduct evidence could be used. Absent such understanding, the risk of prejudicial use of the evidence was elevated. A jury might have leapt directly to a conclusion that, since the appellants acted as if they had done something wrong, they were guilty as charged, of first-degree murder in the case of Mr. MacGarvie, despite the trial judge’s general admonitions not to do so. To be fair to the trial judge, he did not have the benefit of Calnen when he charged the jury in 2017.
[27] Here, the verdicts for Mr. MacGarvie and Mr. Nagy were inextricably intertwined. With the consent of all parties, the trial judge told the jury to decide the case against Mr. MacGarvie first and that whatever decision they made for him would set the ceiling for their deliberations about Mr. Nagy. He told the jury, at para. 237 of his charge, “If you found Mr. MacGarvie not guilty of an offence, be it not guilty of first degree murder, second degree murder or manslaughter, it is illogical on the facts of this case that you could find Mr. Nagy guilty of that same offence”.
[28] While counsel failed to object to the charge on the issue of directions regarding after-the-fact conduct, this is not determinative. There is no basis to conclude that this was a tactical choice.
[29] The failure to give the jury guidance on this issue is sufficiently serious as to require a new trial for both Mr. MacGarvie and Mr. Nagy.
Provocation
[30] Provocation reduces murder to manslaughter. It arises where an accused suddenly kills a victim in response to a wrongful act or insult that is sufficient to deprive a reasonable person of self-control and, in fact, deprived the accused of self-control. Here, the trial judge refused to instruct the jury on provocation, as requested by Mr. MacGarvie, holding that there was no air of reality to the partial defence.
[31] Mr. MacGarvie submits that the trial judge erred in three respects in this regard:
- The trial judge failed to consider the evidence, at its most favorable, to the claim of provocation and failed to consider the immediacy of the threats against Mr.MacGarvie;
- The trial judge erroneously imported Mr. MacGarvie’s personal characteristics into the reasonable person test and then used those characteristics to enhance the mental fortitude of the reasonable person in his circumstances; and
- The trial judge wrongly held that an accused cannot have been provoked by something that they instigated.
[32] The question of whether there is an air of reality to provocation is a question of law, reviewable on the standard of correctness: R. v. Tran, 2010 SCC 58, at para. 40; R. v. Alas, 2021 ONCA 224, at para. 69.
[33] The trial judge concluded that there was some evidence from which a jury could conclude that Mr. MacGarvie subjectively lost self-control but found that the objective branch of the test was not met.
[34] The alleged wrongful act or insult was, according to Mr. MacGarvie’s evidence, the statement made by Mr. Fraser after he had been assaulted, confined, blindfolded with duct tape, and taken into the woods. According to Mr. MacGarvie, he yelled at Mr. Fraser and demanded to know who the people were that Mr. Fraser had sent after him, to which Mr. Fraser responded, “I hope they kill you and your family for what you did to me in November and for what you’re doing to me right now”.
[35] Given that the alleged wrongful act or insult by Mr. Fraser occurred in an isolated area, with none of Mr. Fraser’s allies nearby, I am not persuaded that the trial judge erred in his assessment of the immediacy of the threats made against Mr. MacGarvie. To assess whether the evidence is reasonably capable of supporting the inferences sought by an accused, the trial judge is entitled to engage in a limited weighing of the evidence: see R. v. Thibert, at para. 6; R. v. Cinous, 2002 SCC 29, at paras. 53-54, 61, 89; R. v. Grant, 2016 ONCA 639, at para. 58; R. v. Ariaratnum, 2018 ONCA 1027, at para. 11.
[36] The trial judge held that a reasonable 26-year-old man with mixed martial arts training was “no shrinking violet” and that a reasonable person, with those characteristics, would not have lost self-control in response to the statements made by Mr. Fraser.
[37] I agree that the trial judge erred by importing Mr. MacGarvie’s mixed martial arts training into the assessment of how a reasonable person would react to the alleged statements made by Mr. Fraser. Some individualization of the reasonable person standard may be necessary to provide context to the significance of the alleged wrongful act or insult that might, otherwise, be seen as benign. However, as this court noted in R. v. Berry, 2017 ONCA 17, at para. 83, where the provoking act or insult does not have special significance to the accused, the reasonable person does not take on the personal or subjective characteristics of the accused. As noted in Tran, at para. 33, “care must be taken not to subvert the logic of the objective test. Indeed, if all of the accused’s characteristics are taken into account, the ordinary person becomes the accused. … [T]his approach would lead to the anomalous result that ‘[a] well-tempered, reasonable person would not be entitled to benefit from the provocation defence … while an ill-tempered or exceptionally excitable person would find his or her culpability mitigated by provocation …’”.
[38] The trial judge was, however, correct to conclude that Mr. Fraser’s comments to Mr. MacGarvie could not be characterized as so sudden and unexpected as to cause a reasonable person to lose self-control. Given the circumstances under which Mr. Fraser was taken into the woods, and the history between the parties, Mr. Fraser’s response would not have taken an ordinary person by surprise and, instead, fell “within a range of predictable responses”: see R. v. Cairney, 2013 SCC 55, at para. 61.
[39] There is no absolute rule that a person who initiates a violent confrontation cannot benefit from the partial defence of provocation, and I do not interpret the trial judge’s reasons as holding otherwise. As noted in Cairney, at para. 44, the “fact that the victim’s response to the accused’s confrontational conduct fell within a range of reasonably predictable reactions may suggest that an ordinary person would not have lost self-control, although it must be weighed together with all other relevant contextual factors”.
[40] Here, Mr. MacGarvie sought out an aggressive confrontation and received a predictable response. Violently kidnapping, assaulting, and blindfolding victims, burning their cars, and taking them into isolated areas in the woods are all conduct “to be discouraged”: see Cairney, at para. 64.
[41] There was no air of reality to provocation here. Thus, the trial judge did not err in refusing to leave it with the jury.
Vetrovec Warning
[42] There is no doubt that Ms. Harvey and Ms. Acker were witnesses for whom a Vetrovec warning could have been given. They assisted in the plan to lure Mr. Fraser to the isolated location, initially lied to police, and gave evidence that was internally inconsistent, as well as inconsistent with each other’s. They were caught in many lies. Ms. Harvey was initially charged with first-degree murder but pleaded guilty to manslaughter for her involvement in the events and was sentenced to four years imprisonment. She had been released by the time of the appellants’ trial. Ms. Acker was apparently never charged.
[43] At trial, Mr. Nagy was opposed to a Vetrovec warning. Mr. MacGarvie initially said that he would have no problem with a Vetrovec warning but did not object when the trial judge decided against it. Defence counsel reviewed five drafts of the jury charge before it was finalized and did not object to the absence of a Vetrovec warning.
[44] The decision whether or not to give a Vetrovec warning is reviewable, but trial judges are owed deference because they are an “eye witness to the testimony of the witness and the temperature of the trial proceedings”: R. v. Carroll, 2014 ONCA 2, at para. 60.
[45] Here, the trial judge did not err in declining to give the warning. This jury was well-equipped to assess the frailties of the witnesses’ evidence, having regard to the rigors of the cross examinations and the care the trial judge took to point out those problems. Furthermore, Mr. MacGarvie, himself, largely confirmed much of the evidence Ms. Harvey and Ms. Acker gave. By the end of the trial, there was no doubt that Mr. MacGarvie had formulated a plan to lure Mr. Fraser to the isolated area and confront him, blindfold him, and take him into the woods. Ms. Harvey and Ms. Acker were not present in the woods for the final beating and said nothing to contradict Mr. MacGarvie’s evidence that the killing was provoked and unintended. Pointing out the many ways in which Ms. Harvey’s and Ms. Acker’s evidence was confirmed, particularly by Mr. MacGarvie’s own evidence, could have given that evidence a shine it did not deserve.
The Error in Defining the Mental State for Party Liability for Murder and the Refusal to Give the Jury a Decision Tree
[46] The trial judge instructed the jury on three potential modes of liability for Mr. Nagy: co-principal, aiding, and common unlawful purpose.
[47] It is common ground that the trial judge erred in part of his instructions on common unlawful purpose.
[48] He instructed the jury that Mr. Nagy had to know either that Mr. MacGarvie meant to cause Mr. Fraser’s death or that Mr. MacGarvie meant to cause Mr. Fraser bodily harm that was likely to cause death. He omitted the crucial words that Mr. Nagy must have known that Mr. MacGarvie meant to cause Mr. Fraser bodily harm that Mr. MacGarvie knew was likely to cause Mr. Fraser’s death:
Finally, as to the knowledge requirement, you will recall that it relates to Mr. Nagy’s knowledge. When considering second degree murder, that knowledge must be that Mr. MacGarvie would probably or likely murder Mr. Fraser in carrying out the agreement to unlawfully confine and/or abduct him, and that Mr. MacGarvie would have the required intent for murder – that is (once again) that he meant to cause the death of Mr. Fraser, or meant to cause him bodily harm that was likely to cause death and was reckless whether death occurred or not. Imputed knowledge is not good enough.
[49] The Crown submits that the jury was correctly instructed as to the intent required for Mr. MacGarvie to be convicted of murder elsewhere in the charge, as well as that the trial judge, earlier on, correctly told the jury that it had to decide if Mr. Nagy knew Mr. MacGarvie had the intent required for murder:
Knowledge is a state of mind, Thomas Nagy’s state of mind. To know something is to be aware of it. Did Thomas Nagy know that Bradley MacGarvie would probably cause the death of Alexander Fraser in carrying out the original agreement? Did Thomas Nagy know that Bradley MacGarvie would probably cause the death of Alexander Fraser with the intent required for murder? (You will recall that intent is that a person meant to cause the death or meant to cause bodily harm that he knew was likely to cause death, and was reckless whether death occurred or not.) Did Thomas Nagy know that Bradley MacGarvie would probably cause the death of Alexander Fraser with planning the deliberation? Did Thomas Nagy know that Bradley MacGarvie would probably cause the death of Alexander Fraser where unlawful confinement was part of the same series of events with the killing of Mr. Fraser and where Mr. MacGarvie was an active participant? [Emphasis added.]
[50] In the concrete reality of the factual circumstances of this case, the jury would likely have been confused by the conflicting instructions. As Mr. Nagy’s counsel points out, given the manner in which the jury charge was structured, it cannot be safely assumed that the jury would have recognized the incorrect instruction when it came to the portion of the charge titled, “Second Degree Murder by Common Unlawful Purpose”. The error occurred in the portion of the charge dealing with the analytical path the jury was to follow when dealing with this issue.
[51] Here, the structure of the jury charge would have made it difficult for a lay jury to understand. A trial judge’s decision whether or not to provide the jury with a decision tree is a discretionary one, entitled to a high degree of deference, but, in this case, a decision tree would have made the analytical path for the jury to follow much easier for it to understand.
[52] In this case, it was not obvious that Mr. Nagy had the intent for murder or knew that Mr. MacGarvie had the intent for murder. He appeared to have been asked to accompany Mr. MacGarvie after the latter had formulated the plan, and there was some evidence that he attempted to disassociate himself from Mr. MacGarvie’s actions. While the evidence strongly suggests that Mr. Nagy was a party to an assault and unlawful confinement, the issue of his intent and knowledge was an essential element of a finding of guilt of murder as a party to a common unlawful purpose. In similar circumstances, this court has not regarded correct instructions elsewhere in the charge as sufficient to eliminate the risk of jury confusion: see R. v. Mcintyre, 2012 ONCA 356, 95 C.R. (6th) 106; R. v. Zoldi, 2018 ONCA 384, 360 C.C.C. (3d) 476.
[53] This error, alone, also requires a new trial for Mr. Nagy.
Mr. Nagy’s Criminal Record
[54] Mr. Nagy argues that the trial judge erred in dismissing his Corbett application to exclude his entire criminal record. Mr. Nagy was convicted, on October 21, 2014, of assault causing bodily harm and possession of a prohibited or restricted firearm with ammunition. This was just about three weeks before the assault on Mr. Fraser, which occurred on November 14, 2014. Mr. Nagy was also convicted, on April 27, 2012, of driving while disqualified. The trial judge ruled that the conviction for assault would be edited but that Mr. Nagy could, otherwise, be cross-examined on his criminal record. Mr. Nagy elected not to testify.
[55] On appeal, Mr. Nagy argues that driving while disqualified and possession of a prohibited or restricted firearm are not crimes of dishonesty and, thus, could shed little light on his credibility. He further argues that the proximity of the conviction for the firearms offence made it highly prejudicial.
[56] Mr. Nagy does not argue that the trial judge applied an incorrect test but submits that he ought to have weighed probative value and prejudicial effect differently.
[57] An important contextual factor here is the vigorous challenge to the credibility, reliability and character of the Crown witnesses during their cross-examinations.
[58] A decision on a Corbett application is a matter of broad discretion, entitled to a high degree of deference. This court has pointed out that even crimes which are not typically associated with dishonesty may have some relevance to the trustworthiness of a witness: see R. v. King, 2022 ONCA 665, at para. 140.
[59] Here, there was no error in principle, misapprehension of evidence or unreasonable exercise of discretion. Thus, there is no basis for appellate intervention: see R. v. Mayer, 2014 ONCA 474, at para. 3; R. v. Massel, 2009 ONCA 363, at para. 8; R. v. Corbett, at paras. 35, 50, 167.
The Lay Opinion Evidence Interpreting Infrared Surveillance Camera Images
[60] American border security agents have cameras capable of detecting heat emanations on the Canadian side of the Niagara River. These video images appear as white blobs on a gray background and are time-stamped. The trial judge ruled that Carl Lodico, an employee of the United States Border Patrol, could give lay opinion evidence describing the content of the video. He described images as representing persons or a vehicle in the relevant area. There was no ability to identify the particular human or make of the vehicle.
[61] The appellants agreed that the video could be placed before the jury with an explanation as to how the camera worked but opposed the proposed opinion evidence, identifying some of the images as human beings, a vehicle, and a vehicle fire.
[62] The trial judge, after considering R. v. Graat, [1992] 2 S.C.R. 819 and R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, concluded that Mr. Lodico’s evidence would assist the jury, who would not be expected to have an understanding of infrared technology or the nature of heat signatures. He later concluded that Mr. Lodico’s experience and training qualified him to explain what was seen on the video.
[63] As indicated in Graat, non-expert opinion evidence is admissible where it is practically impossible to separate the witness’s opinion from the factual observations upon which the opinion is based. Lay opinion evidence has been admitted on a wide variety of subjects, including identification of handwriting, persons and things, apparent age, the bodily plight or condition of a person, the emotional state of a person, the condition of objects, estimates of speed and distance, and intoxication, which was the issue in Graat.
[64] In R. v. Walizadah, 2007 ONCA 528, 223 C.C.C. (3d) 28, this court upheld a trial decision to allow a police officer to give lay opinion evidence, describing what he saw on a surveillance video. As here, his evidence was limited. The trial judge ruled that he could say whether a particular vehicle was round or square, or light or dark in colour.
[65] Here, none of the policy reasons that might justify excluding this kind of evidence were a factor. There was no risk of confusing the issues, misleading the jury, unfair surprise, or undue consumption of time: see Graat, at p. 378.
[66] I am not persuaded that the jury would have been overwhelmed by this lay opinion evidence. The presence of the vehicles and persons, at the relevant times, was largely confirmed by the evidence of Mr. MacGarvie and the other witnesses.
[67] The trial judge also cautioned the jury to critically evaluate Mr. Lodico’s evidence:
Lay opinion evidence is possible where an individual has, by virtue of their training, their observations, and their experience, the ability to shed some light on certain information that may be helpful to you. You are about to hear lay opinion evidence from a witness who, based on his experience, observations, and training, will talk about what he interprets certain infrared heat signatures to be as captured on infrared camera. And you’ll hear more about that.
As with all opinion evidence, whether it’s given by experts or by non-experts, it’s up to you to decide the extent to which you choose to rely on that evidence. And here are some things that you can consider when you’re deciding what weight to give or how much reliance to give to that evidence. For example, what were the person’s qualifications and experience? What were the reasons that they gave for their opinion? Were the methods used to come to that opinion suitable in your view? Was the person impartial as they gave evidence? And, and you’ll do this at the end of the trial, you’ll want to consider all of that within – with regard to all of the evidence that you’ve heard in the case. So, what you’ve heard to date and what you will hear. It will be up to you to decide how much or how little to rely on the evidence of any witnesses, and certainly any expert witness or a witness who has given lay opinion.
[68] The trial judge did not err in admitting Mr. Lodico’s lay opinion evidence. This ground of appeal should be dismissed.
Conclusion
[69] For the reasons expressed above, I would set aside the convictions and order a new trial for Mr. MacGarvie on first degree murder and for Mr. Nagy on second degree murder.
Released: March 20, 2023 “J.M.F.” “G. Pardu J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Doherty J.A.”
