Her Majesty the Queen v. Campbell Her Majesty the Queen v. David

[Indexed as: R. v. Campbell]

Ontario Reports Court of Appeal for Ontario Benotto, Huscroft and Jamal JJ.A. March 17, 2020

149 O.R. (3d) 675 | 2020 ONCA 221

APPEAL by the accused from conviction for first degree murder entered on November 6, 2015 by Nordheimer J. of the Superior Court of Justice.

Counsel: Philip Campbell, for appellant Orville Campbell. James Lockyer and Mindy Caterina, for appellant Stanton David.

[1] BY THE COURT: -- The appellants were convicted of first-degree murder. They appeal the convictions on the basis that the first-degree murder verdict was unreasonable. They also submit that the trial judge erred in his charge to the jury on post-offence conduct, party participation, the Vetrovec warning, the pathology evidence and the use of the criminal record of the deceased.

[2] They seek a new trial on first-degree murder or in the alternative, a new trial on second-degree murder.

[3] We have concluded that the verdict on first-degree murder was unreasonable and that there was no error requiring a new trial on second-degree murder.

[4] For the reasons that follow, we dismiss the appeal but substitute a verdict of second-degree murder and remit the matter to the Superior Court for sentencing.

Facts

Background

[5] In the spring of 2012, the appellants, Orville Campbell and Stanton David, were in custody. Campbell's charges were ultimately withdrawn, but while he was in jail, his girlfriend Chelise Strong began a relationship with Ricardo Vincent. Campbell was released from prison on May 4, 2012. Over the following days, he encountered Vincent and animosity ensued.

[6] On May 10, 2012, outside of a convenience store on Glamorgan Avenue in Scarborough, Campbell stared at Vincent from inside his car and Vincent yelled at Campbell to "fuck off". Later that day, Campbell left a voicemail for Strong saying "Tell your little boyfriend I'm not scared of him. If he wants an issue I'm not scared of him. Why is he telling me to fuck off." On May 13, Campbell was at a night club in Scarborough with friends and coincidentally ran into Strong and Vincent. Vincent threatened to "fuck him up" and said that Strong didn't want his "broke ugly ass". Campbell retorted that he was still having sexual relations with Strong. Campbell later texted Strong saying (i) "Now I see wat [sic] it is, tell ur lil bf when I see him he better have it" and (ii) "Yo if da nigga even try's to crack to me he's dead he better kno wha it is, and as for u jus holla at me! I'm done havin my feelings hurt from u parin wit nighas."

[7] After the incident at the nightclub, Campbell met with L.S., a friend of Vincent and an acquaintance of both appellants. L.S. told Campbell that it did not make sense to argue over a girl. L.S. told Vincent to either kill Campbell or to "lay low".

[8] On May 28, 2012, the appellant David was released from custody. On May 29, 2012, a mutual friend, Clayton Robichaud, introduced Campbell to David. David purchased marijuana from Campbell and the two began texting and speaking on the phone regularly. They appear to have become fast friends. Campbell, David and Robichaud were aspiring music artists.

[9] On June 20, 2012, Campbell, David, L.S., Robichaud and others gathered at 6 Glamorgan Avenue to shoot a rap video. David was asked to get a gun to contribute to the "urban look" of the video. He borrowed a .357 revolver from a friend. It was used in the video. David can be seen dancing with the revolver. Scenes from the music video included Campbell, L.S. and others. David testified that he returned the gun to the friend after the video shoot. L.S. testified that in the days leading up to the shooting, he saw Campbell and David sharing the revolver and that they were the "only two with access" to the weapon.

June 22, 2012

[10] On June 22, 2012, Campbell had plans to drive to Barrie to pick up some marijuana to sell. He drove to Barrie with some friends and purchased marijuana, returning to [information omitted] Glamorgan around 3:30 p.m. By chance, Vincent was there. Campbell saw Robichaud, sold some marijuana and then left with friends to continue selling. David had also gone to [information omitted] Glamorgan that morning to finish shooting the rap video. He had the revolver with him, which he claims he borrowed again from his friend. Around 4:00 p.m., David drove into the parking lot and met with friends. Robichaud, who had been hanging out with Vincent and L.S., invited David to have a drink with them. After the drink, David walked to a different area and waited for other friends to show up.

The nine minutes at [information omitted] Glamorgan

[11] Campbell returned to [information omitted] Glamorgan around 5:31 p.m. Nine minutes later, Vincent was dead.

[12] When Campbell arrived at [information omitted] Glamorgan, he testified that Vincent told him to "get the fuck out of here".

[13] L.S. was sitting with Robichaud about 150 feet away. L.S. testified that he saw a confrontation by Vincent's car. Campbell and David and two or three other men were near the car. Vincent got out of his car and moved toward the playground/splash pad area. The group of men followed. L.S. testified that he saw Campbell with a gun and heard him tell Vincent, "I told you bro, I'm locked and loaded." The confrontation then ended.

[14] In the moments following, Campbell texted someone about selling marijuana. Vincent walked back to his car. Campbell and David and the other men followed. Vincent was standing near the front of his car. L.S. saw Campbell acting like he had a gun. Campbell and David walked behind Vincent's car and met very close together on a grassy area. L.S. did not hear what was said and he did not see a gun. However, he testified that it looked like "something" was handed over and he believed it was a gun. L.S. testified that after Campbell and David met behind Vincent's car, David began moving like he had the weapon. David moved first toward Vincent. Campbell followed but then stopped. David was "not moving fast", he was "sliding through the cars". L.S. said that David appeared to be trying to hide his arm behind his hip as David walked along the passenger side of the car. David had his arm held at an angle like he was concealing a gun.

[15] Campbell also walked toward Vincent but stopped. David continued to move toward Vincent. L.S. heard five shots fired: two together and then three more. L.S. looked back and saw David holding a revolver and looking around. Campbell had his mouth wide open, "like the kid from Home Alone".

[16] Although brief, there was a separation in time between the exchange of insults between Campbell and Vincent and the meeting of Campbell and David behind the car.

[17] The Crown alleged that Campbell passed the gun to David and instructed him to kill Vincent. They were charged with first-degree murder and tried before a jury as joint principals.

Motion for directed verdict

[18] At the conclusion of the Crown's case, the appellants brought motions for directed verdicts, seeking to remove first-degree murder from the jury's consideration. In dismissing the application, with reasons reported at 2015 ONSC 6738, the trial judge concluded that if the jury found that Campbell and David participated in Vincent's killing, then they could draw inferences of planning and deliberation from the following facts:

• Campbell had previously sent a text message to Strong that amounted to a threat against Vincent;
• Campbell and David were friends;
• the gun was brought by one of them to the area where the shooting occurred;
• shortly before the shooting Campbell said he was "locked and loaded";
• immediately before the shooting Campbell and David met behind Vincent's car and the gun was allegedly passed from Campbell to David;
• there is no evidence that either Campbell or David demonstrated surprise or alarm that might suggest the shooting was an unexpected event. L.S. expressly denied that Campbell looked shocked after the shooting;
• while there is some evidence that words were exchanged between Campbell and David and Vincent prior to the shooting, there was a gap in time between that exchange and the shooting that tends to discount any suggestion that the shooting resulted from a sudden or impulsive act.

[19] The trial continued.

Defence evidence

[20] Campbell and David testified. Campbell denied having a gun on the day of the shooting and denied instructing David to shoot Vincent. He testified that after the confrontation with Vincent, David offered him a gun, but he declined it. He heard two gunshots, which did not come from David. He heard three more shots and saw Vincent "twist" and hit the ground. He did not see Vincent with a gun.

[21] David testified that he heard Vincent yelling at Campbell. He said he went up to Vincent who had a gun. In an attempt to see the gun, he lifted Vincent's shirt, but Vincent slapped away his hand and said no. The argument continued between the Vincent and Campbell. David heard Vincent threaten to kill Campbell. He then went to Campbell and offered him his gun, but Campbell declined. David heard a shot and then a second shot and saw Vincent with a gun. David started to "skate" toward Vincent and fired because it was "him or me". David denied knowing anything about the dispute between Campbell and Vincent and denied being told by Campbell to shoot him.

Jury charge

(a) The two scenarios

[22] Two scenarios were put to the jury as to how Vincent came to his death:

(1) When the two men were behind Vincent's car, Campbell told David to shoot Vincent; or (2) David was acting alone. David used the gun to shoot Vincent when Vincent fired shots at him. On this scenario, David asserts self-defence.

[23] Because the jury found both Campbell and David guilty of first-degree murder, the jury clearly relied on scenario one.

(b) Planning and deliberation

[24] The trial judge correctly instructed the jury on the elements of planning and deliberation. Then, the charge continued:

[I]n terms of determining whether the murder was planned and deliberate you may wish to consider evidence that:

1. There was a gun that was used that was brought either by Orville Campbell or by Stanton David to the location;
2. Prior to the shooting Orville Campbell said to Ricardo Vincent "I am always locked and loaded", if you accept that Mr. Campbell said that;
3. There was nothing apparently said between Orville Campbell and Stanton David immediately prior to the shooting taking place that might indicate surprise or alarm or otherwise suggest that the shooting was an unexpected event or done as a matter of impulse;
4. There was no discussion between Orville Campbell and Stanton David on the one hand, and Ricardo Vincent on the other, that would suggest the shooting resulted from a sudden or impulsive act;
5. The events of the shooting were preceded by a dispute between Orville Campbell and Ricardo Vincent that had been ongoing for some period of time, and during the course of which Mr. Campbell had made threats against Mr. Vincent; and
6. Neither Orville Campbell nor Stanton David remained at the scene or rendered any assistance to Ricardo Vincent.

These are not the only pieces of evidence that you will want to consider. There are other pieces of evidence that might argue against any conclusion that the murder of Mr. Vincent was planned and deliberate. The pieces of evidence that I have mentioned are just some factors that may assist you in deciding whether the murder of Ricardo Vincent was the result of a planned and deliberate act. That is not a conclusion that you would have to come to, but it is a conclusion you could come to. These factors may assist you or they may not. It will be up to you to decide.

[25] The jury returned a guilty verdict.

Issues on Appeal

Campbell and David

[26] Campbell and David appeal on the basis that the verdict of first-degree murder was unreasonable. They rely on the lack of evidence to support planning and deliberation and errors in the jury charge.

[27] They also submit that the trial judge improperly invited the jury to rely on post-offence conduct to find planning and deliberation; failed to give a corrective instruction with respect to the Crown's misstatement of the pathology evidence; erred by not limiting the use of the evidence of Vincent's criminal history; and failed to provide an adequate Vetrovec instruction with respect to L.S.

Campbell

[28] Campbell submits the trial judge erred in instructing the jury to assess Campbell's liability as a principal in the homicide.

Discussion

First-degree murder

[29] We begin with the appellants' primary submission: the verdict of first-degree murder was unreasonable.

[30] The appellants submit that the verdict of first-degree murder was unreasonable because there was no evidence that could support a finding of planning and deliberation.

[31] A verdict is unreasonable if a properly instructed jury, acting judicially, could not have come to that verdict: R. v. Biniaris, 2000 SCC 15, at paras. 36-42.

[32] In R. v. Robinson, 2017 ONCA 645, this court confirmed, at para. 31, that, when considering a claim that a jury verdict is unreasonable, the court

. . . must engage in a limited weighing of the evidence. Cromwell J. described the boundaries of that exercise in R. v. W.H., 2013 SCC 22, at paras. 27-28:

. . . On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.

On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the 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". Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience.

(Citations omitted; emphasis in original)

[33] A murder is "planned" if it is the product of "a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed". A murder is "deliberate" if it is "considered", "not impulsive", "slow in deciding", "cautious", implying that the accused must take time to weigh the advantages and disadvantages of his intended action: R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084 S.C.R.

[34] The Crown here was required to prove beyond a reasonable doubt that each of Campbell and David had carefully thought out and calculated a scheme, considered the nature and consequences, and weighed the pros and cons of the murder. We conclude that the evidence does not establish that a reasonable jury could have been satisfied beyond a reasonable doubt that these conditions were met.

[35] The Crown's position with respect to the evidence that could ground the jury's finding of planning and deliberation shifted significantly between trial and appeal.

[36] At trial, the Crown relied on the text message that Campbell sent to Strong threatening Vincent. Recall, it was on May 13, 2012 -- about five weeks earlier -- that Campbell told Strong: "tell ur lil bf when I see him he better have it".

[37] With respect to David, the Crown relied on his desire to defend Campbell from the insults from Vincent. The following excerpt represents the bulk of the Crown's closing:

Then the issue becomes, is this planned and deliberate? Because if it's planned and deliberate, it's first degree murder. Now, a plan can be simple and senseless. It doesn't have to be the work of an evil genius or anything like that. It doesn't have to be complicated. It doesn't have to be like in the movies. And certainly, take the gun, slide up on him and shoot him until he's dead is a simple but deadly plan.

And then the issue is deliberate. Planned and deliberate. You require both elements for it to be first degree murder. If it's not planned and deliberate, it's second degree murder

This is something that had been threatened. This was something that was long standing. This is something where people have had lots of time, in particular Mr. Campbell, to think about whether he wants to do it, and this is, in my respectful view, on behalf of both gentlemen, planned and deliberate.

Again, with respect to David, deliberations don't have to be -- they don't have to be, again, like intellectual exercises where everything makes a lot of sense. It could be relatively simple. It can be, you know what, this guy is dissing my friend, and yes, this is in broad daylight but no one here is going to say anything because the code is in place, and dead men don't talk, and I'm going to be out of here in two seconds, and you know what, I am going to do a solid for my buddy, I'm going to take that gun and I'm going to shoot him because he deserves it. That could be deliberation. Again, it doesn't mean a work of genius.

[38] In other words, the Crown at trial relied on the animus between Campbell and Vincent -- dating back five weeks -- to suggest that Campbell had developed and carefully thought out a scheme to kill Vincent. As for David, the Crown appeared to say that his planning and deliberation took place when he was handed the gun.

[39] On appeal, Crown counsel's written submissions amplified the rather amorphous jury closing by the Crown. The Crown put forward the following evidence from which the jury could find planning and deliberation:

(i) Animus and motive: Campbell's anger about Strong. (ii) Threats: the text messages sent to Strong on May 10 and 13, 2012. (iii) Friendship between Campbell and David. (iv) Presence of a gun on June 22, 2012. (v) No appearance of shock after the shooting. (vi) Intimidation of Vincent: L.S.'s evidence depicted a sequence of evidence during which Campbell and David (and others) followed and tried to intimidate Vincent. L.S. testified how Campbell, David, Campbell's cousin and one or two others "swarmed" Vincent in a half circle around him. Campbell was "in Ricardo's face" and circling him and holding his waist. The group followed Vincent to his car, "tailing him", and Campbell's cousin blocked Vincent's way. L.S. testified that at one point, Campbell had a revolver in his hand and said to Vincent, "I told you bro, I'm locked and loaded". When Vincent was moving to his car, he was followed by the group. (vii) The exchange of the firearm. (viii) The gap in time after the firearm exchange and the shooting. (ix) No evidence that Campbell or David remained at the scene or rendered assistance to Vincent.

[40] During oral submissions, the Crown's position changed significantly. It was submitted that the planning and deliberation took place -- not in the weeks leading up to the murder -- but in the nine minutes that the appellants were at [information omitted] Glamorgan. More particularly, it was the exchange between the two at the back of Vincent's car where the planning and deliberation took place.

[41] The Crown submits that, by accepting scenario one, the jury effectively concluded that the murder was planned and deliberate. The reasoning goes like this. Campbell handed the gun to David and told him to shoot. By taking the gun and shooting, David agreed. It was analogous to a contract killing, which satisfies the requirements for planning and deliberation. Simply put, inherent in the instruction to shoot is planning and deliberation.

[42] We do not accept that the evidence of the Campbell and David meeting behind Vincent's car could possibly establish planning and deliberation. L.S.'s evidence was that he saw them. He did not hear what was said. The exchange was after Campbell had arrived, walked to the splash pad area and walked back. It was thus nearer to the end of the nine minutes. There was no time at the back of the car for a carefully thought-out scheme with a weighing of the advantages and disadvantages. Nor was there evidence to support the planning and deliberation.

[43] Further, the evidence relied on is equally consistent with an impulsive act: Campbell was angry with Vincent and impulsively told David to shoot. The evidence of planning and deliberation with respect to David is even flimsier: he took the gun from his friend and shot.

[44] Putting the Crown's position at its highest, when the appellants were behind Vincent's car, Campbell passed the gun to David and told him to shoot. David took the gun and slid alongside the cars and shot. These facts -- even when viewed in the context of the animus between Campbell and Vincent -- do not constitute planning and deliberation. There is no evidence from which the jury could infer a carefully thought-out scheme with time to weigh the advantages and disadvantages of the intended action; Campbell, David and L.S. all testified that the shooting happened rapidly.

[45] The evidence before the jury that a gun was brought to [information omitted] Glamorgan, that Campbell had threatened Vincent through Strong and told Vincent that he was "always locked and loaded" could not, absent impermissible speculation, have satisfied the jury beyond a reasonable doubt that Campbell and David had planned and deliberated about the murder before the shooting. The appellants did not go to [information omitted] Glamorgan looking for Vincent. They met there by chance. The threats were made through Strong five weeks earlier and there was evidence that Campbell was in another relationship. The fact that the appellants left the scene is equally consistent with an impulsive act as it is with planning and deliberation.

[46] The evidence before the jury was sufficient for the jury to find motive and intent. The risk is that this could lead the jury to a determination of planning and deliberation. The danger was referred to in Robinson, 2017 ONCA 645, at para. 37:

A lay jury, unaccustomed to the sometimes subtle distinctions drawn in the criminal law among various culpable mental states, might move quickly from a finding that the appellant decided to inflict bodily harm that he knew would probably cause death, to a finding that the appellant had planned to inflict harm that he knew was likely to cause death. Looking at the evidence "through the lens of judicial experience", an appeal court must have regard to the real risk that evidence demonstrating the intention to commit murder . . . could be improperly treated by a jury as equally cogent evidence of planning, if not deliberation.

[47] We conclude that the verdict of first-degree murder cannot stand. We turn to consider whether a new trial is required on second-degree murder.

Is a new trial required?

[48] The appellants have submitted that a new trial is necessary because of errors in the jury charge. They say that the jury charge was in error with respect to post-offence conduct, the Vetrovec warning, the pathology evidence and the use of the criminal record of the deceased. Campbell also submits that the jury charge was in error with respect to party participation. Below, we examine each of these submissions in turn.

(a) Post-offence conduct

[49] The trial judge referred to the fact that neither appellant remained at the scene. The jury was told this could be considered in relation to planning and deliberation.

[50] The appellants submit that, without a limiting instruction, this fact could have tainted their decision on intent for murder. Therefore, a new trial is necessary on second-degree murder.

[51] We do not agree.

[52] The evidence was mentioned only in the context of planning and deliberation for first-degree murder. The jury would only have reached consideration of whether the shooting was planned and deliberate after concluding that the appellants caused Vincent's death and had the requisite intent for murder. Accordingly, the jury must have accepted scenario one, that Campbell instructed David to shoot. While it would have been preferable for the jury instructions to include the prohibited use of the post-offence conduct, under the circumstances it was of no moment. The jury clearly decided -- in accordance with scenario one -- that Campbell told David to shoot when they were at the back of the car. Intent for murder was unrelated and could not be informed by the fact that they left the scene.

[53] Further, no one stayed at the scene when the shots were fired. The evidence was uncontradicted that everyone fled. There was nothing specific to the conduct of the appellants in this regard and no risk of misuse of the evidence by the jury.

(b) The Vetrovec warning

[54] The appellants submit that the trial judge's warning regarding the testimony of L.S. was inadequate. L.S. -- they say -- was an unsavoury (or "Vetrovec") witness and there should have been a stronger warning.

[55] In the wake of the shooting, L.S. spoke on the phone with a police officer and promised he would help with the investigation. However, he did not follow through due to a "code" that prevented him from speaking to police. On March 9, 2013, police executed a search warrant at his apartment and found a sawed-off shotgun. He was arrested that day and he provided his first statement about the shooting, which was given under oath and videotaped. L.S. was subpoenaed to attend the appellants' preliminary inquiry on April 17, 2014, but instead drove to Vancouver to sign a management deal for his rap-artist career. He was eventually pulled over by the OPP near Thunder Bay. He was arrested and flown to Toronto. L.S. ultimately testified at both the preliminary inquiry and the trial.

[56] The trial judge instructed the jury to approach L.S.'s evidence as follows:

While I'm on the subject of witnesses in this case, let me deal with [L.S.], who you know gave evidence as a witness for the Crown. [L.S.] is currently facing charges relating to weapons offences. [L.S.]'s trial on those charges has not yet been held. A prosecution witness who is awaiting trial himself on charges may have an interest in giving evidence favourably for the prosecution in this trial. Favourable evidence here may help the witness out with his own case later, or the witness may believe that it will do so. In this case you will remember that while [L.S.] said he thought of that possibility, he was told very clearly by the homicide investigators, when he agreed to give a statement, that there would be no special treatment for him on his charges, arising from giving a statement to the police.

You have also heard that [L.S.] lied while under oath at the preliminary hearing. [L.S.] admits that he did so and he told you why he did not tell the whole truth at that time. Experience and common sense tells you that in light of these circumstances there is good reason to look at [L.S.]'s evidence with care and caution. You are entitled to rely on [L.S.]'s evidence of course, but given these circumstances you may wish to look for some confirmation of [L.S.]'s evidence from somebody or something other than [L.S.] before you rely upon [L.S.]'s evidence in deciding whether Crown counsel has proven the case against Orville Campbell and Stanton David beyond a reasonable doubt.

[57] The appellants submit that this warning did not impart the appropriate level of caution for the jury, particularly when L.S. was the primary Crown witness. The appellants submit that a clear caution was necessary to tell the jury that it was dangerous to convict on the unconfirmed testimony of L.S.

[58] In the circumstances of this case and this witness, the Vetrovec instruction was appropriate and sufficient. The precise language used in a Vetrovec instruction is at the discretion of the trial judge. While L.S. had unrelated outstanding charges, he knew that the police and Crown would give him no consideration for his testimony at this trial. He also had no criminal record, was employed and had no animus towards Campbell and David. On the spectrum of unsavory witnesses, L.S. was on the lower end.

[59] When an instruction is warranted, trial judges have the discretion to tailor it according to the circumstances of each case and the witness. In R. v. Khela, 2009 SCC 4, at para. 37, the Supreme Court approved of the following general framework as guidance for trial judges on the content of a Vetrovec instruction. The trial judge should:

(a) draw the attention of the jury to the evidence requiring special scrutiny; (b) explain why the evidence is subject to special scrutiny; (c) caution the jury that it is dangerous to convict on unconfirmed evidence of this sort, though they are entitled to do so if satisfied that the evidence is true; (d) explain that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.

[60] These guidelines are not to be applied in a rigid or formulaic way (Khela, 2009 SCC 4, at para. 38).

[61] The Vetrovec instruction given by the trial judge accomplished each of the four objectives set out in Khela, 2009 SCC 4. The instruction: told the jury that the evidence requiring special scrutiny was the testimony of L.S.; explained why L.S.'s evidence ought to be approached with care and caution; cautioned the jury that it would be dangerous to convict on the unconfirmed evidence of L.S.; while not using the word "dangerous" the trial judge warned the jury ("there is good reason to look at [L.S.]'s evidence with care and caution"); explained to the jury that when determining the veracity of L.S.'s evidence, they could look for independent confirmatory evidence from another source tending to show that he was telling the truth as to the guilt of the accused; and gave examples of such evidence. There is no special language that is required: R. v. Sauvé, 2004 ONCA 9054, 182 C.C.C. (3d) 321 (C.A.), at para. 86.

(c) Pathology evidence

[62] The appellants submit that the trial judge erred by not correcting the Crown's closing with respect to the pathology evidence. The background follows.

[63] The evidence was that five shots were fired. David's claim of self-defence rested on his testimony that the first two were fired by Vincent. Vincent had five gunshot wounds. No gun or bullet cases were found at the scene. The jury needed to decide whether the five wounds were caused by five shots, or fewer.

[64] Dr. Hunt, the forensic pathologist who conducted the autopsy, could not determine the order of the shots or the distance from which they were fired. Dr. Hunt was asked whether he could determine the number of shots fired to cause the wounds. His opinion was that there were five separate gunshot wounds. However, in his autopsy report, he had concluded that the entry wound to the deceased's chest may have been a re-entry wound from a bullet that had first entered then exited his left forearm. Defence counsel asked him to consider a scenario in which the deceased had his left arm diagonally across his chest to imply he was holding a gun. Dr. Hunt agreed that in such a scenario, it was "certainly a possibility" that the bullet which entered the back and exited the chest then also entered the forearm.

[65] In his closing, the Crown told the jury:

Now, there's an explanation from the pathologist how three gunshots could have caused four injuries to Mr. Vincent . . . The problem is from three shots to five injuries.

Now there was a lot of cross-examination about that. The suggestion was put to the pathologist, well, what if the arm is in front? And what if the bullet hits the arm and then continues into the chest? Then couldn't you have three shots causing five injuries? And he says, "no, I considered that".

So if I am Mr. Vincent holding a gun like David would have you believe it was held, unless that bullet travels around and comes through like this, that shot is not going through the arm and doing the type of damage where you'd have three shots causing five wounds.

There's no injury to Mr. Vincent through the back of his forearm. There is no way that Mr. Vincent took two shots. If he took two shots, that means that man only took three. Three shots does not cause five gunshot wounds. Not in this scenario, not with an injury to the back. It never happened. It never happened.

. . . . .

So if Mr. Vincent wasn't firing the two shots, and we know he wasn't, it offends common sense, it offends pathology, it offends what we know about bullets travelling in a straight line, why do they say this?

[66] The appellants argue that, by claiming that Dr. Hunt had considered and rejected the three-gunshot scenario and by suggesting that it offended "pathology" and "common sense", the Crown misstated Dr. Hunt's testimony. While expressing some doubt that the wound to the deceased's right chest was an entry wound, he unequivocally agreed that it was possible that the deceased had been shot only three or four times.

[67] We do not agree that the Crown's closing required a corrective instruction. In the entire context of Dr. Hunt's evidence, the Crown did not misrepresent it. Dr. Hunt's opinion was that there were five separate gunshot wounds. While he considered the possibility that one of the forearm wounds might have entered the right chest, he indicated that it was low in terms of probability. He said: "I know it's a possibility, but taking into consideration the wound appearance, it seems like it's a separate wound." While Dr. Hunt did not rule out the possibility that the forearm wound and chest wound were inflicted from the same bullet, he explained his opinion as to why this was not likely.

[68] The trial judge did bring this to the jury's attention:

As I earlier mentioned, Dr. Hunt said there were five bullet wounds on Mr. Vincent's body. You know that [L.S.], Mr. Campbell and various people who called '911' reported hearing approximately five gunshots. At the same time though, Dr. Hunt did say that it was possible that the five entry wounds on Mr. Vincent's body were not necessarily caused by five separate bullets. We do know that no one else was struck by any bullets, and we also know that the police did not find any other bullet holes, for example in any of the vehicles that were parked in the area.

(d) Vincent's criminal record

[69] Vincent had prior convictions related to two ex-girlfriends that included aggression towards their new boyfriends. The appellants submit that the trial judge erred when he instructed the jury that the record was only relevant to self-defence. They say that this was circumstantial evidence that supported the claim that Vincent was the aggressor on earlier occasions and therefore also on the day of the shooting. They submit that this was relevant to the appellants' credibility, motive and animus.

[70] We do not agree. The prior convictions were only relevant to David's claim of self-defence. No further instruction was appropriate or necessary.

(e) Party participation

[71] Campbell submits that the trial judge erred by not including an instruction on party participation. There was no evidence, he says, that Campbell actually committed the offence. Further, there should have been an instruction of potential liability under s. 21(1)(b) and (c) of the Criminal Code, R.S.C. 1985, c. C-46.

[72] We disagree. The Crown relied on Campbell's role as principal to the murder. A direct physical contribution to the death is not required to prove causation. It was open to the jury to find that his actions in giving David the gun and instructing David to shoot were a significant contributing cause of Vincent's death (see R. v. Woodcock, 2015 ONCA 535; R. v. R. (J.S.), 2012 ONCA 568).

[73] In our view, it inured to the benefit of Campbell not to have party participation put to the jury for that would have imported more paths to conviction. As trial counsel for Campbell said in his closing address: "the only available basis on which you can say that Mr. Campbell caused Mr. Vincent's death is through Mr. Campbell directing or instructing Mr. David to shoot him". This, trial counsel said, was the "key" question.

[74] A charge on party participation was not necessary and it would have imported unnecessary confusion.

Conclusion

[75] The appeal is dismissed pursuant to s. 686(1)(b)(i) of the Criminal Code but a verdict of second-degree murder is substituted for first-degree murder pursuant to s. 686(3). The matter is remitted to the Superior Court for sentencing.

Appeal dismissed with verdict of second degree murder substituted.

End of Document