Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211019 DOCKET: M52783 (C68693)

Brown J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Responding Party

and

Andrew Campbell Applicant

Counsel: Aidan Seymour-Butler, for the applicant Stephanie A. Lewis, for the responding party

Heard: October 12, 2021 by video conference

Endorsement

I. Overview

[1] The applicant, Andrew Campbell, applies for bail pending appeal.

[2] Almost three years ago, on November 2, 2018, Mr. Campbell was convicted by a jury of kidnapping, pointing a firearm, and assault causing bodily harm.

[3] Briefly, the facts as set out in the reasons for sentence are as follows. A confrontation occurred between Mr. Campbell and the victim, Jamal Karshe, in the early morning hours one Saturday in 2015 at the apartment of Heather Lafleur. In the result, Mr. Campbell left the apartment and then returned with a handgun, which he pointed at Mr. Karshe. Mr. Campbell directed Ms. Lafleur to tie up the victim and then pour heated oil on the victim’s thigh and around his ears. Mr. Campbell and Ms. Lafleur then put the victim in a truck, which Mr. Campbell drove to a wooded area. He put Mr. Karshe on the ground and choked him to the point of unconsciousness.

[4] On May 22, 2019, the sentencing judge imposed a global sentence of seven years’ imprisonment which, after appropriate credits, resulted in a sentence to be served of 73 months, or six years and one month. The time remaining on his sentence is now three years, eight months, and two weeks.

[5] Mr. Campbell filed an inmate notice of appeal dated June 6, 2019 against conviction and sentence. By order dated September 18, 2020, Hourigan J.A. granted Mr. Campbell a s. 684 order. A solicitor’s notice of appeal was filed on October 8, 2020.

[6] By notice of application dated August 16, 2021, Mr. Campbell seeks bail pending appeal.

[7] The Crown opposes the application. The Crown takes the position that while Mr. Campbell’s appeal is not frivolous and he will surrender into custody in accordance with the terms of a release order, he has not demonstrated that his detention is not necessary in the public interest: Criminal Code, R.S.C. 1985, c. C-46, s. 679(3)(c).

II. Residual Public Safety Concerns

[8] The Crown submits that there are residual public safety concerns inherent in Mr. Campbell’s release plan as it proposes that for the first two weeks following his release, the appellant live alone at his mother’s home, not in the presence of any of his sureties. The appellant’s mother proposed this arrangement in order to minimize the risk that she might contract COVID-19 from him upon his release.

[9] At the hearing, the appellant abandoned this part of his release plan in light of the Crown’s opposition. Under his amended plan, Mr. Campbell would reside in his mother’s presence from the time of his release.

[10] As a result of this amended plan, I am satisfied that there are not any residual public safety concerns with the proposed release plan. As well, Mr. Campbell complied with the terms of his presentence interim release.

[11] I next consider the reviewability and enforceability interests that make up the public confidence component of Criminal Code s. 679(3)(c).

III. Reviewability Interest

A. Introduction

[12] The strength of the grounds of appeal play a central role in assessing the reviewability interest. In conducting a more pointed assessment of the strength of an appeal beyond the “not frivolous” requirement, a court must “examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 44. The court’s task is to ascertain “if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44.

[13] On this application, Mr. Campbell focuses on three grounds of appeal: (i) the trial judge failed to properly instruct the jury on the need for cultural competence and context when assessing the evidence of the appellant’s post-offence conduct; (ii) the trial judge failed to properly instruct the jury on reasonable doubt; and (iii) the verdict was unreasonable.

[14] In his reasons granting the s. 684 order, Hourigan J.A. considered the merits of the appeal, concluding that he would not categorize any of the grounds of appeal as strong. However, he was “not prepared to conclude that none of the grounds are arguable”: R. v. Campbell, 2020 ONCA 573, at para. 10.

B. Grounds of appeal concerning the charge to the jury

[15] Two of the grounds concern the trial judge’s instructions to the jury.

Post-offence conduct

[16] The first concerns the charge regarding how the jury could use the evidence of Mr. Campbell’s conduct at the time of his arrest.

[17] After Mr. Karshe was left unconscious on the ground, he awoke and walked to a gas station, where help was summoned. The police were called. Three plain clothes officers went to Ms. Lafleur’s apartment building where they set up surveillance of her apartment door in the stairwell. When Mr. Campbell and another male left the apartment, the plain clothes officers exited the stairwell. At least one officer had his gun drawn. Mr. Campbell ran. The officer who testified at trial was confident that he said something to the effect of “stop, police,” but he was not confident about whether he did so before or after Mr. Campbell started to run. Mr. Campbell fled to the stairwell on the opposite side of the hall. The arresting officers pursued him downstairs and into the hallway of the tenth floor. There, Mr. Campbell stopped running, faced the approaching officers, and put his hands in the air. He was tackled to the ground, handcuffed, and told he was under arrest for attempted murder.

[18] In his charge, the trial judge gave detailed instructions on the use the jury could make of the evidence about what Mr. Campbell did or said during the events surrounding his arrest. In the course of his instructions, the trial judge reviewed Mr. Campbell’s evidence about those events:

[94] Mr. Campbell testified that he ran because three men were chasing him with firearms drawn. He did not realize they were police officers until he was handcuffed.

[95] Mr. Campbell testified that the previous evening, some guy was calling Ms. La[f]leur repeatedly and to his knowledge, she did not take any of the calls. In his police statement there is evidence that Mr. Campbell was concerned about this guy and that he may send some men over. He did not know the guy and had never met him. When asked why he would be concerned, he said he was paranoid.

[19] The trial judge also reviewed some of the evidence given by Officer Wilson about those events:

[103] When cross-examined, Officer Wilson agreed that it would be reasonable to run if three unknown men with guns were chasing you, or something to that effect. However, it was also the officer's evidence that he and the other officers repeatedly yelled "Stop police" or something to that effect and Mr. Campbell stopped running on the 10th floor.

[20] In the portion of the charge setting out the position of the defence, the trial judge stated:

Defence counsel suggests that the, or submits rather, that the after-the-fact conduct alleged by the Crown, that is Campbell running from police in civilian clothing is of no assistance in determining the legal issues in this case. Mr. Campbell had a perfectly reasonable explanation for why he ran. In fact, defence counsel asks us to recall Officer Wilson's testimony that he, too, would have done the same, that is run away from strange men with guns.

[21] The appellant does not dispute that the charge on post-offence conduct contains the required elements for a standard charge on such evidence. The appellant’s complaint is that the charge was legally deficient because it was insufficient on the issue of the issue of race/cultural context of the appellant’s evidence – specifically, the perspective of the appellant, a Black man, when faced with plain clothes officers with their guns drawn.

[22] During the pre-charge conference, defence counsel advised that she did not have major issues with the post-offence conduct section of the charge. While defence counsel requested certain wordsmithing changes to the narrative of events, no request was made to add language of a racial/cultural context nature.

Reasonable doubt

[23] The appellant submits that the trial judge erred when, following questions from the jury, he failed to provide further instructions on the issue of credibility or recharge on R. v. W.(D.), [1991] 1 S.C.R. 742.

[24] After retiring, the jury sent the judge a question: “We would like to hear a playback of Jamal Karshe's cross-examination.” A discussion ensued amongst the trial judge and counsel whether the entirety of the cross-examination should be played back or whether the jury should be asked if there were specific portions of the cross-examination they wished to listen to. It was agreed to bring the jury back and ask if they could be more definitive about what evidence they wanted to hear. The trial judge then asked the jury to retire and provide a written answer to the following question:

The only question we had and I'm going to put the question to you and then you're going to have to go out and put your response in writing, but is there a certain area you're looking at or do you want to hear the whole thing generally?

[25] Further discussion ensued once the jury retired. Defence counsel stated that since the jury seemed to be discussing the credibility and reliability of Mr. Karshe’s evidence, it might be best to playback the entire cross-examination.

[26] The jury returned with a two-part written request regarding Mr. Karshe’s evidence:

Did — in anywhere during Mr. Karshe's testimony, was he asked if he knew or had knowledge of a gun, I think in Heather's apartment prior to seeing it in Mr. Campbell's hands?

Would like to hear the defence attorney's suggestion at the end of Mr. Karshe's testimony and his responses.

[27] Further discussion ensued amongst the trial judge and counsel.

[28] Defence counsel initially submitted that the whole cross-examination should be played to the jury. Ultimately, the trial judge and counsel agreed that the jury’s inquiries could be addressed by playing back a specific part of Mr. Karshe’s cross-examination. The jury returned; the portion was played back; at the end of which the trial judge inquired:

All right, members of the jury. You've heard that exchange. Were you able to hear it? And did it answer the questions or the inquiries or do you need to hear further evidence? Everyone seems okay. All right. Then I'll ask you to step out again and continue your discussions for a little while anyways. Thank you.

[29] No request was made by defence counsel that the trial judge provide further instructions on the issues of credibility and reasonable doubt.

C. Unreasonable verdict

[30] The appellant submits that the jury’s verdict was unreasonable for two reasons: (i) the only direct evidence led by the Crown about the events came from the complainant, Mr. Karshe; and, (ii) although a gun was found in the stairwell near the place of Mr. Campbell’s arrest, his DNA was not found on that gun.

[31] The Crown counters that the mere fact that Mr. Campbell’s DNA was not found on the firearm did not make the pointing a firearm conviction unreasonable because:

There was ample evidence to support the jury’s verdict on this count: the victim testified that the [appellant] threatened him with a handgun wrapped in green cloth; the arresting officer testified that the [appellant] looked like he was running with a weapon; and a handgun wrapped in green cloth was recovered from the stairwell the [appellant] ran through.

D. Potential grounds of appeal

[32] The appellant’s notice of application hints at possible other grounds of appeal that are “under investigation by appellate counsel”: the propriety of the Crown’s cross-examination of the appellant and trial counsel’s concession of the voluntariness of the appellant’s statement to the police. Given that these potential grounds of appeal are “under investigation”, undeveloped, and do not form part of the notice of appeal, I am not prepared to consider them as part of this application: Oland, at para. 45.

E. Assessment

[33] I have considered the three grounds of appeal in light of the trial judge’s charge to the jury, the discussion between the trial judge and defence counsel during the pre-charge conference and following the question from the jury, and the evidence regarding the handgun and the circumstances of Mr. Campbell’s arrest. While the absence of an objection from defence counsel is not determinative of the two issues regarding the instructions to the jury, it does inform the consideration of whether the trial judge adequately tied the legal instructions to the specific circumstances of the case.

[34] I agree with the assessment made by Hourigan J.A. in his s. 684 reasons – that is to say, I cannot conclude that none of the grounds are arguable. At the same time, I do not view them, to use the language of Oland, as clearly surpassing the minimal standard required to meet the “not frivolous” criterion.

IV. Enforceability Interest

[35] Mr. Campbell has been convicted of very serious offences. The circumstances of the offences, as described in para. 3 above, were violent and caused Mr. Karshe significant harm. The global sentence imposed of seven years’ imprisonment underscores the seriousness of the offences.

V. Balancing the Interests

[36] Balancing the reviewability and enforceability interests that make up the public confidence component of Criminal Code s. 679(3)(c) requires a qualitative and contextual assessment, measured through the eyes of a reasonable member of the public: Oland, at paras. 47 and 49.

[37] I conclude that in the present case the enforceability interest significantly outweighs the reviewability interest. The grounds of appeal, although arguable, do not “clearly surpass” the minimal standard of the “not frivolous” criterion. The offences were very serious, understandably attracting a lengthy prison sentence.

[38] This is not a case where the anticipated delay in hearing the appeal relative to the length of the sentence tips the balance in favour of reviewability: Oland, at para. 48. The appellant delayed for a considerable period of time before bringing this application for release: he waited over two and one-half years following his conviction and one year since the appointment of counsel following the s. 684 application.

[39] As well, the appellant has not indicated a willingness to move his appeal along with dispatch. While the appellant proposes as a condition of release the standard term of pursuing his appeal “with all due diligence”, he objects to the Crown’s request that any release order require him to perfect his appeal by the end of this year. I pressed applicant’s counsel on this point during the hearing, but it is obvious that he lacked instructions to commit to any specific perfection date, let alone a reasonably prompt perfection date. Such an unwillingness raises concerns on my part that if release were to be granted, the appellant would not pursue his appeal with all due diligence, contrary to the general obligation that all appellant offenders proceed with their appeals in a timely fashion.

[40] Accordingly, on the record before me, I am not satisfied that the appellant has demonstrated that his detention is not necessary in the public interest.

Disposition

[41] For these reasons, the application for bail pending appeal is dismissed.

“David Brown J.A.”