Court of Appeal for Ontario
DATE: 20221118 DOCKET: C68156
Gillese, Nordheimer and Sossin JJ.A.
BETWEEN
His Majesty the King Respondent
and
Reshane Hayles-Wilson Appellant
Counsel: Paul J.I. Alexander, for the appellant Andreea Baiasu, for the respondent
Heard: October 27, 2022
On appeal from the conviction entered on June 1, 2018 and the sentence imposed on July 13, 2018 by Justice Michael Code of the Superior Court of Justice, sitting with a jury.
Nordheimer J.A.:
[1] Reshane Hayles-Wilson appeals from his conviction for second-degree murder. The appellant also seeks leave to appeal his sentence regarding the imposition of a 15-year parole ineligibility period as part of the sentence of life imprisonment.
Background
[2] On the evening of November 24, 2013, the appellant went to the North Kipling Community Centre in Rexdale to watch his cousin, Jermaine Dunkley, play in a basketball tournament. The appellant encountered the victim, Neeko Mitchell, in the lobby after the game. They met again a few minutes later outside the community centre. At the end of that encounter, the appellant shot Neeko Mitchell multiple times.
[3] The appellant was charged with first-degree murder. He admitted that he was guilty of, at least, manslaughter. The trial turned on two questions: whether the shooting was provoked, and if not, whether it was planned and deliberate.
[4] The prosecution alleged that Jermaine Dunkley orchestrated the shooting to avenge his brother’s death. Jermaine Dunkley’s brother, Ricky Dunkley, had been killed four months earlier. On the prosecution’s theory, Jermaine Dunkley believed that Neeko Mitchell had been involved in Ricky Dunkley’s murder. The Crown theorized that Jermaine Dunkley told an associate of his to lure Neeko Mitchell outside the community centre, and also directed the appellant to shoot him.
[5] As more fully described below, the appellant admitted to the shooting. He testified that it had nothing to do with revenge. Neeko Mitchell was the appellant’s drug dealer. He had been threatening the appellant over an unpaid drug debt. When the appellant unexpectedly ran into Neeko Mitchell at the community centre that night, he panicked. He asked his friends to pool some money together so that he could try to pay off the debt. He tried to talk to Neeko Mitchell to settle the matter, but he says that Neeko Mitchell wheeled around, swore at him, and told him he would end up dead like Ricky Dunkley. Enraged and terrified by the threat, and wracked with grief over his cousin’s death, the appellant says that he lost control, drew a gun, and opened fire. He admitted guilt for manslaughter but on the basis of provocation.
[6] The evidence at trial was largely based on surveillance video that captured the shooting and many of the events leading up to the shooting. There were also agreed statements of fact that detailed other matters including that Jermaine Dunkley was the leader of Monstarz, a criminal organization (or street gang) in the Rexdale neighbourhood of Toronto. Monstarz was heavily involved in drug trafficking and other criminal activity between 2011 and 2015. It was also undisputed that Jermaine Dunkley’s brother, Ricky Dunkley, was shot dead in late July 2013. Both Jermaine Dunkley and the appellant were upset over Ricky Dunkley’s death and shared their grief together.
[7] It was also agreed that Jermaine Dunkley produced rap videos under the Monstarz name. The appellant appeared in two videos published or posted in October and November 2013, a few weeks before the shooting.
[8] After the shooting, the appellant fled in a car. He first went to a residence and then took a bus to Hamilton. The appellant disposed of the gun used in the shooting in a sewer. He went on to hide from the police at various residences during the next ten months, until he was arrested on September 21, 2014.
[9] As indicated, the appellant gave evidence at trial. He claimed that he owed the victim a $3,500 drug debt from August 2013. By October, Neeko Mitchell allegedly threatened him via a text message and then deleted him from the messaging service they were using. Fearing Neeko Mitchell, the appellant obtained a handgun from a drug user for about $500 worth of cocaine. He said that he always had this loaded gun on him, tucked inside the waist band of his pants.
[10] The appellant testified that, when he ran into Neeko Mitchell, he came up with a plan to borrow money from his friends to pay his debt. According to the appellant, that was why he approached other persons, as shown on the video surveillance. When Neeko Mitchell walked by him on his way out of the centre, the appellant decided to join him outside, confess that he had messed up, and promise that he was going to get the money that night. The appellant said that Neeko Mitchell cut him off saying, “fuck talkin, you’re gonna end up like Pulla.” This was a reference to Ricky Dunkley, who was known as “Pulla”, and had been murdered earlier that year. The appellant testified that it was this utterance that sent him into “some form of rage” and caused him to lose control and shoot Neeko Mitchell. Approximately eight shots in total were fired by the appellant in this busy public area. Five struck Neeko Mitchell. Another bullet struck a bystander.
[11] The prosecution contended that the killing of Neeko Mitchell was a planned and deliberate murder. The appellant contended that the killing of Neeko Mitchell was the result of him having been provoked by Neeko Mitchell, which would thus reduce a finding of murder to one of manslaughter. The jury found the appellant guilty of second-degree murder.
Grounds of Appeal
[12] The appellant raises three grounds of appeal:
- Crown counsel improperly submitted, in her closing submissions, that the appellant had tailored his evidence to fit with what was seen on the video evidence.
- The trial judge erred in his instructions to the jury by advising them to first decide what had actually happened.
- Crown counsel also improperly submitted, in her closing submissions, that the appellant had a motive to lie to avoid conviction for first-degree murder and that this improper submission was repeated by the trial judge in his instructions to the jury when he summarized the position of the Crown.
[13] I will deal with each of the grounds in turn.
A. Tailoring evidence
[14] At different points, in her closing submissions, Crown counsel said the following:
The accused’s story of provocation is a version concocted to accord with the video that he can’t deny.
Again, his evidence is tailored to fit what we see in the footage.
Another important detail of Hayles-Wilson’s story is the ominous Neeko deleting him from [BlackBerry Messenger]. It’s kind of odd; most debtors [ sic ] don’t go away that easily. And why this detail? Well, perhaps it’s because Mr. Hayles-Wilson knows that Neeko’s phone was seized by the police.
[15] As a basic proposition, it is improper for Crown counsel to suggest that an accused person’s evidence has been tailored to fit disclosure or the evidence at trial. This principle has been stated in a number of cases, most recently by Watt J.A. in R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, where he said, at para. 114:
Lines of questioning and submissions that characterized the testimony of an accused as suspect or unworthy of belief because they have received disclosure of the case for the Crown, or have been present throughout their trial as the case for the Crown unfolded, are problematic. They are problematic because an accused is constitutionally entitled to receive disclosure of the case for the Crown, to know the case to meet, to be present at their trial, and to make full answer and defence to the allegations made against them. They are statutorily required to be present at their trial and to see and hear the case for the Crown before they are permitted to respond.
[16] The superficial attractiveness of the impugned comments was encapsulated by Doherty J.A. in R. v. White (1999), 42 O.R. (3d) 760 (C.A.). At the same time, Doherty J.A. made it clear what the trial judge must do if the suggestion is made. At para. 20, he said:
As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge.
[17] In this case, defence counsel asked for a correcting instruction. The trial judge refused to give one. In refusing, the trial judge said, in part: “And there was no suggestion that he tailored his evidence to disclosure”. He later added, “so I don’t think the problem that some Crowns used to use disclosure as a trap is engaged here”. Contrary to the trial judge’s view, there was, in fact, such a direct suggestion in both the second and third comments above. Further, the prohibition against suggestions of tailoring is not limited to disclosure. It applies equally to the evidence at trial, as Watt J.A. makes clear in the passage quoted above. It is a point that was reinforced by Feldman J.A. in R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, where she said, at para. 25:
In order to give full effect to these entitlements and obligations, as well as an accused's Charter right under s. 7 to a fair trial, this court has held in a number of cases that it is an error of law for the Crown or the trial judge to impugn the credibility of the accused on the basis that he tailored his evidence to the disclosure or the testimony heard in court.
[18] Before us, the Crown attempted to draw a distinction between “testimony heard in court” and the surveillance video in this case. In my view, that attempt cannot succeed. The surveillance video is evidence. It is of the same character as testimony from a witness. It is equally objectionable for Crown counsel to suggest that an accused person has tailored their evidence to video evidence as it is to oral evidence from witnesses.
[19] Given the numerous times that this court has made the point about it being improper for Crown counsel to suggest that an accused person has tailored their evidence to fit disclosure or the trial evidence, it is a mystery to me why some Crown counsel persist in doing so. Such suggestions only invite an appeal and an argument over the issue, just as we have here. Nevertheless, since it continues to occur, it remains the obligation of the trial judge to “eradicate” it. The trial judge did not do so in this case. That was an error.
B. The two-step deliberation instruction
[20] The trial judge’s instructions to the jury took place over three days. During the second day, the trial judge told the jury, at different junctures:
I recommend that you begin your deliberations by trying to decide the facts, that is, decide - and I said, “trying to decide the facts”. You may not be able to. If you are not able to decide what happened and you are left in uncertainty, then that is the basis on which you proceed. But at least make an attempt to try to decide the facts first is simply my recommendation.
That is why we put all the fact finding parts thoroughly in the Charge, because that is your fundamental task. So try to decide the facts first.
Once you have made these findings of fact about what actually happened, one way or the other, the law relating to the elements of the offences charged will be much easier to apply.
In particular, the law relating to the two key legal issues in the case – “provocation” and “planning and deliberation” – will be much easier to apply once you have made findings of fact about what happened on the night in question.
So my recommendation, my advice to you, is to try to make findings of fact first, if you can, and then turn to the elements of the offence.
[21] Defence counsel objected to these instructions during the pre-charge conference. The trial judge sharply rejected the objection. After saying that defence counsel was “fundamentally wrong” and that the instruction was “elementary”, the trial judge added:
The legal concepts are complicated, and if they approach the legal concepts before they’ve made their findings of fact, they’re going to struggle with them. If they make their findings of fact first and then go to the legal concepts, it’s much easier.
[22] There are several risks inherent in suggesting to a jury that they should approach their deliberations in this two-stage fashion. Those risks were discussed in detail in R. v. Morin, [1988] 2 S.C.R. 345, where Sopinka J. discussed the flaws in adopting such a two-stage approach. He said, at p. 360:
The argument in favour of a two-stage application of the criminal standard has superficial appeal in theory but in my respectful opinion is wrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member of the jury to rely on the same facts in order to establish guilt. The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed the jurors need not agree on any single fact except the ultimate conclusion.
[23] Justice Sopinka added, at p. 361:
In practice it is not practical not only because the jury would have to agree on the same facts but what individual facts prove. Individual facts do not necessarily establish guilt but are a link in the chain of ultimate proof. It is not possible therefore to require the jury to find facts proved beyond a reasonable doubt without identifying what it is that they prove beyond a reasonable doubt. Since the same fact may give rise to different inferences tending to establish guilt or innocence, the jury might discard such facts on the basis that there is doubt as to what they prove. [Emphasis in original.]
[24] The two-stage approach was also rejected by this court in R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.), where the trial judge, in response to a question from the jury, essentially told the jury to proceed in a two-stage process. This court held that for a judge to advise a jury to follow this approach was an error. Doherty J.A. said, at para. 20:
The trial judge's instruction ignored the possibility that the jury might not be able to decide which version of the events to believe and, therefore, would be unable to make the findings of fact described by the trial judge. Recognition of the possibility that a jury may not be able to come to a definitive conclusion with respect to the credibility of competing versions of the relevant events is integral to a proper application of the reasonable doubt standard.
[25] The trial judge was wrong to give these instructions to the jury in this case, even though he told them it was just his “recommendation” and despite his acknowledgement that the jury might not be able to decide the facts. To intrude into the area of the deliberative process amounts to an intrusion into the province of the jury. Trial judges should also not instruct the jury to adopt a particular deliberative approach. To do otherwise risks distracting the jury from their one key objective which is to consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt.
C. Motive to lie
[26] As is common practice, the trial judge invited counsel to submit a written summary of their respective positions, which he then incorporated into his instructions to the jury.
[27] In her summary, Crown counsel said the following:
The Crown submits in conclusion that the video footage clearly shows no provocation whatsoever and the offensive threat Mr. Hayles-Wilson claims that Neeko uttered in that instant was also fabricated. This has been done in an attempt to convince the jury that Reshane Hayles-Wilson was acting on his own and had been provoked, and in order to avoid a conviction for first degree murder.
[28] Defence counsel, on hearing the summary, raised an objection. He asked for a corrective instruction from the trial judge. In particular, he asked that the trial judge instruct the jury that it would be improper for them to assume that the appellant would be more likely to lie in order to secure his acquittal. This request tracks the caution expressed in R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, by Charron J., at para. 12:
Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. [Emphasis in original.]
[29] It was also addressed directly in Chacon-Perez, where Watt J.A. said, at para. 117:
In most cases the interest of an accused in the outcome of proceedings is unhelpful as a factor in assessing their credibility as a witness. It follows that, as a general rule, triers of fact should avoid this path of reasoning and counsel should not invite them to follow it.
[30] The trial judge refused to provide a corrective instruction. In refusing, the trial judge said:
And I do not think in your instructions on credibility fact-finding you should be telling the jury about improper forms of reasoning on the basis that accused people lie because they have been charged. That would be a really offensive instruction that would assume the jury assumes that all accused people lie.
[31] I do not understand the trial judge’s rationale as he states it. Trial judges routinely instruct jurors on the permissible and impermissible use of various pieces of evidence. They also specifically instruct juries on proper and improper routes of reasoning. Indeed, the trial judge did precisely that in this case in a different context. The rationale offered by the trial judge is inconsistent with one of the central goals of jury instructions which is to ensure that jurors do not engage in assumptions or forms of reasoning that do not respect fundamental principles such as the presumption of innocence. It is certainly not a proper basis to refuse to give the type of corrective instruction that was sought by defence counsel.
[32] The trial judge also complained that the defence objection was only made after he had given his instructions to the jury. He suggested that it should have been raised at the time that he was provided with the parties’ summaries. In criticizing defence counsel in this fashion, the trial judge appears to have forgotten that, when the parties provided their summaries to him, they did not exchange them with each other. Consequently, it was not until the trial judge read the summaries out as part of his instructions to the jury that counsel knew what the other side had said in their summary. This reflects the common practice that counsel do not exchange their summaries with each other but rather provide them solely to the trial judge.
[33] The trial judge did offer to make one change to his instructions regarding the summary of the Crown’s position. He offered to remove the words “and in order to avoid a conviction for first degree murder” and replace them with: “It is submitted that Mr. Hayles-Wilson has an interest in avoiding a conviction for first degree murder.” It is not surprising that defence counsel declined that offer which would have made the suggestion worse rather than better.
[34] The core issue is whether the trial judge ought to have given a proper correcting instruction as requested by the defence. In my view, he should have. It is accepted that it is improper for Crown counsel to suggest that an accused person has a motive to lie because of their obvious interest in the outcome. It is improper because it offends the presumption of innocence, as was explained by Charron J. in Laboucan, as set out above. The jury should have been cautioned not to follow Crown counsel’s suggestion.
D. The impact of the errors found
[35] Having found that the trial judge committed the three errors identified by the appellant, the issue then becomes whether those errors require that a new trial must be ordered. I conclude that they do not. I am not satisfied that the errors, individually or collectively, are so significant as to undermine the safety of the verdict nor do I believe that they would have misled the jury in terms of their role and their deliberative process.
[36] Dealing with the “tailoring” issue, neither that term nor the suggestion implicit in it ought to have been used. However, it was an undeniable fact that, once the appellant decided to give evidence he was going to have to explain what the jurors saw on the surveillance video. It was fair for Crown counsel to make that point. However, she should have done it in a proper way using appropriate language. Nevertheless, the jury had to wrestle with the appellant’s explanation, especially in light of the defence of provocation. In doing so, I do not believe that they would have been unduly swayed by the tailoring submission.
[37] On the second error regarding the deliberative process, the trial judge’s instructions are undoubtedly troubling. He did, however, make it clear that he was merely recommending that approach. There is, of course, no way of knowing whether the jury followed the trial judge’s recommended approach or adopted their own approach. In addition, there is nothing in the verdict that the jury reached that suggests that the jury did not approach their task properly, that is, to consider the evidence as a whole and determine if the prosecution had proved guilt beyond a reasonable doubt. Two realities that arise from this case are important to this determination. One is that the jury did not find the appellant guilty of first-degree murder. The other is that the jury already had an admission from the appellant that he engaged in the shooting and, thus, was guilty of, at least, manslaughter. Thus, many of the central facts were not in dispute.
[38] The other important factor is that the trial judge gave clear instructions on the burden of proof, the presumption of innocence, the concept of reasonable doubt and the W.D. principles. The jury also had a hard copy of the trial judge’s instructions, so they had the opportunity to revisit all of what he said in coming to their conclusion.
[39] On the third ground, we are speaking of part of one sentence in the summary of the Crown’s position as enunciated by the trial judge. While Crown counsel, once again, ought not to have taken matters to that point, I do not believe that the jury would have been misled or unduly impacted by Crown counsel’s suggestion. A corrective instruction should have been given, but its absence is not fatal. Again, given the proper instructions on the burden of proof, the presumption of innocence and the concept of reasonable doubt, I do not believe that the jury would have been misled in the proper approach to their task. As Watt J.A. said, in Chacon-Perez, at para. 135:
Improper closing submissions by Crown counsel do not always require a new trial. Each case is different. Each is decided according to its unique circumstances.
[40] In the end result, I am not satisfied that the trial judge’s errors in these three respects, in an otherwise fault-free trial, served to undermine the integrity of the verdict reached. I would therefore dismiss the conviction appeal.
The sentence appeal
[41] The appellant seeks leave to appeal the 15-year parole ineligibility requirement that the trial judge set as part of the mandatory sentence of life imprisonment that followed on the conviction for second-degree murder. He submits that he ought to have received a 13 to 14-year parole ineligibility period as he had requested.
[42] In advancing this argument, the appellant says that the trial judge erred in concluding that the murder was planned but not deliberate, in light of the jury’s rejection of first-degree murder. He also says that, while listing the various mitigating factors, including that the appellant did not have a criminal record, was relatively young, and had expressed remorse for his action, the trial judge failed to give proper effect to them, and failed to give proper weight to the parity principle.
[43] I do not consider it necessary to engage in any in-depth analysis of the planned, but not deliberate, finding. The appellant does not submit that such a conclusion was not open to the trial judge to make in light of the jury’s verdict. Rather, he complains that the trial judge reached a conclusion that he does not agree with. In any event, the appellant has failed to surmount the hurdle set for sentence appeals in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, where the court said that “an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence”: at para. 44. An appellate court may only otherwise intervene if the sentence is manifestly unfit.
[44] The appellant has failed to show any error in principle. His complaint about the mitigating factors is not that the trial judge failed to consider them or that he erroneously considered them. Rather, he complains about the weight that the trial judge afforded them.
[45] It remains the fact that the appellant opened fire with a handgun in a public space, firing multiple times, with the result that the victim was killed, and a bystander was injured. A parole ineligibility period of 15 years on a verdict of second-degree murder in those circumstances is entirely fit. There is no basis for this court to interfere with the trial judge’s conclusion in that regard.
Conclusion
[46] The appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed.
Released: November 18, 2022 “E.E.G.” “I.V.B. Nordheimer J.A.” “I agree. E.E. Gillese J.A.” “I agree. Sossin J.A.”