COURT OF APPEAL FOR ONTARIO

DATE: 20011217
DOCKET: C32826

WEILER, SHARPE and SIMMONS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Philip Downes, for the respondent

Respondent

• and -

KEVIN CAMPBELL

Frank Addario, for the appellant

Appellant

Heard: December 4, 2001

On appeal from the judgment of Justice James C. MacPherson, with a jury, dated May 21, 1999.

WEILER J.A.:

[1] The appellant appeals his conviction on one count of second-degree murder. The grounds of appeal are that the verdict is unreasonable and that the trial judge erred in his charge to the jury in three respects: (1) the instruction on circumstantial evidence; (2) the omission to charge the jury on the included offence of manslaughter; and (3) the omission to charge the jury on cross-racial identification.

[2] In order to appreciate the submissions with respect to the omission to charge the jury on cross-racial identification and the reasonableness of the verdict, a brief summary of the evidence is helpful. Ross Pardy and his brother, Jeff, purchased crack cocaine from a group of young black men in a residential area of Toronto known as Parma Court. Jeff Pardy argued that he had not been given enough crack whereupon the drug dealer knocked the crack that had been purchased out of Jeff’s hand with a double-edged knife. The brothers left, shouting insults at the group. Two of the group members chased the brothers, who ran off in different directions. The brothers reunited near the corner of O’Connor Drive and Wakunda Place and continued to run south on O’Connor. During the pursuit, Jeff looked back and saw Ross on the ground with a man wearing a fisherman’s hat standing near him. Jeff came up to the man, recognized him as being the drug dealer, and told him not to do anything stupid. Without responding, the man jogged off. Ross stood up and the two brothers continued to run. Shortly thereafter, Ross fell to the ground again and died. The cause of death was a single stab wound to the heart from a single-edged knife.

[3] Jeff Pardy identified the appellant in a photo line-up as the person with whom he had done the drug deal and the person who was standing near Ross when he was on the ground. Two other witnesses testified about the drug transaction. Troy Bradshaw testified that he, Tunji Balogun, Jason Carmichael, and the appellant were at Parma Court when two white men approached them looking for crack. Balogun and the appellant ran after the men. At trial, Carmichael testified that he was not at Parma Court that night. In a KGB statement admitted at trial, Carmichael said the brothers purchased drugs from the appellant that night. In cross-examination, Carmichael said the dealer could have been Balogun.

[4] Balogun testified and said that he was at the Palace that night and later at a barbecue. He denied any knowledge of the events in question until brought in by the police for questioning. Both Bradshaw and Carmichael testified that Balogun returned to the Parma Court area and told them to make up a lie in case the police questioned them. Campbell did not return to the Parma Court complex afterwards.

[5] The identity of the murderer was vigorously contested at trial, the position of the defence being that it was Balogun who had done the killing. The appellant did not testify at trial. There was no objection to the charge on identification evidence at trial.

[6] The appellant’s position is that Jeff Pardy’s identification evidence was flawed, there is no forensic evidence linking the appellant to the killing, and the weight of the evidence points away from the appellant and towards Balogun.

[7] In the course of his charge, the trial judge highlighted the weaknesses in Jeff Pardy’s identification evidence, and specifically pointed out the defence’s contention that the description of the perpetrator was generic in that “many of the features described by Mr. Pardy are features that would be shared by a great many people in the population of Toronto.” It would have been appropriate for the trial judge to have given the jury an explicit instruction with respect to the risks of cross-racial identification. However, having regard to the very thorough charge respecting the weaknesses in the identification evidence and the caution respecting identification based on generic characteristics, the fact that the trial judge did not specifically charge the jury on the risks of cross-racial identification was not an error. Pardy did not pick out just anyone in the photo line-up; he picked out a person who, on the evidence of independent witnesses, was present during the drug transaction and ran after him and his brother.

[8] It was open to the jury to find that the person standing over Ross Pardy had just stabbed him and that the person was the appellant. While this was not an overwhelming case for the Crown, it was one that a properly instructed jury acting judicially could reasonably have rendered. The verdict was not unreasonable.

[9] I shall now turn to the instruction respecting circumstantial evidence. The trial judge instructed the jury that circumstantial evidence is evidence that “proves a fact from which an inference of existence of another fact may be drawn.” Defence counsel at trial objected to the adequacy of the charge on circumstantial evidence. The trial judge declined to give further instructions to the jury. The appellant submits that such an explanation dilutes the instruction on reasonable doubt as it precludes the jury from drawing inferences favourable to the counsel unless the facts from which such inference are drawn are “proved”.

[10] The definition of circumstantial evidence is discussed by Sopinka, Lederman, and Bryant in The Law of Evidence in Canada, 2nd Ed. (1999), at p. 38:

A fact in issue cannot always be proved by direct evidence. ….The facts in issue must, in many cases, be established by proof of other facts….If sufficient other facts are proved, the court may “from the circumstances” infer that the fact in issue exists or does not exist. In such a case, proof is said to be circumstantial.

Circumstantial evidence in the criminal context is any circumstance which may or may not tend to implicate the accused in the commission of the offence for which the accused is charged.

[11] In The Law of Evidence, 2nd Ed. (1999) at 21, Paciocco and Stuesser state:

Testimony of a witness that “the accused is the man who robbed my store” is direct evidence that the accused is the robber. Circumstantial evidence, by contrast, requires inferences to be drawn before it is of use in resolving material issues.

[12] I agree with counsel for the appellant that, although a verdict of guilty must be based on accepted facts, a verdict of not guilty need not be based on any facts. The jury need only have a reasonable doubt on the evidence. It would have been preferable for the trial judge to adopt an instruction to the jury that did not make reference to proving facts such as that found in Paciocco and Stuesser. If reference was to be made to facts in defining circumstantial evidence, the approach adopted in Sopinka, Lederman and Bryant should have been used. In addition to telling the jury that circumstantial evidence could lead to an inference that a fact does exist, the trial judge should have told the jury that circumstantial evidence may also lead to an inference a fact does not exist. I would note, however, that in R. v. Tombran (2000), 2000 2688 (ON CA), 142 C.C.C. (3d) 380 at 392, this Court rejected a formulaic approach to circumstantial evidence in favour of one that deals with all evidence in terms of reasonable doubt. The essential point is to convey to the jury the necessity to find the guilt of the accused beyond a reasonable doubt.

[13] The context in which the trial judge’s instruction was given is important. In defining direct evidence, the trial judge told the jury that if they accepted what a witness saw or heard “that in itself is proof of the fact as to what the witness saw or heard if you accept it.” The trial judge followed this by telling the jury that direct evidence was subject to human frailty particularly with respect to remembering things exactly and that they must bear this in mind when examining the direct evidence in the case. The trial judge then told the jury, “… the testimony of a single witness whom you believe is [sic] proof of any fact to which he or she testified.” At this point the trial judge defined circumstantial evidence for the jury. It was in the context of discussing with the jury the evidence that they believed that the impugned passage in the charge was made.

[14] The impugned passage should not be taken out of context and in isolation. Shortly before the instruction on direct and circumstantial evidence, the trial judge had carefully explained the concept of reasonable doubt for the jury, including telling them that a reasonable doubt could be based on the evidence or the absence of evidence. In my opinion, the jury could not have been misled with respect to the burden of proof as a result of the trial judge’s comments. Accordingly, this ground of appeal is dismissed.

[15] The final issue is whether the trial judge erred in not charging the jury with respect to the availability of the included verdict of manslaughter. Defence counsel did not request any such instruction at the brief pre-charge conference nor object to the lack of any instruction afterwards. The appellant submits that it was nevertheless incumbent on the trial judge to instruct the jury on manslaughter. I agree that where there is evidence on which a jury could convict of an included offence, the trial judge is under a duty to properly instruct the jury on that included offence even if that issue is not raised by the accused. If there is evidence on which a properly instructed and reasonable jury could have convicted of manslaughter, the jury should have been instructed on the included offence. However, there must be some evidence sufficient to give an air of reality to a defence before the obligation to put the defence arises: R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595; R. v. Brisson, 1982 196 (SCC), [1982] 2 S.C.R. 227.

[16] The appellant’s submission is based on the evidence of Dr. Sepp, the forensic pathologist who performed the autopsy on Ross Pardy. He found the cause of death to be a single stab wound to the heart. In answer to the question as to the amount of force that would be required to cause that type of injury, he replied:

Not much force, depends on the sharpness of the object, how sharp the cutting edge is, how sharp the tip is and so on, but not much force is required because it went through the soft tissues and in terms of the rib it went through the cartilage part which there is no bone there and it will go through rather easily.

[17] The appellant submits that, because there was no evidence as to how the stabbing occurred, the facts are equally consistent with unlawful assault manslaughter. In other words, the jury could have had a reasonable doubt that the killer meant to cause the appellant serious bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.

[18] The stab wound that killed Ross Pardy penetrated thirteen centimetres into his body, piercing the sack that surrounds the heart, the left ventricle of the heart, the heart itself, and the back part of the sack around the heart. As the trial judge stated, “In short, the stab wound received by Mr. Pardy was both pronounced and deep.” In my opinion, in the circumstances of this case, there was no air of reality to the included offence of manslaughter, and the trial judge did not err in omitting to charge the jury on it. The main issue at trial was identity. This ground of appeal is also dismissed.

[19] In the result, the appeal is dismissed.

Released: DEC 17 2001 KMW

Signed: “K.M. Weiler J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree Janet Simmons J.A.”