Court of Appeal for Ontario

Date: 2024-09-06 Docket: C68954

Before: Tulloch C.J.O., Nordheimer and Madsen JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

Clifton Vassel Appellant

Counsel

John Fitzmaurice and Neill Fitzmaurice, for the appellant Luke Schwalm, for the respondent

Heard

September 4, 2024

On Appeal From

The conviction entered by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury, on May 7, 2019.

Reasons for Decision

[1] Mr. Vassel appeals from his conviction for first-degree murder. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The appellant does not challenge that he was the person who shot and killed the deceased and thus accepts that he is guilty of second-degree murder. However, he challenges his conviction for first-degree murder on the basis that the verdict is unreasonable. He also argues that the instructions to the jury on the requirements for first-degree murder were fundamentally flawed.

[3] In the early hours of October 5, 2014, the deceased was shot and killed outside an after-hours nightclub in Toronto. The death was preceded by an altercation between the appellant and the deceased that arose from the fact that the appellant had stolen a necklace from a friend of the deceased. After the altercation, the appellant went to a vehicle, retrieved a firearm, walked up to the deceased and shot him in the chest. The time that passed between the altercation and the shooting was about two and one-half minutes.

[4] The main issue at trial was the identity of the shooter. The jury, having been satisfied that the appellant was the shooter, then had to consider whether the appellant was guilty of first-degree murder or second-degree murder. They concluded that the appellant was guilty of first-degree murder.

[5] Respecting the first ground of appeal, it is well-established that for a verdict to be unreasonable, this court must conclude that on all of the evidence, no jury, properly instructed and acting judicially, could have reached that verdict: R. v. Papasotiriou, 2023 ONCA 358, 166 O.R. (3d) 266, at para. 42, leave to appeal refused, [2023] S.C.C.A. No. 273.

[6] The appellant’s challenge to the verdict does not approach that high standard. The evidence before the jury was more than adequate to reasonably lead them to conclude that the killing of the deceased was the result of a planned and deliberate act. The evidence showed that the appellant left the deceased and walked, at a normal pace, to a vehicle. He then sat in the vehicle for about a minute with friends before exiting the vehicle and going in search of the deceased. There is agreement that this is likely when he retrieved the handgun. In addition, words uttered by the appellant prior to the shooting suggested that the appellant was intent on finding the deceased. Similarly, words uttered by the deceased, immediately after the altercation, suggested that the deceased was aware that the appellant might engage in an act of violence.

[7] The appellant submits that there are other explanations for the events. He also submits that the circumstances of the shooting, including the presence of witnesses and video cameras, are more consistent with a spontaneous act than a planned and deliberate act. All of that evidence was before the jury for their consideration. Circumstantial evidence does not have to totally exclude other conceivable inferences. It is the role of the jury to decide if any alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56, citing R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at para. 22. As Watt J.A. noted in R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 179, leave to appeal refused, [2015] S.C.C.A. No. 498: “The evidence the jury had to consider was entirely circumstantial. Their verdict depended on the inferences they would draw from that evidence taken as a whole. It is a task for which jurors are well, perhaps uniquely, equipped.”

[8] In addition, in our view, the appellant’s argument, if accepted, would raise the evidentiary requirements for a finding of planning and deliberation to an unrealistically high level.

[9] On the second ground of appeal, the appellant says that the trial judge failed to outline the evidence that the jury should have considered on the element of planning and deliberation. He criticizes the trial judge for, in essence, simply telling the jury to consider all of the evidence on this point without detailing what evidence was relevant. The appellant says that this failure was exacerbated because defence counsel, at trial, had, for tactical reasons, not addressed the element of planning and deliberation in his closing submissions.

[10] The appellant’s criticism of the trial judge’s instructions to the jury is an unfair one. The trial judge told the jury to consider all of the evidence, as she was obliged to do. However, the trial judge then went on to outline specific pieces of evidence that the jury should consider on the element of planning and deliberation: the contents of the video evidence; the timing of the incident; how quickly the events unfolded; the appellant’s movements from the altercation to the car and then back; and the words attributed to the appellant both at the time of the altercation and on his return. This is not a case like R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, leave to appeal refused, [2007] S.C.C.A. No. 258, upon which the appellant relies.

[11] We note, on this point, that the trial was a short one. The evidence would have been very fresh in the minds of the jurors. While another trial judge might have said more, the trial judge in this case identified the salient pieces of evidence that the jury needed to consider on this element of the offence. As this court noted in R. v. Huff, 2012 ONCA 86, at para. 10: “The trial judge also recounted the salient features of the evidence adduced at trial. As in almost any case, he could have said more, but we do not test the adequacy of jury instructions on this basis, else most would fail.”

[12] It is for these reasons that the appeal was dismissed.

“M. Tulloch C.J.O.”

“I.V.B. Nordheimer J.A.”

“L. Madsen J.A.”