Court File and Parties

Citation: R. v. Browne, 2017 ONSC 5057 Court File No.: CRIM J (P) 469/14 Date: 2017-03-12 Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams

Before: COROZA J.

Counsel: Alex Cornelius and Greg Hendry, for the Crown Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams

Endorsement

[1] The accused are jointly charged with the first-degree murder of Dwayne Thompson. The Crown will close on March 13, followed by counsel for each of the accused. I anticipate that my charge will be completed by March 16.

[2] As of March 12, a final draft charge has been provided to counsel. In part, it has been the product of comprehensive submissions by the parties. Pre-charge conferences were held on February 24, March 6, 7, and 9.

[3] A number of issues were raised by the parties during the pre-charge conferences. Each counsel was permitted to make submissions on the draft charge and I have also asked for written submissions on any issues counsel wished to raise. The written submissions will be filed and form part of the record for any reviewing court.

[4] I will not deal with every issue raised by counsel. Counsel repeatedly asked for specific pieces of evidence to be emphasized or brought to the attention of the jury. In my view, many of the pieces of evidence were either mentioned in the charge or were not crucial to the disposition of the case. The jury has been told throughout this charge that it is their duty to consider all of the evidence and assign the importance they see fit.

[5] This endorsement will only deal with a number of significant issues raised by counsel.

A. The Crown Request re: [s. 21(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[6] The Crown submitted that on the facts introduced at trial, 21(2) should be left as a route to liability.

[7] I dismissed this application. In my view, there is no evidence to support the Crown’s theory of liability under s. 21(2).

[8] Tulloch J.A. recently reviewed the principles related to 21(2) in R. v. Modeste, 2015 ONCA 398. The section extends liability for an offence beyond the primary offender to other individuals involved in a separate shared unlawful purpose. The Crown must prove three elements, sometimes referred to as “agreement”, “offence”, and “knowledge”, as follows:

1. A common intention or agreement existed between two or more persons to carry out an unlawful purpose and to assist each other in doing so;
2. One of the persons, in the course of carrying out the common purpose, committed a different offence; and
3. The other person knew or ought to have known that the commission of that offence would be a probable consequence of carrying out the common unlawful purpose.

[9] The jurisprudence holds that the unlawful purpose must be different from the offence committed by the principal in carrying out the common purpose. [See R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, at p. 15.]

[10] The Crown’s theory in this case is that Mr. Thompson was killed as a result of a planned and deliberate murder. Indeed, Mr. Hendry in his opening delivered on October 3, 2016 concluded:

“You will hear evidence from a number of witnesses that will show at the end of the day that the Crown has proven beyond a reasonable doubt that Dwayne Thompson was killed by the planned and deliberate actions of Amal Greensword, sitting in the center as the planner; Steven Browne, the shooter; and Adrian Williams as the helper.”

[11] Mr. Cornelius submits that it is open for the jury to find that the parties agreed to carry out a common unlawful purpose other than murder-to rob Mr. Thompson and to help each other with the robbery. As I understand his submissions, in the course of carrying out the purpose of robbery, Mr. Browne caused Mr. Thompson’s death by committing a different unlawful act which was objectively dangerous, the shooting; and Mr. Greensword and Mr. Williams knew or ought to have known that a probable consequence of carrying out the original agreement to rob Mr. Thompson was that Mr. Browne would commit an act that was unlawful, and which a reasonable person would think likely put another person at risk of harm or injury that was more than brief and minor in nature.

[12] In my view, there is no evidence to support the Crown’s theory of liability under s. 21(2); and to leave this with the jury would confuse them.

[13] Indeed, the Crown position throughout this trial has been that Mr. Thompson was executed. The Crown has led evidence that there appears to have been no robbery committed by the parties who attacked Mr. Thompson. Det. Linton has testified that when Mr. Thompson was found, he had over $1000.00 in his possession. Dr. Pollanen has also testified that when Mr. Thompson was examined, he had jewelry on him.

[14] The Crown has relied on the fact that the drug deal with Scarface did not materialize. The Crown has also led evidence through Margaret Warner that Mr. Thompson and Mr. Edwards were kept waiting throughout the day for the drug deal to crystallize and according to Ms. Warner, when they arrived at Darcel apartment, Scarface did not appear in the lobby or in the apartment building. Ms. Warner testified that when they exited the lobby to go back to the SUV, three men rushed Mr. Thompson and shots followed moments later. Mr. Thompson was killed as a result of four shots. In my view, the gunshot wounds lead to a strong inference of intent under s.229(a)(i) of the Code.

[15] Ms. Warner testified that one of the men was observed to be feeling up Mr. Thompson before the shots were fired. I do not accept that this is capable of supporting that there was an attempt to rob Mr. Thompson.

[16] Nor, do I accept that the evidence of Ms. Warner that Mr. Thompson said something to the effect of “I got nothing on me bro/brah” before he was shot as evidence that a robbery or an attempt to commit a robbery was taking place. I acknowledge that Vinod Socrates, a tenant, also heard this phrase uttered by someone three or four times before he heard gun shots.

[17] I say this for two reasons.

[18] First, there is no evidence that the men who attacked Mr. Thompson said anything to him. Ms. Warner did not hear anything. It is true that Mr. Socrates testified to hearing voices before he heard gunshots, but he could not tell who was speaking and he could not attribute any particular phrase to a specific person. He also had headphones at the time he heard these noises. When he took the earphones off, he testified he heard “I got nothing on me bro/brah” three or four times followed by gunshots.

[19] Second, if the jury accepts that Mr. Thompson made this statement, the phrase uttered by Mr. Thompson is equivocal. It could mean any number of things. It could mean that he did not have a weapon, drugs or money. It does not mean he was being robbed. Moreover, even if Mr. Thompson believed that he was being robbed, this does not provide evidence that there was a plan to commit robbery that existed between the accused. It is irrelevant what Mr. Thompson may or may not have believed, it is the accused’s state of mind that is important.

[20] Accordingly, I decline to leave this theory of liability with the jury. There is evidence upon which a properly instructed jury, acting reasonably, could convict the accused of planned and deliberate murder. The evidence points to the accused acting as a co-principals or aiders. To leave 21(2) with this jury is not appropriate.

[21] During the pre-charge hearing, the Crown raised the issue of defence counsel raising the issue of an attempt to rob during their closing addresses.

[22] The Crown argues that if the defence counsel raise the issue of a robbery then I should consider revisiting s. 21(2) with the jury. At this point, I have not heard any of the closings.

[23] In my view, there is no basis for any counsel to tell this jury that there is evidence of a robbery or an attempt to rob Mr. Thompson. If any counsel suggest that to the jury, I will tell the jury that there is no evidence to support that submission. However, in my final instructions to the jury I have made it clear that the jury must be satisfied beyond a reasonable doubt that they must be satisfied that a murder is planned and not something else. Whether the jury is satisfied that the Crown has met their onus is up to the jury. However, there is no air of reality to suggest that a robbery was being planned and deliberated on and counsel are prohibited from making that submission.

B. Murder pursuant to s.231(5)(e) (Unlawful Confinement)

[24] At the pre-charge conference, Crown counsel argued that it was open on the evidence to include a route of liability under s. 231(5)(e) of the Code. The Crown submits that the evidence of Det. Linton would permit the jury to conclude that an unlawful confinement occurred that gives rise to a route of liability for first degree murder pursuant to that section.

[25] My colleague Goodman J. recently reviewed the guiding principles of this section in R. v. Millard and Smich, 2016 ONSC 4046. I found his review of the case law to be of considerable assistance.

[26] Section 231(5)(e) of the Code elevates to first degree any murder where the death is caused while forcibly confining the victim. The Supreme Court, in R. v. Pritchard, 2008 SCC 59, held that there must be confinement for "a significant period of time". There is, however, no minimum period of time during which the confinement must continue. What is a "significant period of time" depends on the circumstances of the case. What is important is that the act of killing must be separate and distinct from the unlawful confinement.

[27] I acknowledge that it is for the jury to determine what to make Det. Linton’s evidence. Whether they can determine the precise location that Mr. Thompson was shot is up to them. However, the key question here is whether the act of killing is separate and distinct from the unlawful confinement. Taking a step back and looking at the evidence as a whole, in my view there is no evidence in this case of two discrete acts.

[28] Ms. Warner testified to the following sequence of events:

• Mr. Thompson was approached by a group of three men;
• One man held a gun to Mr. Thompson’s temple;
• One man appeared to be feeling Mr. Thompson;
• Mr. Thompson said: “I got nothing on me bro/brah”
• Shots were fired.

[29] Ms. Warner testified that this sequence of events all occurred within seconds. In my respectful view, the surrounding of the deceased and the brutal attack on him were, on the evidence, one and the same. There is no evidence of a discrete act of confinement and an act of killing.

[30] The Crown submits that the jury can find that the deceased had actually escaped and was shot in the back. It is true that Det. Linton talks about finding, blood, a bullet and the body at different areas of the parking lot.

[31] However, I do not accept that it is open to this jury to draw the inference that Mr. Thompson he was initially confined and then shot in the back as he was trying to run away.

[32] First, Ms. Warner the Crown’s main eyewitness does not describe this scenario. She describes the curb man as feeling up Mr. Thompson and then shots followed seconds after this event.

[33] Second, Dr. Pollanen cannot provide any evidence as to the sequencing of the gunshot wounds.

[34] It seems to me that it is not open to this jury to find that Mr. Thompson attempted to escape. Ms. Warner testified that the shots followed almost immediately after Mr. Thompson was surrounded. There is no evidence that he was confined, pursued and then killed to prevent his escape. It is for these reasons that I do not think the Court of Appeal’s decision in R. v. White 2014 ONCA 64 are applicable here.

[35] In my view, if any confinement took place, it was consumed and co-extensive with the killing. I note that this is essentially the Crown theory. The Crown submits that the white car was stalking Mr. Thompson while he waited in the lobby for Scarface. Once he exited the lobby, three men emerged from the area of the same white car that was now parked. The men approached and shots were fired moments after the approach. Using the vernacular, this was an ambush. I conclude that there is an absence of evidence to leave forcible confinement as a route to first degree murder under s. 231(5).

C. Mr. Browne as a Party to Planning and Deliberation

[36] Mr. Bryant argued that given the case is entirely circumstantial there appears to be no evidence that the jury could draw from the evidence that Mr. Browne is a party to a planned and deliberate murder.

[37] I disagree. Certainly, there is evidence that could put Mr. Browne at the scene, and there is evidence that could prove he had one of the intents for murder as a principal (Criminal Code, s. 229(a)(i) or (ii)) or as an aider or abettor (s. 21(1)(b) and/or (c)).

[38] The Crown submits that practically speaking I ought not to entertain this submission because there was no directed verdict application brought before the Court. In my view, had Mr. Bryant brought a directed verdict application, I would have dismissed it.

[39] A circumstantial case may survive a directed verdict application when it is possible for the trier of fact to draw more than one inference from the evidence.

[40] In my respectful view, there is evidence which a jury, properly instructed and acting reasonably, could conclude that Mr. Browne was involved in a deadly, attack on Mr. Thompson and that he was a party to a planned and deliberate murder. His participation may be inferred from the following evidence:

• the jury can accept that Mr. Browne was connected to the 9200 phone number;
• the jury can accept that the 9200 was in contact with other phone numbers connected to the co-accused in this case before and around the time of the shooting;
• the jury can accept Dr. Popovic’s evidence that Mr. Browne’s DNA cannot be excluded as the source of DNA found in a mixed profile located on Mr. Thompson’s left fingernails;
• the jury can accept that Mr. Browne is the triggerman in a joint attack on Mr. Thompson.

[41] I recognize that the jury does not have to draw these inferences. However, they may. It may be difficult but difficult inferences to draw may still nonetheless be reasonable.

[42] In a case the Crown has alleged that Mr. Browne participated in a concerted attack with others. His role was the triggerman. A trier of fact may find an accused guilty as principal or aider. In my view, it is open for the jury to find that Mr. Browne either was a co-principal or aider to Mr. Greensword’s plan. The jury can accept that Mr. Thompson was directed and lured to the location where he was killed. The jury can find that he was stalked by a white car. The jury can find that when he was killed nothing was taken from him including over a thousand dollars in cash. The jury can find that he was ambushed. The jury can find that there is an association between Mr. Browne, Mr. Greensword and Mr. Williams based on the cellphone records.

[43] In terms of the requisite intent for murder either directly, or as a party under, it is open to the jury to conclude that Mr. Browne was part of the group of three men that Ms. Warner observed attacking Mr. Thompson. Given the relatively brief period of time that elapsed between the approach of the three men and the gunshots, it would not be difficult for the jury to conclude that those who were approaching Mr. Thompson wanted him dead. The evidence must be looked at as a whole and not subjected to a microscopic frame by frame analysis.

D. Planning and Deliberation and s. 229(a) (ii)

[44] Mr. Bryant also raised the issue of whether it was really open for the jury to convict Mr. Browne on the basis of a combined operation of planning and deliberation and 229(a)(ii). Mr. Bryant argues that this charge should be simplified and I should remove the intent subscribed under s. 229(a)(ii) from this charge. After carefully reflecting on his submission, I decline to do so.

[45] I have instructed the jury that there are two intents they can find that someone had the state of mind for murder. The essential element of s. 229(a)(ii) is the intention to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim.

[46] It is true, that the manner in which Mr. Thompson was killed (i.e. four shots) makes it likely that whoever shot Mr. Thompson intended to kill him. However, the issue raised by Mr. Bryant is whether it is really open for this jury to convict the accused on the basis of a planned and deliberate murder with the intent set out in 229(a)(ii). In my view, the Supreme Court of Canada’s decision in R. v. Nygaard, [1989] 2 S.C.R. 482 is dispositive of this issue.

[47] The Court in Nygaard, held that the difference in the mens rea where the intent was to cause death and where the intent was to cause bodily harm knowing death could ensue was too slight to be taken into account. In other words, there is nothing incompatible in the mental state prescribed by 229(a)(ii) and the planning and deliberation for first degree murder.

[48] Cory J. held that it was not wrong to label an offence under s. 229(a)(ii) as murder. In explaining this he used one example of a person who shoots another. He put it this way:

Let us consider the gravity of the crime described by s. 212(a)(ii) in the light of three examples which, pursuant to the section, would be murder. First an accused forms the intent to inflict multiple stab wounds in the abdomen and chest of a person knowing that the wounds are likely to kill the victim and, heedless of the known probable result, proceeds with the stabbing. Second, an accused forms the intent to shoot a former associate in the chest knowing that death is likely to ensue and, uncaring of the result, shoots the victim in the chest. Third, two accused form the intent to repeatedly and viciously strike a person in the head with a baseball bat realizing full well that the victim will probably die as a result. Nonetheless they continue with the bone-splintering, skull-shattering assault. The accused in all these examples must have committed as grave a crime as the accused who specifically intends to kill. Society would, I think, find the drawing of any differentiation in the degree of culpability an exercise in futility. The difference in the calibration on the scale of culpability is too minute to merit a distinction.

[49] Cory J. held that the requirement of planning and deliberation can be properly applied to the section. For these reasons, I disagree that any reference to 229(a)(ii) should be removed from this charge.

[50] I have reviewed the decision of my colleague Boswell J. in R. v Hong, 2015 ONSC 7193. The issue in that case is different. In that case, s. 231(5)(e) as a route to first degree murder was left with the jury. In that case, Mr. Bryant and his co-counsel argued that Boswell J’s instructions failed to adequately describe the possibility that the forcible confinement may have been subsumed in the act of killing. They argued that the court failed to sufficiently describe the “temporal-causal connection” required for constructive first degree murder. Boswell J. declined to instruction the jury in this way.

[51] Boswell J. recognized that jury instructions are meant to decant and simply issues for the jury. In that case he noted that the charge was long and complex, and language like “temporal-causal connection” would not simplify a charge that was already long and complex.

[52] There is nothing in Hong that suggests that s. 229(a)(ii) should be removed from this charge.

E. The Chartier Instruction

[53] Ms. Rozier, argued that I am required to tell the jury that if Mr. Greensword did not resemble any of the men she has described as the attackers, this discrepancy is sufficiently significant to necessitate a rejection of her evidence and hence, an acquittal of Mr. Greensword. Counsel relies on Chartier v. Attorney General of Quebec (1979), 1979 17 (SCC), 48 C.C.C. (2d) 34 at 51-52 (S.C.C.) to support this submission.

[54] The Court of Appeal has held that Chartier is not authority for the proposition that in a jury trial a trial judge must give an instruction to the jury that where there are discrepancies between a description provided by a witness and the actual appearance of an accused those discrepancies are significant. The Court of Appeal has held that these are factual questions that arise out of the evidence and like other factual questions, are for the jury to decide. [See R. v. Savoury (2005), 2005 25884 (ON CA), 200 CCC (3d) 94 (C.A.).

[55] In my respectful view, my charge has dealt with the fact that not one witness had identified Mr. Greensword as being at Darcel that evening. The case against him is circumstantial and does not rely on the identification evidence of Ms. Warner. In any event the jury has been given the following instruction in my review of the evidence that should alleviate any of Ms. Rozier’s concerns. I have attempted to explain to the jury that any discrepancies in her description can raise a reasonable doubt:

Lastly, it may be that you reject the evidence of Ms. Warner or any other eyewitness witness because of the frailties. That is up to you. However, you are not required to merely put that evidence aside and merely focus on other pieces of evidence. Ms. Warner’s testimony and all the testimony of the witnesses is still evidence that you may consider in deciding whether you have a reasonable doubt about the identification and guilt of any of the defendants for the offence charged. Witness A may be wrong, witness B may be wrong, or they might both be wrong. Whether witnesses were observing the same thing will be for you to determine. How you resolve that issue may be important in your overall evaluation of this body of evidence. Keep this in mind as I summarize other eyewitness evidence. [Underling added].

F. Request to Summarize that Two Men Rushed Mr. Thompson

[56] Ms. Addie submits that I have mischaracterized Ms. Warner’s evidence when I refer to the fact that she testified that “three men” rushed Mr. Thompson in my charge. Counsel submits a fair reading of her evidence is that she does not describe the man standing by the driver’s side door as doing anything.

[57] I respectfully disagree. While I have read the passages referred to me by Ms. Addie, the following additional passages make it clear that she testified that three men rushed Mr. Thompson.

[58] Ms. Warner had this to say during her testimony on January 30, 2017 at pp. 28-29:

MR. CORNELIUS: Q. Where was Mr. Thompson in relation to the white car at the time that the - first the male with the gun put the gun to his head?

A. He was more in the middle of - he wasn’t directly in front of the white vehicle. He was more, like, near the truck. I was ahead of him and then when they saw me, they obviously knew that we were together and they came out and they rushed him and they were feeling him up.

Q. I’m sorry, you - - you used the word, sounded like crushed?

A. Rushed, rushed...

Q. Rushed.

A. ...him.

Q. Thank you. And when you say they, are you referring to were....

A. The three males, yeah.

Q. You made reference to them feeling him up. What do you...

A. Yeah.

Q. ...mean?

A. Well, when he saw them coming towards him he lifted up, like, his jacket and sweater and he said, no – no, brah, no, brah, I don’t have anything on me. And the one person that came out with a gun to his head and then the other one that came from the curb, it appeared to me that they were feeling – like, feeling him. [Underlining added]

[59] I decline to change the wording of my charge to reflect that the shooter and the man from the grass rushed Mr. Thompson and that one or two men stood by the car. This is an inaccurate description of her evidence. That being said, I have gone back to the charge and made it clear that while Ms. Warner has testified that three men rushed Mr. Thompson, Ms. Warner did not describe what, if anything, the male by the driver’s side door did.

Coroza J.

DATE: March 12, 2017

CITATION: R. v. Browne, 2017 ONSC 5057

COURT FILE NO.: CRIM J (P) 469/14

DATE: 2017 03 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams

BEFORE: COROZA J.

COUNSEL: Alex Cornelius and Greg Hendry, for the Crown Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams

ENDORSEMENT

COROZA J.

DATE: March 12, 2017