COURT OF APPEAL FOR ONTARIO DATE: 20231114 DOCKET: C65638

Feldman, Roberts and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Michael Belleus Appellant

Counsel: Howard Krongold, for the appellant Andreea Baiasu, for the respondent

Heard: March 28, 2023

On appeal from the conviction entered by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury, on June 28, 2017.

Feldman J.A.:

1The appellant was convicted of the first degree murder of Levy Kasende that took place in the early morning hours of August 25, 2012 in a drive by shooting from a van in Ottawa. He appeals his conviction on three grounds.

2First, he submits that the trial judge erred in law by admitting into evidence the hearsay police statement of Roch Leduc, who died before trial. Mr. Leduc gave two video statements to police. In the first he said he did not know who took his van the evening of August 24. In the second he told police that he had loaned his van to the appellant that evening. The ruling admitting the statements was made before the Supreme Court of Canada clarified the test for the admission of hearsay statements in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.

3The second ground arises from the trial judge’s handling of a note from two jurors during the trial indicating that they thought they were being followed to their cars at the courthouse by family or associates of the appellant. The appellant submits that the trial judge failed to conduct an adequate inquiry under s. 644(1) of the Criminal Code sufficient to ensure no reasonable apprehension of bias on the part of the jurors.

4The third ground relates to the jury instruction on aiding and abetting. The evidence was that there were two or three people in the van when the victim was shot. The Crown’s theory was that the appellant was either the shooter or aided and abetted the shooter to commit first degree murder. The appellant submits that the charge on aiding and abetting did not make it clear that to convict, the appellant had to know that the shooter had planned and deliberated the murder.

5At the argument of the appeal, the court called on the Crown only to respond to the first ground. For the reasons that follow, I would dismiss all three grounds of appeal.

A. Factual Background

6The victim and the appellant were rival crack cocaine dealers in Ottawa with a history of an acrimonious relationship. Approximately two years before the shooting, the victim drew a gun on the appellant outside a Mac’s Milk convenience store in central Ottawa, a struggle ensued where shots were fired, and the appellant suffered a gunshot wound to his arm. He told police that he would take care of it himself. There was evidence that the victim’s complaint against the appellant was that he was selling drugs in the victim’s territory. There was also evidence at the trial that the victim wanted to have the appellant killed.

7The shooting that gave rise to the conviction under appeal took place on August 25, 2012 at around 12:45 a.m. outside the townhouse of the victim’s former girlfriend, who was the mother of his child. The home was located in one of the appellant’s drug dealing territories. The victim was outside the front of the townhouse with two friends, having just arrived there twenty minutes earlier.

8A couple of witnesses observed the event. One witness saw a vehicle pull up across the road and turn off its lights. The witness saw the window roll down, then she saw muzzle flashes coming from the driver’s window and heard gunshots. The vehicle then backed up quickly over a speed bump and sped away. The witness saw two people in the front of the vehicle; she could not see if anyone was in the back. She first described the shooter as the passenger leaning over the driver, but later said it could have been the driver or a back seat passenger.

9Another witness was outside but across the road. She heard gunshots and saw the van and another vehicle drive away. She described the van as an older looking silver van that was “mashed up” or “dented a little bit” on the passenger side. She did not see the occupants of the van.

10After the shooting and hearing that someone had been shot, the victim’s former girlfriend ran out from inside the house and found the victim on the ground. Several people called 911. She thought she saw a silver SUV with tinted windows drive off with three people inside, none of whom she recognized.

11The victim was unresponsive with two gunshot wounds when the paramedics arrived. He died from the gunshot wound through his back that pierced his heart.

12About 45 minutes after the shooting, a van was found burning in a field off Rockdale Road, about twenty minutes from where the shooting occurred. The registered owner of the burning van was Roch Leduc.

13The police interviewed Mr. Leduc on August 25 and 26, 2012 at the police station. Both interviews were conducted under oath and were videotaped. Mr. Leduc was not available to testify at the trial as he died prior to the trial on January 21, 2014 from cancer.

14Mr. Leduc and his girlfriend, Natalie Daniels were crack cocaine users. The appellant was his supplier. Mr. Leduc was first interviewed by police about his van on the evening of August 25, the day of the murder. In that statement, he said he had parked the van down the street from his apartment the previous evening, and discovered it was missing the next day when he and his brother went to look for it. He kept the keys on the table in his room. He said he would often lend his van to others, that there had been several people at his place the previous evening and he had left to go to a neighbour’s apartment. The detective told him his van was connected to a murder and it was important for them to know to whom he had lent the van. When Mr. Leduc returned to the interview room after having a cigarette, the detective told him, in an unrecorded conversation, that she did not believe his statement and asserted that he gave the keys to the van to someone he knew.

15The police then interviewed Ms. Daniels. She first told a similar story to Mr. Leduc’s, but when challenged, she said he had lent the van to someone but she did not know to whom. The detective then suggested to her that Mr. Leduc would be in trouble regarding the murder, after which Ms. Daniels gave a number of names of drug dealers from whom Mr. Leduc had borrowed money but not the appellant.

16When the detective dropped Ms. Daniels at her apartment, in response to the suggestion that Mr. Leduc would be in trouble regarding the murder, Ms. Daniels said she would work on Mr. Leduc to give the police a new story. The next day the police called Ms. Daniels. When she returned the call she said that Mr. Leduc wanted to speak to the officer. At first they arranged to meet at a Farm Boy grocery store, but Mr. Leduc did not show up. He later said he was spooked by two black men in a pick-up truck. Then they agreed that the police could pick them up, which they did and drove to a church parking lot where they had an unrecorded conversation in which Mr. Leduc stated that around 5:00 or 6:00 p.m. on August 24 he gave the keys to Tyson, his drug dealer and friend. Tyson was with another black man. He had loaned Tyson the van three or four times before and he had always returned it. Tyson had agreed to pay $100 for the van this time but he never returned it.

17Mr. Leduc gave his second recorded police interview shortly after the conversation in the church parking lot. He repeated that he loaned the van to Tyson. He added that Tyson and his friend were in another vehicle. He did not recognize the other man. He did not see either vehicle drive away or who was driving the van. The description and other information made it clear that Tyson was the appellant.

18Mr. Leduc died before the trial. At the trial, both statements were admitted into evidence, the second for the truth of its contents, on the basis of necessity and threshold reliability. The issue was determined before the decision of the Supreme Court of Canada in Bradshaw clarified the test for admitting hearsay statements.

19Other facts that relate specifically to each of the three issues will be set out in the context of the analysis of the particular issue.

B. The Issues on Appeal

20The appellant raises three grounds of appeal: 1) Did the trial judge err by admitting into evidence the two police statements by Mr. Leduc, the second for the truth of its contents? 2) Did the trial judge err by failing to conduct a sufficient inquiry when two jurors sent a note to the judge that they believed they were being followed to their cars after court by family or associates of the appellant? 3) Did the trial judge err in his instruction to the jury on the issue of aiding and abetting first degree murder?

C. Analysis

(1) Issue 1: Did the trial judge err by admitting into evidence the two police statements by Mr. Leduc, the second for the truth of its contents?

(a) Ruling by the trial judge

21The trial judge gave an oral ruling that set out his reasons for admitting the two hearsay statements of Mr. Leduc, the second for the truth of its contents. He began by stating the principle that the hearsay statements were presumptively inadmissible, and that the onus was on the Crown to rebut the presumption on a balance of probabilities by showing that the statements conformed to the principled exception to the hearsay rule based on necessity and threshold reliability.

22The necessity requirement was met because the witness had died. Relying on R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, the trial judge stated that threshold reliability could be established on two different bases: 1) from the circumstances in which the statement was made, the contents are so reliable that contemporaneous cross-examination would add little if anything to the process; and 2) the statements can be tested and analyzed in the context of all the other evidence sufficiently that together with the other trial safeguards, the absence of contemporaneous cross-examination becomes inconsequential.

23With respect to the circumstances of the making of the statements, the trial judge noted that they were videotaped, allowing the jury to observe the witness’s demeanor as well as the propriety of the questions and their impact on the answers.

24The trial judge also referred to other evidence that he viewed as corroborative of Mr. Leduc’s second statement that he lent his van to the appellant. The first was an intercepted call between the appellant and Mr. Leduc following a police sting on the appellant, in which they impersonated an insurance investigator and delivered a letter indicating that the appellant was responsible for the insurance on the burnt van. The appellant then called Mr. Leduc and, in their conversation, he accused Mr. Leduc of telling the police he had taken the van and told Mr. Leduc that Ms. Daniels did not know who took the van:

[The appellant]: Did you tell the pigs someone took your vehicle[?] [Mr. Leduc]: I didn't have a choice Ty like we'd have to talk about it it's 'cause there has been a (unintelligible) Ty and talk about it[.] I didn't have any keys anymore Ty[.] (Noise/activity heard) [Mr. Leduc]: I only had one set of keys [. W]e ju- we there's plenty of things you haven't told me and that you should've told me[.] Ty I didn't have any keys[.] Ty what did you want me to do[?] I was really fucked[.] [The appellant]: Okay and you said who did you say took your vehicle[?] [Mr. Leduc]: Well I between me and they question me and Nat estie (ph)[. T]hey questioned us for three days estie (ph)[.] [The appellant]: But Nat doesn't know who she didn't see who took your vehicle[.]

Later in that conversation, the appellant also told Mr. Leduc that he would get the guy who took the van to pay for it.

25The second piece of corroborative evidence was the cell phone records between the two men, which showed two brief phone calls on August 24, consistent with Mr. Leduc and the appellant arranging the van loan.

26The trial judge also noted elements of the record that were inconsistent with the reliability of the second statement. The first was that Mr. Leduc made two contradictory statements about lending the van, meaning that one had to be a lie, which undermined any reassurance one could take from the oath. Similarly, the fact that he was prepared to lie to the police also undermined any reassurance one could otherwise take from the pressure of being at a police station where the police are investigating a serious crime. In addition, Mr. Leduc was a drug addict who may have had an irrational, baseless fear of the appellant. The trial judge added that there was a possible inference that Mr. Leduc may have had a motive to lie or that he was responding to the police suggestion that he himself was involved in the murder.

27After reviewing the relevant evidence, the trial judge described his task as “a balancing exercise” of “whether the features which point toward reliability of the statements outweigh those which suggest otherwise.” He also directed his analysis to whether the jury would have sufficient tools to assess the evidence to reduce the hearsay dangers without having contemporaneous cross-examination plus other procedural safeguards that are at play when a witness testifies before the jury.

28In applying the test as he articulated it, the trial judge first discounted the fact that Mr. Leduc did not take the oath seriously, comparing it to the situation of a recanting complainant in a domestic violence case where there is a successful K.G.B. application. The question was whether there were sufficient tools to allow the jury to be able to accept some, all or none of Mr. Leduc’s second statement. In addition, the other concerns about Mr. Leduc’s reliability were assuaged by the corroborating evidence which the trial judge viewed as very significant.

29In summary, the trial judge concluded that the corroborating evidence tipped the balance of probabilities toward admission of the evidence, and found it was likely reliable. In addition, he found that the jury would have the ability to assess the evidence without contemporaneous cross-examination sufficient to adequately reduce the hearsay dangers.

(b) Positions of the appellant and of the respondent

30The appellant submits that the Supreme Court’s decision in Bradshaw, which was released shortly after the ruling, changed the test for admissibility of hearsay statements, and that applying the four Bradshaw criteria to the corroborative evidence, the second statement should not have been admitted for the truth of its contents. In particular, the appellant submits that the trial judge was required not to conduct a balancing exercise regarding the probability that the statement was reliable, but to “rule out any plausible alternative explanations”, which he argues could not be done. In addition, he submits that the trial judge erred in finding that the jury would have sufficient tools to determine whether to accept some, all or none of Mr. Leduc’s second statement, without the benefit of contemporaneous cross-examination.

31The Crown’s first position is that the appellant is precluded from making this argument on appeal because at trial, the defence, through counsel, effectively conceded threshold reliability by taking the position before the jury that the appellant did borrow Mr. Leduc’s van. In the closing statement, defence counsel’s position was that the appellant did not murder the victim or burn the van and would not have done so because the van was easily traced back to him. In addition, the Crown submits that the trial judge’s ruling, read as a whole, properly addresses the four-step analysis from Bradshaw for determining threshold reliability and he made no error in concluding that the test was met.

(c) Analysis

32Bradshaw was released by the Supreme Court two months after the trial judge’s ruling admitting Mr. Leduc’s second police statement. In Bradshaw, the court reiterated the principles for admitting hearsay evidence based on necessity and threshold reliability. The dangers with hearsay evidence relate to the difficulty of assessing the declarant’s perception, memory, narration and sincerity. The hearsay dangers can be overcome by establishing the threshold reliability of the statement based on procedural reliability and/or substantive reliability: Bradshaw, at para. 27.

33Procedural reliability involves procedural substitutes for contemporaneous cross-examination to test the evidence. They include videotaping the statement, giving it under oath with a warning about the consequences of lying, and the availability of later cross-examination of the witness at trial.

34Substantive reliability means the statement is inherently trustworthy based on the circumstances when it was made, and any corroborating evidence. In Bradshaw, the court restated how a court may use corroborative evidence to establish substantive threshold reliability as follows, at para. 44:

A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay danger relates to the declarant’s sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.

35The primary development from Bradshaw was that the corroborative evidence must show the declarant’s truthfulness, or accuracy, to be the only likely explanation, rather than merely the most likely explanation for the statement. To that end, the court set out a four-part analysis to be conducted on the corroborative evidence, at para. 57:

1. identify the material aspects of the hearsay statement that are tendered for their truth;
2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

36In this case, the trial judge viewed the test as a balancing exercise. He did not consider whether the corroborative evidence he relied on ruled out any alternative plausible explanations for the second statement other than its truth.

37The role of a court on appeal is to determine whether the trial judge erred in law by relying on corroborative evidence that did not meet the fourth branch of the test. If so, then the decision is not entitled to deference and the court on appeal determines whether the statement meets the reliability threshold: Bradshaw, at para. 60.

(i) The Crown’s argument that an appeal is precluded

38Before turning to the appellant’s submissions, I will address the Crown’s argument that the appellant is precluded from raising the issue of threshold reliability on appeal because he effectively conceded at trial to the jury that he borrowed the van from Mr. Leduc. Specifically, defence counsel told the jury in his closing address: “Well clearly Mr. Leduc did loan the van to Mr. Belleus, there’s no question about that and the associate who was with him on that day…”.

39The appellant argues that he cannot be prejudiced on appeal by a tactical position his counsel took at trial not to challenge the statement once it was admitted before the jury, and to instead argue that because the appellant borrowed the van, he would not have committed the murder when the van could easily be traced back to him.

40I agree with the appellant’s position. The appellant did not give evidence that he borrowed the van, or formally agree that he did, such as in an agreed statement of facts. He did not testify and admit that he borrowed the van, and he never resiled from his legal position that the statement was inadmissible, either or both of which may have put the Crown’s argument in a different light. See, for example, O.(T.L.) v. Alberta (Director of Child Welfare), [1985] A.J. No. 920, at para. 36. Rather, it was a position taken by defence counsel once the statement was admitted to suggest a narrative to the jury to raise a reasonable doubt.

41I agree with the appellant that in these circumstances, he cannot be taken as having admitted the reliability of the statement for the purpose of preventing an appeal on the threshold reliability issue.

(ii) The application of Bradshaw

42It is common ground that the key hearsay danger with Mr. Leduc’s second statement was his sincerity − that is, whether he was lying − rather than any concern that he did not perceive or remember to whom he lent the van. Therefore, the determinative issue was whether the truth of the statement was so reliable that contemporaneous cross-examination of the declarant would add little or nothing to the process.

43The appellant submits that there was an alternative explanation for Mr. Leduc’s statement that was not negatived by the corroborating evidence, which was that Mr. Leduc had a motive to lie and name the appellant. His motive would have been to deflect police scrutiny away from himself as someone who was involved in the murder.

44In support of that theory, it is significant that the Detective told Ms. Daniels that the police did not believe Mr. Leduc’s first statement and suggested that he could be in trouble for the murder if he did not tell them who borrowed his van. Additionally, while the Crown argued that Mr. Leduc’s fear of the appellant was consistent with him having knowledge that Mr. Leduc killed Mr. Kasende, the weight of the evidence suggests that Mr. Leduc was feigning his fear of the appellant. For example, on the intercepted call, Mr. Leduc requested to meet up with the appellant; Mr. Leduc and Ms. Daniels were denied witness protection because they said they were not afraid; and Mr. Leduc and Ms. Daniels waited to meet up with the police outside their apartment despite initially claiming they were afraid to do so.

45The appellant submits that the corroborative evidence does not rule out this alternative explanation that Mr. Leduc was lying to deflect police scrutiny when he told them that he loaned the van to the appellant that night. First, while the phone records from that day show contact between Mr. Leduc and the appellant, their dealer/client relationship was not in dispute. That contact did not mean that the appellant borrowed the van.

46Second, the contents of the intercepted call could be interpreted not as an admission by the appellant that he borrowed the van, but as the appellant being upset and challenging Mr. Leduc as to why Mr. Leduc falsely implicated him to the police about borrowing the van. The appellant’s statement: “But Nat doesn’t know who […] took your vehicle” could have been speculation on the appellant’s part that Ms. Daniels would not have been present when Mr. Leduc lent his van to whomever he lent it to, rather than an admission that he was there at the time, and he knew that Ms. Daniels was not. And, the appellant argues, this explanation was consistent with Mr. Leduc’s lack of fear of the appellant.

47The trial judge found the corroborative evidence to be “very significant” and that it “tipped the balance” in favour of threshold reliability. The issue on appeal is whether the appellant’s alternative explanation for the statement can be ruled out, in light of the corroborative evidence, on a balance of probabilities. At para. 49 of Bradshaw, Karakatsanis J. put it this way:

Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities.

48In R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, this court explained, at para. 34, that although the court must consider all speculative explanations, only the plausible ones must be ruled out on a balance of probabilities by the corroborative evidence.

49In this case, the court is required to assess not only the plausibility of the alternative explanation, Mr. Leduc’s motive to lie, but also the plausibility of the appellant’s suggested interpretation of the intercepted telephone conversation.

50While it is possible that Mr. Leduc could have had a motive to lie, given that the police did put pressure on him, a known drug addict, and he did lie at one point, in my view, it is not a plausible explanation. I compare it with the compelling allegations of fabrication in cases where there was significant evidence that the declarant was involved in the offence and was attempting to minimize his role: see e.g., Bradshaw, at para. 67; R. v. Tsega, 2019 ONCA 111, 144 O.R. (3d) 561, at paras. 34-35; R. v. Mohamed, 2023 ONCA 104, at para. 71. Without independent evidence that Mr. Leduc was involved in the offence, the pressure that the police put on Ms. Daniels could equally be interpreted as having persuaded Mr. Leduc to tell the truth about lending his van to the appellant. In addition, there was no motive to falsely name the appellant rather than another person.

51I agree with the trial judge that the corroborative evidence of the intercepted telephone conversation is very significant evidence, and that it rules out the explanation that Mr. Leduc falsely accused the appellant of borrowing his van. There would be no reason for the appellant to assert that Ms. Daniels was not present when Mr. Leduc loaned the van unless he was there. In addition, the appellant offered to obtain compensation for the van, which there was no reason for him to do if he had not borrowed it.

52I am satisfied that had the trial judge applied the Bradshaw test, he would have arrived at the same conclusion, that the statement should be admitted based on threshold reliability. ¹

53The appellant also submits that the trial judge erred by finding procedural reliability based only on the fact that the statement was videotaped, given that, as the trial judge found, the oath and the fact that the statement was made to police in a serious criminal investigation did not stop the declarant from lying in one of his statements. I agree that the fact of videotaping in these circumstances provided only limited procedural reliability. However, the admission of the statement turned on its substantive reliability, which factor is sufficient for admissibility: Bradshaw, at para. 107, per Moldaver J. (dissenting, but not on this point).

54I would not give effect to this ground of appeal.

(2) Issue 2: Did the trial judge err in law by failing to conduct a sufficient inquiry when two jurors sent a note to the judge that they believed they were being followed to their cars during the trial by family or associates of the appellant?

(a) The trial judge’s ruling and jury instructions

55Near the close of the Crown’s case, the trial judge received a note from two jurors which stated that they found it “disconcerning that members of the accused family and associates are following jury members to their parking lot area after court is dismissed”, and that it had happened on the two previous days.

56The trial judge heard submissions from counsel on the need for an inquiry under s. 644(1) of the Criminal Code, R.S.C. 1985 c. C-46, which states:

Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.

57The trial judge agreed with both counsel that an inquiry of the two jurors was necessary. In his ruling, he explained that he viewed it as normal for jurors, especially in a drug and murder case, to be concerned about security, and in addition, one would expect them to recognize people from the courtroom who were sitting on the accused’s side and associate them with the accused. However, his concern from the note was what the jurors meant by “following” when everyone, except the judges, parks in the same parking garage in the courthouse, and would all be there at the end of the day. The issue for the trial judge was therefore whether there was any communication with the jurors.

58To that end, he formulated three questions to be asked to each of the two jurors with the answers to be limited to yes or no. The three questions were:

1. With respect to the events you describe as having occurred on June 14^th^ and June 15^th^, 2017, did anyone whom you associate to this courtroom communicate or attempt to communicate with you, either by word or gesture?
2. Have you revealed this issue, or your concern with other members of the jury in addition to the co-author of this note?
3. In light of the events you have described, as having occurred on June 14^th^ and 15^th^, 2017, do you still feel able to presume Mr. Belleus to be innocent, and to impartially decide this case only on the evidence, submissions, and instructions?

59Following the ruling, defence counsel requested, and was granted the opportunity to make further submissions about the questions to be asked, requesting a more probing inquiry not limited to yes-or-no answers. The trial judge decided to proceed with the three questions as formulated. He explained that the note already advised that the jurors found the experience concerning or disconcerting, and that the remaining issue was whether anything more than the perceived “following” had occurred.

60The two jurors were called in separately and each answered the questions in the same way: “no” to the first question and “yes” to the second and third questions. The court also heard from a court officer who had observed the appellant’s father and brother in the parking garage on June 15 but no jurors were there. He had once seen one of the jurors in the parking garage but not the other.

61Following this procedure, defence counsel moved for a mistrial, which was denied. In his ruling on the mistrial motion, the trial judge acknowledged that the two jurors and possibly the entire jury panel could have feelings of concern, but concluded that that “emotional state is, in my view, not so problematic as to be unable to be adequately mitigated through proper instruction. A mistrial should only result when the continuance of the trial would constitute an injustice, the mistrial remedy should only be imposed if the circumstances cannot be remediated by instruction.”

62He then gave the jury the following mid-trial instruction:

Jury, I have received a note from two of you, and given that you’ve been together now for a month, it doesn’t surprise me in the least that you would all be privy to the note’s contents, this trial and everything connected to it, is after all, the very thing you all have in common, and I find it unremarkable that you would talk about things amongst yourselves.

I want to address the content of that note here, before we continue on. As a starting point, and before I say anything, I want to remind you that Mr. Michael Belleus remains cloaked in the presumption of innocence, as he has throughout the trial and as he shall be, unless and until the Crown succeeds in meeting its burden, a decision that can only be made after all the evidence, submissions, and instructions are completed. He is presumed innocent. Fully operating on that presumption is an integral part of you upholding your oath.

Through the note I received, I have learned of concerns about having come into proximity to some people, out in the public domain, who have been observed to attend this trial as observers.

I want to impress upon you and ask you to realize, that the court day ends at the same time for everyone. There are only so many bus stops, parking garages, lunch spots, et cetera, to choose from around here. It would not surprise me, if anyone of us were to coincidently bump into one another, near the courthouse, at a break or after the close of the workday.

The important thing, and what I want to impress it upon all of you, is that you are not to draw any adverse inference against Michael Belleus from anything; anyone you’ve perceived to be associated to him; has done or has been perceived by you to have done since this trial began. That would be deciding this case at least in part on something other than the evidence a failure to abide by your oath and an injustice.

All that being said, however, I recognize that above all else, safety is a feeling. So, without endorsing your concerns as being at all founded, I wish to address them none the less to put your minds at ease, so that you can focus absolutely on your sole function which is to impartially decide this case on the evidence presented in this court.

To that end, I am going to tell you that I take the note at face value, and I see it as expressing a state of mind, akin to being unsettled, concerned or anxious. If I have misread it, I want you to correct me, and in that regard, I instruct you all to advise me immediately should your state of mind change for any reason, such that you feel yourself unable to perform your function as jurors. That is, to decide this case impartially, basely solely on the evidence presented in this courtroom, all the while presuming Michael Belleus to be innocent.

Obviously, your sense of safety and security is important, but I’m going to presume you to be able to perform your function as jurors, unless and until you tell me otherwise, and I want you to tell me immediately through a note, if you feel yourselves unable to do your job.

I shall now end this instruction where I started it. Mr. Belleus is presumed innocent. Any feeling aroused in you by any conduct, or perception of conduct by anyone outside this courtroom, shall not be allowed by you to affect the performance of your sole task, to impartially decide this case on the evidence presented.

More particularly, you shall not let any sort of concern about your personal security give rise to any adverse or negative influence about the accused. Worrying about your personal security is a distraction from your job. If you find yourself so distracted, I want to know about it.

In the interim though, without hearing anything from you on that subject, I am going to presume that your state of mind remains such that you are able to discharge your function.

The bottom line is, and an important key part of this instruction is that none of this information that gave rise to this question, shall bear on your feelings toward Michael Belleus. He is entitled to fair treatment from you, that includes full application of the presumption of innocence as I have explained it to you, and a decision in this case, made only on the evidence presented in the courtroom.

I thank you for your question, it is important that you feel able to ask questions and bring to my attention the sorts of things that were in that question, and what I want to impress upon you before we continue on is that I want to hear from you immediately if anything should happen that causes you to feel unable to abide by your oath and discharge your proper function, and I equally want to hear from you if anything should happen that prompts a form of distraction in your mind with respect to the singular focus required to perform your task. All of which to say, and I know I am being repetitive, but it is very important. Michael Belleus is presumed innocent, and none of this upset I will call it, concern, feeling of being unsettled or anxious, should spill over onto your feelings about him, and in accordance with your oath, you must decide this case solely on the evidence in the courtroom and not allow anything else to leak into the mix. To do that would be to fail to honour your oath, which I know you do not want to do. Thank you.

(b) The principles that apply to an inquiry under s. 644(1)

63The appellant’s position is that the trial judge’s inquiry was inadequate to determine what had actually occurred in the “following” incidents, because the first question was too narrow and because the jurors were not permitted to explain what had occurred but could only answer “yes” or “no” to whether there had been communication. There was also no inquiry regarding who the two jurors believed had followed them, in the context of evidence that family and associates of the accused had conspired or helped him. Finally, there was no inquiry about what had been communicated to the rest of the jury by the two jurors. The appellant submits that as a result, the trial judge did not determine the facts necessary to decide whether there was a reasonable apprehension of bias by the jurors and therefore whether a fair trial was still possible.

64The governing principles that apply to the procedure for an inquiry under s. 644(1) to determine whether there is “other reasonable cause” to discharge a juror, as well as the standard and factors to be considered were recently reviewed by Watt J.A. in R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 137-52.

65First, in R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at paras. 34-35, this court stated that a trial judge is afforded a high degree of flexibility to determine the appropriate procedure to be followed to resolve the issue that arises in the particular circumstances. However, the trial judge must ensure that the process will:

(i) be fair to all the parties and all the jurors; (ii) be conducted in open court, on the record, and in the presence of the accused and counsel on both sides; (iii) enable the trial judge to determine the true basis of the claim for discharge and to resolve it; and (iv) preserve the integrity of the trial process and the impartiality of the jury.

66With respect to the fourth consideration, the “process is subject to strict limitations in order to protect two critical aspects of a jury trial: 1) the integrity of the process that ensures the accused is not lightly deprived of the right to be tried by a jury of twelve who reach a unanimous verdict; and 2) the secrecy of the jury’s deliberations”: R. v. Kum, 2015 ONCA 36, 320 C.C.C. (3d) 190, at para. 38; see also: R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, at paras. 54-55, 59, and 77-78.

67The determination proceeds from the presumption that jurors are impartial, will follow the trial judge’s instructions and will be true to their oath. Clearly lack of impartiality can constitute “other reasonable cause” to discharge a juror under s. 644(1). The question for the trial judge is whether, based on the inquiry, there is a reasonable apprehension of bias on the part of the particular juror: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 19.

68In R. v. Wolfe, 2005 BCCA 307, 197 C.C.C. (3d) 486, at para. 32, the British Columbia Court of Appeal set out the factors for a judge to consider on the issue of reasonable apprehension of bias, which include: the juror’s oath or affirmation, the presumption of impartiality, and the judge’s instructions on the fundamental legal principles including the need to keep an open mind, how to assess the evidence, the irrelevance of extraneous considerations, and the proper conduct of the deliberative process.

69Finally, a trial judge’s decision whether or not to discharge a juror is accorded substantial deference on appeal, meaning it can only be overturned where it is tainted by legal error or an error in principle, by a misapprehension of material evidence, or it is plainly unreasonable: R. c. Lessard (1992), 74 C.C.C. (3d) 552 (Q.C.C.A.), at p. 563; R. v. Cunningham, 2012 BCCA 76, 287 C.C.C. (3d) 488, at paras. 25-26.

(c) Analysis

70The appellant’s position on appeal is similar to his position at trial: that the trial judge did not make a sufficient inquiry to know exactly what happened to the two jurors, and therefore he could not determine whether there was a reasonable apprehension of bias based on what occurred. He also did not inquire as to what they told the other jury members.

71The trial judge was fully alive to the appellant’s concerns and addressed them in his rulings. He was aware that the two jurors felt uneasy because they perceived that they were followed by family or associates of the appellant. He did not want to probe further into that in order not to risk disclosure of juror deliberations or reactions. Being satisfied that he understood the concern, his focus was on whether there had been any attempted or actual communication with the jurors. He found out that there had not been any. He also found out that the two affected jurors did not believe that their duties as jurors were affected, that they would apply the presumption of innocence, and that they would decide the case based only on the evidence and not on anything extraneous.

72He then gave the extensive instruction set out above to the whole jury panel, to emphasize jurors’ duties, to ensure that he understood their note, to ensure that they knew they could raise any further concerns with him, and to show his confidence that they would act in accordance with their oath.

73The trial judge correctly determined that an inquiry of the two jurors under s. 644(1) was required in the circumstances. The issue on appeal is the sufficiency of the inquiry.

74The only case raised by the appellant where a new trial was ordered based on an insufficient inquiry, as opposed to a failure to conduct any inquiry at all, is R. v. Afghanzada (2000), 149 C.C.C. (3d) 349 (Ont. C.A.). In that case, where a defence witness claimed that he saw jurors communicating with the officer-in-charge, the inquiry was held to be insufficient because it failed to establish what, if any, communication took place. At para. 19, this court concluded:

It may well be, at the end of the exercise, that the trial judge would have come to the same conclusion she reached in her ruling. There may not have been a discussion between the officer and a juror or jurors about the case; or, if there had been, the nature of the discussion may have been completely benign and would not have compromised the fairness of the trial. Given the incomplete and inconclusive nature of the inquiry, however, it cannot be said with a sufficient degree of comfort that such was the case. An appearance of unfairness remains.

75In my view, the trial judge in the present case made no error in his approach to the extent of the inquiry that was required. The circumstances were such that all trial participants headed to the same parking garage in the courthouse at the end of the day, so that it was to be expected that jurors and other trial participants could come into contact with one another. Because the trial judge established that there was no attempt by the appellant’s family or associates to communicate with the jurors, he was satisfied that where the jurors remained confident that they could act in accordance with their oath, a further instruction from him addressing the issue and their duties would be sufficient to negative any reasonable apprehension of bias.

76In my view, the trial judge’s approach was not in error and is to be accorded deference.

(3) Issue 3: Did the trial judge err in his instruction to the jury on the issue of aiding and abetting first degree murder?

77The appellant was charged with first degree murder. The trial judge charged the jury on first degree murder but left second degree murder as an available verdict if they did not find planning and deliberation, and manslaughter if they did not find either state of mind for murder. Because on the evidence it was unclear whether the shooter was the driver of the van or a passenger, the trial judge charged the jury on party liability as an aider or abettor to first degree murder. ²

78The appellant submits that the trial judge erred in his charge on aiding and abetting because a number of times he just used the word “murder”, not first degree murder. He argues that the jury may have been satisfied that he was not the shooter but nevertheless convicted him of first degree murder as a party, without being convinced beyond a reasonable doubt that he knew that the shooter planned and deliberated the killing.

79The relevant portions of the charge on aiding and abetting read:

Aiding relates to a specific offence, here the offence of first-degree murder. An aider must do something for the purpose of helping the other person commit the offence. The state of mind requirement, expressed by the term “purpose”, requires Crown counsel to prove both intent and knowledge.

For intent, Crown counsel must prove that Mr. Belleus intended to help the principal actor to commit the offence of murder. As you will see when we get to the essential elements that the Crown must prove beyond a reasonable doubt, the offence of murder has a very specific intent requirement. It is that level of murderous intent that is being referred to here.

For knowledge, Crown counsel must prove that Mr. Belleus, as aider, knew that the principal actor intended to commit the offence of murder.

Abetting relates to a specific offence, here the specific offence of murder. An abettor must intend that the other person commit the offence or know that the other person intends to commit it and intend to encourage that other person to do so. This is the state of mind requirement. I reiterate that, as you will see when we get to the essential elements that the Crown must prove beyond a reasonable doubt, the offence of murder has a very specific intent requirement. It is that level of murderous intent that is being referred to here.

80I do not accept the appellant’s submission. In my view, the structure of the entire charge made it clear to the jury that when the trial judge used the word “murder” in the aiding and abetting instructions, he was referring to first degree murder. He stated that “the offence of murder has a very specific intent requirement. It is that level of murderous intent that is being referred to here.” He later explained in other portions of the charge the level of intent for murder, and what was required for a murder to be planned and deliberate, when he reached the portion of the charge that explained the elements of first degree murder. Read as a whole, the instructions made it clear that the appellant could only be found guilty of first degree murder as an aider or abettor if he participated in the killing with the necessary state of mind for murder and the murder was planned and deliberate on their part.

D. RESULT

81I would dismiss the appeal.

Released: November 14, 2023 “K.F.” “K. Feldman J.A.” “I agree. L.B. Roberts J.A.” “I agree. Coroza J.A.”

Footnotes

Footnotes

1. 1The Crown also sought to support the finding based on evidence that came out at the trial but was not part of the voir dire. In Bradshaw, the court specifically says that it is the voir dire evidence that forms the basis for the analysis. As the appeal can be decided based on the voir dire evidence, it is unnecessary to determine whether and in what circumstances, the court may also use trial evidence in the analysis.
2. 2In its factum, the Crown adds that defence counsel at trial asked for this charge on the basis that it gave the jury the only possible route to a manslaughter verdict, and that defence counsel did not object to the charge as formulated.