Court of Appeal for Ontario

Date: 20231206 Docket: C69062 & C68471

Zarnett, Thorburn and George JJ.A.

Docket: C69062

BETWEEN

His Majesty the King Respondent

and

Matthew Moreira Appellant

Docket: C68471

AND BETWEEN

His Majesty the King Respondent

and

Patrick Smith Appellant

Counsel: Margaret Bojanowska, for the appellant Matthew Moreira Nathan Gorham and Breana Vandebeek, for the appellant Patrick Smith Michael Fawcett, for the respondent

Heard: June 6, 2023

On appeal from the conviction entered by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting with a jury, on December 6, 2018.

Thorburn J.A.:

Overview

[1] In the late evening of December 29, 2015, the appellants, Patrick Smith and Matthew Moreira, went with William Cummins to the Yonge and Eglinton area in Toronto. They encountered Zaher Noureddine and Mitchell Conery. Conery and Noureddine were attacked and Noureddine died.

[2] Smith and Moreira were charged with the first-degree murder of Noureddine under s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46, and the robbery of Conery under s. 343(c) of the Criminal Code. Cummins was also charged but his charges were severed from the Smith and Moreira indictment.

[3] At the outset of trial, Smith pleaded guilty to manslaughter. He testified that although he struck Noureddine several times, he did not intend or think his blows would kill Noureddine. He also pleaded guilty to assaulting Conery. Moreira pleaded guilty to the attempted robbery of Conery but said that although he watched Noureddine’s beating, he played no part in it.

[4] The pleas were not accepted and a trial by jury proceeded. Smith was convicted of the second-degree murder of Noureddine and of assaulting Conery, and Moreira was convicted of the manslaughter of Noureddine and the robbery of Conery.

[5] The appellants raise the following grounds of appeal of their convictions:

i. They claim the trial judge erred in (i) admitting testimony of lay witnesses about whether they thought Noureddine was likely to die from the attack as narrative and later allowing the Crown to use it as opinion evidence; (ii) failing to conduct a voir dire before admitting the evidence as lay opinion evidence; and (iii) failing to give a limiting instruction to the jury, given that the lay witnesses testified knowing that Noureddine had died;

ii. They claim the trial judge erred in limiting the cross-examination of the pathologist, Dr. Cunningham, by refusing to permit counsel to ask him questions about peer-reviewed literature which they say would have demonstrated that the injury that caused Noureddine’s death could occur from minor or “seemingly innocuous blows”;

iii. They claim the trial judge erred by permitting the Crown to advance a theory that unfairly suggested that the appellants targeted Noureddine. The appellants seek to introduce fresh evidence consisting of the transcripts of evidence from the Cummins’ trial, two videos, and officer notes that were introduced into evidence at the Cummins trial. They argue that this fresh evidence demonstrates that they did not plan to rob or kill Noureddine and that the confrontation only began when a fight broke out between Cummins and Noureddine;

iv. Moreira claims that the jury charge respecting the two charges against him was deficient as (i) in respect of the robbery conviction, the trial judge did not instruct the jury that if the contact was de minimis, the intentional application of force requirement of the offence could not be satisfied; and (ii) in respect of the manslaughter conviction, the trial judge’s instruction included no reference to evidence to help the jury decide whether Moreira assisted Smith in committing manslaughter;

v. Smith claims the second-degree murder verdict against him was unreasonable and a manslaughter conviction should be substituted as the physical evidence and Dr. Cunningham’s testimony demonstrate that the force applied was minor and that he did not intend to kill Noureddine. Moreira claims both verdicts against him are unreasonable because the jury acquitted him of assault, which demonstrates that (i) an essential element of the offence of robbery was not made out; and (ii) the jury did not believe Moreira was involved in the beating of Noureddine; and

vi. They claim the trial judge erred in dismissing their request to dismiss the charges for delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, as the case was delayed beyond the R. v. Jordan ceiling.

[6] Before beginning my analysis of the issues raised, I will briefly summarize the evidence relevant to this appeal.

The Evidence

(1) Conery’s Evidence Regarding the Altercation

[7] Conery testified for the Crown. He said that at around midnight, he offered to drive his colleague, Noureddine, home from Little Sister Food Bar near Yonge and Eglinton. As they walked toward Conery’s vehicle, three men whom they did not know approached them and started an unprovoked attack.

[8] One of them [Cummins] punched Conery on the side of the head, although he had neither said nor done anything to provoke the attack. He said the punch made him fall to the ground. A second man [Smith] wearing Timberland boots, stomped on him, while the first man punched Noureddine. The two men held Noureddine’s arms and started to punch and kick him in the head approximately 5-10 times. According to Conery, Smith used “a lot of force”. He claimed Noureddine asked the men to stop, and that Cummins said, “don’t talk shit” or “that’s what you get for talking shit”.

[9] Conery said that during this time, the third man [Moreira] stood over him, applied pressure with his leg to Conery’s back, and said that if he gave him his wallet, it would end. Conery testified that he did not have a wallet. Conery described the force used by Moreira as “more or less a means of getting my attention” and that “[i]t wasn’t a pressure of tremendous force.”

[10] Once bystanders ran over, the three men left, at which point, Noureddine got to his feet and then collapsed. Conery checked Noureddine’s pulse before the police arrived and began CPR. Conery sustained a laceration behind his left ear.

(2) Evidence of Witnesses to the Event

[11] Several witnesses to the attack also testified for the Crown.

[12] Michael Bruton was outside St. Louis Bar and Grill, and described seeing three men kick, punch, and knee another man [Noureddine] in the face. The man was later taken to the hospital. On cross-examination, he was confronted with an earlier police statement where he said only one man kicked and kneed the man. Bruton testified that there were too many punches and kicks to count, and estimated that there were more than five kicks.

[13] Bruton testified that he ran across the street to intervene because “if someone didn’t do something like he [Noureddine] probably would have died, which we all know happened … it’s common sense if you punch or kick someone in the head … enough times.” He later repeated that, it was “my personal opinion it’s common sense if you hit somebody enough times in the head, they’re going to get seriously hurt or even result in death.”

[14] Alejandra Mihic was at the bar with Bruton. While outside, she heard someone say: “Do you have a fucking problem man?” She then saw a fight between two groups: one with three men, the other with two. She saw two men kicking another on the ground. She went inside to get the manager, and by the time she returned, the three men had left. Like Bruton, she testified that she went to get help because “it seemed like clearly … this guy’s [Noureddine’s] life was in danger.”

[15] Alexander Boake saw three men emerge from a nearby alley walking together. He looked away momentarily and when he looked back, a fight had broken out. He observed two men attacking one; one man fell and was kicked. The man was later put into a headlock and kneed in the face. Boake described the force being used as “kicking a soccer ball pretty far across the field, if you’re trying to kick it far.” He testified that only one person kicked the man on the ground, and that there were only two people hitting the individual. The man stood up and then collapsed, hitting his head on the pavement.

(3) Smith’s Evidence Regarding the Altercation

[16] Smith testified that on December 29, 2015, at around 6:30 p.m., he was with Moreira and Cummins drinking to the point of intoxication, after which they went to get beer and wings at the St. Louis Bar and Grill. He said he did not see Noureddine or Conery before getting out of the vehicle to get a seat at the bar. He and Moreira were behind Cummins. As they were walking, Smith heard Cummins yell “[d]on’t talk shit” and a fight began.

[17] Smith admitted that he saw Conery on the ground, stomped on him hard, punched and kicked Noureddine, and kneed him in the head while Cummins had Noureddine in a headlock. However, Smith denied that he started the fight or that he intended to rob or kill anyone that night. He testified that he only learned the next day from Cummins, that someone had died.

(4) The Pathologist’s Evidence

[18] Dr. Kristopher Cunningham was the pathologist who conducted the post-mortem examination of Noureddine. He was qualified as an expert in forensic and cardiovascular pathology at the trial. He observed two bruises about 3-centimetres each, and abrasions on the right side of Noureddine’s head. Near his jaw and neck, there was a 6 x 5 ½-centimetre subcutaneous hemorrhage. On Noureddine’s left cheek, there was a bruising pattern, likely caused by his fall to the sidewalk. In total, Dr. Cunningham identified nine markings. He could not say if the injuries reflected separate blows, but said they were caused by some form of blunt force, such as a punch or a kick.

[19] Dr. Cunningham identified the cause of death as a fracture of the transverse process bone, which caused a rupture in the vertebral artery, leading to increased brain pressure and death. This injury could have been caused by a blow, fall, punch or kick. On cross-examination, he agreed that a minor force could break the transverse process, but that the area is well protected, such that greater force is required to distort the outer lying issues.

Analysis of the Grounds of Appeal

(1) The First Ground of Appeal: Whether the Trial Judge Erred in Admitting Opinion Evidence from Lay Witnesses

[20] The appellants claim the trial judge erred in admitting opinion evidence from two lay witnesses who testified that they intervened in the attack on Noureddine because they thought he would likely die.

[21] During his examination-in-chief, Bruton testified that “if someone didn’t do something like he probably would have died … it’s common sense if you punch or kick someone in the head … enough times.” Defence counsel objected to Bruton giving his opinion. The trial judge dismissed the objection on the basis that the evidence was narrative, not opinion evidence. Mihic gave a similar opinion in her testimony, but no objection was raised.

[22] During the pre-charge conference however, the trial judge said that the statements were admissible as opinion evidence, stating: “Your client has said I don’t feel I hit him that hard. Well, if he can give his opinion, they can give theirs.”

[23] In her closing address to the jury, the Crown reminded the jury of the opinion evidence, saying, “[t]o Michael Bruton, Zack Noureddine was going to die if he did not step in and stop the beating” and “it was obvious to [the lay witnesses] that the force used on Zack was intended to cause him harm and that Zack Noureddine was going to be killed if the attack was not stopped.”

[24] In his jury charge, the trial judge also referred to this evidence, stating that “Ms. Mihic and Mr. Bruton said that they thought the victim might die as a result.” He instructed the jury to consider these opinions when determining whether Smith foresaw the likelihood of death.

[25] The appellants raise three issues with the lay opinion evidence.

[26] First, the appellants claim that if they had known the evidence would be admitted as opinion evidence, they would have sought a voir dire which would require the Crown to meet the preconditions to admissibility.

[27] Second, the appellants claim this evidence should not have been admitted as opinion evidence as the necessary preconditions for the admission of lay opinion evidence were not met as: (i) it was not necessary to enable the witnesses to accurately describe their observations, (ii) the witnesses lacked the “experiential capacity” to draw the inferences they did, and (iii) the witnesses were not in a better position to draw the inference than the members of the jury. As such, the risk of prejudice outweighed the probative value of the evidence.

[28] Third, the appellants claim the trial judge erred by failing to warn the jury about the risk of prejudice in after-the-fact reasoning (as the witnesses had given their opinion evidence knowing that Noureddine had died).

[29] The appellants therefore claim the appropriate remedy in this case is a new trial on the murder charge as Smith’s intention in attacking Noureddine was a central issue at trial.

[30] The Crown claims that lay witnesses may express their opinion on the bodily plight or condition of a person and in any event, the opinion evidence was admissible as it was “a mere shorthand or convenient way to summarize the attack and explain, compendiously, what the witnesses observed”: R. v. Graat, [1982] 2 S.C.R. 819, at pp. 837-8.

[31] In Graat, the Supreme Court of Canada enunciated a “helpfulness” standard, whereby lay opinion evidence can be received if the witness is providing a “compendious statement of facts” in circumstances where the witness “had an opportunity for personal observation … [and is] in a position to give the Court real help”: Graat, at pp. 836 and 840; Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed. (LexisNexis, 2022), at § 12.02. Lay opinion evidence may assist witnesses to recount events more accurately than if the testimony were limited to factual observations, and it may remove the sometimes artificial distinction between fact and opinion in this context: Graat, at pp. 835-7 and R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, at paras. 69-70.

[32] The non-exhaustive list of subjects upon which witnesses can provide lay opinion evidence includes: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person e.g., whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things e.g., worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance: Graat, at p. 835.

[33] The court in Graat, at p. 835, provides a framework for the admission of lay opinion evidence:

Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of law or policy.

[34] Policy grounds include the danger of confusing issues, misleading the jury, unfair surprise, and undue consumption of time adducing the evidence: Graat, at p. 836.

[35] Lay opinion evidence about the apparent health of another person, including whether a witness believes the person to be dead when they approach him, falls within the “bodily plight” category and would therefore be admissible even when that opinion goes to the ultimate issue in the case: Graat, at pp. 836-7.

[36] In this case however, the lay opinion evidence was not evidence of the bodily plight of Noureddine; it was evidence that he would likely die from a certain application of force. This evidence was not simply summarizing observations; it was drawing an inference about the type of force likely to cause death. It should therefore have been subject to an analysis by the trial judge as to whether it was relevant and, if so, whether its probative value was outweighed by policy considerations: Graat, at p. 835.

[37] The trial judge has an important gatekeeping function to decide the allowable scope of opinion evidence. This court in R. v. Umeadi, 2023 ONCA 7, at para. 36, leave to appeal refused, [2023] S.C.C.A. No. 171, emphasized the importance of vetting issues of lay opinion evidence with the trial judge in advance to allow the trial judge “time to rule on the admissibility of the evidence and craft any instructions that are warranted in the circumstances of the case.” While this comment was directed toward the parties in that case, it highlights the important function that an admissibility hearing performs with respect to lay opinion evidence.

[38] In this case, the trial judge should have considered whether the witnesses had the knowledge and experience to offer such an opinion: Sopinka et al., at § 12.02. The trial judge also should have assessed the potential harm that could result from the opinion evidence. In particular, the trial judge should have considered the effect of the lay witnesses’ knowledge that Noureddine had in fact died of his injuries before they gave their testimony, and whether this created a risk of cognitive distortion by looking at the evidence through the lens of knowledge acquired after the fact.

[39] If the evidence passed the threshold, while it would have been appropriate to note that the proposition that they were engaging in after-the-fact reasoning was never put to the witnesses, the trial judge should have warned the jury that there was nonetheless a risk they were doing so, which could give rise to bias that could affect the ultimate weight given to it: R. v. Salmon (2012), 258 C.R.R. (2d) 219 (Ont. S.C.), at paras. 4-9. The failure to do so created a significant risk of prejudice in the deliberative process.

[40] The need for a hearing on the admissibility of this evidence is all the more important as the lay opinion in this case may well not be admissible.

[41] In R. v. J.F. (2006), 210 C.C.C. (3d) 405 (Ont. C.A.), at paras. 14-15, Weiler J.A. for the court held that a new trial was warranted after the complainants’ mother in a sexual assault trial said the appellant placed serious restrictions on the complainants (his step-daughters) and that this all made sense to her when her daughters told her they had been assaulted. Her opinion was that the restrictions were connected to the sexual abuse, which led her to believe her daughters. This court held that,

The mother was entitled to testify as to the restrictions the appellant had placed on the complainants and his conduct towards them. She was not, however, entitled to give her opinion as to the inference to be drawn from that conduct as this was the function of the triers of fact.

In any event, the trial judge ought to have reminded the jury that it was their role to decide on the credibility of the witnesses and the opinion of any witness on the issue of the complainants’ credibility or the inferences to be drawn from the evidence was not relevant. Instead, the trial judge reviewed the evidence without comment. Combined with the trial judge’s earlier omission, I am of the opinion that the errors warrant a new trial. [Emphasis added.]

[42] Similarly, in R. v. Hayatibahar, 2022 ONSC 3692, a case arising out of a motor vehicle accident, the court excluded lay opinion evidence that related to injury causation. The Crown sought to rely on lay witness evidence that an abrasion on the accused’s left shoulder was a seatbelt rash, thereby identifying him as the driver of the car. The court refused, at para. 96, to allow the opinion evidence as to the cause of the injuries on the basis that, “[t]hey are being asked to look at an injury and offer their view on what caused that injury based on their experience with seeing other people with what are said to be similar injuries. The mechanics of injury causation are not, in my view, the proper subject for lay opinion.”

[43] The inference drawn by Bruton and Mihic in this case, is that the type of force used in the assault was likely to cause death. This inference goes directly to the issue central to Smith’s conviction: that is, whether Smith knew or ought to have known that Noureddine would likely die from the assault. Smith admitted that he killed Noureddine by punching and kicking him several times, and kneeing him while he was in a head lock; the only issue was whether he intended to kill Noureddine.

[44] While the Supreme Court of Canada in Graat, at pp. 836-7, found that a lay opinion going to the ultimate issue in a case was not necessarily inadmissible, these opinions continue to be treated with caution: Sopinka et al., at § 12.02; and David Watt, Watt’s Manual of Criminal Evidence (Proview, 2023), at § 30.01.

[45] Therefore, while the fact that the opinion went to the ultimate issue in this case may not have made the opinion inadmissible per se, it was incumbent on the trial judge to treat that opinion with caution and consider whether it met the test for admissibility set out in Graat.

[46] For the above reasons, I would allow this ground of appeal in respect of Smith. The appropriate path to determine admissibility was not followed. The appropriate remedy is to order a new trial for Smith on the murder charge, bearing in mind that Smith does not dispute that he killed Noureddine; the only issue is whether he intended to kill Noureddine.

[47] This finding does not affect Moreira’s conviction, as the issue of intent or foreseeability of death is not relevant to his conviction for manslaughter. Manslaughter is an offence for which there is no requirement of intent to kill. Prior to this appeal, Moreira appealed his sentence: R. v. Moreira, 2021 ONCA 507 (Moreira CA). In allowing that appeal, Paciocco J.A. noted, at para. 65, that by acquitting Moreira of aiding in Noureddine’s murder, “the jury foreclosed any suggestion that Moreira knew when he aided or encouraged his associates, that they would exercise force that was likely to cause death”: see also Moreira CA, at paras. 14, 24, 48, and 51-62.

(2) The Second Ground of Appeal: Whether the Trial Judge Erred in Limiting Cross-examination of the Pathologist

[48] The appellants claim the trial judge erred in denying defence counsel the right to cross-examine Dr. Cunningham about a number of international academic articles that the appellants suggest could underscore the minimal force required to cause Noureddine’s fatal injury. The Crown objected and the trial judge did not permit the questioning, holding that it was unnecessary. While Dr. Cunningham testified that a minor force could have caused the lethal injury, the appellants claim that if the trial judge had permitted this line of questioning, they would have had an opportunity to ask about the spectrum of force he had seen in his career.

[49] There is no question that the degree of force necessary to cause death was relevant and both parties sought to elicit evidence about this from the pathologist.

[50] In his direct examination, Dr. Cunningham testified that while the force used to “drive a soccer ball down the field” could cause this injury,

[I]n the grand spectrum of how I think about force, the amount of force that would have caused the injuries I identified would have been minor, okay? Because I have essentially bruises in this case and I have a facture of a small bone. [Emphasis added.]

[51] During cross-examination, he limited his answer by stating that the injury could have been caused by “minor” force in the spectrum of force that he has seen in the autopsies he conducts. When asked to explain, he said that,

If I’ve limited it to this autopsy, yeah, it’s at the mild end for sure. Unfortunately, with significant consequences…The, the small fragile bone breaks and a death results …[but that] while it may not take a lot of force to break that little piece, I still got to generate enough force to deform all the tissues about it to get down to it. So then you have to add in more force. [Emphasis added.]

[52] The trial judge did not permit appellants’ counsel to cross-examine Dr. Cunningham on a number of international academic articles that they suggest could underscore the minimal force required to cause this injury, saying:

It’s been made very clear that one blow could do it. ... he’s conceded it could be loads of force or it could be very little force.

[53] The appellants argue that Dr. Cunningham’s limitation of “minor” force to minor “in the context of the autopsies I see”, left the jury with an unclear picture of what “minor” actually meant.

[54] I disagree. The appellants’ counsel had the opportunity and did ask about whether a minor blow could have led to this fatal injury. Dr. Cunningham said the force could have been “minimal”, “minor” or “mild” and that the same fracture can result from a sports injury or a single punch. His testimony also described what “minor” meant in the spectrum of force he sees in his career:

And in forensic pathology we see a wide range of tissue injuries, from relatively what I would think of as minor injuries in the whole scale of things, which could just be simple bruises or scrapes, all the way out to someone being struck by a train and being dismembered as a result, okay? [Emphasis added.]

[55] Finally, defence counsel for Moreira in his closing address characterized the injury to the jury as a “minor injury with tragic results”, and the trial judge in his charge, referred several times to Dr. Cunningham’s evidence that it was “a minor injury with tragic consequences.”

[56] As such, I see no error in the trial judge’s decision not to permit further questioning on an issue that was not in dispute by referring to articles that were not put in evidence in the trial record nor sought to be introduced as fresh evidence on this appeal.

(3) The Third Ground of Appeal: Whether The Crown Theory of a Targeted Robbery Caused Trial Unfairness

[57] The appellants claim the trial judge erred in allowing the Crown to present the jury with a theory that the appellants intended to target Conery and Noureddine as “easy marks” wearing fancy suits with Noureddine sporting an expensive watch. The trial judge repeated the Crown theory when he summarized the Crown’s position in the jury charge. The appellants claim this theory is not supported by video evidence which, they say, shows that there was no intention to target Conery and Noureddine.

[58] The appellants claim that video clips introduced at the Cummins trial (which took place after the appellants’ trial), demonstrate that the appellants’ parked their vehicle a minute before Conery and Noureddine exited the bar. They argue the Crown admitted that it was “unclear from the evidence” whether the appellants saw Conery and Noureddine while they were in their vehicle.

[59] The appellants therefore submit that the Crown’s theory in this proceeding was harmful as (i) it created the impression that the appellants were looking to rob unsuspecting individuals; (ii) it undermined Smith’s credibility as the Crown suggested that he was not being truthful when he denied that he saw the victims before getting out of the vehicle; and (iii) it adversely affected the fairness of proceedings, as the Crown had an obligation to advance a theory consistent with the evidence (especially as the lead investigating officer noted in his memo book that the appellants arrived before Noureddine and Conery exited the bar).

[60] The appellants now seek to introduce the affidavit of Alexander Carleton which attaches “fresh evidence” of transcripts from the Cummins trial, and videos of the appellants prior to the altercation. The appellants assert this evidence is relevant to the appellants’ intention and satisfies the Palmer test for the admission of fresh evidence: R. v. Palmer, [1980] 1 S.C.R. 759.

[61] First, I do not agree that the videos meet the test for admission of “fresh evidence.” The appellants received voluminous disclosure prior to trial which includes these videos. As such, it was available to them at the time of their trial.

[62] Second, the question during the Cummins trial when these videos were raised, was not whether they refuted the Crown theory but whether the videos were admissible given their poor quality. After reviewing the videos, the Crown in the Cummins trial was permitted to present the same theory that it did in this case, without objection from the defence, that is, that the attack began with a targeted robbery. While the Crown at the Cummins trial did admit that it was “unclear from the evidence” whether the appellants would have seen Conery and Noureddine from the vehicle, the Crown still argued in its closing submissions that this was a targeted attack: “as [the attackers] emerged from their car and began walking down the alleyway … they could well see [the victims] … Two young men well dressed and, certainly, smaller in size and less in numbers.”

[63] Third, the videos are of very poor quality and do not clearly negate the Crown theory that the appellants did not plan to rob and attack the victims.

[64] Fourth, and in any event, the jury in this case rejected the Crown theory that the appellants had a motive to attack the victims. Smith was acquitted of robbery and convicted of the lesser included offence of assault. This indicates that the jury rejected the Crown’s theory that this was a targeted assault: R. v. Moreira, 2019 ONSC 2648, at paras. 13-15, rev’d on other grounds, 2021 ONCA 507.

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

(4) The Fourth Ground of Appeal: Whether the Trial Judge Erred in his Jury Charge about Moreira’s Robbery and Murder Charges Such that the Verdicts Are Unreasonable

[66] The appellant Moreira claims that the jury charge respecting the two charges against him was deficient as (i) the trial judge did not instruct the jury that if contact was de minimis, the intentional application of force required for the offence of robbery under s. 343(c) of the Criminal Code, could not be satisfied; and (ii) the trial judge’s instruction as to whether he was a party to the offence of murder or manslaughter was deficient as the trial judge did not relate the evidence to the elements of the offence to help the jury decide whether Moreira assisted Smith in committing murder or manslaughter.

[67] I disagree with Moreira’s submission that the trial judge should have instructed the jury that if contact was de minimis, the requisite intentional application of force for robbery could not be satisfied. There was no need to do so as there is no air of reality to this defence: R. v. Cinous, [2002] 2 S.C.R. 3, at paras. 1-2.

[68] It is important to remember that the robbery charge in this case was pursuant to s. 343(c) not s. 343(b) of the Criminal Code, which raises important distinctions: assault with intent to steal under s. 343(c) of the Criminal Code does not require a “major” assault or a particular level of violence; even a trivial or “mere” assault is sufficient: Manning, Mewett and Sankoff, Criminal Law, 5th ed., (LexisNexis, 2015), at § 22.70; R. v. Lew (1978), 40 C.C.C. (2d) 140 (Ont. C.A.). (I also note that the de minimis defence has never been definitely endorsed by this court.)

[69] In Lew, by contrast, this court overturned a conviction for robbery pursuant to s. 302(b) of the Criminal Code (the identical precursor to s. 343(b)). The accused in that case had bumped or nudged a woman while taking her wallet from her purse: Lew, at para. 2. In finding that this did not rise to the level of violence required under s. 302(b), the court compared the provision to s. 302(c) (the identical precursor to s. 343(c)):

The violence contemplated by the section [s. 302(b)] is more than a mere assault which is contemplated by s. 302(c). On the material before us, this case appears to be a case of a nudge and that is no more than a mere assault.

While it may be that if he had been tried on a charge of robbery, pursuant to s. 302(c), the same result [a conviction] would have occurred, that is not the issue here.

[70] Similarly, in R. v. Chiang, 1999 BCCA 503, 138 C.C.C. (3d) 522, the British Columbia Court of Appeal upheld a conviction for robbery under s. 343(c) of the Criminal Code where the assault consisted of the accused sticking his hand in the victim’s pocket and attempting to remove his wallet. The trial judge specifically considered whether this met the definition of assault and found that there was “sufficient force…to cause [the victim] to stop walking and to crouch or squat down and to shift his hips around” while trying to get away: Chiang, at para. 1. The court, at paras. 1 and 3, accepted the trial judge’s reasoning that even benign touching, combined with an intent to steal, was sufficient to make out the offence of robbery:

That each offence set out in the Criminal Code covers a range of behaviour is obvious. The range of actions which falls within the definition of assault is vast, from relatively benign touching, spitting on another, causing another to move out of fear, to quite serious physical violence at the other end of the range. When any of these actions are combined with an intent to steal, the Criminal Code dictates by the definition section that a robbery has been committed. [Emphasis added.]

[71] In this case, Moreira came to Conery after he had just been struck to the ground and lay trapped, put his foot on him, preventing him from getting up, and said words to the effect of “[g]ive me your wallet and it’s done”. An instruction to the jury that a de minimis level of contact would not satisfy the requirement of an assault for the purposes of s. 343(c) of the Criminal Code would have misled the jury on the elements of the offence.

[72] Moreover, the trial judge was correct to dismiss Moreira’s claim that he was not guilty of attempted robbery because (i) the victim did not have his wallet, and (ii) that in applying force to Conery, Moreira lacked the requisite mens rea because he did not intend violence. Neither argument is a defence to robbery under s. 343(c) of the Criminal Code. Robbery under s. 343(c) does not require a complete theft: Manning et al., at § 22.70. Furthermore, the mens rea for robbery under s. 343(c) is specified as an intent to steal, not an intent to commit violence: Criminal Code, s. 343(c).

[73] I agree with Moreira however, that the trial judge failed to give an adequate instruction on the charge that he aided Smith to commit the physical attack on Noureddine that resulted in Noureddine’s death.

[74] As noted by this court in R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at para. 21, jury charges are reviewed “in the context of the trial as a whole” and against a standard of adequacy. In general, a jury charge must include the factual issues to be determined, the law that must be applied, the parties’ positions, and the relevant evidence: R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 50, leave to appeal refused, [2014] S.C.C.A. No. 13; Stojanovski, at para. 19.

[75] The functional question for the appellate court to ask is whether the jury was left with a sufficient understanding of the facts as they relate to the relevant issues and whether the jury would have adequately understood the issues, the law relating to the charge, and the evidence to be considered in respect of those issues: See also R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at para. 67; and R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445.

[76] This court in Huard, at para. 64, explained that:

Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused's liability for the specific offence as an aider or an abettor.

Although the trial judge made reference to aiding in the course of discussing the elements of the offence, he never explained what the Crown had to prove to establish liability for murder as an aider. He did not relate the generic description of aiding to the specifics of this case, or the evidence that could assist the jury in determining whether either appellant was liable as an aider. [Emphasis added.]

[77] In this case, the trial judge properly instructed the jury that there were two pathways to convict Moreira of manslaughter: (i) participation in the physical assault, without the requisite intent for murder; or (ii) aiding Smith to commit manslaughter by knowing Smith would assault Noureddine in a manner that would put Noureddine at risk of bodily harm even if he did not foresee that he would kill him.

[78] As noted by this court in Moreira CA, at para. 86, it is obvious that the jury convicted Moreira by invoking the second pathway.

[79] The trial judge summarized the elements of aiding as they related to the elements of the offences charged (second-degree murder and manslaughter), but he did not instruct the jury directly on the evidentiary findings they could make relating to the aid or encouragement that Moreira was alleged to have given Smith. Instead, he simply told the jury to “[c]onsider all the evidence that I have reviewed in the earlier part of this charge to decide if Moreira is an aider applying the principles that I have just given to you.”

[80] The trial judge also referred elsewhere in his charge to:

i. Conery’s evidence that “three men [Cummins, Smith and Moreira] emerged from an alleyway on the right … walking in a cluster … in a diagonal direction in front of [Conery and Noureddine],” just before Noureddine was punched and knocked to the ground;

ii. The Crown’s theory that support or aid was provided by Moreira’s comment to Conery, “give me your wallet and it’s all over”, which indicated that he believed he had some level of control over the attack; and

iii. Bruton’s evidence that this was a group attack.

[81] However, for the reasons that follow, absent further instruction from the trial judge, the jury would not have had an adequate understanding of the evidence they needed to consider when deliberating on Moreira’s liability as an aider: Stojanovski, at para. 21.

[82] First, as discussed in Moreira CA, at para. 59, Moreira’s statement to Conery was an admission that he was part of the attack, however Moreira’s state of belief was not an act of aiding or assistance. Since “[a] jury cannot convict an accused person as an aider based on a generic finding that they played some undefined part in the crime charged,” the trial judge should have instructed the jury that this statement could not constitute the “help” provided by Moreira: Moreira CA, at para. 58.

[83] Second, with respect to Bruton’s evidence, the trial judge only referred to his earlier police statement in which he stated that only one person attacked Noureddine, in the summary of the defence position.

[84] The trial judge’s failure to instruct the jury that (i) Moreira walking in a diagonal cluster with the other men was the only evidence that could be relied on to convict Moreira of aiding; and (ii) there was inconsistent evidence on the issue of whether it was a group attack, may have left a real danger that the jury believed it could convict Moreira on evidence that (i) could not support that charge; or (ii) it may have rejected as inconsistent with a proper instruction.

[85] Given that Moreira’s conviction for manslaughter rested on his having aided Smith to kill Noureddine, the trial judge should have reviewed Bruton’s evidence and the prior inconsistent statement with the jury for them to consider.

[86] Third, unlike Stojanovski referred to above, counsel in this case objected to the charge and the case was complicated such that the jury may have been misled by the failure to relate the evidence.

[87] For these reasons, I would reject the ground of appeal relating to the jury instruction in respect of the robbery charge, but would allow the appeal on the manslaughter conviction against Moreira due to the inadequate jury instruction on aiding Smith to kill Noureddine.

(5) The Fifth Ground of Appeal: Whether the Verdicts Are Unreasonable

[88] The appellant Smith claims his second-degree murder conviction was unreasonable as the physical evidence and Dr. Cunningham’s testimony that minimal force could have caused the lethal injury, raises a serious doubt about Smith’s subjective knowledge that the assault would kill Noureddine.

[89] The appellant Moreira claims his robbery conviction was unreasonable as the essential elements of the offence of robbery require proof of an assault with intent to steal. Since the jury acquitted Moreira of assault simpliciter, the robbery verdict cannot stand.

[90] Moreira also argues that his conviction for manslaughter is unreasonable, as (i) his acquittal by the jury of assault indicates that the jury did not believe Moreira was involved in the beating of Noureddine; and (ii) none of the evidence establishes that he initiated, aided, or encouraged the attack on Noureddine. In fact, the evidence does not firmly establish that the fatal blow had not already been delivered by the time of Moreira’s utterance to Conery.

[91] In order to succeed on an alleged unreasonable verdict, an appellant must show that “no properly instructed jury” could have found him guilty and that the jury’s conclusion, with due regard to its ability to witness firsthand all of the evidence, does not align with the weight of judicial experience: Criminal Code, s. 686(1)(a)(i); R. v. Biniaris, [2000] 1 S.C.R. 381, at paras. 36 and 38-39. This is a high threshold. The reasonableness of a verdict is a question of law: Biniaris, at para. 42.

[92] In making this assessment, “[t]he 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”: R. v. H.(W.), [2013] 2 S.C.R. 180, at paras. 26-28 and 32; Biniaris, at paras. 26, 36, and 40. Furthermore, “the question … is whether the verdict is unreasonable on the evidence received at trial, not whether the verdict is unjustified”: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 73.

[93] In the case of Smith, while I agree that there is contradictory evidence in respect of the severity of the blows, that fact alone is not grounds to overturn a conviction as the jury can accept some, all or none of a witness’ evidence: Chacon-Perez, at paras. 84-90. In any event, Smith admitted that he kicked and punched Noureddine multiple times and kneed him in the head. However, given the concerns raised above regarding the lay witness opinion evidence as to the likelihood that Noureddine would die, I would order a new trial in respect of the murder charge, bearing in mind that there is no issue that he killed Noureddine, the only issue is whether he intended to kill him.

[94] Moreira was convicted of robbery because the jury accepted Conery’s evidence that, during the beating, Moreira put his leg on Conery’s back and demanded his wallet: Moreira CA, at para. 86.

[95] While the jury marked “not guilty” of assault on the Moreira verdict sheet, Moreira was never charged with assault. The verdict sheet, in error, referenced Moreira when it should have referenced Smith. When the jury was asked for its verdict, the jury was not asked about Smith’s assault charge. The jury was brought back in and delivered a verdict of not guilty but after leaving, the trial judge received a note from the jury stating: “Your Honour, when you asked about the charge on Patrick Smith for assault we said not guilty, however we were confused. That charge was not included on our verdict sheet and we did not discuss it.” Neither the note nor the transcripts clearly indicate whether the jury conducted deliberations in respect of the assault charge against Moreira.

[96] Moreira was found guilty of manslaughter on the basis that he aided the attack on Noureddine by working with others to intercept Noureddine and Conery as they walked down the street. As noted above, I would order a new trial on the issue of whether Moreira aided Smith to kill Noureddine given the insufficiency of the jury charge on the issue of articulating the facts relevant to that charge. Whether the evidence supports a conviction of manslaughter on the basis of aiding should be left to the trier of fact at the new trial.

(6) The Sixth Ground of Appeal: Whether the Trial Judge Erred in Refusing the Dismiss the Charges for Delay

[97] The appellants claim that the trial judge erred in dismissing their motion to stay the indictment for delay under s. 11(b) of the Charter of Rights and Freedoms. [1] The total time between the time charges were laid and the end of the second trial was 32 months and 16 days. Although the defence conceded that six days should be deducted for defence delay based on various adjournments sought during trial, the delay still exceeds the 30-month Jordan ceiling.

[98] First, the appellants claim that the trial judge erred in finding that the case was complex. Second, the appellants claim the trial judge erred in finding that the mistrial was a discrete event justifying delay over the presumptive ceiling because, in doing so, he assessed the correctness of the mistrial ruling.

[99] The appellants claim this is problematic as: (i) the rules of judicial comity and res judicata create a presumption in favour of not relitigating issues that have already been decided; (ii) the trial judge had no evidentiary record before him to properly understand why a mistrial was granted; and (iii) granting a mistrial is a discretionary ruling based on the perceived impact of conduct on trial fairness.

[100] For the reasons that follow, I believe that whether or not the mistrial application was a discrete event, the trial judge did not err in refusing to dismiss for delay.

[101] The trial judge found that this was a complex case. There were 3 accused, over 90 witnesses, 150,000 video clips, and numerous transcripts and recordings to be reviewed. The defence intended to call 12 witnesses at the preliminary inquiry. In addition to the volume of the case, the legal issues were also challenging. In advance of the preliminary hearing, the defence unreasonably refused to concede identity or that only two Mr. Big witnesses were required to testify. Furthermore, the trial dealt with a variety of legal issues including cause of death, party liability, intoxication, the admission of Moreira’s utterances and the Mr. Big statements, after-the-fact conduct, and the required intent for murder.

[102] The trial judge’s decision to treat these as exceptional circumstances that justified a delay that slightly exceeded the 30-month time limit is entitled to deference in this court. I would therefore dismiss this ground of appeal.

Conclusion

[103] This was a long and difficult trial with a large number of issues the trial judge had to contend with.

[104] While I would dismiss most of the grounds of appeal raised by the appellant Smith, I would allow his appeal in respect of the introduction of the lay opinion as the trial judge failed to hold a voir dire to determine the admissibility and use of opinion evidence or warn the jury about the risk of after-the-fact reasoning. As noted above, such reasoning may give rise to bias and thereby create a risk of prejudice in the deliberative process on a significant issue.

[105] I would therefore order a new trial for Smith on the murder charge alone, bearing in mind that Smith does not dispute that he killed Noureddine; the only issue is whether he intended to kill him. I would dismiss the other grounds of appeal raised by the appellant Smith.

[106] For the reasons outlined above, I would allow the ground of appeal raised by the appellant Moreira that the trial judge’s jury instruction on the charge of aiding Smith to commit murder or manslaughter was insufficient and I would therefore order a new trial on that issue. I would dismiss Moreira’s other grounds of appeal.

Released: December 6, 2023 “B.Z.” “Thorburn J.A.” “I agree. B. Zarnett J.A.” “I agree. J. George J.A.”

[1] The trial judge’s reasons for dismissing the motion are reported at R. v. Moreira, 2019 ONSC 2536.