DATE: 2001-05-09

DOCKET: C26574

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) and REUBENS HENDERSON (Appellant)

BEFORE: CHARRON, SHARPE and SIMMONS JJ.A.

COUNSEL: Patrick F.D. McCann and Gregory Lafontaine For the appellant

Rosella Cornaviera For the respondent

HEARD: April 12, 2001

On appeal from the conviction of Justice W. Dan Chilcott dated February 14, 1996.

E N D O R S E M E N T

[1] The appellant appeals his conviction for second degree murder after a trial before a judge and jury. The sole issue for the jury was whether the appellant should be convicted of murder or manslaughter. The tragic homicide leading to the arrest and trial of the appellant attracted considerable publicity. The deceased was the victim of a random, drive-by shooting on a busy Ottawa street. The appellant and two friends had stolen a vehicle and a .22 calibre rifle. Shortly before the fatal shooting, they had been driving around the city randomly shooting at various shops. The appellant did not testify at trial, but it was admitted that he fired the fatal shot. His defence was based on various out-of-court statements in which he had stated that he had only meant to shoot the deceased in the hand or buttocks, not to kill him.

[2] At the conclusion of the oral argument, we announced that the appeal was dismissed for reasons to follow.

1. Dismissal of the appellant's application for change of venue or trial by judge alone.

[3] In view of the widespread publicity the case attracted, the appellant sought a trial before a judge alone. The Crown refused the consent required by s. 473 of the Criminal Code. The appellant brought a pre-trial motion for an order requiring trial by judge alone, dispensing with the Crown's consent, on the ground that his right to a fair trial under ss. 7 and 11(d) of the Charter would be infringed if he were tried by a jury. In the alternative, the appellant sought a change of venue. The trial judge dismissed both applications.

[4] We did not find it necessary to call upon the respondent on this ground. In our view, the appellant has failed to demonstrate a basis upon which this court could interfere with the decision of the trial judge dismissing these applications. The trial judge rejected the evidence of the expert witness called by the appellant in support of these applications and, after reviewing the evidence, concluded that the appellant had failed to demonstrate that he could not receive a fair trial with an impartial jury in Ottawa. Although the case had attracted a level of publicity unusual in volume and intensity, it was open on the record for the trial judge to find as he did. Unless disturbed, the trial judge's factual findings are fatal to both applications.

[5] In ruling on the change of venue application, he found that "there is nothing before me to indicate that a change of venue is necessary in order to ensure that the accused has a fair trial with an impartial jury." That is the appropriate test, laid down by this court in R. v. Collins (1989), 1989 CanLII 264 (ON CA), 48 C.C.C. (3d) 343 at p. 350-51, which also holds that the decision is one that lies within the discretion of the judge hearing the motion. We do not agree with the appellant’s submission that the trial judge, in effect, applied a higher standard when he adopted the factual findings he had made on the Charter application to the change of venue issue. We agree with the submission of the respondent that if the change of venue application was properly dismissed, there is no basis upon which we could allow the appeal with respect to the Charter application.

[6] The present case is distinguishable from R. v. McGregor (1992), 14 C.R.R. (2d) 155 (Ont. Gen. Div.), aff’d (1999), 1999 CanLII 2553 (ON CA), 134 C.C.C. (3d) 570 (C.A.), where the trial judge accepted the evidence regarding the adverse impact of pre-trial publicity and found as a fact that in view of that evidence and the nature of the issue to be determined (the defence of insanity on which the accused bore the burden of proof), there were serious concerns with respect to apprehension of bias if the trial proceeded before a jury.

2. Charge to the Jury

[7] The appellant raised a number of grounds with respect to the jury charge.

(a) The alleged Miller error

[8] The appellant submits that the following passage from the jury charge invited the jury to take a two-step, "winnowing" approach to the fact-finding exercise, eliminating from consideration evidence that is neither accepted nor rejected, but that might form the basis of a reasonable doubt:

Your duty, initially, is to determine the facts in this case. In order to do that, you must consider and weigh all of the evidence you have heard and then, from that evidence, make your findings of fact, thereafter giving those facts, as you have found them to be, the effect which you think they deserve having, again, regard to the law which I shall advise you is applicable to this case. You will base your findings of fact upon that evidence you have heard from the witness box and the exhibits which you shall take with you to your jury room. There are no facts in this case until you, members of the jury, the judges of the facts, determine that you accept certain evidence as believable, as credible, as truthful. Your acceptance of evidence as truthful, transfers what has been evidence into facts, and it is the facts upon which you base your verdict.

[9] Language of this kind, especially the italicized portion, should perhaps be avoided to remove any possible risk of confusion. However, we do not agree that, when read in the context of the charge as a whole, it ran afoul of the principle established in R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.). Unlike the situation in Miller, the jury was not told to divide the evidence into piles of evidence accepted and evidence rejected and remove from consideration the pile of evidence they did not accept. Throughout the charge in the present case, the jury was directed to base its verdict on the whole of the evidence. Immediately prior to the impugned instruction, the jury was instructed that their task was to determine "on the whole of the evidence" whether the Crown had proven guilt beyond a reasonable doubt. Later instructions relating to the essential elements to be proved consistently referred to whether the jury was satisfied that the offences alleged were made out based on "all the evidence" and not, as in Miller, only upon "accepted" facts nor the "accepted" evidence. We are satisfied that the jury could not have been misled by the impugned passage as to the appropriate manner to approach the fact finding process.

(b) Reasonable doubt

[10] The trial occurred before the Supreme Court of Canada handed down its decision in R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1. The trial judge explained the concept of reasonable doubt in the following terms:

The Crown must prove the guilt of the accused, as I have said, beyond a reasonable doubt, not on a mere balance or probabilities. It is not the responsibility of the accused to establish, or demonstrate, or prove his innocence. If the Crown fails to prove guilt beyond a reasonable doubt, then you must acquit the accused. The burden is on the Crown throughout the proceeding, and it never shifts from the Crown.

What is meant by "proof beyond a reasonable doubt"? Some say the term explains itself. It has been achieved when you, as jurors, feel sure of the guilt of the accused. It is that degree of proof that convinces the mind and satisfies the conscience of you so, as conscientious jurors, you feel bound or compelled to act upon it. You must be able to say to yourself, "He is really guilty; of that I am morally certain". I say "morally certain", not mathematically certain.

Conversely, if the evidence leaves you, as a responsible juror, with some lingering or nagging doubt with respect to the proof of some essential element of the offence with which the accused is charged so that you are unable to say to yourself, "The Crown has proven the guilt of the accused beyond a reasonable doubt", as I have defined those words, then it is your duty to acquit the accused and bring in a verdict appropriate to that doubt. The doubt, as I say must be reasonable based upon the evidence in this case that you have heard. It must not be speculation, fanciful, imaginary or illusionary doubt conjured up in the mind of a timid juror so that he or she may avoid their plain duty or responsibility, it must be with regard to an essential element of the crime. That is a basic tenet. [Emphasis added.]

[11] It is submitted that the use of the words "sure", "moral certainty", and “timid juror” would have led the jury to apply a lower standard of proof. No objection was taken to this aspect of the charge at trial. The respondent points out in its factum that trial counsel used the words "sure" and "moral" certainty in his closing address.

[12] The test to be applied on appellate review is whether there is substantial compliance with the principles set out in Lifchus. In our view, these instructions meet that standard. Lifchus does not require slavish adherence to a particular form of words. In our view, the charge as a whole did provide adequate guidance to the jury on the burden of proof and the words complained of could not have confused or misled the jury about the meaning of proof beyond a reasonable doubt. The absence of any objection at trial indicates that defence counsel was satisfied that the jury understood the standard of proof to be applied. We note as well that identical instructions on reasonable doubt have been held to meet the minimal standard: R. v. Pan (1999), 1999 CanLII 3720 (ON CA), 134 C.C.C. (3d) 1 (Ont. C.A.); R. v . Wells, 2001 CanLII 24130 (ON CA), [2001] O.J. No. 81 (C.A.).

(c) Absence of an instruction on the use of evidence of prior shootings by others and absence of a limiting instruction on discreditable conduct.

[13] The Crown led evidence of the appellant's participation in the theft of the rifle, the theft of the vehicle, a break-in at a residence, and the other shootings. This evidence was plainly admissible to establish identity, means, background, context and, to some extent, motive. Evidence of the criminal lifestyle of the appellant's friends was adduced by the defence, as well as evidence that he did not share that criminal lifestyle.

[14] The trial judge instructed the jury that the "bad character" evidence of lifestyle was not their concern and "your only concern is the guilt or innocence of the accused on the charge that is before you". The appellant submits that the trial judge erred (1) in suggesting that the conduct of the other boys in the car had any bearing on his mens rea and (2) in failing to give a limiting instruction, warning the jury not to engage in propensity reasoning based upon the specific acts of discreditable conduct proved by the Crown. At trial, defence counsel made a lukewarm objection on three points, including the failure to give a limiting instruction on discreditable conduct, stating: "I am not certain that any of them are particularly worthy of bringing the jury back in for but, if your honour is going to bring the jury back for anything, I would ask you to consider these."

[15] In our view, in the circumstances of this case, the trial judge did not err in the manner in which he dealt with the relevance of the conduct of the other boys, nor did his failure to give a limiting instruction prejudice the appellant or constitute reversible error. The Crown was entitled to lead and rely on the evidence of the prior criminal acts of the appellant and his friends to establish the events leading up to the shooting, as well as the involvement and motive of the appellant. In the end, the appellant admitted to firing the fatal shot and the only issue for the jury was whether he had the requisite intent for murder. An important aspect of the defence theory was that the appellant was not a killer, but a young person caught up in a ridiculous criminal spree with two friends. While a limiting instruction would be theoretically possible in these circumstances, it would require an unusually subtle discussion of how the evidence could and could not be used. Moreover, it is not at all clear that such an instruction would have benefited the appellant given the "ridiculous spree" rather than murderous intent defence he was advancing. In these circumstances, it is our view that the trial judge dealt with this issue in an appropriate manner.

(d) The jury's request for a read-back of evidence

[16] After two hours of deliberation, the jury asked two questions, the second of which was ambiguous: "Mr. MacWha - the testimony". Mr MacWha was the Crown's firearms expert. In response to this question, the trial judge addressed the jury as follows:

THE COURT: ...The second question causes me some concern. You say: "Mr. MacWha - the testimony". I am not clear what you want. Do you want me to give you what I have in my notes again?

A JUROR: The transcript, Your Honour

THE COURT: We don't have a transcript.

A JUROR: That's fine.

THE COURT: I think you're going to have to rely on your recollection. That's the best you can do unless you want it from my notes. The other alternative would be to have all that transcript, the shorthand, read back to you, and that would be a monumental job. However, perhaps I can be of any assistance from my notes but, again as I told you this morning, they're only my notes.

[17] The appellant submits that the manner in which the trial judge answered the question was tantamount to a refusal to have the evidence read back by the court reporter and constituted an error of law. In our view, there is no basis on this record to conclude that the trial judge effectively denied the jury the assistance to which it was entitled. The trial judge clearly outlined the available options and the jury asked for nothing further. Any lingering doubt that might arise concerning the tone of the judge's answer or its impact upon the jury is satisfied by the fact that neither Crown or defence counsel indicated any concern at the time. The lack of any objection indicates that counsel was content with the manner in which the trial judge dealt with the juror's question. In our view, there is no merit in this ground of appeal.

CONCLUSION

[18] Accordingly, the appeal against conviction is dismissed. The sentence appeal against the imposition of a seven-year period of parole ineligibility was abandoned in oral argument as moot.

“Louise Charron J.A.”

“Robert J. Sharpe J.A.”

“J. Simmons J.A.”