R. v. Charles, 2011 ONCA 228
CITATION: R. v. Charles, 2011 ONCA 228
DATE: 20110324
DOCKET: C49275
COURT OF APPEAL FOR ONTARIO
Sharpe, Watt and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Todd Michael Charles
Appellant
Michael Dineen and Emily Morton, for the appellant
Paul Lindsay, for the respondent
Heard: February 9, 2011
On appeal from the conviction entered by Justice Frank Marrocco of the Superior Court of Justice, sitting with a jury, on May 15, 2008.
Sharpe J.A.:
[1] Todd Michael Charles appeals his conviction for first degree murder in the shooting of Kemar Brown in a rooming house in Toronto. The appellant alleges that the trial judge made several errors in his charge to the jury by: (1) failing to review the position of the defence; (2) erring in response to a jury question; (3) introducing a new theory of liability; and (4) giving an inadequate Vetrovec warning as to the key Crown witness.
Facts
[2] On the evening of July 11, 2006, just before 9:30 p.m., Kemar Brown was shot and killed in a rooming house at 219 Church Street, Toronto. Four men were present at the time of the shooting: Troy Hines, who lived in the room, the deceased, the appellant and Cardinal Senior. Hines testified that it was the appellant who shot the victim. Neither the appellant nor Senior testified. The Crown led evidence indicating that when interviewed by the police, Senior claimed to have no memory of the shooting.
[3] The Crown’s case essentially rested on the evidence of Hines. Hines had a serious criminal record, and was both a drug user and a dealer. Before the trial, he had given conflicting accounts of the events leading up to the murder. At the time Hines identified the appellant as the shooter, he had received certain favours from the police, including release on bail in relation to other outstanding charges. Hines also faced additional charges at the time he testified at trial.
[4] Hines and Brown were friends and fellow crack cocaine dealers. The two had met while selling drugs in the same crack house, six to eight months prior to Brown’s death. Brown sometimes stayed in Hines’s room, which he also used as a base for drug dealing.
[5] Hines testified that on the night of the murder, Senior arrived at Hines’s room with the appellant, whom he introduced to Hines as “my boy”. Hines had never met the appellant before. Not long thereafter there was a knock on the door. The appellant rolled out of the chair in which he was sitting and knelt down on one knee. Hines heard a click and saw the appellant loading a gun. He told the appellant to “chill out” as he was expecting his girlfriend. When Hines answered the door, Brown walked in and sat down. The appellant stood up, turned the gun on Brown, and the following exchange took place:
Charles: Remember me, pussy?
Brown: Hey, man. I don’t have no problem with you.
Charles: Do you remember me, pussy?
Brown: Oh, man, yo, man, like I paid him.
Charles: You’re lying, pussy.
Brown: Hey, man, like I got $50 on me right now. Take what money you have right now.
Charles: You remember me, pussy?
Brown: Please, don’t shoot me.
[6] According to Hines, Charles then shot Brown three times. (The forensic evidence indicated that Brown was shot four times.) As he prepared to leave, the appellant pointed the gun at Hines but Senior intervened. Senior and the appellant then fled the building. Hines called for an ambulance, cleared his room of some drugs and drug paraphernalia, then went outside and flagged down a police car. Brown died of the gunshot wounds shortly after they were inflicted.
[7] Earlier that same day, Senior had attended Hines’s room. Senior and Hines were old friends and drug-dealing associates who had just re-united the day of the shooting. Senior brought Hines drugs, and while they were in Hines’s room, Brown arrived. Senior and Brown did not know each other, but Hines introduced them and the three men socialized for approximately half an hour. Brown was planning to come back to see Hines later that day, and Senior was also planning to return to bring more drugs.
[8] Shortly after Senior and Brown left, Hines exited his room to go to the bathroom. Through a window in the hallway, he saw Senior coming in from the roof of the building. Hines asked Senior “What’s up, man?” and Senior replied, “Just checking out my surroundings. And I had some plans to do business in that building”.
[9] It was common ground at trial that the appellant, Senior and Hines were in the room when Brown was murdered. The trial judge ruled that the defence was entitled to advance Senior as an alternative suspect. The focus of the appellant’s defence and defence counsel’s cross-examinations was an all-out attack on Hines’s credibility in order to suggest that Senior, not the appellant, was the shooter.
[10] In addition to Hines, the Crown called, inter alia, a number of police witnesses and two civilian witnesses who had seen two men, allegedly the appellant and Senior, in the vicinity of the crime scene on the night of the murder and there was some evidence to suggest that the shooter had his hands in the pockets of the sweatshirt. The Crown also filed a pathologist’s report to establish the cause of death. Police witnesses testified as to various items belonging to the appellant that were found near the crime scene and at the appellant’s residence. An expert witness testified that one particle of gunshot residue was found on a hooded sweatshirt taken from the appellant’s residence. The sweatshirt corresponded to what the shooter allegedly wore on the night of the murder. The Crown also called evidence of several phone calls the appellant made to Brown in the months leading up to the shooting in order to establish a connection between them.
[11] Apart from cross-examining witnesses, the only evidence called by the defence was to recall the gunshot residue expert. Defence counsel had asked the expert to examine the pockets of the hooded sweatshirt as there was some evidence to suggest that the shooter put his hands in the pockets of the sweatshirt. The expert found no traces of gunshot residue in the pockets. He testified that if someone had fired a gun and put his hands in the pockets, he would expect to find gunshot residue.
[12] After a four week trial, the jury returned a verdict of guilty to first degree murder and the trial judge imposed the mandatory sentence of life imprisonment with no eligibility for parole for 25 years.
Issues
Did the trial judge err by failing to put the position of the defence to the jury?
Did the trial judge err in his response to a jury question relating to the involvement of Charles Senior?
Did the trial judge err by leaving a speculative theory of planning and deliberation with the jury?
Did the trial judge err by failing to give a proper Vetrovec warning about the witness Troy Hines?
Analysis
1. Did the trial judge err by failing to put the position of the defence to the jury?
[13] In his instructions to the jury, the trial judge provided the jury with standard legal instructions including the presumption of innocence, the burden on the Crown to prove the case beyond a reasonable doubt and how to deal with matters such as circumstantial evidence and prior inconsistent statements. He also gave a detailed, witness-by-witness account of the evidence and a clear instruction on the legal elements of first degree murder.
[14] The trial judge did not, however, follow the usual and accepted practice of specifically relating the evidence to the issues or setting out the respective positions of the Crown and the defence. In his detailed summary of the evidence, virtually all of which was led by the Crown, the trial judge mentioned possible theories of liability, but at no point did he explicitly set out the Crown’s position or explicitly instruct the jury on the position of the defence. When the jury retired, defence counsel objected that the charge was unbalanced and that it failed to set out the defence position. Without giving any explanation or reasons, the trial judge refused to bring the jury members back and give them any further instruction.
[15] The appellant submits that the trial judge’s failure to set out the defence position amounts to an error of law warranting a new trial. Earlier in the proceedings, the trial judge had ruled that the defence could advance the theory that Senior was the killer. As this became a central theory of the defence, the appellant submits that his right to a fair trial required the trial judge to explain to the jury the defence theory of the case: namely that Senior was the killer and not the appellant.
[16] There is a long line of authority that requires trial judges to identify the issues raised by the case, to relate the evidence to those issues and to explain to the jury the positions of the parties. In a passage that is often quoted on this point, Taschereau J. stated the following rule in Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-98:
The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.
See also R. v. Colpitts, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; R. v. Mahalingan (2006), 2006 CanLII 12957 (ON CA), 80 O.R. (3d) 35 (C.A.).
[17] In R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), Doherty J.A. reviewed this principle. He noted that there was no particular approach or specific formula that had to be followed in every case, and that appellate courts should review the jury charge from a functional perspective. He distilled the principle to these essentials, at p. 386:
By the end of the instructions, whatever approach is used, the jury must understand:
• the factual issues which had to be resolved;
• the law to be applied to those issues and the evidence;
• the positions of the parties; and
• the evidence relevant to the positions taken by the parties on the various issues.
[18] Doherty J.A. cited R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14, where Lamer C.J. reiterated the need to relate the evidence to the issues and the position of the defence, but also cautioned against imposing a standard of perfection:
As long as an appellate court, when looking at the trial judge’s charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper.
Doherty J.A. also referred to R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p. 163, per Cory J:
... At the end of the day, the question must be whether an appellate court is satisfied that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues.
See also R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583 (C.A.), at paras. 108-109.
[19] The overall effect of the authorities is to hold that failure to follow the accepted formula is risky and almost always fatal. More is required than a serial review of the evidence. The trial judge is expected to relate the evidence to the issues and the positions of the parties. However, we are to apply a functional test. If we are satisfied that the charge as a whole conveyed to the jury a sufficient understanding of the issues and the facts as they relate to the charge faced by the appellant, the appeal must be dismissed.
[20] The issue for us in this case is the following: despite the trial judge’s failure to clearly and explicitly set out the defence position, did his instructions provide the jury with the assistance it required to decide the case fairly and according to the law? For the following reasons, I conclude that the instructions were adequate to meet the needs of this case, and that while the trial judge’s approach was ill-advised, it did not result in a reversible error in the singular circumstances of this case.
[21] The defence position was not complicated. The appellant conceded that he was one of four people in the room when Brown was murdered. No one suggested that Hines was the shooter. The appellant’s defence was simply this: Hines was a disreputable witness and an acknowledged liar who had incentives to assist the police. Senior was Hines’s friend and drug-dealing associate, and there was evidence that Hines feared reprisals from Senior as well as friends of the deceased. Hines’s evidence that it was the appellant, and not Hines’s old friend and associate, Senior, who had shot Brown, could not be believed. As the appellant did not testify, and as he offered no evidence to point the finger at Senior, his defence, including the alternative suspect theory, essentially rested upon an attack on Hines’s credibility.
[22] While this was a four week trial, the ultimate issue was quite simple and straightforward: was the appellant the man who shot Brown? It would have been obvious to the jury that there were only two possible shooters: the appellant and Senior. If the jury believed Hines, the appellant was the shooter. If the jury did not believe Hines, or was left with a reasonable doubt, the shooter was or could have been Senior.
[23] It is my view that when the jury instructions are read against the backdrop of the way the evidence was presented and the closing addresses of counsel, the jury would have understood each of the four key elements identified in MacKinnon, namely: (1) the factual issues which had to be resolved; (2) the law to be applied to those issues and the evidence; (3) the positions of the parties; and (4) the evidence relevant to the positions taken by the parties on the various issues.
[24] The key factual issue to be resolved was whether the appellant was the shooter. The trial judge repeatedly instructed the jury that to convict the appellant, they had to be satisfied beyond a reasonable doubt that it was the appellant who shot Brown.
[25] The trial judge’s explanation of the law to be applied to that issue is not challenged.
[26] Although the trial judge did not explicitly state the defence position, the jury must have understood that it involved two propositions that were flip sides of the same coin. Hines’s evidence that the appellant was the shooter could not be believed, and that meant that Senior must have been the shooter.
[27] The trial judge reviewed Hines’s evidence at great length and in significant detail. He gave a strong Vetrovec warning (to which I will return below), cautioning the jury that it would be “dangerous” to convict on the basis of Hines’s evidence without confirmatory evidence. The trial judge reviewed Hines’s alleged prior inconsistent statements and inconsistencies in considerable detail. The core of the defence theory was that Hines could not be believed and that theory was adequately presented to the jury.
[28] This was not a case where the defence raised any issue apart from the frailties of the Crown’s case. The alternative suspect theory operated by way of default. If Hines’s testimony that the appellant shot Brown could not be believed, then the killer must have been Senior. In his painstaking review of the evidence, the trial judge explained those frailties, as they had been drawn out by defence counsel’s vigorous cross-examination of Hines. The jury must have understood that the appellant’s strenuous attack on Hines could only support the alternative suspect theory of Senior as the shooter.
[29] While it certainly would have been preferable for the trial judge to have explained the defence theory more explicitly, I am satisfied that, at the end of his charge, the jury must have understood what the defence position was and what evidence was relevant to that position.
2. Did the trial judge err in his response to a jury question relating to the involvement of Charles Senior?
[30] After one day of deliberation, the jury asked the following question:
If we/I are satisfied that Todd Charles and Cardinal Senior may have been involved in the planning and execution of the murder of Kemar Brown and considering the fact that Cardinal Senior has not been charged with murder in this case and not knowing with certainty who pulled the trigger, does the law require us/me to find Todd Charles guilty?
[31] The trial judge sought submissions from counsel but did not vet his answer. He answered the question by instructing the jury to focus on Todd Charles:
First of all, the issue in the trial is whether Todd Charles to use the wording of your question was involved in the planning and execution of the murder of Kemar Brown.
My concern is that the focus on Cardinal Senior can become a distraction. There is lots of evidence about Cardinal Senior and his participation, and I am sure you will pay very close attention to all of that evidence, and I am not suggesting to you for a moment that you should not but the issue in this trial is whether Todd Charles is guilty of the offence, not Cardinal Senior so I would ask you to start by ... focusing in on Todd Charles.
[32] Then, referring to the part of the question stating that Charles and Senior “may have been involved in the planning and execution of the murder” the trial judge stated:
... [L]et us take Cardinal Senior out of it for a second. The issue is whether you are satisfied beyond a reasonable doubt that Todd Charles was involved in the planning, deliberation and carrying out of the murder.
Whether you are satisfied on the evidence that Cardinal Senior was involved is not the question. The question is Todd Charles’ involvement.
[33] The trial judge then instructed the jury not to speculate about why Senior had not been charged with murder, as there were many reasons why that might have occurred and there was no evidence to indicate why he was not charged:
Do not give any consideration to the fact that Cardinal Senior was not charged with murder. It is not about Cardinal Senior. It is about Todd Charles. I recognize Cardinal Senior figures in this piece. Mr. Hines’ evidence, the evidence on the video and so on. He identifies them. Of course you have to consider all of that evidence but the fact that Cardinal Senior was not charged is not an issue before you.
[34] With respect to the final part of the question – “and not knowing with certainty who pulled the trigger, does the law require me to find Todd Charles guilty?” – the trial judge stated:
…[T]o find Todd Charles guilty of first degree murder, Crown counsel must prove each of these elements beyond a reasonable doubt[,] that Todd Charles caused the death of Kemar Brown; that he caused the death of Kemar Brown unlawfully; that he had the state of mind for murder; and that the murder was planned and deliberate.
If you are not satisfied beyond a reasonable doubt that Todd Charles caused the death of Kemar Brown by shooting him, then Todd Charles is entitled to the benefit of reasonable doubt and the law does not require you to convict. […]
I would repeat what I said. I urge you not to become distracted by issues involving the liability or not of Cardinal Senior. Focus on the defendant and whether the charge against the defendant is proven beyond a reasonable doubt.
I hope that answers your question. It is as close as I could come, and I will let you retire to continue your deliberations.
[35] Less than two hours later, the jury reported that it had reached an impasse and could not arrive at a verdict. The trial judge gave a standard exhortation and, three hours later, the jury returned its guilty verdict.
[36] The appellant argues that that the trial judge’s response to this question was deficient for the following reasons:
it took the alternative suspect defence away from the jury by telling it not to consider Senior’s liability;
it left open the possibility that the jury might convict on a theory of party liability; and
it discouraged the jury from asking further questions.
[37] I do not agree that the trial judge’s answer took away the “alternative suspect” theory of the defence. The trial judge emphasized in his answer to the question, as he had in his charge, that to find Todd Charles guilty of murder, the jury had to be satisfied beyond a reasonable doubt that Charles had caused the death of Kemar Brown. The trial judge did not tell the jury to ignore the evidence about Senior’s involvement. He reminded the jury that there was “lots of evidence about Cardinal Senior and his participation” and he encouraged the jury to “pay very close attention to all of that evidence”. The trial judge did not err by instructing the jury to avoid becoming distracted by the fact that Senior had not been charged with murder. He reminded the jury that there was no evidence on the point and, in any event, it had no bearing on the appellant’s guilt or innocence. Finally, I note that neither during the pre-answer submissions nor after the question was answered did the appellant’s very diligent trial counsel suggest that either the question or the answer prejudiced the alternative suspect theory of the defence.
[38] Nor do I accept the submission that the trial judge’s answer opened the possibility that the jury might convict the appellant on a party liability theory. The risk that the jury might be considering some form of party liability was squarely addressed by counsel in their submissions to the trial judge before he answered the jury’s question. In his answer, the trial judge clearly instructed the jury members that to find the appellant guilty, they had to be satisfied beyond a reasonable doubt that the appellant had caused Brown’s death. He warned them not to be distracted by what role Senior might have played in the murder. In my view, this effectively took any suggestion of party liability off the table and left the jury members with a clear instruction that they could only convict the appellant if they found that he was the shooter.
[39] Finally, I do not agree that the concluding portion of the answer unduly discouraged the jury from asking any further questions. It took a considerable period of time for the trial judge to get the submissions of counsel and to formulate his answer. His rather apologetic statement – “It is as close as I could come” – should be read in that light.
3. Did the trial judge err by leaving a speculative theory of planning and deliberation with the jury?
[40] The trial judge advised the jury to consider the observations of witness Mark Alton, which arguably placed “two black men” on a rooftop adjacent to 219 Church Street prior to the murder. The appellant argues that this statement by the trial judge left a speculative theory of planning and deliberation with the jury. The appellant points out that neither party had referred to this evidence in their arguments, and that the Crown had actually invited the jury to find that Alton had seen the appellant and Senior after the murder, in order to corroborate Hines’s account of their escape route. The appellant contends that, fairly read, Alton’s evidence was incapable of supporting the inference drawn by the trial judge.
[41] I agree that Alton was uncertain in his evidence as to when he saw the two black men on the roof adjacent to 219 Church Street. At one point in his evidence, he did fix the time between 8:15 to 8:30 p.m. In the end, however, he was uncertain of the time. The trial judge may have overstated the effect of Alton’s evidence when he told the jury that Alton “saw two men on the roof…and he places the time between 8:15 p.m. and 8:30 p.m.” Alton’s statement would put the appellant and Senior on the roof before the murder, providing evidence capable of supporting an inference that the men were there planning their escape after the murder they planned to commit in Hines’s room.
[42] However, I disagree that this overstatement of Alton’s evidence could have had any practical bearing on the verdict. The trial judge instructed the jury members that it was their recollection of the evidence, not his, that mattered. Moreover, I agree with the respondent that if the jury was satisfied by Hines’s evidence that the appellant shot the victim, then a finding that the murder was planned and deliberate was virtually inevitable. There was evidence that the appellant knew Brown prior to the shooting and that he had a pre-existing motive to kill Brown over a drug debt or other financial dispute. The appellant had come to Hines’s room, armed with a gun and ammunition, with seemingly no other purpose than to lie in wait of Brown’s arrival to settle the account. The evidence before the jury provided a firm basis to find that the murder was planned and deliberate.
4. Did the trial judge err by failing to give a proper Vetrovec warning about the witness Troy Hines?
[43] As already indicated, the trial judge gave a Vetrovec caution with respect to Troy Hines. He told the jury that it would be “dangerous” to convict on the basis of Hines’s evidence without supporting evidence. Hines had a lengthy criminal record and, as he faced unrelated criminal charges, he stood to gain from cooperation with the police.
[44] The appellant alleges two errors in the trial judge’s Vetrovec warning.
[45] First, the appellant contends that the trial judge may have minimized Hines’s motive to testify favourably for the Crown. Hines was in custody on unrelated charges when he was interviewed by the police. Shortly after Hines changed his initial story and identified the appellant as Brown’s killer, the investigating homicide officers intervened with the Crown to have Hines’s bail conditions altered so that he could be released using his girlfriend as a single surety. After explaining to the jury that the incentive to secure favours of this kind should be taken into account when assessing Hines’s credibility, the trial judge added that time spent in pre-trial custody is typically taken into account during sentencing.
[46] The appellant contends that, by mentioning the enhanced credit normally given for pre-trial custody, the trial judge suggested that Hines’s release on bail in exchange for co-operation with the authorities was of reduced importance. Hines was never asked at trial whether he was content to stay in custody in order to earn enhanced credit, and the reference to credit for pre-trial custody improperly invited the jury to minimize one of Hines’s motives to lie.
[47] The trial judge’s explanation of credit for pre-trial custody was unnecessary and beside the point. On the other hand, it was an accurate statement of the law and I do not agree that the jury would have taken it as undercutting the force of the trail judge’s warning that Hines had something to gain from the police when he changed his initial story and implicated the appellant. I note that the appellant’s trial counsel took no objection to this aspect of the charge at trial.
[48] The second alleged error with respect to the Vetrovec warning is that the trial judge refused to allow defence counsel to refer in his closing address to Hines’s outstanding firearms charges. Hines was arrested the day before his testimony on various charges, including uttering death threats, assault and several firearms offences, all arising from an altercation with his common law wife. Defence counsel cross-examined Hines extensively on the fact that he was facing these charges. After Hines testified, but before counsel made their closing addresses to the jury, the firearms charges were dropped because of an expert report indicating that the items in question did not fall within the definition a “firearm”.
[49] The Crown raised the concern that defence counsel would paint Hines as “a gun-toting individual” in his closing address, a label that no longer attached in view of the withdrawal of the firearms charges. The trial judge ruled that defence counsel could refer the fact that Hines was facing criminal charges at the time he testified, but could not refer to the charges as firearms charges. The appellant argues that he should have been allowed to paint the full picture of the “Sword of Damocles” hanging over Hines at the moment he testified.
[50] I do not agree that the trial judge erred by limiting defence counsel in this manner. Defence counsel was still able to point to the fact that Hines, who was facing criminal charges when he testified, might have hoped to gain from giving evidence favourable to the Crown. The trial judge instructed the jury to the same effect:
You have heard that Mr. Hines is charged with a series of criminal offences arising out of an altercation with his common law wife on April 27th, 2008. The trial has not yet been held. A person who is awaiting trial himself on charges may have an interest in testifying favourably for the Crown in this trial. He may believe that favourable testimony here will help him out with this case later. You should approach the evidence of Mr. Hines with caution in this regard.
[51] I agree with the respondent that it fell within the trial judge’s discretion to place a modest limit on defence counsel, with a view to ensuring that the jury was not misled into believing that Hines might have been guilty of offences involving firearms. Defence counsel was still able to make the crucial point that a Crown witness facing outstanding criminal charges may hope to gain by testifying in favour of the Crown, and that important point was reinforced by the trial judge in his Vetrovec instruction.
Conclusion
[52] Accordingly, despite the capable arguments advanced by Mr. Dineen and Ms. Morton on behalf of the appellant, I would dismiss the appeal from conviction.
“Robert J. Sharpe J.A.”
“I agree David Watt J.A.”
“I agree Karakatsanis J.A.”
RELEASED: March 24, 2011