COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tomlinson, 2014 ONCA 158

DATE: 20140228

DOCKET: C50615 & C50948

Laskin, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bryan Tomlinson and Roberto Ceballo

Appellants

Brian Snell and Zachary Kerbel, for the appellant Tomlinson

Philip Campbell, for the appellant Ceballo

Gregory J. Tweney, for the respondent

Heard: September 3 and 4, 2013

On appeal from the conviction entered on December 21, 2008 by Justice Todd L. Archibald of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1] A masked gunman shot two men to death in a drug dealer’s apartment. First, the drug dealer. Then, a customer.

[2] About a month after the killings, police arrested Bryan Tomlinson and Roberto Ceballo and charged them with two counts of first degree murder.

[3] At their joint trial, both Tomlinson and Ceballo contended that they were someplace else when the killings occurred. Tomlinson went further. He suggested that the shooter was another person: his brother Jonathan Cornwall.

[4] At the end of the trial, 12 jurors were satisfied beyond a reasonable doubt that both Tomlinson and Ceballo were guilty of two counts of first degree murder. Both appeal their convictions. For the most part, their complaints are about what the trial judge said or failed to say in his charge to the jury.

[5] These reasons explain why I would not give effect to any of the grounds of appeal advanced by either Tomlinson or Ceballo and would dismiss their appeals.

THE BACKGROUND FACTS

[6] It is helpful to begin with a brief overview of the evidence adduced at trial, leaving further detail, to the extent that it is necessary, to the specific grounds of appeal advanced by the appellants.

The Principals and Places

[7] Justin Hodges was a 20 year old drug dealer who lived and died in a third floor apartment at 180 Niagara Street in Toronto. From time to time, Hodges sold drugs to purchasers who came to his apartment.

[8] Damian Muirhead was 22 years old when he went to Justin Hodges’ apartment to buy some marihuana. He went there with his friend, Bradley Jackman. Damian Muirhead died in Justin Hodges’ apartment. Bradley Jackman survived.

[9] Keean Jones lived with his mother, Ann-Marie Ceballo-Jones, in a fourth floor apartment at 180 Niagara Street. Jones was 24 years old and involved in a music venture with Bryan Tomlinson. Jones was also a close friend of Tomlinson’s brother, Jonathan Cornwall.

[10] Early in 2005, Keean Jones was introduced to Justin Hodges in Hodges’ apartment. While he was there, Jones noticed money and drugs in the apartment.

[11] Roberto Ceballo was a cousin of Keean Jones. The men did not get along. Ceballo lived with his mother at 212 Westmoreland, but frequently stayed with Ann-Marie Ceballo-Jones, his aunt. Ceballo was 18, about five foot eight inches tall and lighter skinned than Tomlinson. His older sister, Latoya, lived with Tomlinson.

[12] Roberto Ceballo was to receive $20,000 in settlement of an accident claim when he turned 18 on January 13, 2005. He had not yet received the money when Hodges and Muirhead were shot to death on January 21, 2005.

[13] Bryan Tomlinson was 24 years old, about five foot nine inches tall and darker skinned than Ceballo. Tomlinson was a musician. He, along with his brothers, was also a drug dealer. He lived with his mother in Brampton and with Latoya Ceballo at 212 Westmoreland. He had a lucrative drug business and was also involved in the music business with Keean Jones and his brother, Jonathan Cornwall.

The Initial Robbery Idea

[14] In January, 2005 the music venture in which Tomlinson and Keean Jones were involved needed an infusion of cash. Jones had an idea – steal some drugs, then sell them. He discussed his plan with Tomlinson, as well as with Tomlinson’s brothers Gregory and Jonathan Cornwall, but not with Ceballo. Jones planned to steal a spare key to Hodges’ apartment from the building superintendent’s office, enter the apartment, steal Hodges’ drugs located there and sell them on the street.

[15] The initial plan failed. Jones was unable to pick the lock to gain entry to the superintendent’s office.

The New Plan

[16] During the afternoon of January 21, 2005 Keean Jones was at his mother’s apartment on the fourth floor at 180 Niagara Street. As his mother was about to leave, Tomlinson and Ceballo arrived. During a discussion, Tomlinson got Jones to call Hodges on the pretext that Jones wanted to make a drug purchase from Hodges. Tomlinson gave Jones $100 for the “purchase”. Jones was to call the appellants from inside Hodges’ apartment.

[17] The intruders waited in the stairwell on the third floor at 180 Niagara while Jones approached the door to Hodges’ apartment. Both men wore dark clothes including bandanas. There was no mention at this time about a gun being used in the robbery.

The Entry by Jones

[18] Justin Hodges let Keean Jones into his apartment. Jackman and Muirhead were in the apartment when Jones entered. A third man, another customer, Eric Davey, arrived a short time later. Jones stayed in the apartment for a long time, hoping that the intruders would abandon their robbery plan. Jones arranged for a purchase of some drugs but told Hodges that he had to go to an ATM to get the money for his purchase. Hodges walked to the door of the apartment to let Jones out so that he could go to the ATM.

The Appellants’ Entry

[19] When Hodges opened the apartment door, the intruders rushed inside, pushing Jones into a closet. One of the men had a gun. Jones ran to the balcony. Jackman and Davey were already there.

The Altercation and Shooting

[20] Hodges and Muirhead were alone in the apartment with the two intruders. Jackman, Davey and Keean Jones were on the balcony but were able to see some of the events that followed.

[21] Hodges came into the living room brandishing a hammer with which he confronted one of the men who had a gun pointed at Hodges. The other intruder remained out of sight in the kitchen. He seemed to be armed with a knife.

[22] Keean Jones identified the appellants as the intruders. Jackman and Davey described the assailants as black-skinned. The gunman was taller and darker than the other man. Both wore baggy clothing and two bandanas covering their head and the area below their eyes. Only their eyes and hands were exposed.

[23] Hodges and the gunman argued. Hodges asked the gunman why he was doing this. The gunman replied “because we are on bad times” and also warned Hodges that he had shot people for less. The gunman told the other intruder to put a knife up to Muirhead’s neck, then to stab him.

[24] The gunman fired two shots before the intruders left the apartment.

The Cause of Death

[25] Both deceased had injuries to their hands and faces consistent with involvement in a fight. Hodges suffered a single gunshot wound to the chest. Muirhead had been shot once in the back. The bullet exited through his jugular vein. He had been shot while lying face down on the kitchen floor.

[26] Police found two 9 mm projectiles and casings on the floor of Hodges’ apartment. Both had been fired from the same semi-automatic handgun. Police did not recover the gun.

The Forensic Evidence

[27] In a laneway behind the apartment building at 180 Niagara, police found a knife, two bandanas and a broken watch. The knife was similar to others found in Hodges’ apartment. Both bandanas contained Ceballo’s DNA. A winding pin for the broken watch was found in the front hall of Hodges’ apartment.

[28] The first 911 call was received at 9:13 p.m. on January 21, 2005. From 9:14 to 9:16 p.m., three calls from Ceballo’s cell phone were received by Tomlinson’s cell phone. Each call registered on a cell tower that serviced the area of King and Bathurst including 180 Niagara. During a 35 minute period after 9:13 p.m., six calls were made from Ceballo’s cell phone to Tomlinson’s cell phone, the only time during January 2005 when calls were made between the phones.

The Defence Case at Trial

[29] Tomlinson did not testify. He relied on the testimony of Latoya Ceballo and Ann-Marie Ceballo-Jones to advance a defence of alibi. He also contended that the evidence adduced at trial tended to show that a third party, his brother Jonathan Cornwall, was the person who shot and killed the deceased. Cornwall did not testify.

[30] Latoya Ceballo testified that Tomlinson left the apartment at 212 Westmoreland only once during the evening of January 21, 2005. He was gone for about 30 or 40 minutes because he had to go somewhere to pick up a hard drive. Once he returned, Tomlinson remained in the apartment for the rest of the night.

[31] Ann-Marie Ceballo-Jones gave evidence that she saw Tomlinson at 180 Niagara around 6 or 7 p.m. on January 21, 2005. He was walking towards the south stairwell of the building as she was leaving to visit her mother.

[32] Ceballo testified on his own behalf. He explained that he went to Ann-Marie Ceballo-Jones’ apartment to retrieve a charger for his cell phone that he had left at the apartment and to meet up with his cousin Jarod. Tomlinson went with him to the apartment. Ceballo repeatedly testified that he had no idea about the time of various events but estimated they arrived at the apartment between 6 and 7 p.m. on January 21, 2005. After a brief visit, Ceballo went to Kensington Market where he spent time at “Cyber Share Café” and at the nearby apartment of his friend, Jessica, where he ultimately spent the night. He did not know Jessica’s last name.

[33] Neither Jarod Jones nor Jessica testified at trial.

THE GROUNDS OF APPEAL

[34] Each appellant raises separate grounds of appeal. Most relate to alleged deficiencies in the trial judge’s charge to the jury.

[35] Tomlinson raises three grounds of appeal which I would paraphrase as claims that the trial judge erred in his instructions about:

i. the defence of alibi;

ii. the third party suspect issue; and

iii. the closing address of defence counsel.

[36] For his part, Ceballo contends that the trial judge erred in law:

i. in his instructions to the jury about the effect of the failure to give notice to the Crown about Jessica in connection with the defence of alibi; and

ii. in leaving murder and first degree murder for the consideration of the jury and in the substance of the instructions provided on each of those issues.

Ceballo also argues that the verdicts finding him guilty of first degree murder are unreasonable.

[37] I will consider first the grounds of appeal advanced on behalf of Tomlinson.

THE TOMLINSON APPEAL

Ground #1: The Alibi Instructions

[38] To determine whether effect should be given to this ground of appeal, it is helpful to recall some additional features about the evidence adduced at trial.

The Additional Background

[39] The alibi advanced on Tomlinson’s behalf at trial, but not supported by his own testimony, depended upon:

i. Latoya Ceballo’s evidence that Tomlinson left 212 Westmoreland Avenue only once during the evening of January 21, 2005;

ii. Latoya Ceballo’s evidence that Tomlinson was absent from the apartment for less than an hour; and

iii. Ann-Marie Ceballo-Jones’ evidence that Tomlinson was outside her apartment between 6 p.m. and 7 p.m. on January 21, 2005.

In combination, these pieces of evidence would have made it impossible for Tomlinson to kill the deceased at 180 Niagara between 9 p.m. and 9:15 p.m. that evening.

[40] Patricia Antoine also lived on the third floor at 180 Niagara. She left her apartment around 8:45 p.m. on January 21, 2005 to play her lottery tickets at a nearby convenience store. She saw and spoke briefly to Keean Jones as she was leaving her apartment. Another young man with dark black skin, dressed in a dark winter coat with a hooded sweatshirt, avoided her glance as he walked down the hall close to the wall. This man seemed to be with Keean Jones. On her way out of the building, Ms. Antoine saw the shadow of another person walking up the stairs to the fourth floor. About five minutes later, when she returned to the building around 9 p.m., Ann-Marie Ceballo-Jones held the door open for Ms. Antoine.

[41] In her original police statement on January 21, 2005 Ms. Antoine said nothing about seeing either Keean Jones or his mother that evening. She first mentioned seeing Ms. Ceballo-Jones in a meeting with the trial Crowns on September 3, 2008.

[42] Crown counsel also relied on the cell phone records of several incoming calls from Ceballo’s cell phone to that of Tomlinson. All the calls went unanswered. Between 9:14 and 9:16 p.m. on January 21, 2005 three calls registered at a tower at King and Bathurst that provided coverage to the area of 180 Niagara. At 9:22 p.m., a call registered at a tower near Dufferin and Queen. Calls from Ceballo’s phone at 9:30 and 9:48 p.m. registered at towers located at the intersections of College and Ossington and Dupont and Christie.

[43] Crown counsel relied on these records to show that Tomlinson was moving from the area of 212 Westmoreland Avenue to the area of 180 Niagara Street, then back to Westmoreland around the time of the killings of Hodges and Muirhead.

The Jury Instructions

[44] Trial counsel for the appellant (not Mr. Snell) sought an alibi instruction in connection with the evidence of Latoya Ceballo and Ann-Marie Ceballo-Jones. Counsel for the Crown at trial (not Mr. Tweney) objected to an alibi instruction on the basis that, in combination, the evidence of the two witnesses did not amount to an alibi because it did not make it impossible for Tomlinson to have committed the offence.

[45] The trial judge did not use the term “alibi” in connection with this evidence. He instructed the jury in these terms:

Members of the jury, in this case you heard the evidence of Latoya Ceballo. Although she could not state the time at which Mr. Tomlinson left, or the time at which he returned, Ms. Ceballo testified that on the night of Janaury 21, 2005, Mr. Tomlinson left her home for less than one hour. She testified that it seemed he was gone for 30 to 40 minutes.

Also consider the evidence from Ms. Ceballo Jones, who saw and recognized Mr. Tomlinson at the front door of her apartment at 180 Niagara Street on the night of January 21, 2005, and the timing of her observations. In weighing this evidence, consider the geographical location of 212 Westmoreland Avenue (near Bloor Street and Dovercourt Avenue) as it relates to how far that house is away from 180 Niagara Street (near King Street and Bathurst Street).

If you believe the evidence of Ms. Latoya Ceballo that Mr. Tomlinson was gone for less than an hour, you must consider whether or not Mr. Tomlinson had a sufficient amount of time to commit the murders of Mr. Hodge and Mr. Muirhead. Even if you do not believe this evidence, if this evidence leaves you with a reasonable doubt about Mr. Tomlinson’s guilt, you must find him not guilty.

Even if this evidence does not leave you with a reasonable doubt of his guilt, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.

The Arguments on Appeal

[46] For the appellant, Mr. Snell says that the evidence warranted a traditional alibi instruction. Reduced to its essence, he contends, the evidence was that Tomlinson was away from his home for one hour and not at 180 Niagara when the killings occurred. To leave the issue as one of inadequate opportunity was to mischaracterize the fundamental nature of the defence in a way that was prejudicial to the appellant.

[47] For the respondent, Mr. Tweney sees it differently. He says that the evidence about the timing of the appellant’s movements and his whereabouts at the material time was amorphous and not sufficiently categorical or conclusive to warrant its treatment as an alibi. The trial judge’s characterization of the evidence as evidence of a limited opportunity to commit the offence was correct. In any event, Mr. Tweney submits, the instruction provided to the jury was the functional equivalent of an alibi instruction and fairly left the issue to the jury for their decision.

The Governing Principles

[48] The principles that govern the defence of alibi are uncontroversial. A brief reference to some of their features is sufficient for our purposes.

[49] First, the Latin word “alibi” means “elsewhere”. When used in the context of criminal prosecution, an alibi is a claim that a person, usually a person charged with a crime, was elsewhere when the allegedly criminal conduct took place and thus it was impossible for him or her to have committed it: R. v. Hill (1995), 1995 CanLII 271 (ON CA), 102 C.C.C. (3d) 469 (Ont. C.A.), at p. 478; and R. v. Wright, 2009 ONCA 623, 98 O.R. (3d) 665, at para. 19.

[50] Second, to constitute an alibi the supportive evidence must be dispositive of the final issue of guilt or innocence of the accused: Hill, at pp. 478-479; R. v. Sgambelluri and Sgambelluri Ltd. (1978), 1978 CanLII 2514 (ON CA), 43 C.C.C. (2d) 496 (Ont. C.A.), at p. 500; and R. v. R.(M.) (2005), 2005 CanLII 5845 (ON CA), 195 C.C.C. (3d) 26 (Ont. C.A.), at para. 31.

[51] Third, alibi, as with any defence, justification or excuse advanced at trial, is subject to the air of reality test or standard described in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3: there must be some evidence upon which a properly instructed jury, acting reasonably, could acquit, if the jury believe the evidence to be true.

[52] Fourth, a trial judge is under no obligation to use the term “alibi” in jury instructions on the defence, provided that, when read as a whole, the instructions apprise the jury of the legal effect of the supportive evidence.

[53] Finally, instructions on alibi must relate reasonable doubt to the evidence adduced in support of the alibi. The instructions on alibi should make it clear:

i. that there is no onus on the accused to prove an alibi;

ii. that if the jury believes the alibi evidence, they must find the accused not guilty;

iii. that even if the jury does not believe the alibi evidence, if they are left in a reasonable doubt by it, they must find the accused not guilty; and

iv. that even if the alibi evidence does not raise a reasonable doubt about an accused’s guilt, the jury must determine, on the basis of all the evidence, whether Crown counsel has proven the guilt of the accused beyond a reasonable doubt.

See, R. v. Parrington (1985), 1985 CanLII 3610 (ON CA), 20 C.C.C. (3d) 184 (Ont. C.A.), at p. 187; and R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 34.

The Principles Applied

[54] For three reasons, I would not give effect to this ground of appeal.

[55] First, the evidence relied upon in support of the defence lacked the precision required of an alibi. It was, as the trial judge aptly characterized it, more like evidence of a limited opportunity to commit the offence.

[56] Second, the time estimates provided are not dispositive of the issue of guilt or innocence as required of a true alibi.

[57] Third, the instruction given by the trial judge about the evidence of Latoya Ceballo and Ann-Marie Ceballo-Jones was the functional equivalent of the traditional alibi instruction recommended in Parrington. The jurors were instructed:

i. if they believed the evidence, they must acquit;

ii. if they did not believe the evidence but it raised a reasonable doubt, they must acquit; and

iii. even if the evidence did not raise a reasonable doubt, they could only convict Tomlinson if the rest of the evidence they did accept prove his guilt beyond a reasonable doubt.

[58] It is also worthy of observation that the appellant did not support his alibi with his own testimony. The appellant’s evidence could have provided a more precise account of his whereabouts at the material time, as well as some explanation as to how it was that the cell phone evidence tended to link him to the vicinity of 180 Niagara around the time the victims were shot to death.

Ground #2: The Third Party Suspect Instruction

[59] Tomlinson did not rely exclusively on alibi to challenge the adequacy of the Crown’s case that he was the shooter. He also contended that it was another person – his brother Jonathan Cornwall – not he who shot the deceased to death.

[60] The appellant’s principal complaint on this issue is with the trial judge’s instructions to the jury. It is helpful to begin with a brief reference to the evidence said to give an air of reality to this claim before turning to the instructions given by the trial judge and testing their adequacy.

The Evidentiary Background

[61] In support of his claim that Jonathan Cornwall was the shooter, the appellant Tomlinson relies on several items of circumstantial evidence:

i. physical similarity: Cornwall and Tomlinson both had dark black skin;

ii. Cornwall was 5 foot 8 inches to 5 foot 10 inches in height, consistent with the height descriptions provided by the witnesses who saw the events in the apartment from the balcony;

iii. Cornwall had a financial motive to commit robbery – impecuniosity;

iv. Cornwall was closely associated with Keean Jones – they were close friends and their girlfriends were sisters;

v. disposition: at the time of trial, Cornwall was facing charges relating to a masked robbery of a convenience store in November, 2007 in which he was the driver of a getaway car; and

vi. opportunity: Cornwall was at the Ceballo-Jones apartment on Janaury 21, 2005.

[62] Jonathan Cornwall did not testify at trial.

[63] Allison Soares, Jonathan Cornwall’s girlfriend, testified that she and Cornwall spent the night of January 20, 2005 at the Ceballo-Jones apartment. They left the apartment between 4 and 5 p.m. on January 21, 2005, travelled directly to Brampton, and signed into a shelter at 9:30 p.m. The records of the shelter confirmed that a person, “Adrian Tomlinson”, signed into the shelter between 4 p.m. and midnight. Jonathan Cornwall had used the name “Adrian Tomlinson” during previous interactions with the police.

The Trial Judge’s Instructions

[64] In his final instructions to the jury, the trial judge referred to the evidence about Jonathan Cornwall when inviting the jury to consider whether they were satisfied beyond a reasonable doubt that Tomlinson was the shooter. The trial judge said:

Consider the evidence that you have heard regarding the presence of Mr. Jonathan Cornwall at 180 Niagara Street on January 21, 2005, his whereabouts at the time of the shootings, and his physical description as a factor in deciding whether the Crown has proved the identity of Mr. Tomlinson as the gunman beyond a reasonable doubt. I remind you that your determination regarding someone else as the true perpetrator must be based on evidence properly before you, not speculation, or conjecture.

The Arguments on Appeal

[65] For the appellant, Mr. Snell says that the trial judge’s instructions on this issue were legally wrong and prejudicial. Potential third party involvement in an offence is not a factor to be considered in assessing the adequacy of the Crown’s proof of an accused’s participation. It is, Mr. Snell submits, an affirmative defence, much like an alibi, and warrants an equivalent instruction. There was in this case an air of reality to the defence that required its proper submission to the jury.

[66] Mr. Snell contends that a proper instruction on the third party suspect issue should mirror the familiar W.(D.) formula. What the trial judge said here did not do so, in terms or by functional equivalence. In the end, the instruction reversed the burden of proof and omitted any reference to Cornwall’s financial motive to commit robbery.

[67] For the respondent, Mr. Tweney points out that the trial judge acknowledged the propriety of trial counsel’s raising of the third party suspect issue. The trial judge considered that here, unlike in many cases, the third party suspect issue was supplementary or an adjunct to the primary defence of alibi. Thus, he included his reference to the third party suspect issue in his instructions on the issue of identity or participation. This was an exercise of judicial discretion on which the trial judge is owed substantial deference on appeal.

[68] Mr. Tweney says that the third party suspect claim here was, at best, extremely tenuous. No evidence connected Jonathan Cornwall to Hodges’ apartment at or about the time the killings occurred. The evidence of a financial motive is speculative and does not serve to connect Cornwall to Hodges. That Cornwall was, at the time of trial, charged with a robbery that occurred nearly three years later is not probative of any propensity or disposition to violence. The similarity in physical appearance is so general as to be valueless.

[69] Mr. Tweney contends further that, in any event, the trial judge’s instructions linking the third party suspect issue and evidence to the adequacy of the Crown’s proof of the appellant’s participation as the shooter were correct. The instructions explain the relevance of the evidence and its relationship to the burden and standard of proof. The jury was left with no misunderstanding about the obligation of the Crown to prove identity beyond a reasonable doubt and the consequences of a reasonable doubt on that issue.

The Governing Principles

[70] Several principles relating to what has become known as the third party suspect defence are pertinent to the discussion of this ground of appeal. Some have to do with the evidentiary foundation necessary to put the defence in play. Others relate to the legal instructions required when the defence is in play.

[71] First, to begin with the uncontroversial. It is self-evident that if a person, A, is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 757, affirmed 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824; and R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46.

[72] Second, evidence marshalled in support of a third party suspect defence, as with other evidence adduced in a criminal trial, must be compliant with the rules of admissibility. Said in a somewhat different way, the evidence proposed for reception must be relevant, material and admissible. The proponent does not get a free ride through the admissibility thicket upon mere announcement of “third party suspect”: R. v. Williams (1985), 1985 CanLII 113 (ON CA), 18 C.C.C. (3d) 356 (Ont. C.A.), at p. 366, leave to appeal refused, (1985) 18 C.C.C. (3d) 356n.

[73] Third, as with “proof” of any fact, the evidence on which an accused relies to demonstrate third party involvement must be relevant to and admissible on the material issue of identity: McMillan, at p. 757; Grandinetti, at para. 46.

[74] Fourth, to satisfy the relevance requirement, there must be a sufficient connection between the third party and the crime. Absent this link, the third party evidence is neither relevant nor material: Grandinetti, at para. 47; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121. The evidence may be direct or circumstantial but any essential inferences must be reasonable, grounded in the evidence, and not conjectural or speculative: Grandinetti, at para. 47.

[75] Fifth, we often use the term “opportunity” or “evidence of opportunity” to describe the nature of the connection between the third party and the conduct charged that is essential to provide an air of reality to the third party suspect defence. Absent this evidence, circumstantial evidence of an alleged third party’s disposition and motive, for example, would be excluded as immaterial: Grandinetti, at para. 48.

[76] Further, when disposition evidence is proffered for reception in support of a third party suspect defence, the manner in which the disposition is established varies. Sometimes, as in McMillan, the relevant disposition is established by the opinion evidence of experts. On other occasions, the third party may have accumulated one or several prior convictions that demonstrate a relevant disposition or propensity: See, R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 141; R. v. Dorfer, 2011 SCC 50, [2011] 3 S.C.R. 366, at para. 1.

[77] On the other hand, the fact that a person is charged with an offence, of which she or he is presumed innocent, says nothing about her or his character or disposition. As a general rule, the fact that a witness is charged with an offence has no bearing on the witness’ credibility and she or he cannot be cross-examined on that fact.[^1] If the fact of an outstanding charge has no bearing on a witness’ credibility, it seems illogical to conclude that the fact of a charge can be of service in establishing a third party’s disposition when that disposition is offered as circumstantial evidence of conduct.

[78] Finally, where a third party suspect defence is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of a person charged: R. v. Khan, 2011 BCCA 382, 282 C.C.C. (3d) 396, at para. 91.

The Principles Applied

[79] As I will explain, I would reject this ground of appeal.

[80] First, it is very doubtful that the evidence adduced at trial met the opportunity threshold, a condition precedent to the advancement of this defence and the admissibility of other evidence.

[81] Jonathan Cornwall, the third party suspect, did not testify. The evidence of his girlfriend, Allison Soares, was that she and Cornwall left the Ceballo-Jones apartment between 4 and 5 p.m. on January 21, 2005. They went to Brampton where they checked into a shelter. No other evidence linked Cornwall to 180 Niagara within four hours of the killing. Evidence of opportunity may be circumstantial, but the inferences must be reasonable, not conjectural or speculative: Grandinetti, at paras. 47-48.

[82] Second, evidence that Cornwall was charged with a robbery cannot constitute evidence of a propensity or disposition for violence. The robbery, in which Cornwall appears to have been the driver of the getaway car, occurred nearly three years after the offences charged. The fact that Cornwall later faced an outstanding charge of robbery, as a matter of logic and common sense, cannot support an inference that he had a disposition or propensity for violence almost three years earlier.

[83] Third, the evidence of motive – impecuniosity – is of such a general and amorphous nature as to be almost valueless on the third party suspect issue.

[84] Fourth, the trial judge’s instructions to the jury on the third party suspect issue do not reflect error. No prescribed formula exists for such an instruction. What was said here did not shift the onus or dilute the standard of proof imposed upon the Crown. The third party suspect evidence was linked to the adequacy of the Crown’s proof of Tomlinson’s participation in the killings as the shooter. That is where it belonged. The jury was clearly instructed that a reasonable doubt on this issue meant that Tomlinson should be found not guilty.

Ground #3: Correcting the Address of Counsel

[85] The final ground of appeal advanced by Tomlinson alleges error in some instructions the trial judge gave to the jury to correct what he considered were improper comments in the closing address of the appellant’s trial counsel. A brief reference to the relevant passages in counsel’s address followed by the judicial corrections provides sufficient context for the discussion that follows.

The “failure to testify” Explanation

[86] The appellant Tomlinson did not give evidence at trial in support of his defence of alibi. In his closing address to the jury, counsel for the appellant said:

In this case, perhaps you would have liked to hear Mr. Tomlinson testify. Are you truly surprised that he didn’t? Remember who, in my submission, shot Justin Hodge and Damian Muirhead; it was Mr. Tomlinson’s own brother. What would be involved in taking the witness-box if you were Mr. Tomlinson? His own brother.

[87] In his charge to the jury, the trial judge identified several features of the addresses of counsel about which he had something to say. On the comments of trial counsel for the appellant about the appellant’s failure to testify, the trial judge said:

[Defence counsel’s] submissions concerning why his client did not testify should be disregarded by you. You are required to base your verdict on the evidence called.

The “wrongful conviction” Issue

[88] Early in his closing address, trial counsel for the appellant pointed out that the considerable resources of the state had been marshalled against the appellant and even the fittings of the courtroom – the prisoner’s box and the descriptive “the accused” – seemed to belie the presumption of innocence and send a “subliminal message” of guilt to the jury. Counsel then focused on the prospect of a miscarriage of justice through a wrongful conviction:

In combination with this scenery, the imagery of this courtroom and this trial, combined with your desire to see justice done for the community, for Damian and for Justin and for their families, despite the presumption of innocence, these things are a recipe for a potential miscarriage of justice, a wrongful conviction…a recipe for a wrongful conviction.

I would like to spend just a couple of minutes making a respectful submission to you about how a miscarriage of justice, how a wrongful conviction, and the wrongful conviction of Bryan Tomlinson, can and must be avoided in this case. There is only one way, members of the jury, for that to be done; that is to transcend the scenery, the imagery, the subliminal nuances. Rise beyond the temptation to believe that the police must have arrested the right men, or say to yourself, come, for goodness sake, the Crown is prosecuting this chap with great confidence. They make their pitch in a stentorian tone; why would they be doing that if Tomlinson was an innocent man? That strains the bounds of logic. Look how much money has been spent on this case. You must rise beyond the temptation to think those thoughts if you are to perform your task as jurors in this case, as I believe and know that you will.

Consider the evidence only, not the rhetoric of the lawyers; that includes me, Mr. Gorham, Ms. Richards, Ms. Spencer. Ask yourself whether the evidence, and the evidence only, satisfies you of Mr. Tomlinson’s guilt or his innocence.

[89] Crown counsel objected to the references to wrongful convictions and miscarriages of justice. The following day, before trial counsel for Ceballo began his address to the jury, the trial judge gave the jury the following instruction:

Let me comment on the miscarriage of justice issue that arose in [defence counsel’s] closing address yesterday. As you all know, you are required by your oath of office to consider the evidence in this case, the submissions of counsel and my instructions to you. If, after diligently doing so, you are satisfied beyond a reasonable doubt of the guilt of an accused, you must return a verdict of guilty against him. To decline to return a verdict of guilty, if you are satisfied beyond a reasonable doubt of the guilt of an accused because of the miscarriages of justice in other cases would be an improper step on your part, ladies and gentlemen.

The Arguments on Appeal

[90] For the appellant, Mr. Kerbel submits that the submissions of trial counsel, which provided an explanation for the appellant’s failure to testify, were proper. Absent an explanation, jurors were likely to draw an adverse inference against the appellant for having failed to testify in support of his alibi. The explanation advanced arose logically from the evidence since the defence contended that it was the appellant’s brother, not the appellant, who was the shooter. The trial judge’s instruction made matters worse because it amounted to a prohibited comment on the appellant’s failure to testify.

[91] Mr. Kerbel argues that neither the “miscarriages of justice” nor the “wrongful conviction” references were improper. Their purpose was to remind the jury of the gravity of their duty in deciding the case. The issue was not overstated. No mention was made of the names of any persons who had been wrongly convicted or who had been the victims of miscarriages of justice. Once again, the trial judge’s curative instructions made matters worse by undercutting the credibility of defence counsel and, consequently, the position of the appellant before the jury.

[92] For the respondent, Mr. Tweney says that the instruction by the trial judge was neither improper nor prejudicial to the appellant.

[93] Mr. Tweney says that the explanation advanced by trial counsel for the failure of the appellant to testify in support of his own alibi was unsupported by any evidence adduced at trial. It follows, Mr. Tweney contends, that the submission of trial counsel was improper because it amounted to counsel giving evidence, rather than making submissions based on evidence heard by the jury at trial. The modest curative instruction, one of several relating to the closing submissions of all counsel, was not improper and did not amount to an impermissible comment on the appellant’s failure to testify.

[94] The references to “wrongful convictions” and “miscarriages of justice”, Mr. Tweney submits, were properly characterized and appropriately corrected by the trial judge. Despite a reminder the day before his closing address about the limits on such comments, trial counsel stepped over the line. The trial judge was concerned not only about what counsel said, but also about how he said it. Once again, the trial judge’s corrective action was tailored carefully to the circumstances and did not compromise the integrity or credibility of trial counsel or the fairness of the appellant’s trial.

The Governing Principles

[95] The parties divide not so much on the principles that govern determination of this ground of appeal as on the result that should follow from their application. A brief reference to several controlling features of those principles will suffice.

[96] First, counsel, whether prosecuting or defending, are not permitted to give evidence in their closing submissions: R. v. Smith (1997), 1997 CanLII 832 (ON CA), 120 C.C.C. (3d) 500 (Ont. C.A.), at para. 26. This prohibition includes providing an explanation, not otherwise in evidence, for the failure of an accused to testify.

[97] Second, it is permissible for a trial judge in final instructions to a jury to affirm the right of an accused to remain silent. A reminder of this right does not amount to a comment on the failure of an accused to testify: R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at para. 3.

[98] Third, any reference to an accused’s silence at trial or failure to testify must not, expressly or by necessary implication, leave the impression that silence constitutes evidence and can be used to infer or help to establish guilt: Prokofiew, at paras. 20-21.

[99] Fourth, a passing reference to the potential of wrongful conviction is not beyond the bounds of legitimate argument in a jury address in a criminal trial: R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 69. Repeated references to wrongful convictions and miscarriages of justice, however, can amount to a form of intimidation that invites acquittal despite proof of guilt: Horan, at para. 67.

[100] Finally, a judge presiding in a criminal trial has not only the right but also the duty to correct the missteps of counsel in their closing addresses: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 63 and 126-127; and R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 96.

The Principles Applied

[101] I would not give effect to this ground of appeal.

[102] Trial counsel offered an explanation for the failure of the appellant to testify. The explanation was entirely devoid of evidentiary support. It was also fundamentally at odds with the injunction against speculation that is routinely the subject of jury instructions and was the case here.

[103] This aspect of the closing address of defence counsel was an appropriate subject for correction by the trial judge. The trial judge’s response was measured and did not reflect on the integrity or competence of trial counsel. What was said was not a comment on the failure of the appellant to testify. It did not expressly or by necessary implication, invite jurors to use the appellant’s silence to shore up the case for the Crown.

[104] The trial judge considered the references to “wrongful convictions” and “miscarriages of justice” to be in violation of the principles announced in Horan, a decision of this court drawn to counsel’s attention the day before closing addresses began. The references were beyond passing, their tone, according to the trial judge, unacceptable. Once again, the corrective instruction did not exceed what the circumstances warranted.

THE CEBALLO APPEAL

[105] The grounds of appeal advanced by Ceballo assert errors in the trial judge’s instructions to the jury that also contest the reasonableness of the jury’s verdict.

Ground #1: The Alibi Notice

[106] Roberto Ceballo denied any involvement in the killing of the deceased. He testified at trial and said he was someplace else when the shootings occurred, somewhere around the area of Kensington Market.

[107] The Crown relied on several items of evidence to contradict Ceballo’s alibi and to establish his presence at the scene, and participation in the events that led to the deaths of Hodges and Muirhead. Keean Jones gave evidence about Ceballo’s involvement in the planned robbery of Hodges. Jones identified Ceballo as one of the two men who burst into the apartment and participated in the confinement and killing of the deceased. Police found two bandanas in a laneway behind 180 Niagara. Ceballo’s DNA was found on each bandana. Cell phone traffic showed several calls from Ceballo’s cell phone to a cell phone connected to Tomlinson. The calls registered on a tower that served 180 Niagara and occurred around the time the deceased were killed.

[108] The first ground of appeal relates to one aspect of the trial judge’s instructions on Ceballo’s alibi. A brief reference to the evidence will situate the claim of error in its proper context.

The Visits with Jessica

[109] Roberto Ceballo gave evidence that he left the Ceballo-Jones apartment before 7 p.m. on January 21, 2005. He had been there briefly with Tomlinson. Ceballo said he never returned to that apartment that evening.

[110] It was Ceballo’s evidence that he spent the balance of the evening in and around Kensington Market. He met some friends there at the Cyber Share Café and visited his friend Jessica’s place nearby. He did not know Jessica’s last name or her precise address.

[111] Ceballo was imprecise about when and how long he was in various places. His cross-examination was littered with responses that reflected an inability or unwillingness to be specific about when and how long he visited with Jessica before returning to the Cyber Share Café. At one point, he said he arrived at Jessica’s place at 7:15 p.m. and stayed for an hour and a half. Later, he said he left her place at 8:15 p.m. shortly after he called his friend Corbett. Ceballo never did say expressly that he was at Jessica’s place at the time Hodges and Muirhead were killed.

[112] It was undisputed that Ceballo’s attendance at Jessica’s home when he called his friend Corbett at 8:03 p.m. on January 21, 2005 was not disclosed to the Crown or police until Ceballo testified to that effect at his trial nearly four years later. It was admitted at trial that the lack of disclosure about Jessica deprived the police of the opportunity to locate and interview her.

The Ruling of the Trial Judge

[113] Trial counsel asked the trial judge to determine whether Jessica was an alibi witness. If so, failure to make timely disclosure about her could attract an instruction that late disclosure was a factor for the jury to consider in assessing the weight to assign to the alibi evidence.

[114] The trial judge considered that in light of the amorphous nature of Ceballo’s testimony about times, and his claim that he was in the Kensington Market area for the entire evening of January 21, 2005, the contact with Jessica was an inextricable part of his alibi. Lack of timely disclosure about Jessica would warrant a jury instruction about its impact on the weight to be assigned to the alibi.

The Jury Instruction

[115] The trial judge’s instruction to the jury on Ceballo’s alibi and the effect of late disclosure about Jessica on the weight to be assigned to that evidence includes the following passage:

Please remember that Mr. Ceballo’s alibi concerning Jessica, whose last name is not known, and his visits to her apartment on two separate occasions on January 21, 2005, was not disclosed at a sufficiently early time to permit its investigation by the police.

The lack of the early disclosure of this portion of the alibi is a factor to be considered by you in assessing the weight to be assigned to this evidence.

In considering this evidence, please remember that there is no burden or obligation on Mr. Ceballo to prove that he was elsewhere at the time the crimes were committed. Rather, it is the Crown’s burden to disprove Mr. Ceballo’s alibi by proving that he was present at the scene of the crime beyond a reasonable doubt.

The Arguments on Appeal

[116] For the appellant, Mr. Campbell submits that the trial judge erred in finding that Jessica was an alibi witness. An alibi must be determinative of the final issue of guilt or innocence of an accused. But that is not the effect of any evidence Jessica could have given here. The appellant could have been with Jessica at the times he described and still have been at 180 Niagara when the deceased were killed. The evidence of the appellant negated Jessica’s status as an alibi witness.

[117] Mr. Campbell adds that even if Jessica could be considered an alibi witness, an adverse inference instruction is discretionary, not mandatory. The instruction in this case compromised the appellant’s right to silence and worked an unfair prejudice on the appellant since the failure to provide notice was a considered decision made by trial counsel based on counsel’s understanding of the governing legal principles.

[118] For the respondent, Mr. Tweney characterizes Jessica as an essential part of Ceballo’s alibi. The testimony of Ceballo was amorphous, notorious for its imprecision. Jessica was essential to confirm Ceballo’s presence in the area of Kensington Market at the time of the shootings. The failure to disclose Jessica until giving evidence at trial deprived police of the ability to investigate the veracity of the claim. The adverse inference instruction was fully justified.

[119] Mr. Tweney submits further that the alibi instruction given by the trial judge was correct in law. The trial judge properly linked the evidence about the appellant’s whereabouts to the issues of his presence at 180 Niagara and his participation in the events that culminated in the deaths of the deceased. The tenuous nature of the alibi, Mr. Tweney continues, was overwhelmed by the incontrovertible physical evidence found at the scene. Scientists identified the appellant’s DNA on two bandanas found in the laneway behind 180 Niagara. A broken watch part found by the bandanas matched another part found inside the deceased’s apartment. Cell phone traffic between telephones of the appellants registered on a tower with coverage of 180 Niagara at about the time of the killings.

The Governing Principles

[120] Several basic principles governing the defence of alibi were canvassed earlier in connection with grounds of appeal urged by the appellant Tomlinson. No useful purpose would be served by their repetition here. Three brief points should be made, however, in connection with the specific complaint advanced here.

[121] First, proper disclosure of an alibi has two components. The first is adequacy, which relates to the sufficiency of details provided. The second is timeliness. Disclosure should be sufficiently particular to enable the authorities to meaningfully investigate. Disclosure in a timely way allows the authorities sufficient time to investigate: R. v. Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 S.C.R. 175, at para. 3; R. v. Letourneau (1994), 1994 CanLII 445 (BC CA), 87 C.C.C. (3d) 481 (BCCA), at p. 532; and R. v. Nelson (2001), 2001 CanLII 5235 (ON CA), 147 O.A.C. 358, at para. 8.

[122] Second, failure to provide timely and sufficient notice of alibi does not vitiate the defence. The trier of fact may draw an adverse inference when weighing an alibi that has not been disclosed in a sufficient and timely way. In a jury trial, the presiding judge should instruct the jury that failure to make timely and sufficient disclosure of the alibi is a factor the jury may consider in assessing the weight to be assigned to the alibi: Cleghorn, at para. 4; Russell v. The King (1936), 1936 CanLII 323 (SCC), 67 C.C.C. 28 (SCC), at p. 32; and Nelson, at para. 8.

[123] Third, the adverse inference instruction is limited to the defence of alibi. Adverse inference instructions on other issues may compromise an accused’s pre-trial right to silence: R. v. Gottschall (1983), N.S.R. (2d) 86 (C.A.), at p. 91.

The Principles Applied

[124] For reasons that I will develop, I would reject this ground of appeal.

[125] First, the appellant denied that he was at 180 Niagara and participated in the killings of Hodges and Muirhead. He said he was someplace else, around the Kensington Market area. His evidence about precisely where he was, and when he arrived at or left various places, was at best imprecise and inconsistent. He mentioned two places in Kensington: the Cyber Share Café and Jessica’s apartment.

[126] In his evidence-in-chief, the appellant testified that he was at Jessica’s place for one and a half hours before he returned to the Cyber Share Café. The time he spent at Jessica’s could have precluded his presence at 180 Niagara. At the very least, her evidence could have contributed to some temporal clarity about the appellant’s activities that was sorely lacking in his own testimony. Seen in this light, the disclosure failure fell within the scope of an adverse inference instruction.

[127] Second, at the very least, the imprecise nature of the appellant’s alibi and his unwavering refusal to provide any specificity about time justified judicial comments about the weight to be attributed to it. What was said here assigns a place, but not a place of prominence or undue influence, to lack of timely disclosure in the assessment of the alibi evidence. Neither the instruction nor the manner in which the failure of timely disclosure was revealed to this jury caused the appellant any prejudice.

[128] Third, at its core, the alibi depended on the evidence of the appellant. It was unsupported by any other evidence adduced at trial and contradicted by physical evidence (the bandanas and watch) and expert opinion testimony that linked him to Hodges’ apartment. The jury received clear, legally correct instructions on the defence of alibi, including directions about the onus of disproof that was imposed on the Crown. There was no reasonable prospect that the jury would have misplaced the burden of proof or failed to appreciate the standard of proof, in connection with this defence.

Ground #2: Errors in Instructions on Murder and First Degree Murder

[129] The second ground of appeal has two components. The first alleges error in leaving murder and first degree murder to the jury in connection with Ceballo, who was not alleged to be the shooter. The second, an alternative submission, challenges the adequacy of the instructions on the same issues.

The Positions at Trial

[130] At trial, Crown counsel took the position that Ceballo was an aider or abettor in an unlawful killing that was murder under s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46 and first degree murder under s. 231(5)(e) since the murder was committed while both victims were being unlawfully confined. Crown counsel did not rely on the accessorial liability provisions of s. 21(2) or advance s. 229(c) as a basis upon which to establish that the unlawful killings were murder.

The Directed Verdict Application

[131] Trial counsel for Ceballo asked the trial judge to direct a verdict of acquittal removing both murder and first degree murder from the jury’s consideration and leaving them to deliberate only on the appellant’s liability for manslaughter.

[132] Trial counsel for Ceballo contended that no evidence had been adduced at trial upon which a reasonable jury acting judicially could find that the appellant:

i. knew that Tomlinson would intentionally kill anyone in the apartment;

ii. intended to help or encourage Tomlinson to murder anyone;

iii. participated in an unlawful confinement of the occupants of the apartment; and

iv. actively participated in causing the deaths of the deceased.

[133] The trial judge rejected the applications and left both murder and first degree murder to the jury.

The Arguments on Appeal

[134] For the appellant, Mr. Campbell reinvigorates the argument advanced at trial. In his submission, the trial record is barren of any evidence that Ceballo knew or even suspected that Tomlinson had a gun when they entered Hodges’ apartment. From this evidentiary deficit, according to Mr. Campbell, it follows that there was no evidence that Ceballo knew that Tomlinson would intentionally kill Hodges or any other occupant of the premises. It also follows, he says, that there was no evidence that could permit a finding that Ceballo helped or encouraged Tomlinson to commit murder.

[135] Mr. Campbell further submits that in the absence of evidence to permit the jury to find that Ceballo was an aider or abettor of Tomlinson in his murder of the deceased, the trial judge was not entitled to leave first degree murder to the jury. In addition, even if there were evidence to leave murder to the jury in relation to Ceballo, Mr. Campbell says there was no evidence to permit a jury to find that Ceballo was an active participant in a murder committed while the victims were unlawfully confined. It follows, Mr. Campbell says, that the trial judge erred in failing to direct an acquittal on murder and first degree murder.

[136] As an alternative submission, Mr. Campbell says that the trial judge erred by failing to instruct the jury adequately on the essential elements of accessorial liability for murder and first degree murder. In addition, the trial judge failed to review any exculpatory features of the evidence and to relate those features to the essential elements of murder and of first degree murder.

[137] For the respondent, Mr. Tweney begins by pointing out that the argument advanced about the absence of evidence to support the submission of murder and first degree murder to the jury for their decision is the repetition of an argument that was rejected previously by a judge of the Superior Court of Justice on a motion to quash the committal for trial, by a panel of this court on an appeal from the refusal to quash the committal and by the trial judge on a motion for a directed verdict. The unanimity is telling. The same result should follow.

[138] Mr. Tweney acknowledges that liability for murder as an aider requires proof of knowledge of the principal’s intention to kill and the intention of the aider to help the principal to accomplish his intention. But the Crown need not prove that the aider shared the principal’s intention. The aider may be an active participant in causing the death of a person provided the assistance rendered was sufficiently immediate, direct and substantial. The immobilization of Muirhead was sufficient, in the circumstances of this case, to satisfy this requirement.

[139] Mr. Tweney says that the trial judge’s instructions on the essential elements of murder and first degree murder correctly explained what Crown counsel had to prove to establish Ceballo’s liability as an abettor. The trial judge provided copies of his proposed instructions to counsel and gave them plenty of opportunity to make submissions about their adequacy. Apart from reiterating his submission that first degree murder should not have been left to the jury at all, trial counsel for Ceballo offered no meaningful objection to the proposed instructions. The extent of evidentiary references in a charge to the jury is a matter for the trial judge’s discretion. No complaint was made at trial. None should prevail here.

The Governing Principles

[140] Several principles apply to a determination of this ground of appeal. Some describe the essential elements that the Crown must prove to establish a person’s liability as an aider in a constructive first degree murder. Others define the standard a trial judge is to apply in deciding whether to leave an offence to the jury for its determination or to remove it from the jury’s consideration by entering a verdict of acquittal at the conclusion of the Crown’s case. Still others explain the extent of a trial judge’s obligation to review the evidence in final instructions to the jury.

The Participation Requirement in Constructive First Degree Murder

[141] Among the essential elements of constructive first degree murder is a requirement that the Crown prove beyond a reasonable doubt that an accused participated in the murder of the deceased in such a manner that she or he was a substantial cause of the death of the victim: R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, at pp. 323-324. To satisfy this requirement, the Crown must prove that an accused committed an act or series of acts that are of such a nature that they must be regarded as a substantial and integral cause of the deceased’s death. An accused must play a very active role – usually a physical role – in the killing: Harbottle, at p. 324.

[142] The decision in Harbottle underscores the need for proof of an enhanced or increased degree of participation in the killing before an accused may be convicted of first degree murder under s. 231(5): R. v. Nette, 2001 SCC 78, [2001] S.C.J. No. 75, [2001] 3 S.C.R. 488, at para. 61.

Participation as an Aider

[143] The Criminal Code does not distinguish between the principal offender and secondary participants in determining criminal liability: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13. One method of secondary participation is aiding another to commit an offence.

[144] The actus reus and mens rea for aiding is distinct from the actus reus and mens rea of the principal offence: Briscoe, at para. 13. The actus reus of aiding is doing something[^2] that assists the perpetrator to commit the offence: Briscoe, at para. 14. The mens rea of aiding, reflected in the word “purpose” in s. 21(1)(b), includes both intent and knowledge. The intent component is essentially synonymous with intention. The Crown must prove that the aider intended to assist the principal in the commission of the offence, but need not prove that the aider desired that the offence be successfully committed: Briscoe, at para. 16. The knowledge component requires proof that the aider knew that the perpetrator intended to commit the crime although the aider need not know precisely how the crime was to be committed: Briscoe, at para. 17. The knowledge component may also be established through the doctrine of wilful blindness: Briscoe, at paras. 21, 23-24.

Aiding Constructive First Degree Murder

[145] The enhanced participation requirement imposed in constructive first degree murder in Harbottle does not bar conviction of secondary parties: R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 68. A secondary party, such as an aider, may be convicted of constructive first degree murder provided his or her conduct satisfies the enhanced participation standard imposed by Harbottle: Ferrari, at para. 85; Harbottle, at p. 316.

Reviewing and Relating the Evidence

[146] It is well established that, except in cases where it would be unnecessary to do so, a trial judge is required to review the substantial parts of the evidence and relate it to the issues that the jury is or may be required to decide so that the jury appreciate the nature and effect of the evidence and its relationship to the defence advanced: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p. 163; and R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14.

[147] Frequently, a trial judge relates the evidence relevant to the positions of the parties on controversial issues by reviewing the substance of the evidence that bears on each issue and indicating to the jury which parts of the evidence support each party’s position: R. v. S.(J.), 2012 ONCA 684, 292 C.C.C. (3d) 202, at para. 38; and R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at paras. 29-30.

[148] A trial judge is under no obligation to review all the evidence: MacKinnon, at paras. 29-30; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 55-56; and R. v. B.(P.J.), 2012 ONCA 730, 97 C.R. (6th) 195, at para. 45. A trial judge has considerable latitude in connection with the volume of evidence she or he reviews and relates to the issues the jury will or may be required to decide: Daley, at para. 57; R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3; and B.(P.J.), at para. 46. A trial judge’s failure to review specific or individual items of evidence will not be fatal unless what is left out amounts to the sole evidentiary foundation for a defence: B.(P.J.), at para. 46; and R. v. Demeter (1975), 1975 CanLII 685 (ON CA), 25 C.C.C. (2nd) 417 (Ont. C.A.), at p. 436, affirmed on other grounds 1977 CanLII 25 (SCC), [1978] 1 S.C.R. 538.

[149] A serial review of the evidence adduced at trial is unhelpful to a jury and does not sit well with the obligation to relate the evidence to the issues the jury is or may be required to decide.

[150] We test the adequacy of jury instructions against their ability to fulfill the purpose for which those instructions are provided. We do not test them to determine the extent to which they adhere to or depart from some particular approach or specific formula: Jacquard, at paras. 32 and 41; MacKinnon, at para. 27. A jury must be properly instructed but need not be perfectly instructed.

The Standard for Directed Verdicts of Acquittal

[151] When counsel for an accused applies for a directed verdict of acquittal at the end of the Crown’s case, the trial judge must decide whether there is any evidence on the basis of which a reasonable jury, properly instructed, could return a verdict of guilty of the offence on which the directed verdict of acquittal is sought: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at para. 2; and R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. Crown counsel must adduce some evidence of culpability for every essential element of the offence for which the Crown has the evidential burden: Charemski, at para. 3.

[152] The duty imposed on a judge asked to direct a verdict of acquittal at the end of the Crown’s case at trial is the same as that which governs a justice assigned the responsibility to determine whether an accused should be ordered to stand trial at the conclusion of a preliminary inquiry under s. 548(1) of the Criminal Code: United States of America v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21.

[153] Where the Crown’s case is based on direct evidence, the task of the trial judge on an application for a directed verdict, like the duty of a justice at the preliminary inquiry in similar circumstances, is straightforward. Where there is direct evidence of each essential element, the application for a directed verdict fails: Arcuri, at para. 22. Where the evidence upon which the Crown relies is circumstantial, however, the test remains the same, but the judge must engage in a limited weighing of the evidence since there is an inferential gap between the evidence and the essential elements to be established. In cases involving circumstantial evidence, the limited weighing in which a trial judge is permitted to engage on an application for a directed verdict, does not permit the trial judge to draw factual inferences, to assess credibility or to consider the inherent reliability of the evidence adduced: Arcuri, at paras. 23 and 30.

[154] The trial judge must then determine whether the circumstantial evidence is reasonably capable of supporting the inferences the Crown seeks to have the jury draw. The test is whether the evidence, if believed, could reasonably support an inference of guilt: Arcuri, at para. 23.

[155] Where the offence charged includes one or more other offences, an accused may seek a directed verdict of acquittal on the principal offence, as well as on some but not all included offences: Titus, at p. 264. The trial judge’s decision whether to grant a motion for directed verdict is to be reviewed on a standard of correctness: R v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368.

The Principles Applied

[156] For reasons that I will develop, I would reject both aspects of this ground of appeal.

[157] I turn first to the submission that neither murder nor first degree murder should have been left to the jury in respect of Ceballo.

[158] The case for the Crown at trial was that Keean Jones and the appellants planned to rob Hodges of the drugs and money he kept in his apartment at 180 Niagara. Jones knew Hodges and had been in Hodges’ apartment on a prior occasion. When he was there, he had seen drugs and money. Jones was to go to Hodges’ apartment on the pretext of a drug purchase. Once there, he was to call the appellants who would gain entry and carry out the robbery.

[159] Under the pretext of arranging a drug purchase, Jones went to Hodges’ apartment. Rather than telephone the appellants, however, Jones told Hodges that he needed to go to an ATM to get the money to complete the purchase. As Hodges accompanied Jones to the door to let him out to get the money for the drug buy, the appellants, dressed in dark clothing and wearing two bandanas each to conceal their facial features, burst into the apartment. Tomlinson was armed with a 9 mm semi-automatic handgun.

[160] In the apartment, Tomlinson pointed the handgun at Hodges who had armed himself with a hammer. The second intruder, whom the jury could conclude was Ceballo, remained in the kitchen area with Muirhead who was not permitted to leave the kitchen to help Hodges. The jury could reasonably infer that Ceballo had a knife that he used to ensure Muirhead’s confinement. Within minutes Tomlinson shot Hodges at close range, then shot Muirhead as he lay face down on the kitchen floor.

[161] In connection with the shooter, there was evidence adduced at trial reasonably capable of sustaining the inferences necessary to establish that each killing was unlawful, intentional and thus murder, and committed while both victims were unlawfully confined, thus classifying the murders as first degree murder under s. 231(5)(e) of the Criminal Code.

[162] The Crown relied on s. 21(1)(b) of the Criminal Code to establish Ceballo’s liability for murder and first degree murder. As we have already seen, aiding includes both a conduct requirement and fault element that consists of both intent and knowledge. To establish the liability of an aider of a perpetrator’s murder of another, the Crown was not required to prove that Ceballo desired or approved of the death of the deceased or shared the perpetrator’s intention: Briscoe, at paras. 14-16.

[163] To warrant jury consideration of Ceballo’s liability as an aider in Tomlinson’s intentional killing of the deceased, the evidence adduced in the Crown’s case, taken as a whole, must be reasonably capable of supporting the inference that Ceballo did something with the intention of helping Tomlinson whom he knew intended to kill the deceased.

[164] The evidence is reasonably capable of supporting the inference that Ceballo, armed with a knife, kept Muirhead confined in the kitchen. It was open to the jury to conclude that Ceballo knew that Tomlinson was armed with a handgun, as early as the scuffle at the apartment door or, as trial counsel conceded, at least when he saw the gun pointed at Hodges in the living room. The gunman’s utterances disclosed a willingness to use the gun and his orders to Ceballo about holding the knife to Muirhead’s throat and stabbing him suggested a willingness to kill by any available means. The firing of the first gunshot supported a reasonable inference that Muirhead would be killed next. From this evidence, taken as a whole, the jury could reasonably infer that Ceballo knew the gunman intended to kill the deceased and that Ceballo intended to help him do so by keeping Muirhead confined at knifepoint in the kitchen.

[165] The complaint about leaving first degree murder to the jury in relation to Ceballo focuses on the enhanced participation requirement of Harbottle. The Crown must establish that an accused committed an act or a series of acts of such a nature that they can be regarded as a substantial and integral cause of the death of the deceased: Harbottle, at p. 324. An accused must play an active role – usually a physical role – in the killing: Harbottle, at p. 324.

[166] It seems clear from Harbottle that a person who facilitates a killing during an unlawful confinement by eliminating or overcoming potential resistance by the victim may be convicted of constructive first degree murder. Harbottle’s role was to hold the deceased’s leg so that she could not resist Ross’ attempts to strangle her. It was open to the jury in this case to conclude that by confining Muirhead at knifepoint in the kitchen, thus eliminating any assistance he could provide to Hodges who was confined at gunpoint in the living room, Ceballo’s conduct satisfied the enhanced participation requirement of Harbottle.

[167] Further, as discussed above in para. 137, it is doubtful whether the argument advanced here – that neither murder nor first degree murder should have been left to the jury for Ceballo – remains open to the appellant. As this court ultimately concluded:

We agree with the Crown’s submission that there was evidence from which a reasonable trier of fact could conclude that the appellant aided and abetted in the two murders committed by his co-accused in the course of the robbery and forcible confinement. We also agree with the Crown that there was an evidentiary basis upon which a reasonable trier of fact could conclude that the actions of the appellant pass the causation threshold described in the leading case of R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306.

[168] Turning next to the appellant’s complaint about the adequacy of the trial judge’s instructions to the jury on the essential elements of murder and first degree murder. For reasons that I will explain, I would not give effect to this ground of appeal.

[169] The appellant’s principal complaint is that the trial judge failed to adequately review the evidence that related to his liability for murder and first degree murder. The omissions meant that the defence was not put fairly to the jury who were left inadequately equipped to make a just determination of these issues. For several reasons, this complaint falls on barren ground.

[170] First, recall the obligations of a trial judge in reviewing the evidence adduced at trial and final instructions to the jury. A trial judge is under no obligation to review all the evidence adduced at trial in final instructions. The obligation is to review the substantial parts of the evidence and to relate those parts to the issues that the jury are or may be required to decide, thus to ensure that the jury appreciates the value and effect of the evidence: Azoulay, at pp. 497-498. The failure to refer to a specific item of evidence will not be fatal unless what is omitted amounts to the only evidentiary foundation for a defence: B.(P.J.), at para. 46; Demeter, at p. 436.

[171] Second, the appellant was entitled to a properly instructed jury, not one that was perfectly instructed. A jury charge is proper if, taken as a whole, the charge leaves the jury with a sufficient understanding of the facts as they relate to the issues the jury must or may have to decide: Jacquard, at para. 14; MacKinnon, at paras. 25-26, and 30. This charge satisfied that standard.

[172] Third, the final instructions in this case fully explained the essential elements of murder and of constructive first degree murder. The trial judge accurately set out the constituent elements of aiding and related those elements to murder and to constructive first degree murder. In respect of each issue, the trial judge:

i. identified the issue;

ii. explained the legal requirements of proof;

iii. summarized the essential features of the evidence that were relevant for the jury to consider in deciding the issue;

iv. reiterated the Crown’s burden of proof on the issue; and

v. described the consequences of the available findings on the issue for further deliberations and for the verdict.

Taken as a whole, these instructions left the jury with a sufficient understanding of the relevant issues and the evidence that was relevant to their decision on those issues.

[173] Fourth, experienced trial counsel made no objection to the charge on the basis now said to constitute error. The trial judge provided counsel with a written copy of his proposed instructions ten days before the charge began. Counsel made lengthy submissions five days before the charge was delivered, but took no issue with the content of the legal instructions or the evidentiary references. While not fatal, the failure of objection affords some indication that counsel did not consider the instruction incomplete, unbalanced or legally incorrect.

Ground #3: Unreasonable Verdict

[174] The final ground of appeal advanced by Mr. Campbell for Ceballo is that the jury’s verdict finding him guilty of two counts of first degree murder was unreasonable. The argument differs little from the complaint rejected earlier that the trial judge erred in leaving murder and first degree murder to the jury, rather than entering a verdict of acquittal on both at the end of the case for the Crown. It is unnecessary to repeat those submissions here.

The Governing Principles

[175] Whether a verdict is unreasonable depends on whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; and R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at p. 282. An appellate court is required to determine what verdict a reasonable jury, properly instructed, could reasonably have rendered, and, in doing so, to review, analyze and, within the limits of appellate disadvantage, to weigh the evidence: Biniaris, at para. 36. The phrase “acting judicially” means not only acting dispassionately, applying the law and deciding on the basis of the evidentiary record and nothing else, but also arriving at a conclusion that does not conflict with the bulk of judicial experience: Biniaris, at para. 40.

The Principles Applied

[176] I would not accede to this argument for three brief reasons.

[177] First, this argument differs little substantively from the submission rejected earlier that neither murder nor first degree murder should have been left for the jury’s consideration.

[178] Second, the principal focus on the submission is on the inadequacy of the evidence to establish the enhanced participation requirement articulated in Harbottle. That argument was rejected earlier for reasons that are equally controlling here. A person may be found guilty as an aider of a constructive first degree murder provided, among other things, his or her participation satisfies the enhanced standard of Harbottle. As in Harbottle, overcoming resistance to permit the perpetrator to carry out an intentional killing may satisfy this requirement. It is of no moment that the resistance overcome is not that of the person killed: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804.

[179] Third, the sufficiency of the evidence to satisfy the standard for committal for trial and submission of both murder and first degree murder to the jury leaves little, if any, foundation for an argument about unreasonable verdict. I would not give effect to such an argument here.

CONCLUSION

[180] For these reasons, I would dismiss the appeals of both appellants and affirm their convictions of two counts of first degree murder.

Released: (“JL”) February 28, 2014

“David Watt J.A.”

“I agree John Laskin J.A.”

“I agree J.C. MacPherson J.A.”

[^1]: This is subject to the exception recognized in R. v. Titus, 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259.

[^2]: A person may also aid by failing to do something that it is his or her statutory or common law duty to do. Aiding by omission is not an issue in this appeal.