COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McPherson, 2014 ONCA 223

DATE: 20140326

DOCKET: C49298

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony McPherson

Appellant

Timothy E. Breen, for the appellant

Lucy Cecchetto, for the respondent

Heard: October 31, 2013

On appeal from the conviction entered by Justice Jane A. Milanetti of the Superior Court of Justice, sitting with a jury, on October 23, 2007.

PEPALL J.A.:

A. INTRODUCTION

[1] The appellant, Anthony McPherson, was tried before a judge and jury for first and second degree murder. The victim was Natalie Gayle, with whom the appellant had once lived in a common-law relationship.

[2] At trial, the Crown’s position was that the killing amounted to a planned and deliberate murder; the appellant had killed Ms. Gayle because he could not accept her independence. The appellant advanced a defence of mistaken identity. He did not testify or call any evidence. The jury convicted him of first degree murder.

[3] On appeal, the appellant concedes liability for second degree murder but alleges that the trial judge erred in her charge relating to first degree murder. Specifically, he alleges that the trial judge erred in her instructions on the evidence relating to the issue of planning and deliberation.

[4] For the following reasons, I would dismiss the appeal.

B. THE EVIDENCE

[5] The appellant and Ms. Gayle lived in a common-law relationship for several years and had a child together. In March 2003, Ms. Gayle met Mike Petrochuk, whom she began dating. Their relationship quickly settled into a friendship. In June 2003, Ms. Gayle left the appellant and moved into a townhouse which she shared with her two children and a close friend, Tracy Brown. Ms. Brown also knew the appellant. On cross-examination by defence counsel at trial, she testified that, at the appellant’s request, she had imported cocaine.

[6] Ms. Brown testified that approximately one month prior to Ms. Gayle’s murder, the appellant confronted her over the phone stating that he knew everything about Ms. Gayle’s and Mr. Petrochuk’s affair.

[7] Ms. Brown also testified that on Saturday, June 21, 2003, she had gone to the appellant’s house to pick up some of Ms. Gayle’s clothes and to drop off a key. She described the appellant as being upset that Ms. Gayle had left him and he was “arguing” about her having another man and going to church.

[8] After she separated from the appellant, Ms. Gayle had become more involved in the church and sought to be baptized. Ms. Brown testified that the appellant phoned her a lot on June 21 expressing his disbelief that Ms. Gayle was getting baptized and that she had left him for Mr. Petrochuk.

[9] One of the calls made by the appellant to Ms. Brown that same day was recorded. In that call, the appellant stated that he was “mad as hell” and called Ms. Gayle a “whore” and a “bitch”. He also complained about her relationship with Mr. Petrochuk, stated that her decision to be baptized was being taken to hurt him, and said that if he knew where she was, he would throw her through the window.

[10] Marie Goulbourne, a friend of Ms. Gayle and of the appellant, also testified about a conversation she had with the appellant that day. She stated that the appellant told her over the phone that he tells people he will kill Ms. Gayle. He asked Ms. Goulbourne if she thought he would do it. Before she could answer, the appellant said, “No, I wouldn’t; no, I wouldn’t.” Ms. Goulbourne testified that the appellant said that he would continue to pay child support but would otherwise leave Ms. Gayle alone. During their conversation, the appellant told Ms. Goulbourne that he had seen Mr. Petrochuk at the gym and that he was about to go over and spit in his face, but did not do so. Ms. Goulbourne testified that the appellant had a reputation for being a big talker and knew him to be called “Balamouth”. She agreed with the assertion put to her by opposing counsel that he had a reputation for talking a lot and not following through with that talk.

[11] On Sunday, June 22, 2003, Ms. Gayle was baptized. Ms. Brown testified that the appellant phoned her a lot that day. In the first call, which preceded the baptism, he said that he could not believe that Ms. Gayle was getting baptized. Ms. Brown testified that he called two or three more times before the baptism and then she turned her phone off.

[12] After the baptism, Ms. Gayle attended a barbeque where she met up with Mr. Petrochuk. Ms. Brown, a visiting friend – Ms. Lawrence – and her children, as well as several members of Ms. Gayle’s family also attended the barbeque.

[13] Ms. Brown, Ms. Lawrence and the children left the barbeque before Ms. Gayle and went home to the townhouse. The appellant phoned Ms. Brown again. Ms. Brown testified that he was upset, was yelling and screaming, and continued to express disbelief that Ms. Gayle had been baptized. He also inquired as to whether Ms. Gayle had gotten married.

[14] For her part, Ms. Gayle had left the barbeque and gone for a drive with Mr. Petrochuk. He testified that he drove Ms. Gayle back to her townhouse between 10:30 p.m. and 11 p.m. He went inside and recalled seeing Ms. Brown, Ms. Lawrence and a young boy, who he thought was Ms. Lawrence’s son.

[15] Ms. Gayle proceeded to read Mr. Petrochuk some passages from the Bible. They were in the kitchen. The phone rang and Mr. Petrochuk answered. Mr. Petrochuk testified that a male voice asked whether Natalie was there. Ms. Gayle spoke with the caller for less than a minute and then handed the phone to Ms. Brown. Ms. Gayle and Mr. Petrochuk then went outside and sat on the curb talking for about 10 minutes according to Mr. Petrochuk.

[16] After speaking with Ms. Brown, the appellant repeatedly phoned her. He insisted that she had lied to him and that Ms. Gayle had in fact gotten married. In his final call to Ms. Brown before the murder, he demanded to speak to Ms. Gayle. He subsequently arrived at Ms. Gayle’s home.

[17] Mr. Petrochuk testified that he had not met the appellant before and when he first saw him that night, he looked as if he was hanging up a cell phone. The appellant stated to Ms. Gayle that he just wanted to talk. He then asked Ms. Gayle who Mr. Petrochuk was. After she responded, the appellant replied by making comments about Ms. Gayle and Mr. Petrochuk such as: “Is this the guy you’ve been fucking?” and “Is this the guy who’s been eating your pussy?” Mr. Petrochuk testified that the appellant repeatedly told Ms. Gayle that he just wanted to talk and at one point, according to Mr. Petrochuk, said, “Let’s go inside. It’ll be quick.” Mr. Petrochuk decided to leave. As he left, he observed a “red, kind of sporty looking” car parked at the top of the roundabout. He considered it a very unusual place to park a car; it was a very, very dark area with no overhead lights and he recalled a “no parking” sign. Mr. Petrochuk testified that when he was getting into his car, he heard the appellant say, “I can’t believe this guy’s disrespecting me like that.”

[18] Ms. Brown testified that she emerged from the townhouse to find Ms. Gayle who was upset. The appellant demanded that they both get inside the house. Ms. Gayle begged Ms. Brown not to let her go into the house. The appellant went into the house alone for a few seconds before coming out. Eventually, Ms. Gayle went into the house and the appellant followed her. Ms. Brown tried, unsuccessfully, to stop the appellant from entering the house.

[19] The appellant and Ms. Gayle exchanged words.

[20] Inside the house, Ms. Lawrence was in the living room with her son who was sleeping by her feet. Ms. Lawrence testified that she observed Ms. Gayle entering the kitchen and the appellant was following her. She testified that she saw the appellant pull a gun from the waist of his pants. At that point, the appellant and Ms. Gayle were out of Ms. Lawrence’s line of sight. She stated that she stepped over her sleeping son to observe what was happening and saw the appellant firing a gun at the appellant. Ms. Brown ran next door and told the neighbour to call 911. Ms. Lawrence fled upstairs with her son. When she later returned to the kitchen, she found Ms. Gayle lying in a pool of blood and the appellant gone.

[21] A post-mortem examination revealed that Ms. Gayle had been shot five times: twice to the head, once in the right chest, once in the left arm, and once in the thigh.

[22] A semi-automatic handgun was found on the front lawn of the townhouse. A fingerprint on the side of the gun magazine was identified by two experts as belonging to the appellant, though two other experts were unable to make such an identification. A cell phone in the name of Wayne Simpson, an alias of the appellant, and registered to the appellant’s address, was found in Ms. Gayle’s kitchen. Examination of swabs from the cell phone yielded a DNA profile consistent with that of the appellant. The police located a red Acura motor vehicle containing the appellant’s possessions. In it was a pouch that contained a single bullet matching the ammunition in the gun found on Ms. Gayle’s front lawn.

C. THE JURY CHARGE

[23] The appellant relies on the following excerpt from the trial judge’s charge to the jury in support of his appeal:

To decide this issue you should consider all the evidence. Among the things you should consider are what Mr. McPherson did or did not do, how Mr. McPherson did or did not do it, what Mr. McPherson said or did not say, Mr. McPherson’s condition, Mr. McPherson’s state of mind and the affect of any real, perceived or imagined insults, provoking words or conduct of Natalie Gayle on Mr. McPherson’s state of mind.

Now I will attempt to briefly catalogue some of the evidence which is relevant on the issue of whether or not the murder of Natalie Gayle was planned and deliberate. You might consider the call that was answered by Mr. Petrochuk in the kitchen. You remember when he and Natalie were in there reading the Bible, the phone call, as I recall, the “Hello, hello,” when he answered the phone. I am not going to go through all the evidence again because I know you are probably sick of hearing from me.

You also might consider the conversation that Mr. Petrochuk testified occurred outside between the man who approached and Natalie, where he said he wanted to talk, “I just want to talk,” when he asked the question, “Is this the guy that you’ve been fucking,” that little sequence of events. Or the “Let’s go inside. It will be quick.” You might consider those.

You might consider what Mr. Petrochuk describes about the man’s attitude when he arrived. He wasn’t yelling. I recall that he was saying that he wasn’t overly aggressive, that he was calm, that he had an edge. You may also want to consider Mr. Petrochuk’s evidence about where he saw that red sporty car parked. I remember him saying that it was at the round about. He thought that was odd because it was a weird place to park. I recall him saying that it was in a very dark place, no overhead lights, no parking signs. It seemed like an unusual place to park your car. That’s why it stood out to him. You may consider the fact that Mr. Petrochuk kept saying that he kept repeating, “I just want to talk.”

You may consider Mr. Petrochuk’s evidence that he couldn’t say how long that car had been there but it definitely wasn’t in that place when they arrived. He couldn’t see that red car from the curb of the residence. I recall he said he wouldn’t have known to look.

It might be relevant for you to consider the statement that was adduced on re-examination from Mr. Petrochuk, “I can’t believe this guy is disrespecting me like that,” when he was getting into his car.

You may consider as relevant to this decision the tape from Tracy Brown’s cell phone and her evidence about the $50 that he gave her for the fair. You may consider Tracy Brown’s evidence about the calls that came in when she was in Natalie’s house, the timing of those. That might be something that will come into your decision as well.

You may consider Tracy Brown’s evidence about his attitude and his demeanour on the phone. He was angry, he was yelling, he was screaming. That’s something that may be relevant to your decision on this issue. You may consider the telephone records about the timing of the telephone calls.

You may consider whether or not Ms. Gayle and Mr. McPherson had a fight that night. There is, as I recall, different evidence on that. Someone, I believe Tracy Brown, said that they were arguing for a couple of seconds when they were inside, that that might be relevant to your decision on this particular element.

You are also entitled to take into account the manner in which Ms. Gayle was killed on the issue of deliberation. The intentional firing of five bullets at close range, two in the head, those things you might find inconsistent with an impulsive act and consistent with a carefully considered, deliberately executed murder. To put it differently, on your view of the evidence if you conclude that Mr. McPherson went to Ms. Gayle’s home uninvited, very late the night of her baptism with a fully loaded semi automatic handgun in his possession, you might conclude that the killing was a cold blooded, planned and deliberate murder.

You might consider the conversation with Ms. Goulbourne, the conversation that she said that she talked to him and he said, “I tell people I will kill Natalie. Do you think I’ll do that?” And he answered it himself saying that no, he wouldn’t. He talked about paying child support at $50 a week and said that he is just going to leave her alone.

It also might be important for you to consider some of the other things that Ms. Goulbourne said. You will remember she was asked and I recall that she gave evidence that Wayne was often known as a bally-mouth, someone who mouth talked. She recalled that Wayne was somebody who talked a lot, had a reputation for talking a lot and not following through.

You might recall some of her other evidence that she had seen Wayne and Natalie together and they had been friendly with each other, even since she moved out. They seemed to be getting along fine.

You will recall her evidence that she was looking for Natalie the day before the baptism and decided to try and call her at Wayne’s house because she often did her laundry over there, for instance.

You might also consider as relevant on this issue the pouch that was found in the car with the bullet inside of it. That might be something that’s important to you in this decision as well.

D. GROUNDS OF APPEAL

[24] The appellant submits that the trial judge erred in her instructions to the jury. Specifically, he submits that she erred in relating the evidence to the issue of planning and deliberation, a requirement of first degree murder. The appellant advances three arguments.

(1) The trial judge directed the jury towards evidence that could support an inference of planning and deliberation, namely, the number and location of the gunshot wounds and the bullet in the pouch found in the appellant’s car.

(2) The trial judge failed to explain the competing inferences available on the evidence. First, the trial judge failed to explain that the bullet found in the car, as excess ammunition, could be evidence of a history of gun possession. This would weaken the inference that the appellant attended at Ms. Gayle’s home intentionally armed. Second, the trial judge failed to explain that the appellant’s emotional state was equally capable of supporting an inference of an impulsive murder as it was an inference of planning and deliberation.

(3) The trial judge failed to direct the jury to consider circumstances that weighed against a finding of planning and deliberation. This included the following:

• the murder was committed in front of witnesses known to the appellant;

• the gun was left at the scene;

• the appellant had a history of drug possession, which supported an inference of habitual gun possession; and

• Mr. Petrochuk’s presence and conduct could have been provocative.

E. ANALYSIS

[25] This appeal does not turn on the trial judge’s legal instruction on planning and deliberation, which counsel for the appellant described as impeccable. Rather, it turns on whether the trial judge adequately addressed the evidence so that the jury was equipped to understand and determine the issue of planning and deliberation for the purposes of a first degree murder conviction.

[26] In a jury charge, except in rare cases where it would be needless to do so, the trial judge must review the substantial parts of the evidence and the theory of the defence so that the jury may appreciate the value and effect of that evidence and how the law is to be applied to the facts: see Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-98. That said, a jury charge does not require a standard of perfection: see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 2. As stated by Lamer C.J. at para. 14 of that decision:

As long as an appellate court, when looking at the trial judge’s charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper.

[27] As mentioned, the appellant advances three arguments.

[28] First, the appellant submits that the trial judge invited the jury to consider evidence that could not support an inference of planning and deliberation. He argues that the number and location of the gunshot wounds were of no relevance to the issue of planning and deliberation. Similarly, the presence of a bullet in the car could not support an inference of planning and deliberation.

[29] I disagree. The trial judge was describing a sequence of events which included bringing a fully loaded semi-automatic handgun to Ms. Gayle’s house and using it to kill Ms. Gayle. Taken together with all the other evidence, the number and location of the shots could demonstrate the considered and deliberate execution of a calculated plan to kill Ms. Gayle. As for the bullet found in the pouch in the car, it matched the bullets used to kill Ms. Gayle. Again, this evidence could establish that the appellant brought a loaded gun and extra ammunition to Ms. Gayle’s house prior to her murder and could assist the jury in determining whether the murder was planned and deliberate.

[30] The appellant’s second submission is that the trial judge’s charge was unbalanced in that she failed to explain the competing inferences available from the evidence. The appellant specifically takes issue with the trial judge’s failure to instruct the jury that the appellant’s significant drug involvement was a circumstance capable of supporting an inference of habitual firearm possession.

[31] This argument was not advanced at trial. During the pre-charge conference, defence counsel specifically stated that he did not want the appellant’s history of drug involvement emphasized in the charge, and that he was not asking for anything in the charge on this point. Trial tactics of counsel, absent a miscarriage of justice, are to be given great deference. The trial judge is not responsible for vetting the tactical decisions of counsel and reversing or varying them when necessary: see R. v. Lomage (1991), 1991 CanLII 7228 (ON CA), 2 O.R. (3d) 621 (Ont. C.A.), at p. 630. The appellant’s position at trial was that he was not the killer and the gun was not his. In all of these circumstances, it would have been inappropriate for the trial judge to raise the appellant’s history of drug dealing and any related gun possession in her charge.

[32] In addition, the appellant submits that evidence of the appellant’s emotional state was equally capable of supporting an inference of an impulsive murder as it was an inference of planning and deliberation.

[33] I would not give effect to this submission. In my view, the trial judge fairly reviewed the evidence. Moreover, she was not required to review every competing inference that could be drawn from a piece of circumstantial evidence: see R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at paras. 139, 142.

[34] Thirdly, the appellant submits that the trial judge failed to direct the jury to consider circumstances that weighed against a finding of planning and deliberation. In particular, the appellant relies on this court’s decision in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516. In that case, the trial judge had erred in failing to relate the evidence to the issue of whether the murder was planned and deliberate and therefore whether the accused should be found guilty of first or second degree murder.

[35] The present case is distinguishable from Maciel. In the case under appeal, the appellant’s defence was mistaken identity and counsel made no submissions on whether the murder was planned and deliberate. Nonetheless, the trial judge drew the jury’s attention to the evidence that would assist them in this regard. Early in her charge, she reviewed the evidence relevant to identity and the appellant’s state of mind. She canvassed the evidence of the events of that weekend and the day of the shooting: the phone calls, the appellant’s confrontation with Ms. Gayle and Mr. Petrochuk, his statements, his entry into the home, and the eyewitness testimony surrounding the shooting.

[36] When she addressed the elements of first degree murder and distinguished it from second degree murder, she also reviewed some of the evidence that was relevant to the issue of planning and deliberation and pointed out that which was favourable to the appellant’s case and that which was not. This included evidence that suggested that the appellant and Ms. Gayle remained on good terms prior to her murder. She also reminded the jury of her earlier review of the evidence. She advised the jury that she had not summarized all of the evidence and that they must consider all of it in determining whether the murder was planned and deliberate.

[37] I have already addressed the trial judge’s appropriate treatment of the issue of drugs and habitual gun possession. The trial judge also sufficiently addressed any potential provocation caused by Mr. Petrochuk’s presence. She instructed the jury to consider the appellant’s state of mind and the effect of any real, perceived or imagined insults. She recharged the jury on this issue in a manner suggested by both the defence and the Crown so as to encompass the insults and conduct of both Ms. Gayle and anyone else. The revision was incorporated into the copy of the charge provided to the jury. While not determinative, it is notable that defence counsel was content with the recharge.

[38] Lastly, the appellant submits that the trial judge ought to have addressed the fact that the gun was left at the scene and that the murder was committed in the presence of others known to the appellant. Again, no such objection was made at trial. The trial judge told the jury to consider all of the evidence and made it clear that she was not summarizing all of the relevant evidence on planning and deliberation. The jury was fully aware that the appellant committed the crime in front of people he knew and that he left the gun at the scene.

[39] Moreover, the trial judge was not obligated to review all of the evidence: see Stubbs, at para. 136; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 55; Azoulay, at p. 498. The jury in this case was well equipped to understand and determine the issue of planning and deliberation and whether the appellant should be convicted of first degree murder. In my view, the charge to the jury was fair. There was no miscarriage of justice.

[40] Accordingly, I would dismiss the appeal.

Released:

“MAR 26 2014” “S.E. Pepall J.A.”

“STG” “I agree S.T. Goudge J.A.”

“I agree E.A. Cronk J.A.”