R. v. Jones, 2011 ONCA 584

CITATION: R. v. Jones, 2011 ONCA 584

DATE: 20110909

DOCKET: C51604

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Antonio Jones

Appellant

Faisal Mirza, for the appellant

Megan Stephens, for the respondent

Heard: February 18, 2011

On appeal of the conviction entered on September 19, 2008 by Justice Nancy Mossip of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. INTRODUCTION

[1] The appellant, Antonio Jones, was a drug dealer. On September 18, 2004 Jones met up with Scott Laverriere, who was to pay him for an earlier drug debt and drive him to other customers in exchange for more drugs. After the pair were seated in Laverriere’s truck an altercation took place. Jones took a metal bar and hit Laverriere in the head, causing irreversible brain damage. Laverriere died after spending a year in the hospital on life support.

[2] Jones was charged with second degree murder and tried before Mossip J. and a jury. The Crown put forward a circumstantial case. Jones testified and claimed that he acted in self-defence, striking Laverriere only after Laverriere viciously attacked him in the truck. The jury found Jones not guilty of murder, but guilty of manslaughter.

[3] Jones appeals his conviction. His appeal turns on two photographs of the interior of the truck, which the Crown relied on to show that he did not act in self-defence. Jones makes two submissions.

[4] First, he says that the Crown, in his closing, misstated when the photographs were taken, that the trial judge inadvertently reinforced this misstatement in her charge, and that she later erred by failing to give the jury a correcting instruction.

[5] Second, Jones says that after the jury asked a specific question about when the two photographs were taken, the trial judge erred by accepting the jury’s verdict without insisting that it hear the answer to the question it had asked. Jones submits that because of these two errors, he was deprived of a fair trial. His conviction is therefore a miscarriage of justice. He asks for a new trial.

B. THE INCIDENT AND THE EVENTS LEADING UP TO IT

[6] At the time of the incident, Jones was 37 years old. The incident itself occurred in the very early morning hours of September 18, 2004.

(a) The preceding events

[7] Sometime in the early morning on September 17th, Jones met his friend Donnell Newman at the East Mall in Etobicoke. Newman and Jones had known each other for about 15 years. They often got together to buy and sell drugs, especially crack cocaine.

[8] When Newman saw him that morning, Jones was carrying a metal bar. He told Newman that he had it for protection, as a few days earlier he had been kicked in the face and was in significant pain.

[9] Jones and Newman spent the morning doing crack, and shuttling back and forth between the East Mall and the Willows Motel, as Jones dealt drugs. On their second trip to the Willows they met up with Billy Chisholm, who often partied with Jones and who had a room at the motel.

[10] After spending some time in Chisholm’s room, Newman and Jones left and went to a shelter where Jones picked up some of his belongings, including a knapsack. He put the metal bar in his knapsack and took it with him.

[11] Newman and Jones returned to Chisholm’s motel room, and the three of them did a “toke” of crack and drank beer. Eventually Jones left and went to a bar. He returned around 11:30 p.m. Chisholm wanted more drugs. Jones told him that he did not have anymore. Chisholm would not take no for an answer and began arguing with Jones.

[12] Around this time, Laverriere arrived at the Willows. He had met Jones a few weeks before. They had agreed at the time to meet at the motel on the night of the 17th. Laverriere was to repay Jones a small drug debt he owed him and then drive him around while he dealt drugs.

[13] Jones testified that he was anxious to get away from Chisholm, who continued to harass him for drugs. He left the motel room with Newman and Chisholm following, and met Laverriere at his truck. He was carrying his knapsack with the metal bar in it.

[14] Laverriere got into the driver’s seat of the truck and put his seatbelt on. Jones got into the passenger seat. Laverriere was a large man. He was six feet two inches tall and weighed between 250 and 300 pounds. Jones was slight. He was five feet ten inches tall and weighed 155 pounds.

[15] After some confusion, Laverriere found the money he owed Jones and gave it to him. At this point Newman and Chisholm were still standing beside the truck; both wanted assurances that Jones would be returning with drugs. Jones testified that he gave his knapsack with the metal bar in it to Newman as “collateral” so that Newman would know he would return. Newman testified that he did not remember his friend giving him the knapsack.

(b) The incident

[16] The Crown’s theory was that Laverriere tapped Jones on the head to get his attention, causing him unintended pain. At the time Jones was already angry with Chisholm, who had been harassing him for more drugs, and with Laverriere, whom he believed had given him the runaround before repaying the drug debt. According to the Crown, Jones reacted violently to the tap on his head, and whacked Laverriere in the face with the metal bar he had been carrying.

[17] The Crown contended that Jones was guilty of second degree murder because when he hit Laverriere with the metal bar, he intended to cause him serious bodily harm, which he knew was likely to cause death, or he was reckless whether death ensued.

[18] However, only Jones witnessed the incident, and he gave a very different account of what occurred. He maintained that he hit Laverriere in self-defence as it was the only way he could get out of the truck.

[19] Jones said that he sat crossways in the passenger seat. He was looking out the window watching Newman walk back to the motel when he felt a hit to the back of his head. As he turned toward Laverriere, Laverriere slammed him in the side of the head with his fist. Jones claimed that he started to “blackout.” He then felt Laverriere grab his face, causing a sharp pain in his nose. Jones started flailing around trying to move Laverriere’s hand from his face. When he was unable to do so, he began reaching around to find something to use to break Laverriere’s hold. He grabbed a hold of something metal and swung it as hard as he could. He made contact and Laverriere let go. Jones then turned around, opened the passenger door, and left.

(c) The aftermath

[20] After getting out of Laverriere’s truck, Jones noticed that Newman’s truck was still in the motel parking lot. He found Newman and told him “he fucking attacked me, grabbed me by the face and I hit him and then he – and ran away.” He then told Newman to “pull out, pull out, pull out.” Newman began to drive and eventually dropped Jones off near the East Mall.

[21] Jones claimed that he did not know what he did with the metal object he used to strike Laverriere. He testified that he either dropped it in the parking lot or got rid of it.

[22] Laverriere was very seriously injured, and although he was transported to the hospital within a few hours of the incident, his condition continued to deteriorate. CT scans showed that Laverriere had suffered a penetrating traumatic injury to the head. Though he was placed on life support, a year later he suffered a cardiac arrest. He was then taken off life support, and died.

[23] Doctor Chiasson, an expert in forensic pathology, testified that “Despite the prolonged survival interval, death is nonetheless ultimately attributable to the head trauma which precipitated hospital admission.” At trial, Jones argued that the cardiac arrest Laverriere suffered in the hospital caused his death. However, Jones has not raised this argument on appeal.

C. ANALYSIS

[24] Jones' argument is twofold: (i) the two photographs were “central” to the jury’s rejection of his claim of self-defence and therefore the trial judge’s failure to correct the misstatement about when they were taken was an error that prejudiced his defence; and (ii) the trial judge further prejudiced his defence by accepting the jury’s verdict without requiring the jury to hear the answer to its question.

[25] Before discussing these submissions, four things – on which both sides agree – should be said. First, any misstatement, not only by the trial judge but also by Crown counsel, was entirely inadvertent. Second, defence counsel did not object to Crown counsel’s closing or the trial judge’s charge on the photographs, and did not ask for a correcting instruction. Third, the defence obtained no tactical advantage from its failure to object. And fourth, defence counsel agreed with the way the trial judge dealt with the jury’s question, including her decision to accept the jury’s verdict without requiring the jury to hear the answer to its question.

I. Did the trial judge err by failing to correct any misstatement about when the photographs were taken?

(a) The evidence about the photographs

[26] Constable Hulzebosch took the photographs in question. He went to the crime scene around 11:30 in the morning on September 18, 2004, about 11 hours after the incident had occurred. He took many photographs of the interior of Laverriere’s truck and its contents. These photographs were entered as exhibits at trial.

[27] Constable Hulzebosch testified that he began his examination on September 18, continued it for several days that month, and resumed it for several more days in October as well as for one day in November. He did not testify when the photographs of the interior of the truck were taken. However, it is evident from the photographs themselves that many photographs of the truck’s contents were not taken at the crime scene, but at the Forensic Identification Services (FIS) examination bay.

[28] The two most important photographs of the truck’s interior were Exhibits 10(a) and 24. The jury specifically asked when these two photographs were taken.

[29] Exhibit 10(a) shows the front interior of the truck. The ashtray is open and appears to be filled with cigarettes and ashes. There do not appear to be any cigarettes or ashes on the front seat or in the rest of the interior visible in the photograph.

[30] Exhibit 24, together with several other photographs, shows a small pair of yellow scissors perched precariously on the console.

[31] The importance of when these photographs were taken can be illustrated by considering two possible scenarios. If these photographs were taken at the crime scene, this would lend support to the Crown’s argument that no violent struggle occurred in the truck and therefore Jones did not act in self-defence. The jury could infer that the scissors, and perhaps even the cigarettes, would not have remained in their position during a struggle. The reliability of this inference is diluted, however, if the photographs were taken at the FIS examination bay. The scissors may have moved during transit, and no one could say for certain what their position was when the incident occurred.

(b) The Crown’s closing

[32] To refute Jones’ claim of self-defence, the Crown referred twice in his closing to the precarious position of the scissors inside the truck (as depicted in Exhibit 24). The first reference came early on when he reviewed the evidence of Constable Hulzebosch; the second, and briefer reference, came at approximately the halfway point of his address.

[33] In his first reference, Crown counsel spoke about the scissors and the cigarettes in the ashtray. He said:

Let’s get back to PC Hulzebosch for a minute. What else does he say about what’s going on on the inside of that truck? Well, we know that Jones’ hat is there. I don’t think that’s really in much dispute. The truck and the seat are messy but they’re relatively undisturbed. The ashtray, there are photographs of it, helps you decide what happened and what didn’t happen inside that truck. If there was a struggle as Mr. Jones described to you, doesn’t it make sense that the ashtray would have had some cigarettes knocked out of it or had been jostled and there would be ashes sprinkled about on the console area. Remember the pair of yellow scissors that are hanging sort of precariously like this over the edge of the console? Those are little tiny scissors, ladies and gentlemen. They look like they came out of a sewing kit. You might keep them in your kitchen drawer at home in the drawer that you have or have them in a tool box. They’re little tiny scissors. If there was a violent struggle as Antonio Jones described, isn’t there a pretty good chance that those scissors would have been dislodged from hanging halfway over the console and ended up somewhere on the floor? There is no mess which is consistent with the description of what Antonio Jones says happened inside that truck. You don’t have cigarettes butts strewn all over the place. This should tell you there was not a big struggle like Jones described in that truck.

It should also tell you what happened inside that truck happened relatively quickly.

[34] In his second reference, he focused on the scissors:

Never once in his evidence did you hear Jones say he tried to move Scott’s hand from his face by grabbing at it or swatting it or kicking him away. Ladies and gentlemen, he made no attempt to fight back other than to reach for the bar. But on Jones’ own evidence the actions of Scott were very violent, but the console isn’t disturbed, the yellow scissors are still sitting precariously teetering over the edge.

[35] Do these passages contain a misstatement about when the photographs showing the scissors and cigarettes were taken? There is no overt misstatement. Crown counsel did not say that the photographs were taken at the crime scene. The most that can be said is that he implied the photographs showed the truck’s interior immediately after the altercation between Jones and Laverriere. For the purpose of my analysis, I will assume that a reasonable juror would have taken that implication from the Crown’s comments.

(c) The trial judge’s charge

[36] In her review of the evidence of Constable Hulzebosch, the trial judge also referred to the photographs of the truck’s interior:

A lot of the evidence of Constable Hulzebosch was given through photos that were taken by him and his colleagues when he attended at the scene on September 18th. He detailed a series of photographs and went through them with us both at the scene and Mr. Laverriere’s truck. Numerous photographs taken of the truck both outside and inside were filed as exhibits, and these photographs will be with you in your jury room.

[37] The trial judge discussed the photographs generally, and did not specifically refer to the two in question. Nonetheless, she too, perhaps even more explicitly than Crown counsel, suggested that the officers took all the photographs at the crime scene the day after Laverriere was assaulted. It could be said that she reinforced the misleading impression left by the Crown’s closing. The question on this ground of appeal is whether the trial judge erred by failing to correct this misstatement or misleading impression?

(d) Did the trial judge err by failing to correct the misstatement about when the photographs were taken?

[38] A trial judge does not have an inflexible obligation to correct every misstatement of the evidence by counsel. Indeed, typically misstatements of the evidence are less serious than misstatements of the law because invariably counsel, and certainly the trial judge, will tell the jury that its recollection of the evidence counts, not the lawyers’ or the judge’s recollection. Here, both Crown counsel and the trial judge emphasized this point to the jury. The trial judge instructed the jury as follows:

It is my duty to review what I think are the important parts of the evidence and relate it to the issues that are yours to decide. In doing that, I may overlook evidence you think important or mention evidence you think is insignificant. I may make a mistake about what a witness said while testifying. My references to the evidence are only to help you remember it and to show you how it relates to the issues in this case. If my memory of the evidence is different from yours, it’s yours, not mine, that counts. You find the facts and base your decision on your memory of the evidence, not mine nor that of counsel.

[39] Moreover, I find it difficult to criticize the trial judge for failing to correct a misstatement that she did not appreciate had been made, and that no one alerted her to. Still, this court must assess the impact of the misstatement or misleading impression. If the impact is serious enough that it may have caused a miscarriage of justice, then this court must intervene and order a new trial.

[40] Assuming that the jury was left with a misleading impression about when the photographs were taken, I cannot say it had no impact or was irrelevant. The Crown did rely on the photographs, and implicitly when they were taken, to refute Jones’ claim of self-defence. However, at its highest, the impact was quite modest, and did not legally require a correcting instruction. I say that for the following four reasons.

[41] First, as I have already noted, both Crown counsel and the trial judge told the jury that it was its recollection of the evidence that mattered.

[42] Second, defence counsel did not object to Crown counsel’s closing or the trial judge’s charge on the photographs, and did not ask the trial judge to correct the misstatement. A failure to object, especially when it is not for a tactical advantage, does not preclude this court from intervening on appeal to prevent an injustice. There is good reason why this is so. Any advocate, no matter how skilled or experienced, may on occasion overlook a material point during the course of a trial. Still, a failure to object is at least some indication that the alleged error was not overly prejudicial or problematic.

[43] Third, the photographs played a relatively minor role in the Crown’s argument to the jury that Jones did not act in self-defence. The Crown made far more compelling arguments, which included the following:

• Jones admitted that he could have gotten out of the truck after Laverriere first hit him;
• Jones admitted that Laverriere had no reason to attack him; and indeed, it made little sense for Laverriere to do so because Jones had already assured him that he had the drugs Laverriere wanted;
• Although Jones claimed to have been in a violent fight, his friend Newman testified that Jones had no fresh injuries and did not complain of any new injuries when Newman saw him after the incident;
• Newman also did not support Jones on key parts of Jones’ account. For example, Jones claimed that Laverriere attacked him and that he was in a fight for his life. Newman, however, never said Jones told him that he was in a fight for his life when Laverriere attacked him;
• In addition, Newman lent no credence to Jones’ testimony about the knapsack with the metal bar in it. Jones testified that he gave the knapsack to Newman but Newman did not remember that he did so; and
• It was not reasonable to think that Laverriere could have mounted a violent attack on Jones while seated in the driver seat of his truck with his seatbelt on.

[44] Fourth, the jury itself recognized the problem with the Crown’s closing. It asked a question about when the two photographs were taken. It then delivered its verdict without waiting for its question to be answered. As I will discuss, we can safely assume that by delivering its verdict, the jury either figured out the answer to its question or decided that it no longer needed its question answered.

[45] For these reasons, a correcting instruction was not required and its absence did not prejudice Jones’ defence. I would not give effect to this ground of appeal.

II. Did the trial judge err by accepting the jury’s verdict without requiring it to hear the answer to its question?

[46] To put this issue in context, a review of the chronology of what occurred is necessary.

[47] The jury began deliberating just before 6 p.m. on September 18, 2008. The next day, at 2:25 in the afternoon, the jury asked a single question: “Could you please confirm that exhibits/photographs 10(a) and 24 were taken at the crime scene?” As I have said, these two photographs showed different views of the truck’s console. One – Exhibit 24 – showed the scissors the Crown had referred to in closing.

[48] Neither the trial judge nor counsel had an immediate answer to the question. Sensibly, the trial judge called the jury back – at 2:45 p.m. – to tell it that getting an answer to its question might take some time. She, along with counsel, would have to listen to Constable Hulzebosch’s evidence. She encouraged the jury to “set this issue aside and move on to something else,” and added, “Please know that we are working on it as fast as we can.”

[49] During counsel’s submissions to the trial judge on how to answer the question, everyone came to appreciate that the two photographs were taken after the truck was towed away, and not at the crime scene. Eventually, the trial judge formulated an answer to the jury’s question: “I cannot confirm that the photographs were taken at the crime scene.”

[50] The answer itself is not germane because it was never given. At 4:15 p.m. – or 90 minutes after the trial judge told the jury they were working on an answer to its question – she was informed that the jury had reached a verdict.

[51] Before accepting the verdict, the trial judge briefly recessed to give counsel an opportunity to consider whether she could accept the verdict before answering the jury’s question. She even drew their attention to Cory J.’s reasons in R. v. Sit (1989), 47 C.C.C. (3d) 45 (Ont. C.A.), where he approved of a trial judge’s decision to accept a jury verdict without answering the jury’s question.

[52] After considering the matter, both Crown and defence agreed that the trial judge could accept the jury’s verdict. Both counsel also agreed with the trial judge’s proposal to give the jury an opportunity to have its question answered. She said to the jury:

Okay. Thank you. Have a seat. Thank you, members of the jury. We understand that you have reached a verdict. By that we also understand that you no longer needed the answer to the question that you had sent us. We were prepared with an answer just as we were getting your note. If we are wrong in that assumption, you should advise us. If you want some time to think about that, you may step outside and think about it. If we are not wrong in that assumption that you no longer needed the answer to the question in order to reach your verdict, then the foreperson should give the verdict to the CSO. Okay. Poll the jury. Okay. The Registrar will poll you now.

[53] The jury did not ask that its question be answered. It delivered its verdict, finding the appellant guilty of manslaughter.

[54] Now, on appeal, the appellant submits that the trial judge erred by accepting the verdict without first requiring the jury to hear the answer to its question. This submission is, of course, contrary to the position of defence counsel at trial.

[55] I do not agree with the appellant’s submission. This court observed in R. v. Pecoskie (2002), 170 O.A.C. 396, at para. 13: “As a general rule, it should be a very rare case indeed in which an appellate court would decide that a trial judge had committed a reversible error on a matter which was expressly considered and agreed to by both counsel and the trial judge.”

[56] This is not one of those very rare cases. Indeed, I find it hard to see what the trial judge did wrong. She gave counsel an opportunity to consider what to do. She proceeded in the manner she did with their agreement. She gave the jury an opportunity to have its question answered before delivering its verdict. And, although the jury did not explicitly advise the trial judge it no longer needed its question answered – as the jury in Sit did – it did so implicitly by giving its verdict.

[57] I agree with the following statement in para. 50 of Ms. Stephens’ Crown factum: “It would not have been appropriate for the trial judge to question why the jury no longer wanted its question answered or to require the jury members to hear an answer when they had indicated it was not needed.”

[58] The jury may have had any number of reasons why it did not need an answer to its question. Likely, the jury resolved the question from its own collective memory, or decided that the answer was no longer needed for its verdict. I have no basis to second guess its decision to deliver its verdict.

[59] The trial judge acted appropriately in accepting the jury’s verdict. I would not give effect to this ground of appeal.

D. CONCLUSION

[60] The trial judge did not err in failing to correct a misstatement in the Crown’s closing submission. Nor did she err in accepting the jury’s verdict without requiring it to hear the answer to its question.

[61] I would dismiss Mr. Jones’ appeal from his conviction for manslaughter.

RELEASED: Sept. 9, 2011

“JL” “John Laskin J.A.”

“I agree K. Feldman J.A.”

“I agree Robert P. Armstrong J.A.”