Her Majesty the Queen v. Barnett

[Indexed as: R. v. Barnett]

Ontario Reports

Court of Appeal of Ontario

MacPherson, Tulloch and Lauwers JJ.A.

January 11, 2021

153 O.R. (3d) 689 | 2021 ONCA 9

Case Summary

Criminal law — Charge to jury — Post-offence conduct — Evidence — Circumstantial evidence — Accused one of three people involved in a home invasion and robbery resulting in death by shooting — Accused not the shooter — Accused convicted of second degree murder — Appeal dismissed — No error in trial judge's instruction on post-offence conduct, either with respect to accused's reaction to the shooting or his ongoing participation in the robbery — Trial judge provided appropriate guidance on circumstantial evidence and drawing of inferences.

Criminal law — Trial — Jury trial — Questions from jury — Accused one of three people involved in a home invasion and robbery resulting in death by shooting — Accused not the shooter — Jury submitting ambiguous question regarding mens rea for murder — Trial judge and counsel agreeing to ask for clarification — Jury discussing issue further among themselves and advising judge no longer requiring answer to question — Trial judge did not err by accepting jury's decision to withdraw question with no further need for clarification.

The accused was one of three people involved in a home invasion and robbery which resulted in a death by shooting. The accused was not the shooter. Due to the unavailability of the accused's trial counsel, the other two perpetrators stood trial before the accused. The shooter was convicted of first degree murder and his appeal was dismissed. The other person was convicted of second degree murder but his appeal was allowed on the basis of errors in the trial judge's instructions to the jury on his liability as a party to the murder. At the accused's trial, there was an issue regarding post-offence conduct as to his immediate reaction to the shooting and his ongoing participation in the robbery. During jury deliberations, the jury submitted a question as to the meanings of "subjectively", "probably" and "likely". The trial judge and counsel agreed that it was appropriate to seek clarification from the jury before answering the question, but the jury stated that they had resolved the question through discussion. The trial judge did not attempt to answer the withdrawn question. The accused was convicted of second degree murder. He appealed his conviction.

Held, the appeal should be dismissed.

There was no error in the trial judge's instruction on post-offence conduct. He told the jury that the post-offence conduct evidence was concerned with the accused's state of mind as to whether or not he knew that murder was likely. The judge reviewed the elements of post-offence conduct evidence on which the Crown was relying, which included that the appellant appeared unfazed by the shooting and that he continued to participate in the robbery after the shooting. Crucially, the trial judge also highlighted evidence favouring the defence position, including that the shooter clearly appeared to be in charge and the accused was quiet and appeared to follow his directions after the shooting, and that only one witness had heard the accused utter threats after the shooting. He also instructed that the jury should not lose sight of the fact that the accused was wearing a mask when assessing his reaction and demeanour following the shooting.

The trial judge did not err by accepting the jury's decision to withdraw its question. The accused argued that the question was not clear and signalled confusion related to the essential issue of the knowledge requirement for murder. That argument was rejected. The question was ambiguous. The trial judge was inclined to accept the jury's statement that they had resolved the issue and there was no need to clarify a question they were no longer posing. Defence counsel did not object to that proposal.

R. v. Jones, [2011] O.J. No. 3979, 2011 ONCA 584, 283 O.A.C. 219, 277 C.C.C. (3d) 143, 97 W.C.B. (2d) 283; R. v. McLellan, [2018] O.J. No. 2941, 2018 ONCA 510, 362 C.C.C. (3d) 183; R. v. Sit, 1991 34 (SCC), [1991] 3 S.C.R. 124, [1991] S.C.J. No. 72, 130 N.R. 241, J.E. 91-1531, 50 O.A.C. 81, 66 C.C.C. (3d) 449, 9 C.R. (4th) 126, 8 C.R.R. (2d) 317, 14 W.C.B. (2d) 65, revg 1989 7194 (ON CA), [1989] O.J. No. 31, 31 O.A.C. 21, 47 C.C.C. (3d) 45, 7 W.C.B. (2d) 71, apld

Other cases referred to

R. v. Griffin, [2009] 2 S.C.R. 42, [2009] S.C.J. No. 28, 2009 SCC 28, 307 D.L.R. (4th) 577, 388 N.R. 334, J.E. 2009-1172, 244 C.C.C. (3d) 289, 67 C.R. (6th) 1, EYB 2009-160505

On APPEAL from the conviction entered by Justice Douglas J.A. Rutherford of the Superior Court of Justice, sitting with a jury, on October 31, 2014.

Amy Ohler, for appellant.

Frank Au and Vallery Bayly, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: —

A. Introduction

[1] The appellant, Dylon Barnett, appeals from his conviction for second degree murder for his involvement in a home invasion and robbery that resulted in the death of Michael Swan. Swan was shot by a co-accused during the robbery.

[2] The appellant advances three grounds of appeal. Two relate to alleged deficiencies in the trial judge's jury charge; the third relates to an alleged failure by the trial judge to respond to a question by the jury with respect to the mens rea for murder.

[3] I would dismiss the appeal.

B. Facts

(1) The parties and events

[4] Michael Swan lived in a house he shared with two roommates in a suburb of Ottawa. He was 19 years old and supported himself by selling marijuana, a fact well-known to his family and friends. According to a close friend who testified at trial, it was not unusual for Swan to store and sell his product from his home.

[5] On the evening of February 21, 2010, the appellant, Kristopher McLellan and Kyle Mullen drove from Toronto to Ottawa. They were headed to the home of Sam Tsega, a Toronto friend who had moved to an Ottawa suburb. Tsega sold marijuana and sometimes purchased his product from Swan. Tsega had been to Swan's home.

[6] Sometime before midnight on February 21, the appellant, McLellan and Mullen arrived at Tsega's home. Shortly after their arrival, they drove to Swan's home; Tsega did not accompany them.

[7] That night, Swan was hosting a party at his home to watch Olympic hockey. By the end of the evening, only Swan, his girlfriend Kaitlyn Scott, and a friend, Tyler Tanguay, remained. They were together in Swan's bedroom.

[8] At about 12:30 a.m. on February 22, 2010, three masked men burst into Swan's bedroom. They were dressed in black and wore black masks and gloves. Scott testified that all three carried small black handguns. Tanguay testified that two men had guns. The "main guy", as described by the witnesses, was McLellan. McLellan ran into the room and stood near the corner of the bed. Two shorter men, Mullen and the appellant, followed behind. All three men shouted commands, telling Swan, Scott and Tanguay to get down on their knees, put their phones in front of them and put their hands up. They complied and got down on the floor.

[9] McLellan stood in front of Swan, called him the "drug dealer" and asked where "the stuff" was. Swan replied that he did not know and, according to Kaitlyn Scott, made a "reaching motion". McLellan shot Swan in the back of his right shoulder. Swan fell to the floor.

[10] The bullet penetrated Swan's shoulder, lung, heart, liver and stomach. The pathologist who testified at trial said that death would likely have occurred within a minute or two.

[11] According to the two eyewitnesses, Scott and Tanguay, none of the three robbers displayed any obvious reaction to the shooting of Swan. The robbery continued. When the robbers learned that there were two other men residing in the house, they rounded them up and brought them to the door of Swan's bedroom. Then the robbers took all four of the captives to an empty bedroom and made them sit against the wall. The appellant and Mullen took turns guarding that room. McLellan and either the appellant or Mullen searched the house.

[12] After the search was complete, McLellan took the four captives to the basement. The three robbers left the premises. When the police arrived, Scott told them that the robbers had taken her cellphone. The police contacted Scott's cellphone service provider to ask that her cellphone be tracked by GPS. The police learned that Scott's cellphone was travelling westbound on Highway 401 -- i.e., toward Toronto.

[13] The OPP initiated a traffic stop of a vehicle carrying three male passengers and, apparently, Scott's cellphone. All three men were arrested. On arrest, Mullen told police that he had a gun in his pants; it was later determined that it was the gun used to shoot Swan. During a search of the appellant at a police station, a .380 calibre semi-automatic handgun loaded with two cartridges of ammunition fell out of his pants.

[14] Due to the unavailability of the appellant's trial counsel, McLellan and Mullen stood trial before the appellant. They were convicted of first and second degree murder respectively. McLellan's appeal was dismissed by this court; Mullen's appeal was allowed on the basis of errors in the trial judge's instructions to the jury on his liability as a party to the murder committed by McLellan: R. v. McLellan, [2018] O.J. No. 2941, 2018 ONCA 510.

(2) The appellant's trial

[15] The appellant had his trial before Rutherford J. of the Superior Court of Justice, sitting with a jury, in the autumn of 2014. The jury found him not guilty of first degree murder but guilty of second degree murder.

[16] The appellant appeals his conviction.

C. Issues

[17] The appellant appeals his conviction on three grounds. He asserts:

(1) the trial judge failed to provide appropriate guidance to the jury on the use they could make of the appellant's post-offence conduct;

(2) the trial judge erred in failing to instruct the jury on the nature of circumstantial evidence and the drawing of inferences; and

(3) the trial judge erred in failing to answer a question from the jury with respect to the mens rea for murder.

D. Analysis

(1) The post-offence conduct issue

[18] The appellant submits that the trial judge did not properly charge the jury about the use it could make of the appellant's post-offence conduct -- i.e., what he did after McLellan shot Swan.

[19] The appellant's post-offence conduct in this case, fit into two categories: (1) evidence of his immediate reaction, or lack thereof, to the shooting; and (2) evidence of his ongoing participation in the robbery as a willing and active participant or as a reluctant party following the orders of the shooter McLellan.

[20] On this issue, it is crucial to recall that McLellan was a robber and the shooter. The appellant and Mullen were only robbers. Therefore, their reactions to McLellan's shooting of Swan and their role in the robbery after Swan was shot were evidence central to a determination of whether they could and should be convicted of murder.

[21] The appellant does not assert that his role in the robbery differed in any material respect from the role of Mullen, the other non-shooter robber. Their reactions to the shooting and their roles in the post-shooting continuation of the robbery in the Swan home were, according to the witnesses, virtually identical.

[22] In Mullen's conviction appeal (a joint appeal with McLellan), he challenged the trial judge's charge on post-offence conduct. This court rejected his argument on this issue: McLellan, at paras. 29-49. Speaking for the court, and after an extensive analysis of the relevant facts, Rouleau J.A. concluded that the appellants' post-offence conduct was evidence probative of intent and that there was no error in the trial judge's instruction on post-offence conduct.

[23] I would reach an identical conclusion in this appeal.

[24] In McLellan, on the link between the appellants' post-offence conduct and proof of intent, Rouleau J.A. said, at paras. 39, 40 and 43:

Mullen's position is that the post-offence conduct was even less relevant to his intent given his peripheral role. The evidence established that McLellan was the shooter and, by all appearances, was the leader who took charge after the shot was fired and directed the other two perpetrators. Mullen therefore submits that he should simply be seen as having complied with the directions of the shooter. His purported lack of reaction could support at least two other equally rational inferences: first, that Mullen was in shock and merely continued to follow McLellan's plan without thinking, or second, that Mullen was scared and upset because at that point he realized that he should have known that someone would get hurt.

I would reject this ground of appeal. In my view the post-offence conduct was highly probative.

On the facts of the present case, the inference that can be drawn is strengthened by the second element of the post-offence conduct . . . . Here, not only was there a lack of reaction or surprise, but also the immediate continuance of demands as to the location of the drugs and money. This evidence of the robbery being pursued without missing a beat served to rebut McLellan's claim that he was in shock after Swan was shot. It also suggested that Mullen was not, as his counsel suggested, reluctantly continuing with a robbery gone wrong. Rather, it showed both McLellan and Mullen as being unfazed by the occurrence of a shooting during the execution of their planned robbery.

(Emphasis added)

[25] In my view, every word of this passage, as it relates to Mullen, applies with equal force to the appellant in this appeal.

[26] In any event, I can see no error in the trial judge's jury charge relating to the appellant's post-offence conduct. He told the jury that the post-offence conduct evidence was concerned with the appellant's state of mind: "What did he know? Did he know murder was likely or not?" He reviewed the elements of post-offence conduct evidence on which the Crown was relying. Crucially, he also highlighted evidence favouring the defence position on this issue, including that McLellan clearly appeared to be in charge and the appellant was quiet and appeared to follow McLellan's directions after the shooting, and that no other witnesses had heard the appellant uttering threats after the shooting, as one witness had testified. He also instructed that the jury "should not lose sight" of the fact the appellant was wearing a mask when assessing his reaction and demeanour following the shooting.

[27] For these reasons, I would dismiss this ground of appeal.

(2) The subjective foresight of death issue

[28] On this issue, the appellant submits that it was incumbent on the trial judge to pay special attention in his jury charge to how the jury could use circumstantial evidence in its deliberations since the Crown relied almost entirely on circumstantial evidence to establish the appellant's subjective foresight of Swan's death. The appellant asserts that the trial judge did not do this.

[29] I am not persuaded by this submission. In R. v. Griffin, [2009] 2 S.C.R. 42, [2009] S.C.J. No. 28, 2009 SCC 28, Charron J. said, at para. 33:

We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways.

(Citations omitted)

[30] In my view, the trial judge provided appropriate guidance on circumstantial evidence. He explained the nature of circumstantial evidence and the inference drawing process. He correctly stated that direct and circumstantial evidence "are of equal value and validity". He instructed the jury that it was their task to decide what conclusions they would reach "based on the evidence as a whole, both direct and circumstantial", using "common sense and experience". He told the jury not to "speculate", "guess", or "make up theories". In short, I think that the trial judge's jury charge on the issue of circumstantial evidence was accurate and fair to the appellant. I am comforted in this conclusion by the fact that, at trial, defence counsel did not ask the trial judge to say anything different or additional on this issue, either in the pre-jury charge discussions or after the jury charge was delivered.

(3) The jury question issue

[31] Late in the afternoon of the second day of deliberations, the jury submitted a question:

Third element: Clarification definition

Pg. 18: Is Dylan B guilty of murder

Point 3

Probably means likely; more probable than not

Do the meanings of;

Subjectively, probably and likely carry the same weight? Are they the same?

[32] In his colloquy with counsel upon receiving the jury's question, the trial judge took the position that there were at least two possible interpretations: (1) whether "probably", "likely" and "subjectively" mean the same thing; or (2) whether "knowing subjectively that something is probable" and "knowing subjectively that something is likely" is the same thing. Defence counsel expressed concern that the jury might not understand the term "subjectively". The trial judge and counsel agreed that it was appropriate to seek clarification from the jury before answering the question. At 4:44 p.m., the trial judge sent a note to the jury to the effect that he was not sure what they were asking and requesting that they reword the question. Twenty-five minutes later, the jury responded:

We have resolved the question attached through discussions among the group.

Thank you

Juror 12

We are done for today

5:20 p.m.

We would like to begin deliberations at 8:30 a.m. on Oct. 30

[33] The trial judge concluded that he should not attempt to answer the withdrawn question:

Well I am satisfied that a reading of the instructions would lead anybody but a person who has never heard or thought of the term subjective or objective before, the instructions couldn't be clearer.

But it does occur to me that as lawyers we tend to talk about knowledge in the context of law; objective knowledge, subjective knowledge, these are not terms that most people, in their average life would think that way. It is a legal context.

But the way you people addressed that. And the way it was addressed in the instructions, I can't but be confident that they have resolved it if they had any differences of view on that, but they have resolved it satisfactorily.

In any case, we can't insist on answering a question that they said they have resolved. The cases tell trial judges to answer the questions and do not go beyond that.

[34] The appellant submits that the trial judge was right to decide that he should request that the jury clarify what was, on its face, an ambiguous or confusing question. However, the appellant argues that the trial judge erred by accepting the jury's decision to withdraw its question because it had "resolved the question attached through discussions among the group". The appellant says that the question from the jury was not clear and signalled confusion related to an essential issue before the jury, namely, the knowledge requirement for murder. Accordingly, the trial judge should have recalled the jury and communicated with them to determine whether an answer to their question or a recharge was warranted.

[35] I do not accept this argument. The jury question was ambiguous. The trial judge and both counsel agreed that the trial judge should seek clarification from the jury. This led the jury to respond by saying that they no longer needed assistance; they had resolved the question through their own discussions. The trial judge opined that he was inclined to accept their statement that they had resolved the issue and, therefore, there was no need to clarify a question they were no longer posing. Defence counsel did not object to the trial judge's proposal; in my view, this is an important contextual factor: R. v. Jones, [2011] O.J. No. 3979, 2011 ONCA 584, at para. 55. In addition, the jury had a copy of the charge, and the instruction on this issue was clear and unobjectionable.

[36] In R. v. Sit, 1989 7194 (ON CA), [1989] O.J. No. 31, 47 C.C.C. (3d) 45 (C.A.), revd on other grounds 1991 34 (SCC), [1991] 3 S.C.R. 124, [1991] S.C.J. No. 72, the jury asked a question. While the trial judge was hearing counsel's submissions about a response, the jury informed the judge: "we no longer find it necessary for you to answer our previous question. We have been able to reach a verdict": at p. 57 C.C.C. Cory J.A. said, at pp. 57-58 C.C.C.:

In my view, the trial judge dealt with the question in a most appropriate manner. . . . It was open to the jury to withdraw their question. This might have been done for any number of reasons which were not for the trial judge to question. I can find no error whatsoever in the manner in which the trial judge handled this aspect of the trial.

[37] In a similar vein, in Jones Laskin J.A. said, at para. 57:

I agree with the following statement in para. 50 of Ms. Stephens' Crown factum: "It would not have been appropriate for the trial judge to question why the jury no longer wanted its question answered or to require the jury members to hear an answer when they had indicated it was not needed."

[38] For these reasons, I do not accept the appellant's submissions on the third ground of appeal.

E. Disposition

[39] I would dismiss the appeal.

Appeal dismissed.

End of Document