Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230712 DOCKET: C68693

Thorburn, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Andrew Campbell Appellant

Counsel: Anthony Moustacalis and Aidan Seymour-Butler, for the appellant Stephanie A. Lewis, for the respondent

Heard: June 23, 2023

On appeal from the convictions entered by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury, dated November 2, 2018, and the sentence imposed on May 22, 2019, with reasons for sentence reported at 2019 ONSC 2999.

Reasons for Decision

[1] A jury found Mr. Andrew Campbell, the appellant, guilty of kidnapping, pointing a firearm, and assault causing bodily harm arising from an encounter he had with the complainant and victim, Mr. Jamal Karshe.

[2] On January 3, 2015, in the early morning, Mr. Karshe visited Ms. Heather LaFleur’s apartment after a night out. He found Ms. LaFleur in bed with the appellant. Mr. Karshe told the appellant to leave. The appellant left the building at 3:18 a.m. Shortly after, the appellant called Mr. Karshe to threaten him. The appellant then returned to the building at 4:52 a.m. with a handgun. With Ms. LaFleur’s assistance, the appellant tied up Mr. Karshe. He directed her to heat up some oil that they poured on Mr. Karshe’s thighs and ears. They drove him to a wooded area where the appellant choked him to the point of unconsciousness and abandoned him. After regaining consciousness, Mr. Karshe walked to a nearby gas station. The gas station staff ultimately called the police.

[3] The appellant raised several grounds of appeal, but at the oral hearing of the appeal, abandoned all but two: first, the appellant argues that the trial judge should have recharged the jury on the reasonable doubt standard set out in R. v. W.(D.), [1991] 1 S.C.R. 742, following the jury’s question about the complainant’s evidence; and second, the appellant argues that the trial judge erred in failing to charge the jury on the racial and cultural context of the appellant’s post-offence conduct.

[4] At the conclusion of the oral hearing, we dismissed the appeal from the conviction with reasons to follow and reserved our decision regarding the sentence appeal. These are our reasons.

A. CONVICTION APPEAL

(1) The trial judge was not required to recharge the jury on W.(D.)

[5] After the start of deliberations, the jury asked if they could re-listen to the cross-examination of the complainant. After some discussion between the trial judge, counsel, and the clerk, the trial judge decided that the jury should identify if there was a specific area of the cross-examination they wanted to re-hear.

[6] The jury returned with the following question: “Did — in anywhere during [the complainant’s] testimony, was he asked if he knew or had knowledge of a gun, in [Ms. LaFleur]’s apartment prior to seeing it in [the appellant’s] hands?” The jury also advised the trial judge that they wished to hear the defence counsel’s suggestions at the end of the complainant’s testimony and his responses. Counsel and the trial judge understood the second portion of the question to refer to the portion of the cross-examination pursuant to the rule in Browne v. Dunn.

[7] The requested evidence was replayed for the jury, but the trial judge declined to re-charge the jury.

[8] It is common ground that the key issue in the trial was the credibility of the complainant and the appellant (who testified). The appellant contends that, because the jury asked to re-hear the complainant’s evidence, their question demonstrates that a recharge on W.(D.) was required to protect the fairness of the trial.

[9] We do not agree.

[10] While a jury question reflecting some confusion about the legal standard to be applied in a case turning on credibility may require a recharge on the legal standard, the jury’s question in this case did not demonstrate such confusion. Additionally, defence counsel raised no concern with the original jury charge on W.(D.). Further, the jury had access to a written version of the jury charge, so concerns over a jury’s memory of the charge at the time a question is asked would also not apply.

[11] The jury’s request to re-hear evidence, as opposed to a question on a point of law, distinguishes this case from R. v. Desveaux (1986), 26 C.C.C. (3d) 88 (Ont. C.A.), R. v. Grandine, 2017 ONCA 718, 355 C.C.C. (3d) 120, and other cases relied upon by the appellant where a recharge was held to be required.

[12] In these circumstances, a recharge on W.(D.) was not required.

(2) A jury charge on systemic racism was not necessary in relation to the appellant’s post-offence conduct

[13] When three plainclothes police officers attended the apartment where the appellant was staying the morning after the incident, the appellant ran from the apartment down the stairwell of the apartment building. After descending from the twelfth floor to the tenth floor, he stopped and surrendered. A building resident found the firearm described by the complainant on the stairwell between the ninth and tenth floors.

[14] The appellant argues that the charge to the jury should have included a reference to the practical realities of racialized Canadians and, in particular, the context of systemic racism. The appellant argues that this context could explain why the appellant ran from plainclothes police officers after the incident: either because of his fear of the police “due to the realities of racism” or “his paranoia and fear” of the “similarly marginalized people in the area”.

[15] However, the appellant’s own evidence was that he did not believe the people chasing him were police officers, even though one of the officers identified himself when the chase began. The appellant also surrendered abruptly, after running down two flights of stairs, which does not align with the suggestion that he was afraid – as the appellant’s factum states – of “street guys” chasing him. Further, the Crown did not rely on his fleeing the police officers as giving rise to an inference of guilt. Rather, the Crown’s focus was on why the appellant stopped running away from the police, which the Crown alleged was because he had just disposed of his firearm in the stairwell between the tenth floor (where he surrendered) and the floor below.

[16] In these circumstances, a charge to the jury on the racial or cultural context that might have impacted the appellant’s post-offence conduct was neither relevant nor necessary.

[17] For these reasons, we dismissed the appeal from conviction.

B. SENTENCE APPEAL

[18] The appellant also appeals his sentence.

[19] With the credit for pre-trial custody and time spent on restrictive bail conditions, the sentencing judge imposed a final sentence of six years and one month for the kidnapping conviction. He also imposed a one-year sentence for pointing a firearm, and 18 months for assault causing bodily harm, both sentences to be served concurrently with the other sentences.

[20] At the appellant’s sentencing, the sentencing judge noted that the principles of denunciation and deterrence were paramount. He saw very little application of the principle of rehabilitation since there was “no remorse or any effort to change, to do better”. He found that the appropriate global sentence on the charge of kidnapping was seven years, because while five years is the minimum sentence, the violence of this offence merited a greater sentence. He accepted defence counsel’s submission that the restrictive bail terms ought to be considered, so he reduced the sentence by nine months on this basis.

[21] With respect to the credit for restrictive custody, the sentencing judge stated:

Counsel for the accused submits that the restrictive bail terms ought to be considered. She submits her client was on bail for 47 months and on a 4 to 1 ratio he should get credit for 12 months. There is no fixed formula for the. Consideration of such credits but I am prepared reduce the sentence by 9 months to allow the offender to be given credit, rounding up, for 11 months.

[22] The appellant argues that the sentencing judge erred in calculating nine months credit for the appellant’s restrictive custody pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.).

[23] First, the appellant argues the appellant should have received more credit given the restrictive conditions placed on bail, and based on the racial context underlying the sentencing of Black offenders. As a result, the appellant contends he should have been given 12 rather than nine months credit for restrictive custody.

[24] It is well-settled that this court may only interfere where the trial judge has either: (1) made an error in principle that had an impact on the sentence; or (2) imposed a sentence that is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 10-11, 36-44, and 49-55; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26.

[25] We see no error in principle in the sentencing judge’s calculation of the Downes credit. As this court has confirmed, there is no prescribed formula for taking this mitigating factor into account; it is entirely within the discretion of the sentencing judge: R. v. Bakal, 2023 ONCA 177, at para. 62; R. v. C.C., 2021 ONCA 600, at paras. 4-5.

[26] Second, the appellant contends that the sentencing judge made a calculation error by relying on 47 months of restrictive custody prior to sentencing. However, as the sentencing occurred three months after the parties’ submissions, the appellant submits that the period of restrictive custody was 50 months, resulting in additional credit which should have reduced the overall sentence.

[27] The respondent reads this portion of the reasons for sentence differently, characterizing the reference to 47 months as a summary of the appellant’s position. The respondent interprets the reasons as emphasizing that the sentencing judge would not use a formulaic calculation to determine the Downes credit.

[28] This aspect of the sentencing judge’s reasons is ambiguous. The sentencing judge’s reference to the defence counsel’s submission of 47 months gives rise to the impression that he used this figure as well. However, it was also possible that the sentencing judge was referring to 47 months in the context of defence counsel’s submissions, not as the basis for his own calculation. Based on this ambiguity, combined with the sentencing judge’s statement that he was not using a mathematical formula, and that he “rounded up” the length of the time he recognized for this credit, we are not prepared to conclude the trial judge erred in his determination of the Downes credit.

[29] For these reasons, leave to appeal sentence is granted but the appeal is dismissed.

“Thorburn J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”