R. v. Kelly, 2011 ONCA 549

CITATION: R. v. Kelly, 2011 ONCA 549

DATE: 20110811

DOCKET: C48288

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carl Kelly

Appellant

Philip Campbell and Michael Dineen, for the appellant

Roger A. Pinnock, for the respondent

Heard: March 23, 2011

On appeal from the conviction on a charge of second degree murder entered on October 13, 2006 at Brampton, Ontario by the Honourable Mr. Justice Kenneth A. Langdon of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

Introduction

[1] The appellant was charged with first degree murder and convicted of second degree murder. He appeals his conviction.

[2] The appellant killed Nathaniel Wilson. The Crown alleged that the homicide was planned and deliberate. The appellant, who testified in his own defence, claimed that he acted in self defence. The jury did not accept the position advanced by either the Crown or the defence. The verdict indicates that the jury was not satisfied that the murder was planned and deliberate but was satisfied beyond a reasonable doubt that the appellant did not act in self defence.

[3] The appellant pursues two arguments on appeal. First, he submits that the trial judge erred in ruling that certain evidence, if proffered by the defence, would put the appellant’s propensity for violence in issue. Second, the appellant submits that the trial judge misdirected the jury on the use it could make of out of court statements made by two Crown witnesses. The appellant submits that the trial judge erred in explaining to the jury the pre-conditions necessary before a witness could be said to have adopted her prior statement.

[4] I would dismiss the appeal. The trial judge correctly addressed the evidentiary issue raised by counsel at trial. The appellant puts a different issue before this court. The trial judge did misdirect the jury as to the pre-conditions that had to be met before a witness could be said to have adopted a prior statement. However, in the circumstances of this case, that misdirection caused no substantial wrong or miscarriage of justice.

II

The Facts

[5] For the purposes of the appeal, the facts are straightforward. The appellant and Nathaniel Wilson lived in the same housing complex in Mississauga. While both were young men, they had relatively extensive criminal records and lived a criminal lifestyle.

[6] Several weeks before the homicide the appellant became involved in a dispute with a man named Jackson. The appellant believed that Jackson had stolen some electronic equipment from him. As “payback” the appellant took $80 from Jackson under the pretense of purchasing drugs for him. The appellant kept the money and when Jackson made enquiries the appellant told him that he should “consider it even”.

[7] About three weeks before the homicide, the appellant encountered Jackson who was with his friend Wilson, the deceased. The appellant noticed that Wilson was carrying a baseball bat in one hand and had the other hand concealed in his pants. Mr. Wilson approached the appellant and demanded that he return the money to Jackson. The appellant refused and an argument ensued. Both men used obscenities and made threats. Wilson threatened to get his gun and “shoot up this place and shoot you, and shoot your family”.

[8] Over the next three weeks the appellant saw Wilson on a few occasions at the housing complex where they lived. The appellant was not afraid of Wilson but he was cautious. Although violence was common-place in the housing complex, threats to shoot people were not and the appellant was concerned.

[9] On July 6, 2004, shortly before midnight, the appellant and a friend decided to contact their drug dealer and arrange to buy some marijuana. After getting the necessary cash, the appellant and his friend were walking toward the local Tim Horton’s to meet the dealer. They saw their dealer standing in the housing complex parking lot with a group of other men. The appellant did not get along with some of those men.

[10] The appellant testified that he and his friend stood behind a bush near the parking lot and tried to get their drug dealer’s attention. The appellant was armed with a small knife that he had carried with him since he had been stabbed eight months earlier.

[11] The appellant further testified that as he was trying to get his drug dealer’s attention two young women, Tacita Ashman and Georgeia Pinto, walked away from the group of men in the parking lot and past the appellant and his friend. After they had passed the appellant, they paused and appeared to be speaking on a cell phone.

[12] The appellant testified that his friend then said something that caught the appellant’s attention. The appellant turned around and saw the deceased Wilson approaching on the other side of the bush. Wilson was hunched over with his hands behind his back and appeared to be sneaking up on them. Wilson was about 15 feet away.

[13] The appellant testified that he was afraid that Wilson was about to carry out his earlier threat to shoot him. As Wilson continued to approach, the appellant jumped forward from behind the bush and tried to stab Wilson in the shoulder hoping to disarm him. Wilson was struck in the neck with sufficient force to sever his carotid artery and puncture his lung. Wilson staggered backward and his blood spurted into the appellant’s face. Wilson turned and ran.

[14] The appellant was temporarily blinded by Wilson’s blood, but when his vision cleared he saw Wilson running away from him down the path. The appellant, who still had his knife, chased Wilson. According to the appellant he did this because he was afraid that Wilson would stop, turn around and shoot him. The appellant gave up the chase after a short distance and fled to his home. He insisted that he did not at any time intend to kill Wilson. The appellant agreed that it “sounds stupid” to chase someone who has a gun, but maintained he was looking for a safe avenue of escape.

[15] Wilson was rushed to the hospital and died after a few days on life support.

[16] The appellant ran to his home and immediately took steps to dispose of any incriminating evidence. He gave his blood-covered sweater to a friend and put the remainder of his clothes in the wash. He disposed of his knife.

[17] The trial judge instructed the jury on the defence of self defence and in particular on the operation of self defence as described in s. 34(2) of the Criminal Code. It is no small compliment to the trial judge that no objection is taken to his instruction on what is a notoriously complex and cumbersome part of the criminal law.

III

The Evidentiary Ruling

[18] During the case for the Crown, defence counsel requested a ruling on the consequences of adducing certain evidence. The defence was aware from the preliminary inquiry testimony that a Crown witness named Chrisjohn would testify that his younger brother had told him that Wilson had recruited the younger brother and his friends as “soldiers” to commit robberies for him. Wilson offered to provide the youngsters with weapons for use in the robberies. Chrisjohn confronted Wilson who confirmed the offer. Chrisjohn emphatically told Wilson to leave his younger brother alone.

[19] Defence counsel told the court that he could not say whether Chrisjohn would testify that he had told the appellant about Wilson’s attempt to recruit his younger brother to commit armed robberies. Defence counsel took the position that the evidence was admissible regardless of whether the appellant was aware of what Wilson had done. Counsel further indicated, however, that if necessary to get that evidence before the jury he would undertake that the appellant would testify that Chrisjohn did tell him about Wilson’s attempt to recruit his younger brother.

[20] In his submissions, defence counsel at trial indicated that Chrisjohn’s evidence, in conjunction with other evidence, was offered to show:

[T]hat he [Wilson] was a person who had easy access and a willingness to use firearms. [Emphasis added.]

[21] Counsel submitted that Wilson’s access to and willingness to use guns had a dual relevance. He said that the evidence was:

…relevant to the question of self defence and what was in my client’s mind at the time of the incident. [Emphasis added.]

[22] As counsel’s submissions made clear, the evidence was tendered both as circumstantial evidence of who, as between Wilson and the appellant, was the aggressor (“the question of self defence”) and as evidence of the appellant’s belief that Wilson was armed and dangerous.

[23] Defence counsel requested an advance ruling not because he doubted the admissibility of the evidence, but because he was concerned about the consequences of eliciting the evidence. Counsel asked the trial judge to hold that by leading evidence of Wilson’s access to and willingness to use guns, the defence was not putting Wilson’s disposition for violence in issue and opening the evidentiary door to evidence of the appellant’s disposition for violence: see R. v. Sparkes, [2005] O.J. No. 1883 (C.A.); R. v. Williams (2008), 2008 ONCA 413, 233 C.C.C. (3d) 40 (Ont. C.A.). The Crown had evidence that was capable of showing that the appellant had a violent disposition.

[24] The Crown did not challenge the admissibility of the proffered evidence, but argued that it was evidence of Wilson’s disposition for violence and if tendered would allow the Crown to lead evidence of the appellant’s disposition for violence.

[25] The trial judge accepted the Crown’s submission holding, at paras. 18-19:

Mr. Derstein has argued that by introducing the evidence of recruitment of “soldiers” and supply of firearms, defence is not seeking to bring up deceased’s general reputation for violence. It is true that if he was known to be a person with access to firearms and/or the willingness to use them unlawfully, it is discreditable to the deceased; but defence does not seek to put deceased’s general reputation for violence in issue. Defence simply wants to lead evidence to show deceased was a person with access to firearms and a willingness to use them. Mr. Chrisjohn’s testimony only shows access. This, Mr. Derstein argues, is relevant to the issue of self defence and the accused’s state of mind at the time of [the] occurrence.

With great respect to Mr. Derstein, I opine that he seeks to make a distinction without a difference. [Emphasis in original.]

[26] The trial judge acknowledged that if the appellant testified that he was aware of Wilson’s attempt to recruit Chrisjohn’s brother to commit armed robberies, the evidence would be admissible as relevant to the appellant’s state of mind when he stabbed Wilson. Admissibility as evidence of the appellant’s state of mind would not, however, affect the fact that the evidence also constituted evidence of Wilson’s propensity for violence. The trial judge held that if the defence chose to call that evidence, the Crown could respond with evidence of the appellant’s propensity for violence. Counsel chose not to adduce the evidence.

[27] On appeal, counsel submits that:

The defence wished to adduce the evidence solely on the issue of the appellant’s state of mind. [Emphasis added.]

[28] This submission mischaracterizes the basis upon which the evidence was put forward at trial and the ruling sought at trial. Trial counsel emphatically argued that the evidence was admissible whether or not the appellant was aware of it. This position belies any suggestion the evidence was offered “solely on the issue of the appellant’s state of mind”.

[29] Trial counsel argued that the evidence supported the inference that Wilson had ready access to and a willingness to use firearms. That inference could, according to the defence, support the further inference that Wilson was armed at the time of the homicide. If Wilson was armed, the jury could infer that Wilson was the aggressor. Counsel further submitted that the inference that Wilson was armed was available without any reference to Wilson’s general character or propensity for violence. Like the trial judge I think the distinction defence counsel struggled to make was an untenable one.

[30] The proffered evidence invited the jury to conclude that Wilson had ready access to and a willingness to use firearms. In short, he was a violent person. His willingness to obtain and use firearms reflected his propensity for violence. On the defence argument, Wilson was the kind of person who would carry a gun and would be prepared to use it. This propensity supported the inference that he was carrying a gun at the time of the homicide.

[31] I agree with the trial judge that the line of reasoning relied on by the defence was in reality an argument based on Wilson’s disposition to use firearms in a criminal and violent manner, as reflected in his attempt to recruit Chrisjohn’s brother. That evidence amounted to evidence of Wilson’s disposition for violence and would have, if elicited by the defence, opened the evidentiary door to evidence of the appellant’s disposition for violence.

[32] It is important to appreciate that at no time did the trial judge foreclose the defence from leading evidence from the appellant or others as to what the appellant was told about Wilson’s attempt to recruit and arm young boys as robbers. As the trial judge acknowledged, and both defence and Crown counsel clearly appreciated, evidence of what the appellant was told could be relevant to his belief that Wilson posed a serious threat. Evidence offered for that limited basis would not, however, involve testimony about the conversation between Chrisjohn and his younger brother or the conversation between Chrisjohn and Wilson. The evidence would have been limited to what the appellant was told about the incident. If the evidence had been offered solely as evidence of the appellant’s state of mind, there would have been no need to lead evidence of what Chrisjohn was told by his brother or Wilson. Clearly the defence wanted to lead evidence from which the jury could find that Wilson had in fact attempted to recruit Chrisjohn’s younger brother and other young boys to commit armed robberies.

[33] The defence chose not to elicit any evidence of what the appellant was told about Wilson’s efforts to recruit Chrisjohn’s younger brother. The trial judge cannot be criticized for failing to make a ruling he was never asked to make by the defence. Nor can his ruling as to the affect of leading certain evidence be converted into a ruling excluding evidence that the defence never sought to tender. The trial judge was asked to rule on whether evidence of Wilson’s efforts to recruit Chrisjohn’s younger brother to commit armed robberies would be viewed as evidence of Wilson’s propensity for violence, thereby putting the appellant’s disposition for violence into issue. The trial judge ruled on that question only and in my view he ruled correctly.

[34] I would add that there is and can be no suggestion of ineffective representation at trial. The self defence claim rested largely on the unchallenged evidence of Wilson’s threat made directly against the appellant a few weeks earlier. There was also evidence of the appellant that he was told by others that Wilson was going to shoot him and that Wilson had access to guns. These people told the appellant to “watch my back”.

[35] Evidence that the appellant had been told about Wilson’s attempt to recruit Chrisjohn’s brother to commit armed robberies had significantly less probative value on the question of the appellant’s state of mind than did the evidence of Wilson’s direct threat to kill and the evidence of the information the appellant received from others about the threat posed to him by Wilson. The connection between Wilson’s attempt to recruit Chrisjohn’s brother and the threat he posed to the appellant was a tenuous one. Even that limited probative value was placed in doubt by the uncertainty surrounding Chrisjohn’s evidence. It was far from clear that he would testify that he told the appellant about Wilson’s efforts to recruit his younger brother. I am satisfied that the defence made a reasonable assessment that, unless the jury could use the evidence to find as a fact that Wilson had recruited young boys to commit armed robberies, it had little or no value to the defence.

IV

The Misdirection on the Adoption of Prior Statements

[36] The Crown called Wanda Sconci and Amanda Parris. Both witnesses had seen the appellant and his friend walking along the path toward the parking lot area in the housing complex where the group of men, including the appellant’s drug dealer, was congregated. The Crown called these two witnesses in an effort to establish that the appellant had looked sufficiently suspicious to them that they had immediately called one of their friends who was at the parking lot to warn him that the appellant was on his way.

[37] Sconci had given a lengthy videotaped interview to the police. At trial, she professed to have little if any recollection of either the actual events or making the videotaped statement.

[38] The trial judge made it clear that Ms. Sconci had lied over and over again in her evidence. He instructed the jury that anything she said that implicated the appellant should be viewed with the greatest of caution. He told the jury that it would be dangerous to convict based on her evidence.

[39] The Crown had been permitted to cross-examine Ms. Sconci and had put her videotaped statement to her during that cross-examination. The trial judge instructed the jury as to the use it could make of the videotaped statement in these words:

The more difficult issue for you will be to decide whether or to what extent Ms. Sconci adopted at trial, portions of her previous police interview. She could not deny having said what was recorded on the tape. Sometimes she said that she was speaking the truth when she made a certain statement, but that she had no current memory of the event. If she said that, then you might accept her previous statement as evidence of the truth of what she said… [Emphasis added.]

[40] After reviewing parts of the videotaped statement, the trial judge told the jury:

You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied the witness accepted it as true while in the witness box. That is what I mean by adopted. For instance, Wanda Sconci said that certain parts of her police statement in respect of matters she now did not remember at all, were true. If you accept that, then you might find she had adopted a prior inconsistent statement. [Emphasis added.]

[41] Counsel for the appellant submits, and the Crown agrees, that the trial judge misdirected the jury as to the prerequisites to the adoption of a prior statement. Under the prevailing authority a witness cannot adopt a prior inconsistent statement unless that witness has a present recollection of the events referred to in the statement and can attest to the accuracy of the statement based on a present recollection of those events. A witness who has no present recollection of the events but insists that the statement was true because, for example, she would not lie to the police, has not adopted the prior statement and subject to some other rule of evidence, the prior statement is not admissible for its truth: see R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 83 C.C.C. (3d) 5, at p. 23 (Ont. C.A.); R. v. McCarroll (2008), 2008 ONCA 715, 238 C.C.C. (3d) 404, at paras. 38-39 (Ont. C.A.).[^1] Sconci purported to have virtually no recollection of the events she spoke of in her statement. Without that present recollection, her testimony that parts of the statement were true could not constitute an adoption of it. On a proper application of the law, Sconci adopted little if anything from her videotaped statement.

[42] I am satisfied, however, that the error did not cause any substantial wrong or miscarriage of justice. Bearing in mind the patently unbelievable nature of most of Sconci’s evidence and the strong language used by the trial judge in describing the evidence, I see virtually no chance that the jury used anything Sconci said to implicate the appellant.

[43] In argument, counsel for the appellant pointed to the comment in Sconci’s statement to the effect that the appellant looked like he was “up to something” as a part of the statement that could possibly harm the appellant if used by the jury for its truth. The appellant himself admitted he was “up to something”. He testified that he was trying to get his drug dealer’s attention without getting the attention of the other people who were with the drug dealer in the parking lot and with whom the appellant had bad relations. Sconci’s reference to the appellant looking like he was “up to something” added nothing to the evidentiary landscape.

[44] The witness Parris was somewhat more forthcoming than Sconci in her testimony. She testified that she made a phone call to a friend in the parking lot to tell him that the appellant was approaching the group in the parking lot.

[45] After being referred to her statement to the police, Parris testified that the appellant wore a tuque pulled over his head in a manner that would conceal his distinct haircut. Although it is not entirely clear, it would appear that Parris had no actual recollection of what the appellant was wearing, but was simply accepting that what she had said to the police must have been true. As explained above, this could not constitute an adoption of that part of her statement.

[46] The trial judge did not deal separately with the evidence of Parris when instructing the jury on the concept of the adoption of prior statements. Assuming the jury applied the earlier described misdirection to Parris’s evidence, I am satisfied that it could not have occasioned any substantial wrong or miscarriage of justice. In her statement Parris referred to the appellant as wearing a tuque over his hair. Other witnesses described him as wearing a hood. The appellant admitted he had a hat with him. Whether the appellant was wearing a tuque, or a hood, or had some other hat with him is of minimal if any significance to the question of whether the Crown had proved that the appellant did not act in self defence when he killed Wilson. Any misdirection in respect of Ms. Parris’s evidence was of no consequence.

V

CONCLUSION

[47] I would dismiss the appeal.

RELEASED: “DD” “AUG 11 2011”

“Doherty J.A.”

“I agree H.S. LaForme J.A.”

“I agree G. Epstein J.A.”

[^1]: The trial judge’s description of the preconditions to adoption are consistent with those applicable where the statement falls within s. 715.1 of the Criminal Code: see R. v. C.(C.F.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at para. 36-41.