COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Woodcock, 2015 ONCA 535

DATE: 20150717

DOCKET: C53297

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louis Raphael Woodcock

Appellant

James Lockyer and Mindy Caterina, for the appellant

Lucy Cecchetto, for the respondent

Heard: June 25, 2015

On appeal from the convictions entered on April 1, 2010 by Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a jury.

MacPherson J.A.:

[1] The appellant was charged with second degree murder in the tragic death of 15-year-old Jane Creba. Ms. Creba, who was shopping with her sister on Boxing Day in 2005, was hit by a stray bullet during a gunfight between two groups of young men on a very crowded Yonge Street in Toronto, just north of the Eaton Centre.

[2] Following a jury trial over which Pardu J. (as she then was) presided, the appellant was convicted of manslaughter in relation to the death of Ms. Creba and four counts of aggravated assault in relation to four other individuals wounded by stray bullets. The appellant appeals his convictions.

[3] Ms. Creba was killed by a .357 Magnum bullet fired northbound by Jeremiah Valentine. The Crown’s theory of causation was that the appellant, Valentine, and others in their groups had decided, prior to any shots being fired, to engage in a gunfight on a public street. As a result, but for the appellant’s willingness to engage in a gunfight, Valentine would not have fired the bullet that killed Ms. Creba.

[4] The Crown’s theory of causation had already proven successful against one of the appellant’s associates, J.S.R., who was convicted of second degree murder in Ms. Creba’s death: see R. v. J.S.R., (2008), 2008 ONCA 544, 237 C.C.C. (3d) 305 (Ont. C.A.); R. v. J.S.R., 2012 ONCA 568, 112 O.R. (3d) 81, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 456. J.S.R. and the appellant were part of a group of friends standing outside a Foot Locker store when Valentine opened fire. Almost immediately, J.S.R. – or, less likely, the appellant – fired a 9mm automatic handgun southbound.

[5] The Crown’s theory of the appellant’s role was that he owned and carried the 9mm handgun and passed it to J.S.R., possibly after firing shots himself. There was strong evidence connecting the appellant to the gun, including DNA and the testimony of some of his associates. However, the evidence connecting the appellant to the actual shooting of the gun was circumstantial. Many eyewitnesses to the brief events on Yonge Street testified, but none of them identified the appellant as a shooter or saw him passing a gun to J.S.R.

[6] The appellant submits that the trial judge erred in three respects: (1) by admitting expert evidence about how people carry and conceal guns in public; (2) by failing to instruct the jury that, in order to establish causation against the appellant, the Crown had to prove the mutual gunfight theory; and (3) by declining to leave self-defence with the jury.

(1) Expert evidence[^1]

[7] The appellant can be seen in surveillance video from the Eaton Centre wearing a jacket that is done up, but with his right or left arm occasionally out of the sleeve of the jacket. The trial judge allowed Stephen Horwood, a 32-year veteran of the Toronto Police Service and a current criminal investigator for the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives, to testify as an expert on the “recognition of the characteristics of armed persons”. His evidence was that criminals keep firearms hidden but readily accessible and that likely areas of concealment are the waist, pants pockets or jacket pockets. He stated that a fully loaded 9mm handgun weighs 2 to 2.5 pounds and that, if such a gun were tucked in the pants waist, it would shift as the individual moved, requiring it occasionally to be readjusted.

[8] The initial ruling that Horwood’s testimony was admissible forbade the Crown from showing Horwood the Eaton Centre surveillance video and adducing from him that the appellant had characteristics consistent with that of an armed person. On cross-examination, defence counsel referred to Horwood’s observations of the appellant in the surveillance video. The Crown then successfully applied to play the surveillance video for Horwood. In re-examination, Horwood testified that the appellant caught his attention in the video as someone who was possibly armed. Yet, Horwood saw no protrusions in the appellant’s waist or pockets that resembled a gun. He admitted that he could not tell from the video whether the appellant was armed or not.

[9] The appellant makes two submissions on this issue.

[10] First, the appellant contends that Horwood’s evidence should not have been admitted because, even by his own testimony, it was “mostly … common sense”. It follows that the jury did not need the assistance of an expert in order to evaluate the evidence.

[11] I do not accept this submission. In my view, a full and fair reading of Horwood’s testimony leads to the conclusion that his expertise was based on a combination of experience, science and common sense.

[12] Moreover, in her ruling,[^2] the trial judge drew a careful balance in setting the boundaries for Horwood’s testimony. She permitted Horwood to testify about the physical properties of guns and how people carry and conceal guns. At para. 18, she observed, correctly in my view:

I am satisfied that this evidence is necessary to give the jury the tools to appreciate the evidence. It would not be surprising if most or all of the jurors will have never handled a handgun, much less carried an illegal firearm. Such an object is not an ordinary household object with which most persons can be presumed to be familiar.

[13] However, the trial judge did not permit Horwood to view the video in the presence of the jury and offer his opinion about what he saw, on the basis that the potential prejudice associated with this evidence could exceed its probative value: at para. 2.

[14] In the end, I cannot say that the ‘halfway house’ result the trial judge reached in her comprehensive and well-reasoned ruling is flawed.

[15] The appellant’s second submission on the expert evidence issue arises because of a changed landscape during the trial. Defence counsel vigorously and successfully cross-examined Horwood. He established that, after viewing the video, Horwood could not tell which of the appellant’s hands was dominant and could not see any protrusion in the appellant’s body or clothing. The cross-examination concluded with this exchange:

Q. And from viewing that video, the most you could ever say is that the person whose arms are in the coat showed some signs of somebody who might be armed, correct?

A. Correct.

Q. You certainly cannot say, even from your expert opinion, that that person is likely armed, can you?

A. No.

Q. You couldn’t even give this jury, say, a percentage chance of the person being armed?

A. No, sir.

Q. You couldn’t say whether it’s a 1 percent chance, a 2 two percent chance, a 20 percent chance? You can’t even assist at all in that respect, can you?

A. In saying definitively whether or not that person had a gun, no, I couldn’t.

[16] Following this cross-examination, Crown counsel requested that, in his re-examination, he be permitted to play the video in court and ask Horwood questions about it. The trial judge allowed this; however, she first permitted defence counsel to re-open his cross-examination to play the video in court and ask Horwood questions about it.

[17] The appellant contends that the trial judge erred by permitting the video to be shown during re-examination. He says that this, in effect, reversed the second component of the trial judge’s initial ruling.

[18] I am not persuaded by this submission. In Horwood’s examination-in-chief, the Crown did not ask any questions about the video. Indeed, the Crown did not even ask Horwood if he had viewed the video. Then defence counsel conducted a cross-examination, which the appellant’s counsel described during the appeal hearing as “very effective”. The cross-examination included many questions about Horwood’s viewing and interpretation of the video. In light of these two trial episodes, it became reasonable, in my view, for the trial judge to permit both counsel to play the video in court and ask Horwood questions about it. Both counsel did so, first defence counsel in a re-opened cross-examination and then Crown counsel in re-examination.

[19] In summary, I see no error in the trial judge’s initial admissibility ruling or in her treatment of the cross-examination/re-examination issue. Both were appropriately balanced. I would not give effect to this first ground of appeal.

(2) Causation

[20] In the first J.S.R. appeal in this court, in 2008, the court found that the mutual gunfight theory of causation required the northbound shooter and J.S.R. to have decided to engage in a gun battle on a public street before the shots were fired. It was not enough for J.S.R to be “merely returning the fire initiated by the northbound shooter”: at para. 26.

[21] On this appeal, the appellant does not contest that the Crown was entitled to anchor its causation argument in the mutual decision by the two groups to engage in a gunfight on a public street. However, the appellant submits that the trial judge gave an inadequate charge on this aspect of the case. The appellant asserts that the trial judge did not explain that the Crown had to prove this mutual decision theory with respect to the appellant in order to find that his conduct was “a significant contributing cause” to Ms. Creba’s death. This, the appellant says, amounted to non-direction on a key element of causation.

[22] I do not accept this submission. The relevant parts of the trial judge’s instruction on this issue are:

For an act to cause someone’s death, it must be at least a contributing cause, one that is beyond something that is trifling or minor in nature.

It is likely that the bullet that injured and killed Jane Creba came from a gun fired by Jeremiah Valentine, who has pleaded guilty to her murder. In dealing with this question, you must determine whether the conduct of the accused also caused her death, in that it was a contributing cause, beyond something that is trifling or minor in nature.

If the conduct of the accused played no role in the death of Jane Creba, or if you have a reasonable doubt as to whether it contributed in a significant way to her death, then you must acquit the accused.

If the Crown satisfies you beyond a reasonable doubt that the actions of the accused were a contributing cause of the death of Jane Creba, as I have described, then you will go on to the last question.

The next question is whether the Crown has proven that the actions of the accused were a significant contributing cause to the death of Jane Creba.

The Crown submits that this was, in effect, a mutual shootout, and that the issue of who fired the first shot is of no moment and only reflects who reacted the fastest. The Crown submits that Jane Creba died as a result of a decision by both the accused and Jeremiah Valentine to participate in a shootout on Yonge Street, and that the conduct of the accused in firing, or passing a gun so [J.S.R.] could fire it, was a contributing cause of the death. The Crown submits that this position is supported by the following evidence:

(a) Given the timing of the gunshots, the accused must have been carrying loaded firearms. This suggests they were ready for a gunfight.

(b) From the words expressed by Valentine as he came out of the Foot Locker store, one can infer that there was a conflict of some sort between the accused and Valentine, and that the accused accepted his challenge to engage in a gunfight.

(c) From the number of shots fired and the rapidity with which the shots were fired, one can infer that the accused were willing to participate in a gunfight.

The defence submit that the bullet fired by Valentine killed Jane Creba, and that she could have been killed by the first bullet fired in the incident. The defence submits that the conduct of the accused had no effect on Jane Creba and did not cause her death. Neither the 9 millimetre Ruger, nor the .25 caliber gun injured Jane Creba. They submit that there is no evidence of any agreement to participate in a mutual shootout. The accused were chatting with friends as they stood outside the Foot Locker, saying goodbye to the girls, and there is no basis to conclude that they were part of any agreement to engage in a gunfight.

It will be up to you to determine, based on all of the evidence you have heard and all of the exhibits and admissions, whether the Crown has proven a sufficient causal relationship between the actions of the accused and the death of Jane Creba, according to the legal requirements for causation as I have explained them to you. [Emphasis added.]

[23] In my view, these passages are an appropriate combination of instruction on the applicable legal principles (the emphasized passages) and setting out, in a clear and succinct fashion, the positions of the parties on those issues. They are not, as the appellant asserts, devoid of content on the former and entirely concerned with the latter. It is true that the trial judge did not convert her summary of the opposing positions of the parties into a precise question for the jury to answer about a mutual decision to engage in a gunfight. However, in my view, the combination of her simple and clear summary of the parties’ positions on the “mutual shootout” issue and the legal instruction she gave would have focussed the jury’s attention appropriately to answer the question posed in the final paragraph of the above passage.

[24] In that vein, it is important to note that experienced defence counsel did not object to this component of the jury charge. In my view, this is not surprising given that the appellant’s core position, advanced in his closing address, was that he was not involved at all in the gunfight: he did not have a gun on Boxing Day, he did not fire a gun and he did not do anything to assist anyone else in firing a gun.

(3) Self-defence

[25] At trial, the appellant’s counsel informed the trial judge that he would not be advancing self-defence in his closing address; however, he requested that the trial judge include an instruction on self-defence in her jury charge. She refused. In a brief initial ruling, the trial judge said:

I will not be putting self-defence or provocation to the jury on the ground that there is no air of reality to those defences based on the evidence before me because of the absence of evidence related to the subjective elements.

Several days later, the trial judge provided additional reasons explaining this ruling.

[26] The appellant submits that the trial judge erred in making this ruling. He says that there was evidence that Valentine threatened the appellant’s group and then fired the first shots. If the jury accepted this evidence and found that there was no prior agreement by the appellant to engage in a gunfight, then it would have been a legitimate act of self-defence for the appellant to fire back or to aid J.S.R. in doing so. The appellant would then be guilty of unlawful possession of a handgun, but not of manslaughter.

[27] I do not accept this submission. In R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 34, Wagner J., after reviewing the leading authorities, said:

In conclusion, there is no cardinal rule against putting to a jury an alternative defence that is at first glance incompatible with the primary defence. The issue is not whether such a defence is compatible or incompatible with the primary defence, but whether it meets the air of reality test. In any case, the trial judge must determine whether the alternative defence has a sufficient factual foundation, that is, whether a properly instructed jury acting reasonably could accept the defence if it believed the evidence to be true.

[28] In my view, the trial judge engaged in precisely this analysis. The appellant testified, so she reviewed his evidence: he did not possess a gun on Boxing Day; he did not fire a gun; for an instant he saw Valentine point a gun only at J.S.R. and not at him; he then saw J.S.R. pull out a gun; he started to run away; and he then heard the gunfire. This review led her to conclude that there was nothing to ground the subjective elements of the components of the then s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46 concerning whether the appellant believed he was being assaulted and could not save himself from being killed except by firing a gun. The trial judge said that, for the jury to find these subjective elements required under s. 34(2), they would have to disbelieve the appellant’s evidence that he did not have a gun, disbelieve his evidence about his own state of mind and draw inferences that he had a different state of mind. Accordingly, she concluded that there was no air of reality to the proposed defence.

[29] I agree with the trial judge’s analysis. She was aware of the applicable test, reviewed the relevant evidence, and reached a sound conclusion. In R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 26, McLachlin C.J. said:

The fact remains that the trial judge exercises a gatekeeper role in keeping from the jury defences that have no evidential foundation. Defences supported only by bald assertions that cannot reasonably be borne out by the evidence, viewed in totality, should be kept from the jury.

[30] That is what the trial judge did in this case. I can see no error in how the trial judge exercised her gatekeeper function with respect to self-defence.

Disposition

[31] I would dismiss the appeal.

Released: July 17, 2015 (“H.S.L.”)

“J.C. MacPherson J.A.”

“I agree. Janet Simmons J.A.”

“I agree. H.S. LaForme J.A.”

[^1]: At the appeal hearing, the panel did not call on the respondent to address this issue.

[^2]: The trial judge’s reasons are reported at 2010 ONSC 671.