Her Majesty the Queen v. Abbey

[Indexed as: R. v. Abbey]

Ontario Reports

Court of Appeal for Ontario,

Watt J.A. (in Chambers)

April 2, 2013

115 O.R. (3d) 13 | 2013 ONCA 206

Case Summary

Criminal law — Appeal — Counsel — Appointment of counsel — Accused appealing first degree murder conviction solely on basis that conviction was unreasonable — Accused denied legal aid and applying [page14 ]under s. 684 of Code for appointment of counsel — Accused indigent and lacking ability to argue appeal himself — Threshold for concluding that grounds of appeal are arguable is modest one — Application dismissed on basis that single ground of appeal had no merit — Criminal Code, R.S.C. 1985, c. C-46, s. 684.

The accused was acquitted of first degree murder at his first trial. The evidence against him at the first trial consisted of a description of the shooter provided by the deceased's girlfriend that was generally consistent with the accused's appearance, cellphone records and the testimony of two members of the accused's gang that confirmed the accused's presence in the vicinity of the shooting at the time it occurred, and the testimony of three gang members that the accused had confessed to having shot the deceased. The Court of Appeal allowed the Crown's appeal and ordered a new trial, holding that the trial judge erred in excluding expert evidence as to the significance of the teardrop tattoo that the accused wore near his eye. At the second trial, the expert, T, gave generic evidence that one possible meaning of the tattoo was that the wearer had killed a member of a rival gang. T's evidence was designated as generic because he had no direct knowledge of the culture and practices of the accused's specific gang. The accused did not testify or call any witnesses. He was convicted. He appealed on the sole basis that the verdict was unreasonable because he was acquitted at the first trial, the Crown challenged the qualifications of the same gang expert at a later trial, the identification witness' evidence was at least as exculpatory as inculpatory and two arguments relating to the evidence of other gang members. When he was denied legal aid, he brought an application under s. 684 of the Criminal Code for the appointment of counsel.

Held, the application should be dismissed.

The Crown agreed that the accused was impecunious and lacked the ability to argue the appeal himself, should the appeal have merit. However, the appointment of counsel was not "desirable in the interests of justice" as the single ground of appeal had no merit. The accused's acquittal at the first trial did not render the finding of guilt at the second trial unreasonable. The first verdict was irrelevant to the question of whether a reasonable jury, properly instructed, could convict based on the evidence at the second trial. The verdict was also not rendered unreasonable by the fact that the Crown, in a subsequent, unrelated proceeding, took the position that T was not sufficiently qualified to give expert opinion evidence on street gangs because he had no direct knowledge of the gangs involved in that case. A party who tenders a witness as an expert on specific issues in one proceeding is not estopped from challenging the same witness' qualifications, or the scope of the witness' testimony, in another proceeding. As for the strength of the Crown's case at trial, it was significant that the accused did not appear to have sought a directed verdict of acquittal at the end of the Crown's case and did not testify. The accused also argued that the trial judge committed two legal errors -- permitting Crown counsel to invoke s. 715 of the Criminal Code to read testimony given by a gang member at the first trial into the record when that gang member refused to testify at the second trial, and giving inadequate Vetrovec cautions on the testimony of various gang members as it permitted the jury to use their evidence to mutually confirm their evidence. On the materials filed, it could not be concluded that those grounds of appeal, whether taken as legal errors or as components of an unreasonable verdict, were arguable. The application is dismissed without prejudice to the accused's right to bring another motion with a more complete record. [page15 ]

Cases referred to

R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, 68 C.R. (6th) 201, 254 O.A.C. 9, 246 C.C.C. (3d) 301; R. v. Ariaratnam, January 25, 2013, Court File No. M42097 (Ont. C.A.); R. v. Bernardo, 1997 CanLII 2240 (ON CA), [1997] O.J. No. 5091, 105 O.A.C. 244, 121 C.C.C. (3d) 123, 12 C.R. (5th) 310, 37 W.C.B. (2d) 34 (C.A.); R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, [1996] S.C.J. No. 27, 194 N.R. 247, J.E. 96-675, 139 Nfld. & P.E.I.R. 147, 105 C.C.C. (3d) 205, 46 C.R. (4th) 195, 30 W.C.B. (2d) 198; R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, 42 D.L.R. (3d) 142, 1 N.R. 258, [1974] 2 W.W.R. 524, 14 C.C.C. (2d) 385, 25 C.R.N.S. 296; R. v. Gager, [2012] O.J. No. 1027, 2012 ONSC 1472 (S.C.J.); R. v. Hawkins (1996), 1996 CanLII 154 (SCC), 30 O.R. (3d) 641, [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 141 D.L.R. (4th) 193, 204 N.R. 241, 96 O.A.C. 81, 111 C.C.C. (3d) 129, 2 C.R. (5th) 245, EYB 1996-67709, J.E. 96-2285, 32 W.C.B. (2d) 388; R. v. Kampe, [2012] O.J. No. 5735, 2012 ONCA 858; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, [1989] S.C.J. No. 24, 93 N.R. 42, J.E. 89-521, 21 Q.A.C. 258, 47 C.C.C. (3d) 289, 68 C.R. (3d) 193, 42 C.R.R. 44, 7 W.C.B. (2d) 41; R. v. Smith, [2009] 1 S.C.R. 146, [2009] S.C.J. No. 5, 2009 SCC 5, 273 N.S.R. (2d) 388, 238 C.C.C. (3d) 481, EYB 2009-153175, J.E. 2009-179, 383 N.R. 329, 301 D.L.R. (4th) 289, 62 C.R. (6th) 226; R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, 136 D.L.R. (3d) 89, 41 N.R. 606, [1983] 1 W.W.R. 193, J.E. 82-563, 67 C.C.C. (2d) 1, 27 C.R. (3d) 304, 7 W.C.B. 477

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 684, (1), 686, 675 [as am.], 715

APPLICATION by the accused for the appointment of counsel to act on behalf of the appellant on his appeal from a conviction of first degree murder entered by McCombs J. of the Superior Court of Justice, sitting with a jury, on March 28, 2011.

Laurence C. Beechener, for the applicant/appellant.

Robert Gattrell, for the respondent.

[1] WATT J.A. (in Chambers): — Two juries have been asked to decide whether Warren Abbey, the appellant, shot Simeon Peter to death. Each one reached a different conclusion.

[2] The first jury was not satisfied beyond a reasonable doubt that the appellant killed Simeon Peter, and found him not guilty.

[3] The first jury heard no evidence about the significance of teardrop tattoos among members of urban street gangs. The appellant had a teardrop tattoo near his eye. An expert was prepared to instruct the jury about the possible meanings of teardrop tattoos. One possible meaning was that the wearer had killed somebody, specifically, a member of a rival gang. However, the judge at the first trial ruled the expert's evidence inadmissible. This court held that the judge erred in doing so and ordered a new trial. [page16 ]

[4] The second jury heard the expert's evidence, along with the evidence the first jury had heard. The second jury found the appellant guilty of first degree murder.

[5] The appellant appeals his conviction. His inmate notice of appeal simply states that his conviction is unreasonable.

[6] The appellant was represented by counsel at trial. He would like to be represented by counsel on appeal. However, Legal Aid Ontario has dismissed his application for a certificate for a lawyer to argue his appeal. Consequently, the appellant applies under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46 to have counsel appointed to argue his appeal.

[7] The respondent Crown acknowledges that the appellant lacks both the financial means to pay counsel to argue his appeal, as well as the ability to argue the appeal on his own behalf. The respondent opposes the application on the basis that the single ground of appeal to be advanced, unreasonable verdict, has no merit in the circumstances of this case.

[8] The reasons which follow explain why I would dismiss the application to appoint counsel to represent the appellant on appeal.

The Background

[9] It is helpful to begin with an overview of the positions advanced at trial and those taken by the parties on this application.

The case for the Crown

[10] At trial, the Crown invited the jury to conclude that the combined force of several pieces of circumstantial evidence established beyond a reasonable doubt that the appellant shot Simeon Peter to death in circumstances that amounted to planned and deliberate first degree murder.

[11] The Crown relied upon an eyewitness account of some of the events surrounding the shooting provided by the deceased's girlfriend. She did not identify the appellant as the shooter, but provided a description of the shooter's appearance that was generally consistent with his features. The Crown confirmed the appellant's presence in the vicinity of the shooting at the time when it occurred through other evidence, such as cellphone records and the testimony of two members of the gang to which the appellant belonged. Three gang members testified that the appellant confessed to having shot the deceased. Their evidence was subject to strong Vetrovec [R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40] cautions.

[12] The Crown also relied upon the opinion evidence of an urban street gangs expert, Dr. Totten. Dr. Totten gave generic [page17 ]evidence about the significance of teardrop tattoos on gang members. His evidence was designated as generic because he had no direct knowledge of the culture and practices of the appellant's specific street gang.

The defence case

[13] The appellant did not testify or call any witnesses.

[14] The defence's theory at trial was that the evidence, considered as a whole, did not establish beyond a reasonable doubt that it was the appellant who shot and killed the deceased.

[15] Trial counsel for the appellant attacked the credibility of the Crown's witnesses, especially the fellow gang members who testified, and the reliability of their evidence. Counsel also challenged the methodology and conclusions of the expert who testified about the significance of teardrop tattoos on the faces of urban street gang members.

The proposed ground of appeal

[16] In his inmate notice of appeal, the appellant contends that the jury's verdict was unreasonable. In support of his application, he includes a copy of the charge to the jury, as well as an affidavit from an experienced appellate lawyer who has familiarized himself with the trial record and considered the particularized grounds of appeal.

[17] The appellant maintains his claim that the jury's verdict was unreasonable. He says that the unreasonableness of the finding of guilt is established by the fact that two inconsistent verdicts were reached on substantially the same evidence. He points out that subsequent events in an unrelated trial have neutered the probative value of the expert opinion evidence, thus leaving identical trial records with incompatible results.

[18] The appellant also submits that two legal errors were committed in the conduct of the trial:

(i) permitting Crown counsel to invoke s. 715 of the Criminal Code to read testimony given by a gang member at the first trial into the record, since that gang member refused to testify at the second trial; and

(ii) inadequate Vetrovec cautions on the testimony of various gang members, particularly instructions that permitted mutual confirmation of their evidence. [page18 ]

The positions of the parties

[19] The parties concentrated their submissions on the single controverted issue: whether the proposed grounds of appeal have sufficient merit to warrant this court to appoint counsel.

[20] For the appellant, Mr. Beechener contends that the proposed ground of appeal, the alleged unreasonableness of the finding of guilt of first degree murder, has sufficient merit to satisfy the standard required under s. 684 of the Criminal Code.

[21] Mr. Beechener says that the only difference between the evidence adduced at the appellant's first trial, following which he was found not guilty, and his second trial, following which he was found guilty, was the opinion evidence of the expert, Dr. Totten, which was led in the second trial but not the first. Furthermore, Dr. Totten was discredited by the Crown in a separate and later matter. The balance of the evidence consisted of dubious testimony from an eyewitness, who later queried whether the police had arrested the wrong man upon seeing the appellant in court, and the testimony of a trio of thoroughly disreputable gang members whose evidence necessitated, but did not receive, confirmation from independent sources. The cumulative impact of this evidence, Mr. Beechener submits, falls significantly short of the standard of proof required for a criminal conviction, especially a conviction of the most serious offence under our criminal law.

[22] Counsel for the appellant alleges two legal errors affected the outcome of the trial and contributed to the unreasonableness of the verdict.

[23] First, counsel for the appellant alleges that the trial judge should not have permitted the Crown to read in the testimony of Duane Williams, given at the appellant's first trial. Williams refused to testify at the appellant's second trial, requiring the Crown to read in his testimony in order to lead it as evidence. At the very least, the appellant says, the trial judge should have instructed the jury not to rely on Williams' evidence at all in reaching their verdict. The trial judge's admission of this evidence, and failure to provide a proper instruction for it, contributed to the unreasonableness of the verdict and constituted legal error.

[24] Mr. Beechener further submits that the trial judge erred in law in instructing the jury that the evidence of witnesses which was subject to a Vetrovec caution, namely, Raoul Burton, Thomas Sams and Duane Williams, could be mutually confirmatory. This instruction, Mr. Beechener says, was legally wrong in [page19 ]the circumstances of this case and contributed to the unreasonable verdict rendered by the jury.

[25] For the respondent, Mr. Gattrell submits that the proposed grounds of appeal lack sufficient merit to warrant the order sought.

[26] Mr. Gattrell says that the principles upon which the appellant relies in support of his submission that the verdict was unreasonable are legally unsound. A verdict is not unreasonable because a jury in a previous trial, upon hearing different evidence and in accordance with different jury instructions, reached a different conclusion than this jury at the end of this trial. Nor is a verdict unreasonable because some of the evidence on which it was based was given by a witness whose evidence was challenged in later proceedings by the party who called him in the proceedings under review.

[27] Mr. Gattrell says that the appellant's objections to the trial judge's instructions allowing mutual confirmation among the trio of Vetrovec witnesses reflect the prevailing state of the law in this province. He says that it was within the trial judge's discretion to admit Williams' prior evidence under s. 715 of the Criminal Code. This decision is subject to deference from an appellate court. Particularly high deference is warranted in the present case, Mr. Gattrell submits, where nothing on the record suggests any error in the trial judge's exercise of his discretion.

The Governing Principles

[28] Under s. 684(1) of the Criminal Code, a judge or a panel of this court have concurrent authority to assign counsel to act on behalf of an accused who is a party to an appeal or to any proceedings preliminary or incidental to an appeal to this court. The authority is engaged where the judge or panel of judges is satisfied that it appears "desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance".

[29] The ubiquitous phrase "the interests of justice" is a legal chameleon that takes its meaning from its surroundings. The phrase contemplates a judicial discretion exercisable on a case-by-case basis: R. v. Bernardo, 1997 CanLII 2240 (ON CA), [1997] O.J. No. 5091, 121 C.C.C. (3d) 123 (C.A.), at para. 16. Section 684 offers no list of factors, whether exhaustive or expansive, to inform the exercise of the discretion conferred by s. 684(1).

[30] The "interests of justice" in s. 684(1) must take cognizance not only of the broad access to appellate review contemplated by [page20 ]s. 675 of the Criminal Code, but also of the expansive remedial powers of a court of appeal for which s. 686 provides. Justice demands that an accused who appeals against conviction for an indictable offence under s. 675 be afforded a meaningful opportunity to establish the merits of the grounds of appeal he or she advances. Justice demands, equally, that the court to which the appeal is taken be able to fully and properly exercise its broad review jurisdiction at the conclusion of the appeal: Bernardo, at para. 20.

[31] Under s. 684(1), the onus is on the appellant to satisfy the judge or panel of judges that "it appears desirable in the interests of justice that the accused should have legal assistance": R. v. Kampe, [2012] O.J. No. 5735, 2012 ONCA 858, at para. 2.

[32] To determine whether counsel should be appointed, the judge or panel of judges should inquire into the merits of the appeal on the basis of the record. In most instances, the available record will be incomplete. Accordingly, the merits inquiry simply requires the judge or panel of judges to determine whether the grounds of appeal to be advanced are arguable: Bernardo, at para. 22. This standard or threshold of an arguable case is a modest one: R. v. Ariaratnam, January 25, 2013, Court File No. M42097 (Ont. C.A.), at para. 13.

[33] Where an appellant advances arguable grounds, a second inquiry to determine whether the appellant can effectively advance the grounds of appeal without the assistance of counsel is necessary. This inquiry examines the complexities of the arguments to be advanced and the appellant's ability to make legal argument in support of the grounds of appeal to be advanced: Bernardo, at para. 24.

The Principles Applied

[34] The decision on this application reduces to an assessment of whether the sole ground of appeal advanced, the unreasonableness of the jury's verdict, is arguable. The respondent acknowledges that if the proposed ground of appeal is arguable, counsel should be appointed pursuant to s. 684(1) because the appellant lacks the means to retain counsel, as well as the ability or capacity to effectively present the appeal without a lawyer.

[35] Whether a jury finding of guilt is unreasonable depends on whether the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, at para. 36. A court of appeal must thoroughly re-examine the evidence and bring to bear the weight of its judicial experience in [page21 ]deciding whether, on the basis of the record, the verdict was unreasonable: Biniaris, at paras. 39-40.

[36] In support of his contention that the unreasonable verdict ground is arguable, the appellant says that

(i) his acquittal at the first trial renders the finding of guilt at the second trial prima facie unreasonable;

(ii) the opinion evidence adduced and relied upon by the Crown at the second trial has subsequently been impeached by the Crown in another prosecution and found unreliable; and

(iii) the conviction rested on the testimony of an eyewitness whose evidence was more exculpatory than inculpatory and thoroughly disreputable Vetrovec witnesses whose evidence was manifestly unreliable.

[37] Despite the modest threshold to be met, for reasons that I will develop, I am not satisfied that as advanced on the materials filed, the claim of an unreasonable verdict represents an arguable ground of appeal.

[38] First, the appellant invokes the conclusion reached by the first jury to demonstrate the unreasonableness of the second jury's finding of guilt. The conclusion reached by the first jury, on the evidence adduced and instructions given there, is irrelevant to a determination of whether the verdict of the second jury, on the evidence adduced and instructions given in that trial, was unreasonable. The reasonableness of the finding of guilt made by the second jury is determined by the application of the governing test to the evidence adduced at the second trial. Provided the finding of guilt is a conclusion that a properly instructed jury, acting judicially, could reasonably have rendered, the verdict is not unreasonable: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, [1996] S.C.J. No. 27, at para. 4. In this case-specific reasonableness inquiry, the verdict of the previous jury on different evidence moves no freight on the inquiry into the unreasonableness of the verdict under appeal.

[39] Second, the appellant summons a position taken by the Crown and a ruling made by a trial judge in a subsequent trial concerning expert evidence from a witness who testified at the appellant's trial as the basis for a submission that the jury's finding here was unreasonable. In my view, this argument is misplaced.

[40] At trial, Dr. Totten was tendered and qualified as an expert witness. He gave his opinion in generic terms about the meaning of a teardrop tattoo on the face of a member of an [page22 ]urban street gang. The opinion was admitted and the jury instructed about its use in accordance with the decision of this court in R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624. In a separate and subsequent trial, counsel for one of two accused on trial together sought to have Dr. Totten qualified as an expert "in the field of street gangs". Counsel for the Crown at that trial took the position that Dr. Totten was not sufficiently qualified to give expert opinion evidence because he had no direct knowledge of the gangs involved in that case.

[41] In the later trial, the presiding judge determined that Dr. Totten was sufficiently qualified to give expert opinion evidence on a number of subjects, including

(i) the existence, hierarchy, operation, behaviour and characteristics of gangs and gang members;

(ii) the language, terminology, symbols and expressions used by gang members; and

(iii) gang culture and the relationship of gang members with non-gang members in neighbourhoods with a prominent gang presence.

The trial judge excluded Dr. Totten's opinion about the specific gangs involved in that case "because it trenches on the ultimate issue": R. v. Gager, [2012] O.J. No. 1027, 2012 ONSC 1472 (S.C.J.), at paras. 114-17.

[42] Admissibility issues, including the qualifications of witnesses proposed as experts and, if qualified, the scope of the opinions they may proffer, are determined on a case-by-case basis, not in rem as the appellant suggests. A party who tenders a witness as an expert on specific issues in one proceeding is not estopped from challenging the same witness' qualifications, or the scope of the witness' testimony, in another proceeding. Nor does the later challenge render the verdict in the prior proceeding so vulnerable as to be deemed unreasonable. Whether a verdict is unreasonable is determined by applying the governing principles to the evidence adduced in the proceedings under review. For the purposes of that inquiry, what happened in another trial is irrelevant.

[43] Third, setting aside the influence of the circumstances detailed above on the reasonableness of the verdict, the application of the governing principles to the evidentiary record in this case leaves the argument of unreasonable verdict short of what is required under s. 684(1). The evidence included [page23 ]

(i) the testimony of an eyewitness, who described the assailant in a manner that generally fit the appellant, despite her professed disbelief that it was the appellant;

(ii) evidence from cellphone records that the appellant was in the area where the killing occurred at the time the shooting took place;

(iii) evidence of admissions made by the appellant about the shooting to fellow gang members; and

(iv) evidence of motive, both general (gang rivalry) and specific (a prior robbery of the appellant by another for whom the deceased may have been mistaken).

In addition, and of significance to an appellate court's task of assessing the reasonableness of a trial verdict, the appellant does not appear to have sought a directed verdict of acquittal at the end of the Crown's case at trial. Nor did the appellant testify at trial. The jury was entitled to consider the failure of the appellant to testify in their deliberations, as is an appellate court: R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, at pp. 280-81 S.C.R.

[44] Mr. Beechener buttresses his claim that the finding of guilt was unreasonable with an argument that the trial judge made two legal errors in connection with the Vetrovec witnesses. Those errors, he submits, consist

(i) in permitting the Crown to read in Duane Williams' testimony from the previous trial when Williams refused to testify at the second trial; and

(ii) in instructing the jury that evidence of the Vetrovec witnesses could be mutually confirmatory.

Taken together, the appellant submits that these errors have the effect of permitting unreliable evidence to be led before the jury that was not subject to proper caution, causing the jury to render an unreasonable verdict.

[45] The evidence of the three gang members, Burton, Sams and Williams, was subject to strong Vetrovec warnings. The trial judge explained the reasons underlying the caution for each witness, told jurors about the dangers associated with mutual confirmation and made specific mention of the jurors' inability to assess the demeanour of Williams as a factor worthy of added consideration in their assessment of his evidence. [page24 ]

[46] It is settled law that Vetrovec cautions need not follow a specific word formula. Rather, their content is left largely to the discretion of the trial judge: R. v. Smith, [2009] 1 S.C.R. 146, [2009] S.C.J. No. 5, 2009 SCC 5, at para. 2. The trial judge gave illustrations of potentially confirmatory evidence. His constructions adhered to the applicable legal requirements and appear to have attracted no objections at trial.

[47] A trial judge has the discretion to exclude evidence tendered for admission under s. 715 of the Criminal Code or its common law equivalent: R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, [1989] S.C.J. No. 24, at pp. 547-48 S.C.R.; and R. v. Hawkins (1996), 1996 CanLII 154 (SCC), 30 O.R. (3d) 641, [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, at para. 85. This exclusionary discretion may be exercised where admitting the evidence might operate unfairly to the accused, or where the prejudicial effect of the evidence predominates over its probative value.

[48] The materials filed assert error, but leave me uninformed about the validity of either claim. On the materials filed, I cannot conclude that these grounds of appeal, whether taken as legal errors or components of an unreasonable verdict, are arguable.

Conclusion

[49] In the result, the application for appointment of counsel under s. 684(1) of the Criminal Code is dismissed, without prejudice to the appellant's right to reapply with a more fulsome record.

Application dismissed.

End of Document