COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Van Every, 2016 ONCA 87

DATE: 20160201

DOCKET: C55165

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Van Every

Appellant

Dirk Derstine and Janani Shanmuganathan, for the appellant

Grace Choi, for the respondent

Heard: June 19, 2015

On appeal from the conviction entered by Justice Alan C.R. Whitten of the Superior Court of Justice, sitting with a jury, on May 29, 2008, and the sentence imposed on December 19, 2008.

van Rensburg J.A.:

A. Overview

[1] L.B. was killed by a single gunshot wound to the chest while standing in the hallway of his Hamilton home in the early morning of January 25, 2006. The appellant, Thomas Van Every, was arrested in Montreal several days later and charged with first degree murder.

[2] L.B. was a drug dealer and the father of three. The appellant was his lifelong friend and the "second-in-command" in his drug dealing business. The appellant lived in L.B.'s basement, along with J.G. J.G. was a crack addict who also worked in the business and took his payment in drugs.

[3] At trial, the Crown's theory was that Van Every shot L.B., intending to kill him, after he felt disrespected by L.B. The Crown argued that the killing was planned and deliberate. The defence contended that Van Every was too drunk to have been the killer, and that J.G., the Crown's key witness at trial, had in fact shot L.B. The defence also argued that even if the jury found that the appellant was the shooter, he was too intoxicated to have the required intent for first or second degree murder. The appropriate verdict would then be manslaughter.

[4] The appellant was convicted of second degree murder after the jury trial. He was sentenced to life imprisonment with no parole for 16 years. He appeals his conviction and seeks leave to appeal his sentence, in particular, the period of parole ineligibility.

[5] The conviction appeal raises three issues.

[6] The first issue is whether the trial judge's error in instructing the jury on the intent for murder, which the Crown acknowledges, vitiates the conviction. At several points in his charge, the trial judge told the jury that to find the intent for murder, they had to be satisfied that the appellant intended to kill L.B., or to cause bodily harm that he knew was likely to cause death orwas reckless whether or not L.B. would die. The appellant says that the trial judge's error, in saying "or" instead of "and" in describing the second possible intent for murder, led to the "very real possibility" that the jury convicted the appellant, who was highly intoxicated at the time of the killing, based on mere recklessness. The Crown says the error was insignificant in the context of the case, and the case against the appellant for second degree murder was overwhelming. The Crown relies on the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

[7] The remaining two issues in the conviction appeal concern the trial judge's refusal to give a Vetrovec instruction with respect to one Crown witness (G.S.), and the adequacy of his Vetrovec instruction with respect to J.G.

[8] The issue in the sentence appeal is whether the trial judge failed to give effect to the appellant's Aboriginal background, as set out in the Gladue report, in determining his period of parole ineligibility. The appellant says that ten years, the minimum parole ineligibility period, should be substituted for the 16 years ordered by the trial judge.

[9] For the reasons that follow, I would dismiss the conviction appeal. There is no reasonable possibility that the jury convicted the appellant of second degree murder based on a finding that he was reckless. The evidence that the appellant was the shooter, and that he had the correct required intent for murder, was in any event overwhelming. This is a proper case for the application of the proviso.

[10] With respect to the Vetrovec issues, I find no basis to interfere with the trial judge's proper exercise of discretion.

[11] While I would grant leave to appeal sentence, I would dismiss the sentence appeal. There is no indication that the trial judge overlooked or failed to consider the appellant's Aboriginal status and history in fixing the period of parole ineligibility, and there is no question that the period of 16 years he imposed was fit in all the circumstances of this case.

B. Facts

[12] Because the conviction appeal turns in large part on determining the effect of an admitted legal error in the trial judge's charge, it is necessary to set out, in some detail, a summary of the relevant evidence at trial. This evidence concerns the events before, during, and after L.B.'s killing, as well as the appellant's level of intoxication. Intoxication was a central issue at trial, relevant to both the identity of the appellant as the person who shot and killed L.B., and his intention.

[13] Again, the theory of the defence was that the shooter was in fact J.G. because the appellant was too intoxicated to have been the shooter, and that, if the appellant was the shooter, he lacked the mens rea for first degree and second degree murder.

[14] J.G. was in Van Every's company before and after the shooting, and claimed to have been in the basement when L.B. was killed. Although he fled with Van Every, and was stopped by police days later in Montreal, he was never charged with any offence. His evidence identified the appellant as the shooter, and supported a finding the appellant had the intent for murder. Other witnesses included the other two adults who were at the victim's house at the time of the shooting (L.B.'s mother-in-law D.H., and his cousin J.W.), and a couple (G.B.S. and G.S.) with whom the appellant and J.G. spent a few days in Montreal before their arrest. The Crown also relied on expert evidence connecting the victim to the appellant and as to the mechanism of death.

[15] The appellant did not testify. In his defence he called two expert witnesses. Based on the evidence of J.G. about how much the appellant had drunk, they testified on the issue of the degree of intoxication and the level of impairment to his physical and cognitive abilities resulting from his consumption of alcohol.

[16] A review of the key evidence at trial follows.

(1) Evidence of J.G.

[17] J.G. testified that for much of the evening of January 24, 2006, L.B. was playing video games in his main floor bedroom, at times with his young son. At one point L.B. and Van Every cooked crack cocaine in the kitchen, and for one batch used some 151 proof rum (which is 75.4% alcohol).

[18] L.B.'s wife was in hospital, after giving birth to their third child. His mother-in-law, D.H., was taking care of the other two children and spent much of the evening watching TV in the living room with the children and two other people. L.B.'s cousin, J.W., was also there at some point during the night.

[19] The appellant and J.G. were impatient to go to the crack house to sell drugs, but they needed L.B.'s permission. L.B. ignored them, preferring to continue playing his video game.

[20] L.B. had talked about using a sawed-off shotgun to deal with people in Brantford who were cutting in on his turf. Earlier that day, on L.B.'s instruction, J.G. retrieved the gun from where it was hidden and brought it to the house. Van Every cleaned it, and they kept it in the basement.

[21] According to J.G., he and Van Every had drunk a couple of beers earlier that evening at a bar. At the house, Van Every continued drinking all night from the bottle of rum that was about three quarters full when J.G. first saw it. He said that Van Every "pretty much had a drink in his hand all night long" and was "almost slurring his words." As he got "more and more drunk", he became angrier with L.B., who refused to let them go out to sell crack. L.B. said Van Every was too intoxicated to go, and he would not send J.G. because he would have taken the drugs for himself. At one point Van Every threatened to rip L.B.'s TV out of the wall.

[22] J.G. testified that shortly before L.B. was shot, Van Every came down to the basement where J.G. was watching TV, and asked him where the gun was. Van Every took the gun, loaded it and told J.G.: "You're going to ride with me tonight". He told J.G. to wait downstairs, and walked upstairs with the gun.

[23] A couple of seconds later, J.G. heard L.B. say something to Van Every, and then he heard a gunshot. Van Every opened the basement door and told J.G. to come upstairs. J.G. saw L.B. on the ground, wounded, with Van Every standing in L.B.'s bedroom holding the gun. Van Every was asking "where is the money?", and L.B. was saying, "help, help." Van Every then stood over L.B. and threatened to put another bullet in him if he did not tell him where the money was.

[24] Van Every asked J.G. if he knew where the money was. J.G. grabbed a wad of bills from an entertainment stand in the living room, and threw it to Van Every, who picked up the money. Van Every told him to get the keys to L.B.'s truck.

[25] J.G. and Van Every left in L.B.'s truck, with J.G. driving and Van Every in the passenger seat. The gun was on the floor of the truck. When they stopped in Burlington for gas, Van Every paid. Van Every decided they would go to Montreal. When J.G. stopped for more gas, Van Every was passed out in the back seat and J.G. had to wake him up for money.

[26] At some point, J.G. nodded off and crashed the truck into a rock cut. Van Every woke up and tried to drive the truck, but found it was not driveable. They accepted a ride to Montreal from a passing driver. Before they climbed into the car, Van Every told J.G. to get rid of the gun, and J.G. threw it on top of the rock cut.

[27] After arriving in Montreal around 7:30 a.m. on January 25, Van Every and J.G. were picked up by G.B.S., a cousin of Van Every's girlfriend. They bought new boots and clothes at a local mall, and J.G. threw away his boots. The three spent the night at a hotel with escorts and drugs, and then they moved to G.B.S. and G.S.'s house. For the next few days, they partied with drugs and alcohol. Van Every paid for everything, using L.B.'s cash, and when they started to run low on money, Van Every made J.G. pawn a gold chain that belonged to L.B. (L.B.'s blood was identified on the chain).

[28] J.G. said he and Van Every talked once about what had happened. J.G. said Van Every felt bad for what happened, but at the same time, "what was done was done".

[29] J.G. and G.S. were pulled over by police while out on a drug run a few days after they got to Montreal. J.G. was brought to the police station, but was not charged with any offence. He gave a statement identifying Van Every as L.B.'s killer.

[30] L.B.'s blood was splattered on the pair of jeans that J.G. was wearing when he was arrested. He said they belonged to Van Every and he was wearing them because he did not have much clothing of his own. He left his old boots, which may have had blood on them, at the store in Montreal because they were old and heavy. J.G. denied that he was the one who killed L.B. because he was "jonesing" for crack – that is, coming down from a high and looking for more. He had stayed with Van Every rather than going to the police for help because he was more terrified of the situation than of Van Every. J.G. agreed with defence counsel that, as an addict, he lied a lot, and that he would do whatever it took to get crack.

(2) Evidence of D.H.

[31] D.H. was L.B.'s mother-in-law, and was staying at his house the night of January 24, 2006. L.B.'s wife had just given birth to their third child and was still in hospital, and D.H. was keeping an eye on the other two children. During the evening, she watched a movie in the living room with her two grandchildren and two of L.B.'s friends, who left around 11 p.m.

[32] Between 11 p.m. and midnight, D.H. saw L.B. in his bedroom playing video games with her grandson. D.H. took her granddaughter upstairs to bed around midnight, and she fell asleep. She was awoken by a "bang". She grabbed her granddaughter and ran downstairs, where she saw her grandson standing in the living room, crying. L.B. was lying on the ground, and she saw Van Every pointing a gun up at the ceiling. Van Every was looking right at D.H. but did not say anything. She did not see J.G. before she gathered the children and ran out the door. As she called 911 from a pay phone, D.H. saw L.B.'s truck drive by.

[33] D.H. agreed with defence counsel that Van Every was staring "kind of blankly" when she saw him holding the gun. In her police statement, she did not say she saw Van Every standing over L.B.'s body, or that he was holding a gun. Rather, she told police she was upstairs when she heard a bang and that she gathered the children and ran from the house.

(3) Evidence of J.W.

[34] J.W., L.B.'s cousin, testified that he arrived at L.B.'s house sometime after midnight on January 25, 2006, to pick up some DVDs. L.B. was engrossed in a video game in the bedroom with his son. While he was waiting for L.B. to stop playing, J.W. saw Van Every and J.G. pass by the bedroom door a few times. He could tell they had been drinking. Van Every was staggering and J.G. "looked annoyed or something". At some point, he told L.B. he had to go, and the two walked into the kitchen together.

[35] After getting the DVDs, J.W. saw L.B. walking back into the hallway, where he stopped. J.W., who is taller than L.B. and was behind him, saw Van Every over L.B.'s shoulder, standing about four-and-a-half feet away and facing L.B. He saw and heard Van Every say "bang", and then he heard a shot. He did not actually see Van Every with a gun or see him pull the trigger. He did not see J.G. anywhere at the time. J.W. turned, ran out the back door, and called 911.

[36] J.W. acknowledged that he had not initially told police that he saw Van Every's face over L.B.'s shoulder or told them that he heard Van Every say "bang" right before the gun went off. His explanation was that he had been in shock.

(4) Evidence of G.S.

[37] G.S. testified that after spending the first night – a Wednesday – in a hotel with her husband (G.B.S.), Van Every and J.G. came to stay at their house in Montreal. Van Every carried a very thick bundle of bills. Over the next two days, Van Every, J.G., G.S. and G.B.S. drank alcohol and consumed drugs. J.G. helped around the house and did Van Every's laundry and whatever else Van Every told him to do. On Friday, Van Every sent G.B.S. and J.G. to a pawn shop to sell a gold chain that Van Every took off his neck. That night, Van Every bought a bag of Ecstasy pills, and consumed a lot himself. On Saturday, when Van Every was high on drugs, he rambled on about how "this guy was disrespecting me, so I blew him away" and "I smoked his ass". Van Every made similar comments "more than ten times for sure" that day and the next, and at least once in her husband's presence. Van Every also said he was looking for another place to stay and was discussing "what kind of places he should try to find and go and hide". G.S. helped Van Every to dye his hair to change his appearance.

(5) Evidence of G.B.S.

[38] G.B.S. testified that he picked up Van Every and J.G. when they arrived in Montreal and took them to buy new clothes and boots. He and J.G. went to pawn the gold chain on Van Every's instructions. He said there was nothing unusual in Van Every and J.G.'s relationship but "pretty much it was [Van Every] telling [J.G.] whatever to do". Van Every paid for all the drugs and alcohol they consumed that weekend. He understood that someone had been killed in Hamilton, but did not ask for details.

(6) The Crown's Expert Evidence

[39] According to the evidence of the forensic pathologist who performed L.B.'s autopsy, the cause of his death was a single gunshot wound straight to the left side of the chest. A firearms expert testified that, based on the lack of gunshot residue on L.B.'s shirt, the gun was shot from at least five feet away, and adding in the length of the gun, the shot would have been fired from at least six feet away.

[40] A forensic biologist testified that L.B.'s blood was found on the boots, jeans and jacket that Van Every was wearing the night of the shooting (as confirmed by security camera footage captured when Van Every, J.G. and G.B.S. were in the mall the morning of January 25). The only detectible DNA on the gun was L.B.'s. No DNA was detected on the bullet shells.

(7) Defence Expert Evidence

[41] The defence called expert evidence directed to the issue of Van Every's intoxication and probable level of physical and cognitive impairment resulting from his consumption of alcohol.

[42] Dr. Amy Peaire, a forensic toxicologist, testified as to the appellant's possible blood alcohol concentration at the time of the killing, assuming he drank three-quarters of a bottle of 151 proof rum, less a cupful (about 20 to 30 ounces in total). She testified that an individual of similar weight to the appellant who consumed 20 to 30 ounces of rum and two beers between 5 p.m. and 1 a.m. would have a blood alcohol level between 330 and 655 milligrams in 100 millilitres of blood. The low end of that range is over four times the legal limit. Dr. Peaire stated that a light-to-moderate drinker would probably be unconscious and may be comatose and at risk of death at a blood alcohol level of 330, while a chronic user of alcohol may be conscious but still show a few signs of intoxication, such as slurring of speech and stumbling when walking. As the complexity of the task increases, it is expected to be a much better indicator of the person's level of impairment. Dr. Peaire characterized walking up and down stairs as a more complex task and loading a shotgun as a "relatively complex task" requiring fine motor coordination.

[43] Dr. Julian Gojer, a forensic psychiatrist, testified about the impact of alcohol on a person's behaviour. He testified that one would expect an intense impact on the thought processes, emotions and motor activity of a person with a blood alcohol level of 330, and that would be consistent with a seriously compromised capacity.

[44] Dr. Gojer testified that a person with a blood alcohol level in that range would be "fairly severely intoxicated", experience "aggressive outbursts" and that he or she would pass out or go into a deep sleep afterwards. He confirmed that "staring off into space and looking dazed" is consistent with a high level of intoxication. Defence counsel also put various hypothetical actions to Dr. Gojer, such as walking up and down a flight of stairs, loading a shotgun, catching money, and getting out of a vehicle and paying for gasoline, and Dr. Gojer testified that these actions would be "highly inconsistent with a person who is severely intoxicated". In cross-examination, Dr. Gojer agreed that if someone puts thought into events following a shooting, such as running away, it indicates a level of cognitive reasoning.

C. ERROR IN INSTRUCTION ON INTENT FOR MURDER

(1) The Legal Error

[45] Pursuant to s. 229 (a) of the Criminal Code, there are two possible intents for murder:

229. Culpable homicide is murder

(a) Where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

[46] In this case, the trial judge referred on a number of occasions in his charge to the "two intents for murder". He described the two alternative intents erroneously early in his charge, when he stated that "the intent required for murder is an intent to kill someone or to cause them bodily harm knowing that it will kill them, or you are reckless as to whether that it does do so" (emphasis added). He later stated the two intents correctly in his instruction on mens rea, when he said that the Crown must prove that the accused "meant to kill L.B. or meant to cause L.B. bodily harm that Van Every knew was likely to kill L.B. and was reckless about whether L.B. died or not" (emphasis added). Overall, on a total of eight occasions, he told the jury that to find the intent for murder, they had to be satisfied that the appellant intended to kill L.B., or that he intended to cause bodily harm that he knew was likely to cause death orwas reckless whether death ensued, replacing the word "and" by "or" each time in describing the second intent.

[47] There is no question that the trial judge erred in his recitation of the intent for murder in so doing.

[48] The requisite intent under s. 229(a)(ii) consists of the subjective intent to cause bodily harm and the subjective knowledge that bodily harm is of such a nature that it is likely to result in death. Subjective foresight of death is a requirement. As for the element of "recklessness" in the last phrase of s. 229(a)(ii), "the aspect of recklessness can be considered an afterthought", since "[o]ne who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not": R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 154-155. See also R. v. Moo, 2009 ONCA 645, 253 O.A.C. 106, at paras. 45-46.

(2) The Effect of the Error

[49] The appellant submits that the trial judge's repeated use of the phrase "or was reckless" in his formulation of the requisite intent for murder created the "very real possibility" that the jury convicted him of murder based on a third type of intention: that of mere recklessness.

[50] The Crown acknowledges that the trial judge erred in describing the intent for murder, but contends that the error was harmless and that this is an appropriate case to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. In all the circumstances, there is no realistic possibility that the jury convicted the appellant of murder on the basis of recklessness, and in any event, the case against the appellant for second degree murder was overwhelming.

(3) The Error in Context

[51] The point of departure is to consider the effect of the legal error in the context of what transpired at trial. As Watt J.A. observed in Moo,at para. 66: "[T]here is an essential step between legal error and appellate reversal – was there a substantial wrong or miscarriage of justice caused by this error, on this evidence, in this trial?" (emphasis in original).

[52] As I will explain, in the context of the evidence at trial, the trial judge's instructions on intent, considered as a whole, and the positions taken by the Crown and defence, it is inconceivable that the jury would have understood the instruction the way the appellant now contends – that they could find the appellant guilty of murder if he had recklessly caused L.B.'s death, and that they would have found him guilty of second degree murder on that basis. There are four reasons why.

[53] First, the trial judge's erroneous words must be read in the context of how he framed the required intent. On every occasion the trial judge instructed the jury on the mens rea for murder, he framed the intent as having two alternatives. He explained that the mental element for murder "has two possible elements". He went on to say that the Crown "does not have to prove both, one is enough". He explained that the jury had to be satisfied that the accused had "either" intent. The trial judge even used shorthand on a couple of occasions during his charge, describing the requisite intent as "intent to kill or intent to cause bodily harm". This is inconsistent with a third and freestanding intent for murder, that of "recklessness", which the trial judge did not further explain.

[54] Second, no one noticed the error in the charge, although it was made repeatedly. This suggests that in the context of the real issues in the case, it was not material.

[55] The Supreme Court held that "[t]he failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation": R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; see also R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 38. As this court held, "[i]t is all the more so when counsel have received a copy of the proposed charge in advance of delivery and make no complaint about the completeness of the instruction": R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 112.

[56] In this case, counsel had a copy of the draft charge that contained the erroneous wording. There was no objection to that part of the charge at any time during the trial: not in the pre-charge conference, not when the trial judge reviewed the draft decision tree with counsel and repeated the erroneous wording three times, not when the trial judge solicited comments from counsel during one of several breaks in reading his charge, and not after the charge was given.

[57] Third, a review of the closing arguments and the balance of the jury charge makes it clear that "recklessness" as its own route to prove an intent to kill, or even as part of the second available intent for murder under s. 229(a)(ii), could not reasonably have been at play.

[58] Both counsel, in closing arguments, made only brief and perfunctory references to the mens rea for murder. Neither counsel made anything more than a passing reference to manslaughter as an available verdict, and neither said anything about recklessness, other than as part of the Crown's correct recitation of the mens rea for murder.

[59] The principal defence theory at trial was that the appellant was not the shooter, and this was the focus of trial counsel's closing argument. He challenged the credibility and reliability of the evidence of the various Crown witnesses, in particular, J.G., J.W. and D.H. He emphasized that no one actually saw the appellant shoot L.B., and, placing the empty bottle of 151 proof rum before the jury, argued that the appellant could not have shot L.B. because he was too intoxicated. The focus of the evidence on intoxication was on the appellant's motor skills the night L.B. was shot. If he had consumed as much as three quarters of that bottle of rum, how could he have loaded the shotgun, navigated the stairs and shot L.B.? This lent further credence to the argument that J.G. must have been the killer.

[60] While intoxication figured largely in the argument of defence counsel at trial, it was primarily to negate the identity of the appellant as the shooter; that is, it went to the actus reus. His focus was on intoxication as robbing Van Every of the ability to commit the act of shooting, at least in the way J.G. had described how the events unfolded.

[61] Defence counsel's comments about intoxication negating the intent for murder are contained in short and rather boilerplate paragraphs, one right at the beginning of his closing address, and the other at the end. Defence counsel suggested that intoxication would have deprived the appellant of the ability to "plan and deliberate", necessary for first degree murder. Importantly, however, defence counsel never suggested that if the jury was satisfied that the appellant was the shooter, they should go on to conclude that he lacked subjective foresight that shooting L.B. in the chest from a few feet away would kill him. Counsel made no attempt to link the idea that intoxication could negate mens rea to the evidence of how L.B. actually died. As the Supreme Court noted in R. v. Daley, at para. 42, for certain homicides, where death is the obvious consequence of an accused's act, he would have to establish a very advanced degree of intoxication to avail himself of an intoxication defence.

[62] The evidence was that L.B. was shot from a short distance away, with a single straight shot to the chest. The trial judge correctly instructed the jury that one can infer that a sane and sober person intends the natural consequences of his act, and that in determining whether this was the case, they should consider the evidence of the appellant's intoxication. He then carefully reviewed the evidence respecting the appellant's alcohol consumption and intoxication, including the expert evidence.

[63] Obviously, the jury was satisfied that the appellant was not so drunk that he failed to appreciate the consequences of his actions. The predictable consequence of shooting someone in the chest at close range is that the victim will die. This is not a case where the mechanism of death left any realistic scope for doubt about intent.

[64] During argument of the appeal, the appellant's counsel suggested that a conviction based on recklessness could have occurred in the following way: the notion that the appellant intended the natural consequences of his actions (discharging a gun from a short distance) had to be diluted by (1) the evidence of intoxication; and (2) the unreliability of the eyewitness evidence, particularly that of J.W. about seeing Van Every over L.B.'s shoulder and hearing him say "bang". If the jury disbelieved J.W., but convicted on the basis of other evidence, such as post-offence conduct, they had no direct evidence of what happened at the moment of the shooting. Counsel submitted that it then became more likely that the jury might have convicted on the basis of recklessness. He explained that the appellant could have gone upstairs with the intention of threatening L.B. or shouting at him, and then waved the gun recklessly so that it ended up discharging.

[65] There was however no evidence at all, and no suggestion by anyone at trial, that the appellant behaved in this manner. Further, even if the jury had disregarded J.W.'s evidence, there was other compelling evidence that the appellant had the mens rea for murder. He was angry with L.B. He told J.G. before going upstairs, "you're going to ride with me tonight". He took L.B.'s gold chain and cash, and fled with J.G. to Montreal. According to G.S., Van Every confessed, repeatedly, in a way that left no room for doubt about intent: "This guy was disrespecting me, so I blew him away, I smoked his ass."

[66] R. v. Esrabian, 2013 ONCA 761, 308 C.C.C. (3d) 362, involved the same error as here in the instruction for s. 229(a)(ii), albeit in the context of a first degree murder conviction. As in that case, on a consideration of all of the evidence at trial, the balance of the charge and the positions of counsel, only s. 229(a)(i) could possibly have been engaged, and any error in the trial judge's formulation of s. 229(a)(ii) "could not have played any role in the jury's verdict."

[67] Fourth, although one can never know precisely how the jury arrived at its verdict in the present case, its recommendations on parole ineligibility shed some light on how they viewed the case. Five jurors recommended 25 years before Van Every was eligible for parole. Two recommended 20 years. Three recommended between 15 and 18 years. Two abstained. As the trial judge noted at the sentencing hearing: "Now obviously from that statistic, the jury, the members of this community were of the view that this was a serious second degree murder and it would indicate seriousness which became closely akin to that associated with first degree murder". This belies appellate counsel's suggestion that the jury "may well have" convicted Van Every based on mere recklessness.

(4) The Evidence of Guilt was Overwhelming

[68] Finally, the case against Van Every was overwhelming that Van Every was the shooter, and that he had the requisite intent for murder.

[69] J.G.'s account of the killing was corroborated in important respects by both J.W. and D.H. While J.W. did not see Van Every actually shoot L.B., because he was behind L.B. at the time, he saw him facing L.B., and he saw and heard him say "bang" before he was shot. D.H. saw Van Every holding the gun after she heard the shot. Neither saw J.G. anywhere near the shooting. Neither D.H. nor J.W. had any motive to falsely accuse Van Every. The appellant's post-offence conduct, including stealing L.B.'s cash and necklace, fleeing to Montreal, buying new clothing and dyeing his hair, points to his having the mental and physical wherewithal to flee the scene in L.B.'s truck. It also points to his consciousness of guilt. And, of course, there were the statements the appellant made to G.S.

(5) Applying the Proviso

[70] Section 686(1)(b)(iii) of the Criminal Code provides that where an appellate court is of the opinion that a conviction appeal could be decided in favour of an appellant on the ground that the trial court made a wrong decision on a question of law, it may nevertheless dismiss the appeal if "it is of the opinion that no substantial wrong or miscarriage of justice has occurred". As Moldaver J. noted in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53, there are two situations where the curative proviso is appropriate: the first is "where the error is harmless or trivial" and the second is "where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict". The proviso can only be applied "where there is no reasonable possibility that the verdict would have been different had the error … not been made". The Crown bears the burden of demonstrating that the curative proviso is applicable and satisfying the court that the conviction should be upheld notwithstanding the legal error: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.

[71] In this case, the acknowledged legal error meets the test for application of the proviso. There is no realistic possibility that the error was understood by the jury as the appellant now contends – of creating a third option for intent for murder based on recklessness, and nothing at trial was consistent with a reckless shooting resulting in L.B.'s death. Even if the error were not inconsequential, the jury would inevitably have convicted the appellant. The case against the appellant, both as the killer and with the intent for murder, was overwhelming. Accordingly, I would dismiss this ground of appeal.

D. The Vetrovec Issues

[72] As the second and third grounds of appeal of his conviction, the appellant asserts that the trial judge erred in failing to warn the jury about the danger of accepting the testimony of G.S., without some corroborating evidence, in accordance with the principle set out in R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. He also asserts that the trial judge gave an inadequate Vetrovec caution with respect to the evidence of J.G.

[73] Whether to give a Vetrovec warning, and if so, the content of the warning, are discretionary decisions for the trial judge, and are accorded substantial deference on appellate review: R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74, at paras. 23-24; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 60 and 67; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 1-2, 24.

(1) Adequacy of the Vetrovec Instruction for J.G.

[74] The trial judge provided the following reasons as to why the jury should exercise caution in accepting J.G.'s evidence: he was addicted to crack cocaine; he aided Van Every in fleeing and disposing of the murder weapon; he admitted to having stashed that weapon on a previous occasion; he had not been charged with an offence for his involvement in the drug business as well as the murder itself; and he admitted he did not want to go to jail. The trial judge instructed the jury that "in light of these circumstances", there was good reason to look at J.G.'s evidence with the greatest care and caution, and he encouraged the jury to look for some confirmation of J.G.'s evidence.

[75] The appellant says that the list of reasons for caution in connection with J.G.'s evidence was incomplete. What the trial judge missed was the most important cause for applying scrutiny, namely that J.G. could have been the shooter. As such, the caution did not drive home to the jury the most important reason why it would be dangerous to rely on his unsupported evidence.

[76] In my view, the Vetrovecwarning with respect to J.G.'s evidence was sufficient. The defence argued in closing and intimated through his cross-examination of J.G. and other witnesses that J.G. was more likely to have killed L.B., which would have made it abundantly clear to the jury why his evidence should be approached with caution. Further, trial counsel did not object to the substance of the Vetrovec warning for J.G. after reviewing the draft jury charge, or after the charge was delivered. While not determinative, the failure to raise any concern about the content of the instruction is an important consideration, suggesting that, in the context of the trial, the instruction that was given was considered adequate: R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 491, at para. 220; R. v. Salah, at para. 112.

(2) Refusal to Give a Vetrovec Instruction for G.S.

[77] With respect to G.S., a Vetrovec warning was requested by trial counsel, but opposed by the Crown and refused by the trial judge.

[78] The appellant asserts that a warning was warranted, as G.S. was clearly an unsavoury witness: she was a drug user with a criminal record, she lied at the preliminary inquiry, and she had provided a statement to police with the hope of consideration in charges pending against her. G.S. was a key Crown witness who testified that the appellant confessed to the murder and that he dyed his hair in order to evade police detection. There was no confirmatory evidence on either point.

[79] The trial judge explained why he had decided against a Vetrovecwarning for G.S. He noted that he would give a warning about her prior inconsistent statement at the preliminary inquiry, that her criminal record was covered in the charge about the criminal records of all witnesses, and that her request for some kind of consideration for her co-operation with police was met by the response that the police could not do anything for her because the matter took place in Hamilton. He concluded that he was not convinced that there were inherent dangers in her evidence such that a Vetrovec warning should be given, and that her evidence "could be fairly judged by the jury on its own, without a special charge in that regard and inviting them to be cautious." They would be cautious in any event, knowing that both G.S. and her husband "were not exactly model citizens".

[80] The trial judge proceeded as intended. He cautioned the jury about witnesses who have criminal records, and referred to G.S.'s criminal record of unlawful possession of tobacco products and failure to appear, and of the fine and jail sentence she had received. In instructing the jury about prior inconsistent statements, the trial judge gave as an example G.S.'s lie at the preliminary hearing about going out with J.G. to purchase drugs, and that she gave no explanation for her lie. The trial judge pointed out aspects of G.S.'s evidence, including the appellant's inculpatory statements, which were not corroborated by other evidence. The trial judge pointed to the various problems with G.S.'s evidence in his summary of the defence theory: G.S. sought consideration for her co-operation in giving her statement, which led to the incrimination of the appellant; he referred to G.S.'s evidence that on her arrest, she had asked for some help regarding prior problems with the authorities, and that when refused, she stated that she made her statement anyway "regardless of whether [she] was helped or not".

[81] I see no reason to intervene here. The trial judge's assessment that no Vetrovec warning was required and his reasons for refusing such a warning are sensible. The totality of the charge drew the jury's close attention to all of the factors that the defence argued were problematic about G.S.'s evidence.

[82] I would not therefore give effect to the Vetrovec grounds of appeal.

E. Sentence appeal

[83] The appellant seeks leave to appeal his sentence on one ground: that the trial judge failed to give tangible consideration to his Aboriginal background in imposing a parole ineligibility period of 16 years. The appellant asserts that the trial judge placed undue emphasis on deterrence and denunciation to the detriment of restorative justice and rehabilitation. The appellant argues that the minimum period of parole ineligibility, ten years, ought to have been imposed.

[84] The Crown asserts that there was no such error, and that the trial judge's reasons demonstrate that he gave detailed consideration to the appellant's Aboriginal background as set out in the Gladue report, as well as the comprehensive presentence report.

[85] The relevant legal principles can be briefly stated.

[86] Section 745.4 of the Criminal Code provides that a judge may increase parole ineligibility above the normal ten-year period for an offender convicted of second degree murder up to 25 years, having regard to: the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any. To justify such an order, the court may consider the future dangerousness of the offender and denunciation, as well as deterrence: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227.

[87] A sentencing judge is obliged, under s. 718.2 (e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders, and it is an error for a sentencing judge to fail to factor into a sentencing decision the accused's Aboriginal status: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 87. Section 718.2(e) and the principles enunciated in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, apply to decisions on parole eligibility: R. v. Jensen (2005), 2005 CanLII 7649 (ON CA), 74 O.R. (3d) 561 (C.A.), at para. 28.

[88] As the court noted in Gladue, at para. 79: "Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing". However, this is not to be taken as a statement that Gladue factors need not be considered in the context of violent crimes. To the contrary, they apply to all offences, even the gravest of offences. While it is not a mechanical "race-based discount", judges must craft sentences that are meaningful to Aboriginal people by emphasizing the use of principles of restorative justice and restraint: Ipeelee, at para. 75; Gladue,at para. 48.

[89] This is not a case where the trial judge refused to consider the Gladuefactors or considered them to be irrelevant to his task on sentencing. The sole question is whether the trial judge took into consideration the Gladue factors in making his decision about parole ineligibility.

[90] The appellant's trial counsel sought a period of parole ineligibility of ten to 12 years. He argued (unsuccessfully) that the court ought not to take into consideration the appellant's considerable criminal record from offences committed in the United States. That issue was not pursued on appeal.

[91] The Crown sought a period of parole ineligibility of 16 to 18 years.

[92] As noted earlier, the jury's recommendations (which are a factor to be considered, and were based simply on their view of the circumstances of the offence) were as follows: 25 years (five jurors), 20 years (two jurors), 18 years (one juror), 15 years (two jurors), with two abstentions.

[93] The trial judge reviewed the circumstances disclosed in the appellant's Gladue report, which included the appellant's membership in the Six Nations at Grand River and his move with his family from the reserve to Buffalo as a child – a separation from community described as a loss of positive guidance. The trial judge accepted that it was likely that many of the appellant's problems arose from intergenerational harm from his grandmother's attendance at residential school. He noted that the Indian Act requirement that the appellant's mother give up her membership in the Muncie Reserve to be a member at Six Nations likely contributed to the weakening of social bonds and the appellant's alcohol abuse. The Gladue report noted that the appellant had benefitted from cultural teaching and self-learning. The author concluded with the wish that the appellant be able to spend his time in an institution with access to opportunities to pursue the traditional ways.

[94] The trial judge noted that the pre-sentence report revealed a criminal record with numerous alcohol-related offences, including crimes of violence, namely robbery and second degree assault. The appellant had a childhood marred by his father's violence towards the appellant and his mother. He was exposed to alcoholism as a child, and left home as an adolescent. He supported himself by selling drugs. He became a father at age 15, but no longer had contact with that child. He has other children, and sold drugs to support his family. One of his sisters is serving time for murder; two other siblings were killed at ages 19 and 20. The appellant's education and employment are limited, but he wants to study counseling to help Aboriginal youth. The author of the pre-sentence report noted that alcohol has been a theme through the appellant's life. The author also noted that the appellant had opportunities to turn his life around, but is not amenable to court orders or community supervision.

[95] Having reviewed the Gladue report and the pre-sentence report, the trial judge concluded that there were no positive signs that the appellant would turn his life around. There was no psychological assessment or pursuit of further education, as in other cases. He concluded that there were no real prospects for rehabilitation. The appellant, at 33 years old, was not a troubled youth, but a dangerous adult. There were no mitigating factors. The jury recommendations of 15 to 25 years' parole ineligibility reflected the seriousness of the offence. The trial judge, after considering all the circumstances, the appellant's antecedents, the circumstances of the offence, the Gladue report, the pre-sentence report, and the jury recommendations, imposed parole ineligibility of 16 years.

[96] There are a number of factors in this case that justified increasing the period of parole ineligibility above the ten-year minimum. These included the circumstances of the offence, described by the trial judge as "the summary execution of an unarmed man" in front of his child in his own home, followed by robbing the victim of his drug proceeds and gold chain; the jury's recommendations, which reflected their view of the seriousness of the offence; the fact the appellant was 33 at the time of sentencing and not a youthful offender; the appellant's criminal record of 23 prior convictions in the U.S.; the fact that the appellant had absconded from the U.S. where he was on parole for robbery at the time of the offence; and the victim impact statements.

[97] The question here is whether it can be concluded from the sentencing reasons that the trial judge failed to "give attention to the unique background and systemic factors which may have played a part in bringing [the appellant] before the courts": Gladue, at para. 69.

[98] I found no error of law here and would not interfere with the trial judge's decision, which was a proper exercise of discretion. He recognized the obligation to consider the appellant's Aboriginal background – and he did so. While there is no question that the emphasis on sentencing was on deterrence, denunciation and isolation of the offender, as was warranted in the circumstances, the trial judge gave appropriate consideration to the appellant's prospects for rehabilitation. He concluded, however, that notwithstanding the opportunities that had been provided to the appellant in the past to turn his life around, he was not amenable to court orders or community supervision. As the trial judge noted, "any rehabilitation, any hope of his reformation is completely in his hands. He will no doubt continue what he has done to this point, despite his roots, his growing awareness of his traditions until he embraces those traditions". The trial judge did recommend that the appellant be considered for all and any Aboriginal heritage programs which are available at the institutions in which he is maintained.

[99] On a fair reading of the reasons for sentence, the trial judge recognized the Aboriginal status and history of the appellant, and expressly stated that he took them into consideration. The circumstances of the offence and the offender, without considering the Gladuefactors, might well have justified a longer period of parole ineligibility. As in R. v. Sunshine, 2014 BCCA 318, [2014] B.C.J. No. 2045, leave to appeal refused, [2015] S.C.C.A. No. 185, at para. 28, while the trial judge could have said more, I would not criticize his reasons for failing to particularize how the information of disadvantage was precisely factored into his analysis. The trial judge had no obligation to quantify the effect of each factor, and there is no reason in this case to doubt his statement that he did consider the Gladuefactors, or to go behind that statement.

[100] I see no error either in the sentencing judge's application of Gladue or in his conclusions concerning the appropriate period of parole ineligibility. Accordingly, I would grant leave to appeal sentence but dismiss the sentence appeal.

F. CONCLUSION

[101] For the foregoing reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence and would dismiss the sentence appeal.

Released: (J.L.) February 1, 2016

"K. van Rensburg J.A."

"I agree John Laskin J.A."

"I agree E.E. Gillese J.A."