COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jones-Solomon, 2015 ONCA 654

DATE: 20150929

DOCKET: C55372

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carrift Jones-Solomon

Appellant

Kristin Bailey, for the appellant

Greg Skerkowski, for the respondent

Heard: June 30, 2015

On appeal from the conviction entered on February 22, 2011 and the sentence imposed on March 31, 2011 by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

OVERVIEW

[1] Late in the evening of May 28, 2006, Jacqueline Levesque, the former girlfriend of Jermaine Watson and the mother of his daughter, together with two or three males, entered Watson’s apartment. The males beat Watson; one shot him. Watson died of his gunshot wounds. The appellant, Carrift Jones-Solomon, was convicted by a jury of manslaughter in the death of Watson. The appellant did not testify at his trial. The trial judge imposed a sentence of 13 years, less credit for the appellant’s pre-sentence custody. The appellant appeals his conviction and sentence.

[2] The appellant appeals his conviction on three grounds: (i) the trial judge erred in admitting the testimony given by Levesque at the appellant’s preliminary inquiry under s. 715(1) of the Criminal Code, R.S.C. 1985, c. C-46, because Levesque refused to testify at the appellant’s trial; (ii) the trial judge gave an inadequate Vetrovec warning in his charge to the jury; and (iii) the jury’s verdict was unreasonable. The appellant seeks leave to appeal his sentence as demonstrably unfit.

[3] For the reasons that follow, I would dismiss the appeal from conviction, grant leave to appeal the sentence, but dismiss the sentence appeal.

THE BACKGROUND FACTS

[4] Jacqueline Levesque and Jermaine Watson started dating in 2003, and lived together for a period of time before the birth of their daughter in September, 2005. They fought frequently about their daughter. They broke up for the final time in January, 2006.

[5] In May, 2006, Levesque was living in the apartment of her friend, Nikkita Mohamed, on Danforth Road, Toronto, in a complex known as “White Blocks”. Watson was living in an apartment on Scarborough Golf Club Road, Toronto, with his girlfriend, Camille Hutchinson. Levesque and Hutchinson did not get along.

[6] Late in the day on May 28, 2006, Levesque was sitting in a car at White Blocks with her friends, Cheasnessa Driscoll and Chantelle Eastmond, and a male. From the car Levesque called Watson on the telephone. She ended up speaking with Hutchinson. An argument ensued. Levesque told Hutchinson where she was located, as an invitation to fight.

[7] Hutchinson took Levesque up on her invitation. Around 10 p.m. that evening, Hutchinson arrived at White Blocks with several female friends. They waited for Levesque outside Mohamed’s apartment door. When Levesque approached the apartment, a physical altercation ensued. Hutchinson took Levesque’s cell phone and then left the building.

[8] Levesque then went into Mohamed’s apartment to change. She called Watson’s mother, Lynn Watson, and told her what Hutchinson had done to her.

[9] Levesque wanted to retaliate. Three or four men accompanied her to Watson’s apartment, which was a five minute drive away. Although Levesque knew the location of the building in which Watson and Hutchinson lived, she did not know their apartment number. To obtain that information, Levesque called her friend Cheasnessa Driscoll, who, in turn, placed a call to some other friends, the Lindo sisters. They provided the address.

[10] Levesque and the men arrived at Watson’s apartment building around 11 p.m. and took the elevator up to Watson’s floor. One man remained at the elevator holding the door.

[11] Levesque and the other men proceeded to Watson’s apartment. Levesque knocked. Hutchinson looked out the peephole and told Watson it was Levesque. Watson told Hutchinson to open the door. She did. At that time, Watson was lying on the apartment floor near the television, and two of Hutchinson’s friends – Stacey Newman and Karlene Simpson – were sitting on a couch.

[12] When Hutchinson opened the door, Levesque entered and began physically fighting with Hutchinson. Two or three men followed Levesque into Watson’s apartment, and they began to hit and kick Watson while he lay on the ground. Shortly after, one of the men shot Watson with a gun. Levesque and the men fled the apartment. Watson died of his wounds.

[13] The next day, Levesque called Watson’s mother. She ended up speaking to Watson’s father, who told her she should turn herself in. On May 31, Levesque called 911 and turned herself in to the police.

[14] Levesque was charged with first-degree murder. Initially, she refused to identify the males involved in the attack. Shortly before her trial, Levesque provided a statement to the police. In the statement, Levesque identified the appellant as one of the men involved in the attack, but she did not provide any useful information about the identity of the other men.

[15] Levesque testified at length at the appellant’s preliminary inquiry. Thereafter, and with the consent of the Crown, she pleaded guilty to manslaughter in relation to the death of Watson.

THE GROUNDS OF APPEAL

[16] The appellant advances four grounds of appeal:

(i) The trial judge erred in admitting the evidence given by Levesque at the appellant’s preliminary inquiry under s. 715(1) of the Criminal Code;

(ii) The trial judge’s Vetrovec warning was insufficient in all the circumstances;

(iii) The jury’s verdict was unreasonable; and,

(iv) The sentence imposed by the trial judge was demonstrably unfit.

FIRST GROUND: THE ADMISSIBILITY OF THE PRELIMINARY INQUIRY TESTIMONY OF JACQUELINE LEVESQUE

[17] Levesque testified as a witness for the Crown at the appellant’s preliminary inquiry. At the appellant’s trial, Levesque refused to testify. The trial judge admitted Levesque’s preliminary inquiry testimony under s. 715(1) of the Criminal Code. To understand the context in which that ruling was made, several additional facts need to be set out.

A. Levesque’s Statements and Testimony

(1) May 31, 2006 statement to the police

[18] Watson was killed on May 28, 2006; Levesque turned herself in to the police a few days later, on May 31, 2006. She was interviewed by the police at that time. At the appellant’s trial, it was admitted that in the course of the interview, Levesque told the police that she had gone to Watson’s apartment on the bus, and two men – whom she knew by their street names, Lacey and Cash – went along with her. She did not know what the men did with the gun after the shooting.

(2) January 25, 2008 videotaped statement

[19] Levesque was charged with first degree murder. Following the offer made by her defence lawyer at the time, she provided a videotaped statement to the police on January 25, 2008; there was an agreement that this statement would not be used in the murder prosecution of Levesque. Her trial started on June 1, 2009, at which time she denied that her statement to the police on May 31, 2006 had been given voluntarily. The trial judge ruled the May 31, 2006 statement voluntary and admissible. Levesque then changed her plea and, with the consent of the Crown, entered a plea of guilty to manslaughter.

(3) Agreed statement of facts on manslaughter plea

[20] At the appellant’s trial, following the admission of Levesque’s preliminary inquiry evidence under s. 715(1) of the Criminal Code, the agreed statement of facts on her manslaughter guilty plea was filed on consent as an exhibit. That statement recited that four men had accompanied Levesque to Watson’s apartment, where the latter was beaten and shot, but the statement did not identify any of the men.

(4) Levesque’s testimony at the appellant’s preliminary inquiry

[21] At the appellant’s preliminary inquiry, Levesque testified that following her initial altercation at her apartment with Hutchinson and others, she had called Watson’s mother to tell her about the assault. She then grabbed a kitchen knife with which she intended to stab Hutchinson and took the elevator down to the entrance of her apartment building. A group of people were “chilling” there, including her friend Eastmond, to whom she explained what had occurred.

[22] According to Levesque, also present were the appellant, Cash, Lacey, and others. The appellant ended up driving Levesque to Watson’s apartment building. Cash, Lacey and another unidentified man were also in the car.

[23] When they reached the building, all five went up the elevator to Watson’s apartment. The unidentified man stayed by the elevator, while the others went to the apartment door. Levesque knocked and Hutchinson let her in, whereupon Levesque started to fight with Hutchinson. Levesque saw the three men who had entered the apartment after her, including the appellant, kicking, punching and beating Watson. At one point, she told them not to hurt her “baby-father”. Levesque testified that she had not seen a gun on any of the men before they had entered the apartment, and she never heard a gun discharge in the apartment.

[24] Levesque was aware that Newman and Simpson were also in the apartment at the time on a couch.

[25] After the group left Watson’s apartment, they went to the house of a friend of the appellant. There Levesque saw a gun for the first time. The appellant handed a gun to one of the other men, telling him to put it away.

B. The Application at Trial

[26] When called by the Crown at trial, Levesque refused to answer any questions, notwithstanding the direction of the trial judge and an opportunity to consult with counsel. At the request of defence counsel, the trial judge permitted cross-examination of Levesque, but she persisted in her refusal to testify. The examination and cross-examination of Levesque in front of the jury lasted about 17 minutes.

[27] The Crown moved to admit Levesque’s preliminary inquiry evidence under s. 715(1) of the Criminal Code. The Crown conceded that the prosecution against the appellant could not proceed without the evidence of Levesque.

[28] The appellant opposed the application on two bases. First, although defence counsel acknowledged that he generally had had a full opportunity to cross-examine Levesque at the preliminary inquiry, he submitted that he had been unable to cross-examine her on the events surrounding her subsequent guilty plea and on aspects of the cell phone records, the significance of which he had not fully appreciated at the time of the preliminary inquiry. Second, the appellant submitted that because the Crown’s case rested almost entirely on Levesque’s evidence, which was inherently unreliable, the trial judge should exercise his discretion under s. 715(1) to exclude the evidence when its admission would render the trial unfair to the accused.

[29] According to the appellant, a key indicator of the unreliability of Levesque’s evidence was the way in which she had downplayed the involvement of one of her friends, Devon Dennis, in the events of May 28, 2006. It was the appellant’s position at trial that Dennis had been in the car which took Levesque and others to Watson’s apartment building and Dennis had been in Watson’s apartment building at the time of the shooting.

(1) The ruling of the trial judge

[30] The trial judge permitted the Crown to introduce the preliminary inquiry testimony of Levesque. He found that Levesque had been cross-examined at length at the preliminary inquiry about providing an induced statement inculpating the appellant when she was facing a first-degree murder charge, as well as on the offer of a plea to manslaughter which she was thinking about accepting at the time of her cross-examination. Although defence counsel may not have recognized the importance of various cell phone records at the time of the preliminary inquiry given the volume of Crown disclosure, the trial judge observed that in R. v. Lewis, 2009 ONCA 874, at para. 68, this court had stated that the “full opportunity to cross-examine” requirement in s. 715(1) “should not apply where the failure to cross-examin[e] stems from an accused person’s ignorance of potentially useful information, no matter the cause or reason.” The trial judge concluded that the appellant had exercised the opportunity to cross-examine Levesque fully at the preliminary inquiry, and the requirements of s. 715(1) of the Criminal Code had been met.

[31] In declining to exercise his discretion to exclude Levesque’s evidence, the trial judge addressed two arguments advanced by the appellant. First, the trial judge concluded that any potential trial unfairness to the appellant could be ameliorated through other witnesses, specifically:

(i) as to the appellant’s contention that he could not cross-examine fully on certain cell phone calls involving Levesque, the trial judge observed that the appellant had been able to cross-examine Driscoll, the party to whom Levesque had spoken. Further, the Crown had agreed that that appellant could elicit through Driscoll what Levesque had said during the calls, and the Crown would not elicit any utterances of Levesque over the cell phone which the defence did not wish the jury to hear; and

(ii) at the preliminary inquiry the appellant had cross-examined Levesque at some length about her induced statement, her failure to implicate the appellant before that time, and her upcoming guilty plea. The trial judge ruled that the appellant could lead through other witnesses the circumstances surrounding the guilty plea and the facts upon which Levesque admitted her guilt.

[32] Second, the appellant submitted that Levesque was so unbelievable and inherently unreliable that it would be unfair to allow her evidence to go to the jury without the benefit of observing the witness during a thorough cross-examination. The trial judge rejected this argument, holding that the jury would have the ability to hear the numerous inconsistencies within Levesque’s evidence, as well as inconsistencies with the rest of the evidence. The appellant would have the ability to make arguments about why Levesque’s evidence was neither credible nor believable.

[33] In the result, the trial judge admitted Levesque’s preliminary inquiry evidence.

(2) The use of the preliminary inquiry evidence at the trial

[34] When the transcript of Levesque’s preliminary inquiry evidence was read in at trial, Crown counsel read the questions posed by the Crown at the preliminary inquiry and defence counsel did the same for the questions posed by the defence and for Levesque’s answers. The read-in consumed almost three days of trial time.

[35] Several agreed facts concerning Levesque were adduced at the trial for the purpose of assessing the credibility and reliability of her evidence: (i) the circumstances surrounding Levesque giving a statement to the police on January 25, 2008 and her plea of guilty to a charge of manslaughter in respect of Watson’s death; (ii) the agreed statement of facts that was filed at the time of Levesque’s guilty plea; (iii) evidence given by Levesque on June 3, 2009, during the voir dire on her trial for first degree murder, regarding the admissibility of her statement to the police at the time of her arrest on May 31, 2006; and (iv) the statement Levesque gave to the police on the date of her arrest, May 31, 2006.

[36] The read-in of the preliminary inquiry transcripts and the related agreed facts were the subject of mid-trial and final instructions by the trial judge.

C. The Arguments on Appeal

[37] The appellant advances two main arguments why the trial judge erred in admitting Levesque’s evidence under s. 715(1) of the Criminal Code, both of which rely on the decision of this court in R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, which was released after the trial judge had made his ruling. First, the appellant submits that the trial judge erred in concluding that any deficiencies in the ability to cross-examine fully could be ameliorated through evidence from other witnesses. Such an approach, the appellant contends, was rejected by this court in Saleh. Second, the appellant argues that in considering the issue of trial fairness, the trial judge failed to conduct the kind of cost/benefit analysis contemplated by Saleh. In his submission, Levesque’s evidence was just too unreliable to put before a jury, even a fully instructed one.

[38] The Crown argues that the propriety of the trial judge’s decision turns upon his residual discretion under s. 715(1) of the Criminal Code. The respondent submits that the trial judge properly balanced the competing interests of the fair treatment of the accused with society’s interest in the admission of probative evidence to get at the truth of the allegations in issue.

D. The Governing Principles

[39] Section 715 of the Criminal Code permits, in certain circumstances, evidence given in one proceeding to be admitted in another. The section, provides, in part, as follows:

715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence,[…]

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[40] Section 715(1) requires a party who seeks to introduce at trial evidence given by a witness at the preliminary inquiry into the charge to establish, on a balance of probabilities, that (i) the witness gave evidence at the preliminary inquiry, (ii) the witness is unavailable to testify at trial for any reason described in the section, and (iii) the preliminary inquiry evidence was given in the presence of the accused. Where these conditions have been satisfied, the preliminary inquiry evidence may be admitted at trial, unless the accused proves that she or he did not have full opportunity to cross-examine the witness at the preliminary inquiry.

[41] What an accused must demonstrate under s. 715(1) to exclude otherwise admissible evidence on the basis that he “did not have full opportunity to cross-examine the witness” was explained by this court in Saleh, at paras. 71 and 72:

The operation of the exception is not determined by the use actually made of the opportunity to cross-examine but rather by the availability of a full opportunity to do so…. The opportunity to cross-examine is contemporaneous with the witness giving evidence at the preliminary inquiry. In a similar way, denials of full opportunity to cross-examine the witness must arise from events that take place at the preliminary inquiry where the witness gives the evidence. Improper judicial interference, for example, may render the opportunity to cross-examine inadequate, thus depriving an accused of a “full opportunity to cross-examine the witness”.

After the witnesses have testified at the preliminary inquiry and the inquiry has concluded with a committal for trial, an accused may acquire additional information that is of impeachment value in association with a witness. The after-the-fact acquisition of this information does not have the effect of converting what was at the time “a full opportunity to cross-examine the witness” into a basis on which to exclude the evidence under the exception to s. 715(1)…. [Citations omitted.]

[42] Even when the statutory conditions for admission contained in s. 715(1) have been met, the section’s discretionary language enables a judge to exclude the previous testimony in circumstances where its admission would operate unfairly to the accused: R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at pp. 547-48. As explained in Saleh, at paras. 74 and 75:

The exclusionary discretion in s. 715(1) is directed at two principal types of mischief: unfairness in the manner in which the preliminary inquiry evidence was obtained, and unfairness in the trial itself caused by the admission of the preliminary inquiry evidence… A trial judge should only exercise this discretion after weighing two competing and frequently conflicting concerns…:

• fair treatment of the accused; and

• society’s interest in the admission of probative evidence to get at the truth of the allegations in issue.

The focus of the trial judge’s concern must be on the protection of the accused from unfairness, rather than the admission of probative evidence without too much regard for the fairness of the adjudicative process… [Citations omitted.]

[43] Saleh, at para. 78, cautions trial judges that the circumstances in which evidence previously given may be excluded in the exercise of discretion under s. 715(1) are comparatively rare. In deciding whether to exclude preliminary inquiry evidence, a trial judge may consider the crucial nature of that evidence and the crucial nature of the credibility of the witness who gave the evidence: Saleh, at para. 77. In Potvin, the Supreme Court of Canada rejected the proposition that the very importance of the evidence in a case required its exclusion, holding, at p. 553, that such a proposition “is at odds with the purpose of s. [715(1)] in ensuring that evidence, even important and highly probative evidence, is not lost because of the unavailability of a witness at trial.”

[44] Finally, Saleh, at paras. 79 and 80, summarized three other points which had emerged from the jurisprudence. First, the principled approach to the hearsay rule has a place in the interpretation and application of s. 715(1), although it may exert a greater influence on the issue of necessity than on that of reliability. Second, s. 715(1) is not an exhaustive code governing the admissibility of preliminary inquiry testimony at a subsequent trial. Where preliminary inquiry testimony fails to satisfy the requirements for admissibility under s. 715(1), it remains open to the trial judge to consider whether the testimony may be admissible under common law principles, for example, under the principled exception to the hearsay rule. Third, compliance with s. 715(1) does not displace the operation of other admissibility rules, such as the discretion to exclude evidence the prejudicial effect of which exceeds its probative value, evidence that involves an inordinate amount of time not commensurate with its value, or evidence whose effect on the trier of fact would be out of proportion to its reliability.

E. Analysis

[45] At the hearing of the appeal, the appellant conceded that he had had a full opportunity to cross-examine Levesque at his preliminary inquiry, notwithstanding the practical limitations on asking her questions about certain cell phone records and her anticipated guilty plea. The statutory requirements under s. 715(1) therefore were met. As a result, the appellant’s main submission on appeal is that the trial judge erred in the exercise of his residual discretion.

[46] Absent an error in principle or a misapprehension of the evidence, a trial judge’s exercise of his or her discretion under s. 715(1) attracts substantial deference on appellate review: Saleh, paras. 87 and 90.

[47] In the present case, the trial judge, following Potvin, correctly identified the exercise as one determining whether the admission of Levesque’s preliminary inquiry evidence would operate unfairly to the accused. However, the appellant submits that the trial judge committed three errors in refusing to exclude Levesque’s evidence:

(i) The trial judge erred in concluding that any deficiencies in the appellant’s ability to cross-examine Levesque at the preliminary inquiry on her cell phone calls and guilty plea could be ameliorated through rules dealing with the leading of evidence from other witnesses;

(ii) The trial judge failed to conduct a cost/benefit analysis of Levesque’s evidence to determine whether its value to the correct disposal of the allegations contained in the indictment exceeded its cost to the ligation process; and

(iii) The trial judge misapprehended the evidence about whether Levesque had a cell phone call with the appellant shortly after the shooting.

[48] In his first two submissions, the appellant takes the position that the trial judge’s approach to exercising his residual discretion stands at odds with principles identified by this court in its later decision in Saleh. Given the appellant’s heavy reliance on Saleh, it is worth recalling the specific circumstances of that case before addressing the appellant’s submissions.

[49] Several of the key factors which led this court in Saleh to conclude that the trial judge had failed to consider the impact of the admission of preliminary inquiry evidence on trial fairness are not present in this case. In Saleh, the accused had been charged with first degree murder in an execution-style slaying of the victim in the context of drug deals. It was alleged that three people were present at the killing: Saleh, Yegin and Esrabian. Both Yegin and Esrabian had testified at Saleh’s preliminary inquiry; both refused to testify at his trial. The trial judge dismissed a request by the Crown to admit Esrabian’s preliminary inquiry evidence under s. 715, but granted the request to admit Yegin’s evidence.

[50] In concluding that the trial judge had erred in admitting Yegin’s evidence, Watt J.A. observed that Yegin’s evidence would be the only account of the events of the killing left with the jury. As well, following his preliminary inquiry testimony, Yegin had testified at Esrabian’s preliminary inquiry where he had not been cross-examined by the accused.

[51] Neither circumstance is present in this case. Levesque did not make any further statement after testifying at the appellant’s preliminary inquiry. Further, Levesque was not the only eyewitness to the killing. The jury heard from two other witnesses who were present in Watson’s apartment at the time of his shooting: Camille Hutchinson and Stacey Newman. Their evidence about the events in Watson’s apartment was available for the jury to consider, along with that of Levesque.

(1) Amelioration of deficiencies in the ability to cross-examine Levesque

[52] Turning, then, to the appellant’s submissions, he first argues that when exercising his residual discretion to exclude, the trial judge failed to adequately take into account the appellant’s lack of opportunity to cross-examine Levesque on certain cell phone records because defence counsel had not appreciated their significance at the preliminary inquiry.

[53] I do not accept that submission. The trial judge specifically considered that issue when he dealt with trial fairness under his residual discretion. Levesque had testified that while driving in the car with the appellant to Watson’s apartment, she had phoned Driscoll to obtain Watson’s apartment number. Driscoll confirmed that she had several telephone calls with Levesque that evening, including one in which she had provided Levesque with numbers for Watson’s apartment. The trial judge noted that appellant’s counsel “has had an opportunity already before the jury to cross-examine Ms. Driscoll, the party Ms. Levesque was speaking to on many of these cell phone calls.” As well, the trial judge ruled:

To ameliorate the prejudice or unfairness, the Crown agreed that counsel for the accused could elicit through Ms. Driscoll Ms. Levesque’s comments over the cell phone to her. Further, the Crown was not allowed to elicit utterances of Ms. Levesque over the cell phone which the defence did not wish the jury to hear. In effect, the process used has provided the accused as getting the best of both worlds in light of that cross-examination.

[54] The appellant submits that in Saleh this court rejected an approach to trial fairness which would replace the opportunity to confront a witness directly at trial about inconsistencies in her evidence with the introduction of contradictory evidence through other witnesses. I disagree. Section 715(1) of the Criminal Code specifically contemplates that an accused will not be able to cross-examine a witness on her evidence at trial, as long as the accused had the full opportunity to do so at his preliminary inquiry. Saleh did not comment, one way or the other, on the types of conditions a trial judge could place on the admissibility of preliminary inquiry evidence under s. 715(1) in order to ensure trial fairness. However, the power to impose such conditions flows from the existence of the trial judge’s residual discretion which is designed to ensure the admission of the evidence will not operate unfairly to the accused: Potvin, at pp. 547-48. An example of the imposition of conditions on the admissibility of preliminary inquiry evidence under s. 715(1) can be found in this court’s decision in R. v. Davidson (1988), 1988 CanLII 7067 (ON CA), 42 C.C.C. (3d) 289 (Ont. C.A.), leave to appeal to S.C.C. refused 21398 (August 10, 1989). At p. 300, this court held that in admitting the preliminary inquiry evidence of the complainant, the trial judge had properly exercised his discretion by allowing evidence of inconsistent statements made by the complainant to be adduced without the complainant having been confronted by them.

[55] Accordingly, I see no error in the trial judge imposing the conditions which he did on the admissibility of Levesque’s preliminary inquiry evidence in order to ensure its admission would not operate unfairly to the accused.

(2) Failure to conduct a cost/benefit analysis

[56] Next, the appellant submits that the trial judge failed to conduct the type of cost/benefit analysis described in Saleh of Levesque’s evidence, as a result of which he did not determine whether the value of Levesque’s evidence to the correct disposal of the allegations contained in the indictment would exceed its cost to the ligation process.

[57] I do not accept that submission. When determining whether to exercise his residual discretion, the trial judge did not use the phrase “cost-benefit” later employed in Saleh. Nevertheless, his analysis amounted to the functional equivalent. After noting the centrality of Levesque’s evidence to the Crown’s case, the trial judge made it clear that he was very much alive to the appellant’s contention that Levesque’s evidence was “so inherently unreliable and incredible that it would be unfair simply to read her evidence in before the jury without an opportunity for this jury to observe the witness, her demeanour and have the opportunity to conduct a further and more thorough cross-examination.” In his ruling, the trial judge recited the key frailties in Levesque’s evidence identified by the appellant – her lies at the preliminary inquiry, her contention that she did not hear a gunshot in Watson’s apartment, and significant inconsistencies in her evidence. The trial judge’s reasons disclose that he balanced the probative value of Levesque’s evidence against its possible prejudice, concluding that its admission would not result in an unfair trial for the accused. He stated:

All of [defence counsel’s] arguments are, to a great extent, based upon the transcript of what the witness said at the preliminary hearing and how it compares to other witnesses’ evidence or objective facts the jury will hear in this case. The jury is the trier of fact and will have the ability to hear the numerous inconsistencies, as well as the rest of the evidence. Much of it would contradict the evidence given by Ms. Levesque at the preliminary hearing. The fact that the jury will hear Ms. Levesque’s evidence read in I find will not deny the accused the ability to make these arguments as to why such evidence is neither credible nor believable. Since the accused’s ability to make such submissions is not hampered by the reading in of such evidence, the accused’s right to a fair trial will not be adversely affected by the admission of the preliminary hearing evidence.

[58] The trial judge continued to address the appellant’s submission about the unreliability of Levesque’s evidence when, having concluded that Levesque’s evidence was admissible under s. 715(1) of the Criminal Code, he proceeded to consider whether it would be admissible under the principled approach to hearsay. The trial judge observed that generally a witness’s testimony before a preliminary inquiry will satisfy the test for threshold reliability: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 91. Nevertheless, he went on to address the appellant’s submission that because it could be demonstrated that some of Levesque’s statements at the preliminary hearing were false, her evidence was inherently unreliable and threshold reliability had not been met. The trial judge reasoned as follows:

While some of what [Levesque] said at the preliminary hearing no doubt can be proven false, there is potential confirmatory circumstantial evidence to support Ms. Levesque’s identity of the accused as being involved in attending the deceased’s apartment. There is some evidence that Ms. Levesque is using a cell phone registered to someone by the name of Carrift Jones to obtain the deceased’s home address 30 to 40 minutes before the deceased is shot. Further, there is evidence Ms. Levesque is using the phone registered to this Carrift Jones 45 minutes after the shooting to contact certain individuals. There is also evidence of Ms. Driscoll that the accused and Ms. Levesque are together much of the day. I note the evidence may be weak on the issue of identification, but it is circumstantial evidence that the jury would be entitled to consider.

Such evidence simply demonstrates that there may be some confirmation of what Ms. Levesque testified to when she identified the accused as being involved in the killing.

In looking at the totality of both the circumstances surrounding Ms. Levesque giving her evidence at the preliminary hearing and the evidence of other witnesses, some of which tends to undermine her credibility and other evidence that may enhance her credibility, I must be mindful that my task on the principled approach to hearsay is not to usurp the function of the jury.

In the circumstances, I am satisfied that the evidence given at the preliminary hearing would be both necessary and sufficiently reliable to be assessed by the jury. As such, the evidence would also be admissible under the principled approach to hearsay.

[59] In sum, the trial judge squarely addressed the effect of the admission of Levesque’s evidence on the fairness of the appellant’s trial, including assessing whether the value of her evidence to the correct disposal of the charges would exceed its cost to the litigation process.

(3) Misapprehension of evidence

[60] Finally, the appellant submits that the trial judge misapprehended the evidence when he stated that Levesque was using the phone registered to Carrift Jones some 45 minutes after the shooting to contact certain individuals. There is no dispute that the trial judge was mistaken about such evidence. The appellant contends that the trial judge’s error “tainted” the exercise of his residual discretion under s. 715(1). I disagree. I do not view the trial judge’s mistake as undermining his decision to admit Levesque’s evidence under s. 715, for two reasons. First, his error about this single piece of evidence was made in the context of dealing with the Crown’s alternative basis for admitting Levesque’s preliminary inquiry evidence under the principled approach to hearsay. The trial judge had already satisfied himself that the evidence met the requirements of s. 715(1), and he had decided not to exercise his residual discretion to exclude it. The mistaken phone call did not play a part in that analysis.

[61] Second, as the trial judge observed in his discussion about the principled approach to hearsay, his task was to determine whether Levesque’s preliminary inquiry evidence met the requirements of threshold reliability, not to determine the ultimate reliability of her statements: R. v. Khelawon, at para. 93. When considering the admissibility of a witness’s testimony before a preliminary inquiry, the test for threshold reliability generally will be satisfied because sufficient guarantees of its trustworthiness flow from the fact that it was given under oath and subject to contemporaneous cross-examination:Khelawon, at paras. 90 and 91. For this reason, the existence of corroborating evidence is not usually material to the threshold reliability analysis: R. v. J.S., 2014 ONCA 541, at paras. 3 and 5. Consequently, the trial judge’s misapprehension of a single piece of evidence did not play an essential role in his reasoning process leading to the admission of Levesque’s preliminary inquiry evidence: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.

[62] For these reasons, I see no error in the trial judge’s admission of Levesque’s preliminary inquiry evidence pursuant to s. 715 of the Criminal Code.

SECOND GROUND: THE VETROVEC WARNING

[63] Although at the hearing of the appeal the appellant only made submissions on the issue of the admissibility of Levesque’s evidence under s. 715, his factum advances two additional grounds of appeal against his conviction – the inadequacy of the trial judge’s Vetrovec instruction regarding Levesque’s evidence, and the unreasonableness of the jury’s verdict. Let me deal briefly with each.

[64] A Vetrovec warning provides a jury with “a clear and sharp warning to attract the attention of the juror[s] to the risks of adopting, without more, the evidence of [a] witness” who may be untrustworthy, and alerts “the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony”: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 831; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 11. The appellant submits the trial judge’s Vetrovec warning did not go far enough because it failed to review the evidence which suggested that Devon Dennis, a friend of Levesque, was present at Watson’s apartment at the time of the shooting – Levesque had testified at the preliminary inquiry that Dennis was not involved in the shooting. In addition, the appellant submits the warning failed to inform the jury of the ramifications on Levesque’s testimony if it was satisfied she had lied about Dennis’s presence at the shooting.

[65] I see no merit in this submission. The trial judge gave the jury a lengthy Vetrovec warning about the dangers of relying on Levesque’s evidence. The trial judge reviewed his charge with counsel before instructing the jury. At trial, defence counsel did not raise the objection now made by the appellant.

[66] Moreover, as part of his Vetrovecwarning, the trial judge reviewed in detail the evidence concerning Dennis’s possible involvement in the shooting, including evidence from Driscoll, Tanya Buffan’s comment to a police officer that Levesque had told her “Dirty D” – Devon Dennis – had shot Watson, the cell phone records, and Dennis’s criminal convictions. The trial judge instructed the jury that the evidence about whether Dennis was one of the men in the apartment was relevant to its assessment of Levesque’s credibility and reliability. He stated that a finding by the jury that Levesque was untruthful under oath when she said Dennis was not present in Watson’s apartment would operate as an important factor in its assessment of whether to believe her evidence about the appellant’s involvement in Watson’s death. I see no error in the trial judge’s Vetrovec warning.

THIRD GROUND: UNREASONABLE VERDICT

[67] As his final ground of appeal against conviction, the appellant submits that the jury’s verdict was unreasonable. The principles governing the power of an appellate court under s. 686(1)(a) of the Criminal Code to overturn a conviction on the ground that the verdict was unreasonable or cannot be supported by the evidence, particularly in cases where a guilty verdict was based on a jury’s assessment of witness credibility, were summarized by the Supreme Court of Canada in R. v. H. (W.), 2013 SCC 22, [2013] 2 S.C.R. 180, in the following manner:

(i) A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered (para. 26);

(ii) Appellate review is not limited to assessing the sufficiency of the evidence. A court is required to review, analyse and, within the limits of appellate disadvantage, weigh the evidence and consider through the lens of judicial experience whether judicial fact-finding precludes the conclusion reached by the jury (para. 28);

(iii) Circumstances in which a special caution to the jury is necessary about a certain witness or certain type of evidence are reflective of accumulated judicial experience and may factor into an appellate court’s review for reasonableness (para. 29); and

(iv) In applying the test, the appellate court must show great deference to the trier of fact’s assessment of witness credibility given the advantage it has in seeing and hearing the witnesses’ evidence (para. 30).

[68] The appellant submits that Levesque’s evidence, subject as it was to a Vetrovec warning, creates the kinds of risk which require an appellate court to review with care the weight of the evidence before the jury. As well, the appellant argues that since the jury did not see Levesque testify, the trial “was based on a written record”, requiring little appellate deference to the jury’s credibility findings. In support of his submission that the jury reached an unreasonable verdict, the appellant points to two aspects of the evidence: (i) Levesque’s evidence was contradicted by “numerous other witnesses”; and (ii) Levesque’s evidence was contradicted by telephone records, in particular, that of a call made from a cell phone associated with the appellant one minute before the 911 call which was placed following Watson’s shooting. That call, the appellant contends, was strong evidence exculpating him from involvement in Watson’s death.

[69] Let me first deal with the appellant’s submission that the nature of the trial record – “a written record” – should lessen the degree of appellate deference accorded to the jury’s credibility finding. The Crown disagrees that the trial below effectively was based on a written record because the jury heard viva voce evidence from other witnesses about the events prior to and during the shooting and also had the benefit of observing Levesque during her brief attendance when she refused to testify. The Crown therefore argues that there is no reason to depart from the great deference accorded to the triers of fact’s assessment of witness credibility given the advantage they have in seeing and hearing the witnesses’ evidence.

[70] I accept the Crown’s submission. The jury was not called upon to make disputed findings of fact based solely on a written record. Although the jury heard Levesque’s evidence by way of read-in under s. 715 of the Criminal Code – her in-person appearance before them amounting to only slightly more than 15 minutes – other witnesses gave viva voce evidence about important events both before and during the shooting. That evidence would inform any credibility assessments made by the jury.

[71] For example, Cheasnessa Driscoll and Camille Hutchinson both gave evidence about events which took place during the course of the day prior to the shooting of Watson. Parts of their evidence aligned with that given by Levesque: Driscoll testified that Levesque passed part of the afternoon with the appellant; she identified the appellant in May 28, 2006 surveillance videos of White Blocks which showed a male with Levesque multiple times during the afternoon; Hutchinson confirmed her fight with Levesque outside Mohamed’s apartment; and Driscoll stated she received a phone call that evening from Levesque asking for Watson’s apartment number. Driscoll’s evidence did diverge from Levesque’s on one point: Driscoll testified that when she was picked up by Levesque at the subway station that afternoon, the car was driven by Devon Dennis, and the appellant only entered the car later; Levesque denied Dennis’s presence in the car.

[72] As well, Camille Hutchinson and Stacey Newman were present in Watson’s apartment when Levesque and several males entered – two according to Hutchinson, four according to Newman, and three according to Levesque. Both Hutchinson and Newman gave descriptions of the gunman which differed from Driscoll’s description of the appellant.

[73] In light of the viva voce evidence given by several witnesses about important events both before and during the shooting, I see no basis on this record to depart from the deference ordinarily shown to the assessment of witness credibility by a jury.

[74] That then leads to the key question identified by the Supreme Court in R. v. H. (W.), at para. 2: is the jury’s verdict supportable on any reasonable view of the evidence and does proper judicial fact-finding applied to the evidence preclude the conclusion reached by the jury? The main issue at trial was whether the appellant was one of the men who entered Watson’s apartment. As the trial judge noted in his charge, both Crown counsel and counsel for the appellant submitted that if the jury was satisfied beyond a reasonable doubt that the appellant was one of the men in the apartment, then the jury should have no difficulty in concluding that the appellant caused Watson’s death and caused it unlawfully, whether he was the shooter or one of the men who had punched and kicked Watson. The trial judge fully instructed the jury on the appellant’s potential liability as a principal, aider or abettor, or a party to a joint enterprise.

[75] The jury had before it evidence which, if accepted, could sufficiently confirm Levesque’s evidence implicating the appellant in the attack on Watson in his apartment, specifically:

(i) Cell phone records showed a number of calls between the phones of Levesque and the appellant in the days leading up to the shooting;

(ii) Driscoll confirmed that Levesque and the appellant spent part of the afternoon of the shooting driving around with others in a car which, according to Driscoll, the appellant ended up driving;

(iii) Cell phone records disclosed numerous calls between the phones of Levesque and the appellant on the day of the shooting;

(iv) Driscoll identified the appellant in surveillance footage of the front entrance of Levesque’s apartment building at White Blocks in the hours before the shooting;

(v) Hutchinson confirmed that she and others had assaulted Levesque in front of her apartment about two hours before the shooting and Hutchinson had taken away Levesque’s cell phone;

(vi) Driscoll confirmed speaking with Levesque after that assault and phoning the Lindo sisters in order to provide Levesque with Watson’s apartment number;

(vii) Cell phone records disclosed a call made from the appellant’s cell phone to Driscoll’s phone at 10:37 p.m., after Hutchinson had assaulted Levesque, and about 40 minutes before an 11:18 p.m. call to 911 was placed following Watson’s shooting;

(viii) Cell phone records showed that a 11:17 p.m. call had been placed from the appellant’s cell phone to Levesque’s, immediately prior to the making of the 911 call.

[76] The appellant submits that the 11:17 p.m. call was “most problematic” for Levesque’s account of events because it would mean the appellant would have called Levesque’s phone within seconds of the shooting while they were both in Watson’s apartment. In his charge, the trial judge faithfully put before the jury the respective positions of the parties, as drafted by their counsel, including their positions on the significance of the 11:17 p.m. phone call. The trial judge informed the jury that the appellant took the position the 11:17 p.m. call was “consistent with [the appellant] either attempting to reach Jacquie Levesque or trying to get someone to answer the Levesque phone. …Jacquie had previously told Cheasnessa Driscoll to keep calling her phone after it had been stolen by Camille…. [O]ne could reasonably infer that Jacquie would give the same direction to other people that she considered to be friends.” The Crown’s position was that “after [the appellant] left the apartment,… he attempted to contact Jacquie’s cell phone. …[C]ell records confirm that this call was made at 11:17 from [the appellant’s] cell phone to Jacquie’s cell phone. …[T]he records also indicate he ha[d] blocked his number”

[77] Although defence counsel queried why the appellant would call Levesque’s cell phone immediately after the shooting, the jury also heard evidence about the location of the appellant’s phone when that 11:17 p.m. call was made. It was an admitted fact that the 11:17 p.m. call was made when the appellant’s phone was within a 3 km radius of a certain cell phone tower. Watson’s apartment also fell within that radius, while the appellant’s own residence did not.

[78] As this court stated in R. v. Uhrig, 2012 ONCA 470, at para. 13, while it may be that “items of evidence adduced by the Crown, examined separately, have not a very strong probative value[,]… all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction.” So, too, in the present case. Whether the evidence about the 11:17 p.m. call was open to the inference that the appellant was not present at Watson’s apartment or to the opposite inference that he attempted to locate Levesque’s missing phone before leaving Watson’s apartment, that evidence must be considered cumulatively with the other evidence before the jury, including the location of the appellant’s phone at the time of the 11:17 p.m. call. When that is done, in my view the jury’s verdict was supportable on any reasonable view of the evidence and proper judicial fact-finding applied to the evidence does not preclude the conclusion reached by the jury.

[79] I therefore would not give effect to this ground of appeal. For the reasons given in respect of the other grounds of appeal from conviction, I would dismiss the appeal from conviction.

SENTENCE APPEAL

[80] The Crown asked for a sentence of 16 years, equivalent to the sentence imposed on Levesque; defence counsel asked for a sentence of 8 to 10 years, less pre-trial custody. The trial judge sentenced the appellant to 13 years, less credit for pre-trial custody totaling 32 months, calculated on a 2:1 basis. In arriving at that sentence, the trial judge was not satisfied beyond a reasonable doubt that that the appellant was the shooter, but he was satisfied that the appellant had participated in the beating of Watson.

[81] While in his factum the appellant acknowledges that the “loose range” for a manslaughter with aggravating factors is 8 to 12 years, he submits that a sentence of 13 years was unfit in the circumstances of this case, with an appropriate range being 9 to 11 years.

[82] In my view, there is no reason to interfere with the sentence imposed by the trial judge. As this court stated in R. v. Devaney, 2006 CanLII 33666 (ON CA), [2006] O.J. No. 3996, 213 C.C.C. (3d) 264 (Ont. C.A.), at paras. 13 and 14, it is appropriate for a trial judge to consider a range of sentence for a particular offence committed in particular circumstances from which he or she may deviate after considering the particular facts of the case, including the circumstances of the victim, the particulars of the crime, and the history and circumstances of the offender. Where facts or circumstances exist that distinguish the situation significantly from other cases where sentences were imposed in the range, the trial judge is entitled to impose a sentence that adequately reflects the significance of those facts.

[83] That is precisely what the trial judge did in this case. He identified a range of 8 to 12 years as disclosed by the jurisprudence for cases of aggravated manslaughter, following which he took into account the specific mitigating and aggravating circumstances present in this case. The appellant can point to no error in that analysis.

[84] In considering the principle of parity, the trial judge concluded that the appellant’s degree of culpability was less than that of Levesque and the shooter, but more than the person who had held open the elevator door, on the basis that the appellant had provided the transportation to Watson’s apartment and actively participated in the beating. The appellant can point to no error in that analysis.

[85] Finally, the trial judge concluded that the facts of the killing, express or implied in the jury’s verdict, placed this offence at the higher end of manslaughter, closer to murder. In arriving at that conclusion, the trial judge relied on the following factors in his sentencing reasons:

In this case, the accused was part of a preplanned home invasion where the plan was to beat and severely assault the two occupants. Before entering the home, the shooter had in plain view a sawed-off shotgun. Before the attack and beating started, the other attackers, including [the appellant], knew the gun was in play. This is not a case of a concealed weapon coming out unexpectedly by another accomplice. This is not a case of the gun being used because of resistance proffered by the victim. The gun was viewed when the victim was offering no resistance. It was used as an exclamation point by another party to this offence. Even after the gun was used, the victim was struck again by one of the three attackers.

Again, the appellant can point to no error in this analysis.

[86] In my view, the trial judge applied proper sentencing principles to the specific circumstances of this case and, in so doing, imposed a fit sentence.

DISPOSITION

[87] For the reasons set out above, I would dismiss the appellant’s appeal from conviction. I would grant the appellant leave to appeal his sentence, but would dismiss his sentence appeal.

Released: September 29, 2015 (DW)

“David Brown J.A.”

“I agree David Watt J.A.”

“I agree L.B. Roberts J.A.”