R. v. Allen, 2009 ONCA 261

CITATION: R. v. Allen, 2009 ONCA 261

DATE: 20090324

DOCKET: C46523

COURT OF APPEAL FOR ONTARIO

Moldaver, MacFarland and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

And

Brett Michael Allen

Appellant

Margaret Bojanowska and Jordan Glick, for the appellant

Alexander Hrybinsky, for the respondent

Heard: March 4, 2009

On appeal from conviction for manslaughter by Justice Steven Rogin of the Superior Court of Justice, sitting with a jury, dated June 8, 2006, and sentence imposed dated August 29, 2006.

By the Court:

[1] Following his trial before Rogin J. and a jury on a charge of second degree murder, the appellant was convicted of manslaughter and sentenced to eight years imprisonment. He appeals against conviction and sentence.

Overview

[2] On June 12, 2004 the deceased, Robert Phillips, was beaten to death in his house. The position of the Crown was that the appellant and a co-accused [Mr. Burkoski] went to the deceased’s house to assault and rob him. During the course of the assault, the deceased was struck over the head several times and ultimately died from wounds inflicted by a blunt object. Some time later, the appellant and Burkoski were arrested.

[3] The case for the Crown rested essentially on the evidence of Ms. Corrine Mathis. She testified that on the night of the killing, she drove with the appellant and Burkoski to the area of the deceased’s house. She claimed that while she waited in the car, the appellant and Burkoski went to Mr. Phillips’ house and returned a short time later. Upon their return, she asked the appellant if Mr. Phillips was “okay”, to which he replied “Yeah, we turned him on his side. He was snoring”. Ms. Mathis testified that before leaving the car, the appellant appeared to retrieve something from the trunk and upon returning from Mr. Phillips’ house, the appellant opened the trunk and she heard a “clunk”.

[4] The appellant’s primary defence was that he took no part in the killing. In support of his position, he relied on alibi evidence from his girlfriend and pointed to frailties in Ms. Mathis’ evidence that, in his view, rendered her evidence next to worthless.

Conviction Appeal

[5] The appellant has raised five grounds of appeal against conviction. All but one of the grounds relate to alleged errors in the trial judge’s charge to the jury.

[6] Before addressing the individual grounds, we note that although the charge was not perfect, overall it was functionally appropriate and fundamentally fair. With that in mind, we turn to the individual grounds of appeal.

Ground 1 – The trial judge misdirected the jury on evidence capable of confirming Ms. Mathis’ testimony

[7] As indicated, Ms. Mathis was the main Crown witness. Without her evidence, there was no other evidence linking the appellant to the killing. Given Ms. Mathis’ unsavoury background and character and the frailties in her testimony, the trial judge provided the jury with an extensive and forceful Vetrovec warning. He repeated time and again that without more it would be dangerous to convict the appellant on the evidence of Ms. Mathis. He pointed the jury to all of the frailties in her testimony and also alerted the jury to the many factors that necessitated a Vetrovec warning in her case, including her history of drug use, her disreputable lifestyle, her criminal record, and her favourable treatment by the police.

[8] The appellant’s primary attack on Ms. Mathis consisted of showing that she was a drug addict, that she was using drugs on the night of the killing, that she had been on a high for the better part of a week and that as a result, she was incapable of accurately recording, recalling, or reciting the events she described on the night in question, including the appellant’s involvement in the killing.

[9] Of the three items of evidence that the trial judge left to the jury as potentially confirmatory, all three were capable of showing that Ms. Mathis was able to accurately record, recall and recite her observations. The third also went some distance towards implicating the appellant in the killing, depending on the jury’s assessment of it[^1]. Experienced defence counsel [not Ms. Bojanowska or Mr. Glick] took no exception to the items of evidence left by the trial judge as potentially confirmatory, despite being asked for his input in the pre-charge conference.

[10] In our view, the three items of evidence left by the trial judge for the jury’s consideration were proper. In addition to those three items, there was a fourth item which was not left with the jury but which, in our view, was capable of providing strong confirmation of Ms. Mathis’ testimony.

[11] The fourth item of evidence relates to Ms. Mathis’ testimony that when the appellant and his co-accused returned to the car from the deceased’s residence, she asked the appellant if the deceased was “okay”, to which the appellant replied, “Yeah, we turned him on his side. He was snoring”. According to Lori Poole, a paramedic who was one of the first persons to arrive on the scene, the deceased was lying on his side when she observed him. Ms. Poole was not cross-examined on her evidence.

[12] Ms. Poole’s evidence was highly probative. Indeed, in our view, it was capable by itself of restoring the jury’s faith in Ms. Mathis’ testimony, such that the jury could safely rely on it to convict the appellant.

[13] The trial judge’s failure to leave Ms. Poole’s evidence to the jury as potentially confirmatory inured to the appellant’s benefit. Moreover, as indicated, the three items of potentially confirmatory evidence, about which the appellant complains, were properly left to the jury.

[14] For these reasons, we would not give effect to this ground of appeal.

Ground 2 – The trial judge erred in describing Tanya Pierce’s evidence as “useless”

[15] Ms. Pierce and the deceased had been involved in a relationship for some time and they were living together at the time of the deceased’s death. In her testimony, she described her stormy relationship with the deceased and her desire, on the night of his death, to have him beaten and robbed.

[16] Ms. Pierce was in the deceased’s house when he was killed. Although she described the events surrounding the killing, her evidence on that subject was riddled with inconsistencies and in the opinion of the trial judge, it was “useless”. That is how he described it to the jury.

[17] In using that descriptor, the trial judge was essentially reiterating the position taken by the appellant’s counsel who, in his closing address, told the jury that he was not “going to stand before [them] and say well [Tanya Pierce] is a credible witness”.

[18] The most perfunctory review of Ms. Pierce’s evidence of the events surrounding the killing explains why the trial judge described her evidence as “useless”. This would have been apparent to the jury.

[19] Be that as it may, even if the trial judge should not have expressed his opinion so bluntly, he made it clear to the jury on several occasions that it was the jury’s view of the evidence that counted, not his, and that if the jury disagreed with his opinion, they were duty bound to reject it.

[20] We note as well that defence counsel did not object to the trial judge’s characterization of Ms. Pierce’s evidence of the events in the house; it is only on appeal that exception is taken to it. And, as the Crown points out, the trial judge left other aspects of her evidence, including her guilty plea to manslaughter in connection with Mr. Phillip’s death, for the jury to consider in deciding whether the Crown had proved its case against the appellant beyond a reasonable doubt.

[21] In the circumstances, we would not give effect to this ground of appeal.

Ground 3 – The trial judge misdirected the jury on reasonable doubt

[22] In his charge to the jury on reasonable doubt, the trial judge engaged in a demonstration designed to explain the differences between probable guilt, proof of guilt beyond a reasonable doubt, and absolute guilt. In the course of the demonstration, he provided the jury with the following instructions:

Now Mr. Schwalm acknowledged in his jury address that it’s a heavy burden on the Crown. You should also remember however that it is next to impossible to prove anything with absolute or mathematical certainty. The burden on the Crown is not that high. Crown counsel is not required to prove guilt to an absolute certainty or mathematical certainty. That is a standard of proof that is impossibly high. Crown counsel must prove the essential elements of each offence beyond reasonable doubt. However, if there is a scale about the burden on the crown, I’ll put it to you this way. To my extreme right, my right hand is the start of the trial. At the start of the trial each of these accused persons is presumed innocent. They are innocent because before the trial starts, there’s no evidence against them. Once the evidence starts to come in, the scale moves down that way. If at the end of the evidence and the jury addresses by Mr. Schwalm and Miss Carroccia and Mr. Ducharme the scale goes down to here which is probably guilty. I’ve got my left hand now 2 feet away from my right hand. If that’s the best you can say probably guilty, they are not guilty. Because the Crown has failed to prove their guilt beyond a reasonable doubt. I’ll move my left hand 2 feet farther. That’s absolute certainty. The Crown doesn’t have to achieve that burden. That’s an impossible burden for the Crown to meet. [Emphasis added.]

[23] While the trial judge was undoubtedly trying to be helpful, in our view, he should have avoided the impugned demonstration.

[24] Beyond that, it was clearly wrong for the trial judge to tell the jury that accused persons are presumed innocent before the trial starts, when there is no evidence against them, but once the evidence starts, “the scales move down that way [towards guilt]”. That instruction was inappropriate for two reasons. First, it may have led the jury to believe that the presumption of innocence does not follow an accused throughout the trial. Second, it may have led the jury to infer that evidence elicited at trial tends only towards guilt.

[25] That said, the impugned instruction must be read in context. In the paragraph following it, the trial judge explained what he was attempting to demonstrate:

The burden of proof beyond a reasonable doubt is somewhere between probably guilty and absolute certainty. It’s not absolute certainty but on that scale it’s closer to absolute certainty than it is to probably guilty. It can’t be put in percentages. That is the burden on the crown. It is a heavy burden. And the Crown attorney has quite properly acknowledged it.

[26] As well, on the page before the impugned instruction, the trial judge made it clear, on several occasions, that the onus of proof rested with the Crown, that there was no burden on the accused to prove anything, and that the presumption of innocence applied throughout the trial and remained, unless and until the jury was satisfied that the accused’s guilt had been proved beyond a reasonable doubt. One such example is reproduced below:

The presumption of innocence means that they each started this trial as an innocent person. That presumption stays with each of them throughout the case. It’s with them now. It stays with them during your deliberations. It is only defeated if and when Mr. Schwalm has satisfied you beyond a reasonable doubt that each of them is guilty of the crime charged.

[27] In the circumstances, while we agree that the impugned instruction was inappropriate, we are not persuaded that it would have misled the jury as the appellant suggests. Rather, we are satisfied that the jury would have understood what the trial judge intended by it – that probable guilt was not enough and that while absolute guilt need not be proved, proof beyond a reasonable doubt was much closer to the latter than the former. The fact that the jury acquitted the appellant on the charge of murder lends support to our conclusion.

[28] Accordingly, we would not give effect to this ground of appeal.

Ground 4 – The trial judge misdirected the jury on party liability and manslaughter

[29] The trial judge’s instructions on party liability and manslaughter were deficient in two respects. First, the trial judge did not tell the jury that if the appellant went to the deceased’s home intending to rob him but the jury had a reasonable doubt as to whether a reasonable person would have foreseen the risk of harm, the appellant was entitled to be acquitted. Second, the trial judge failed to make it clear that if the jury believed or had a reasonable doubt that although the appellant was at the deceased’s house, he was there solely as a passive observer, he would likewise be entitled to on acquittal.

[30] That said, the errors in our view were harmless. In short, if the jury were to reject the appellant’s primary position that he did not attend at the deceased’s house, then the evidence that the appellant and his co-accused were joint participants in a robbery, involving the use of considerable violence, was overwhelming.

[31] Entry into the deceased’s house was gained by smashing down the front door. The house was turned upside down. The deceased was beaten about the head with a blunt instrument. The appellant, upon returning to the car, told Ms. Mathis that “we turned him on his side. He was snoring” (emphasis added). It was also open to the jury, on Ms. Mathis’ evidence, to conclude that the appellant took a blunt object from the trunk of her car before going to the deceased’s house and returned the object to the trunk afterwards.

[32] In sum, the evidence of robbery, violence and joint enterprise was overwhelming. The real issue for the jury was whether the appellant was at the murder scene. Once that issue was decided against him, the only other live issue for the jury was whether the appellant was guilty of murder or manslaughter. On that issue, to his good fortune, the jury chose to give the appellant the benefit of the doubt.

[33] Accordingly, we would not give effect to this ground of appeal.

Ground 5 – The jury’s verdict is unreasonable

[34] At the outset of these reasons, we noted that the case for the Crown rested primarily, if not entirely, on Ms. Mathis’ testimony. We also explained that there were four items of evidence capable of supporting her testimony, with the fourth item – Ms. Pool’s evidence concerning the position of the deceased’s body – being particularly strong. It alone was capable of restoring the jury’s faith in Ms. Mathis’ evidence. Taking that into account, as well as the strong Vetrovec warning given by the trial judge and the appellant’s failure to testify, we are not persuaded that the verdict was unreasonable. (See R. v. MacDonald, 2008 ONCA 778, [2008] 242 O.A.C. 244, at paras. 4-6).

[35] Accordingly, we would reject this ground of appeal.

[36] In the result, the appeal from conviction is dismissed.

Sentence Appeal

[37] The appellant has been deported. While his appeal against sentence was not abandoned, it was not pursued in oral argument. In any event, there is no merit in the sentence appeal. The sentence imposed was entirely fit and we see no basis for interfering with it. Accordingly, while leave to appeal sentence is granted, the appeal against sentence is dismissed.

RELEASED: March 24, 2009 “MJM”

“M. J. Moldaver J.A.”

“J. MacFarland J.A.”

“Gloria Epstein J.A.”

[^1]: The three items of evidence potentially confirming Ms. Mathis’ evidence were: (1) Security pictures from Cory Richard’s apartment depicting the appellant, Ms. Mathis and Mr. Burkoski together at one point; (2) Cory Richards and Tyrone Handsor both testified that Ms. Mathis, Mr. Burkoski and the appellant were in Cory Richard’s apartment on the night of the murder (and that the appellant received a telephone call and left); (3) if the jury accepted Dr. Ra’s evidence (that the murder weapon was a heavy metal object), it was capable of confirming Ms. Mathis’ testimony that she heard a “clunk in the trunk’.