COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gardner, 2021 ONCA 539

DATE: 20210727

DOCKET: C67014

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Odain Gardner

Appellant

Delmar Doucette and Cara Barbisan, for
    the appellant

Robin Flumerfelt, for the respondent

Heard: May 25, 2021 by video
    conference

On appeal from the conviction entered by
    Justice Antonio Skarica of the Superior Court of Justice, sitting with a jury, on
    May 10, 2018.

Simmons J.A.:

Introduction

[1]

Neil Harris was shot and killed at his Hamilton
    barbershop at around 4:18 p.m. on February 18, 2016. Two men wearing
    hoodies were seen entering the barbershop shortly before the shooting and
    fleeing the scene immediately after. Surveillance video confirmed that, in all,
    the duration of the incident from the time the two men entered the barbershop
    until they left was between 15 to 18 seconds.

[2]

Mr. Harris was killed by a single bullet that
    passed through his right arm, entered the right side of his chest, and then
    exited the left side, causing fatal injuries to his heart, aorta, lungs, and
    pulmonary artery.

[3]

The appellant and Erick Reid were arrested and tried
    together for the first degree murder of Mr. Harris. Following a multi-day
    trial, the jury found the appellant guilty of first degree murder and Mr. Reid
    not guilty of first degree murder, but guilty of manslaughter.

[4]

Two witnesses at trial identified the appellant
    as the shooter and gave evidence implicating Mr. Reid as his accomplice. One of
    these witnesses, Devon Edwards, was sitting on a couch in the barbershop at the
    time of the shooting. He knew Mr. Reid and was acquainted with the appellant.
    He claimed that, upon entering the barbershop, Mr. Reid put a gun to his side and
    told him not to move while the appellant approached, and then shot, Mr. Harris.
    The second witness, Justin Dumpfrey, claimed to have heard both the appellant
    and Mr. Reid make inculpatory statements following the shooting; to have seen
    the appellant with a gun soon after the shooting; and to have observed Mr. Reid
    give a third man, Tyrone Abrahams, some clothing, including the hoodie it was
    later established Mr. Reid was wearing at the time of the shooting. Both Mr.
    Edwards and Mr. Dumpfrey had criminal records. Neither identified the
    appellant or Mr. Reid as being involved in the shooting until being charged
    with unrelated criminal offences. Moreover, after being arrested as a suspect
    within hours of the shooting, Mr. Edwards told police he could not identify
    the perpetrators.

[5]

In late February 2016, police recovered the
    hoodie Mr. Reid was wearing at the time of the shooting from the home of Sarah
    Bernard, Mr. Abrahams then-girlfriend. Mr. Reids
DNA
    was found on the collar
, and fibres from the hoodie were indistinguishable
    from fibres found on the undershirt Mr. Harris was wearing when he was shot.

[6]

Mr. Reid testified at trial and admitted he
    accompanied the shooter to the barbershop. He claimed the shooter offered to
    connect him with a marijuana supplier and that he went to the barbershop solely
    to buy weed and possibly get a haircut.

[7]

According to Mr. Reid, the shooter entered the
    barbershop first and approached Mr. Harris while he (Mr. Reid) stayed at the
    door. He recognized Mr. Edwards, who he knew, and nodded to him. As the
    shooter approached Mr. Harris, Mr. Reid heard something drop and then a
    shot. Mr. Harris ran and bumped into Mr. Reid as he went out the door. Mr. Reid
    ran away with the shooter. Although Mr. Reid knew who the shooter was, he would
    not identify him at trial because he feared for his life and the safety of his
    family. However, he acknowledged that he got a call from the shooter just
    before meeting him and going to the barbershop. Mr. Reid did not dispute that
    was the last telephone call he received before the shooting. He declined to say
    who he was talking to during that call, but cell phone records revealed that
    the last telephone call to his cell phone before the shooting (as opposed to
    the last text message) was from a cell phone the appellant had been known to
    use. However, Mr. Reid denied the Crowns suggestions that he went to the
    barbershop with the appellant to assist the appellant in carrying out the
    execution of Mr. Harris.

[8]

The appellant did not testify at trial. His
    position at trial focused on identity. He claimed he was not one of the two men
    who entered the barbershop. A statement he gave to the police about three weeks
    after the killing in which he denied any involvement was introduced as evidence
    at trial.

[9]

No physical evidence tied the appellant to the
    killing. However, cell phone records showed Mr. Reids phone and one of several
    cell phones the appellant was known to use were in communication shortly before
    the shooting and on several days thereafter. Both cell phones had gaps in usage
    around the time of the shooting. As noted above, the last telephone call to Mr.
    Reids cell phone before the shooting came from a cell phone the appellant had
    been known to use.

[10]

By the end of the trial, neither the Crown nor
    the appellant was taking the position Mr. Reid was the shooter. In his closing
    address, Crown counsel asserted that Mr. Reids liability for first degree
    murder arose from the fact that he aided the appellant in committing a planned
    and deliberate murder. In the alternative, the Crown asserted Mr. Reid agreed
    to participate in a robbery with the appellant, knowing the appellant was armed
    with a gun and knowing that murder was a probable consequence of their common
    unlawful purpose, thus making him guilty of second degree murder.

[11]

In his charge to the jury, the trial judge instructed
    the jury on first degree murder, second degree murder, manslaughter and party
    liability. Under the heading Parties, he explained that, in addition to
    actually committing an offence, a person can be guilty of an offence under the
    aiding (s. 21(1)(b)) or common purpose (s. 21(2)) provisions of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

[12]

When dealing with the substantive offences and
    the liability of the principal,
i.e.
, the shooter, the trial judge
    appeared to leave it open to the jury to consider whether either the appellant
    or Mr. Reid was the shooter. However, when addressing Parties (and in the
    decision trees and verdict sheet), he clarified that Mr. Reids potential
    liability arose only under the aiding or common purpose provisions of the
Criminal
    Code
.

[13]

The trial judge reviewed the bulk of the trial
    evidence (the evidence of 23 of the 27 witnesses) when dealing with causation,
    the first of the four elements of the standard charge for first degree murder
    (causation; unlawful act; intent for murder; planning and deliberation).

[14]

The appellant raises two issues on his
    conviction appeal:

i.)

the trial judge erred in failing to properly
    relate the material evidence to the issues to be determined by the jury; and

ii.)

the trial judge gave an erroneous after-the-fact
    conduct instruction.

[15]

For the reasons that follow, I would dismiss the
    appeal.

Background

(1)

The Witnesses at Trial

[16]

In total, 27 witnesses testified at trial: 25
    for the Crown; Mr. Reid on his own behalf; and Ms. Bernard on behalf of the
    appellant.

[17]

In her closing address to the jury, trial
    counsel for the appellant (not appellate counsel) divided the trial witnesses
    into five categories. I will follow trial counsels approach but provide additional
    detail.

[18]

The category one witnesses comprised what trial
    counsel referred to as the helpful, truthful, and innocent witnesses. These
    were: Tanya Harris, the deceaseds widow; Gregory Richards, a friend and former
    co-worker of the deceased who testified to Mr. Harris limited marijuana sales
    to his inner circle; and five neighbourhood witnesses.
[1]
The neighbourhood witnesses described
    various aspects of what could be observed about the incident from outside the
    barbershop, including the following:

·

two men wearing hoodies entering the barbershop;

·

the two men in hoodies and the barber emerging
    from the barbershop;

·

the barber falling to the ground after what
    appeared to be a brief tussle;

·

the two men wearing hoodies fleeing in a
    southerly direction, the larger of the two men (later acknowledged to be Mr.
    Reid) pumping his arms as he fled, the smaller man appearing to be concealing
    something under his clothing; and

·

subsequently, two other men, later identified as
    Mr. Edwards and Jevais Dunkley, emerging from the barbershop and heading north.

[19]

None of the five neighbourhood witnesses who saw
    the two men wearing hoodies enter or exit the barbershop or flee the scene
    could identify them. Nor could the surveillance video.

[20]

Trial counsel for the appellant described the category
    two witnesses as the lying manipulative witnesses who [were] only there to
    help themselves. The first of the category two witnesses was Mr. Edwards; the
    second was Mr. Dumpfrey.

[21]

Mr. Edwards testified he was sitting on a couch
    in the barbershop playing a game on his phone when the two men entered. He knew
    Mr. Reid and had met the appellant a few times. He claimed Mr. Reid approached
    him, put a gun to his side and told him not to move and to keep his head down.
    Meanwhile, the appellant approached Mr. Harris. Although Mr. Edwards had his
    head down, he was able to see that the appellant had a gun. Nothing was said; Mr.
    Harris batted at the appellants hand and ran for the door. He was shot as he
    did so.

[22]

Mr. Edwards was confronted at trial about many
    inconsistencies and potential frailties in his evidence. Although he was
    arrested as a possible suspect within hours of the shooting, he told police at
    that time that he kept his head down after seeing a gun and that he could not
    identify the assailants. While asserting that his conscience bothered him over
    the next five months, Mr. Edwards did not tell the police what he claimed he
    knew until July 2016. This occurred only after he was arrested and charged with
    multiple offences relating to automobile thefts. Following the preliminary
    inquiry in relation to these offences, he was allowed to plead guilty to a
    fraction of the charges. He was sentenced to one day in jail, based on a joint
    submission that took into account the one night Mr. Edwards spent in jail
    following his arrest and his cooperation in this matter.

[23]

Mr. Edwards acknowledged that by July 2016, he
    had heard talk on the street that the appellant was the shooter. He also
    acknowledged variations in his prior statements and evidence, including his
    evidence concerning whether the two men put on masks, where they were when he
    was able to see their faces, and what the person who approached him was
    wearing. Nonetheless, he maintained all versions of his statements and evidence
    were true.

[24]

A second witness, Mr. Dumpfrey, identified the
    appellant as the shooter and Mr. Reid as the shooters accomplice. Mr. Dumpfrey
    had a lengthy criminal record. He made an initial statement implicating the
    appellant and Mr. Reid only after being arrested for unrelated offences in May
    2016.

[25]

According to Mr. Dumpfrey, he overheard
    inculpatory statements by the appellant and Mr. Reid at a Hamilton
    house/hangout known as the office shortly after the shooting. He claimed he
    was waiting for Mr. Reid at the office to buy some weed. Mr. Abrahams arrived
    about half an hour after he arrived. About five minutes later, the appellant
    and Mr. Reid arrived. Mr. Abrahams told them they had fucked up and they were
    hot. Mr. Abrahams, the appellant, and Mr. Reid went into an adjacent room. The
    appellant suggested Mr. Abrahams had given him a broken gun. Mr. Abraham took
    the gun from the appellant, unjammed it, and told the appellant it was jammed,
    not broken. The appellant and Mr. Reid had a heated discussion. Among other
    things, Mr. Reid told the appellant it was supposed to be a robbery, and no one
    was to get killed. The appellant responded that Mr. Reid was supposed to watch
    the door; he wasnt supposed to let the guy run out of the barbershop. Mr.
    Reid answered his job was to rob everyone who was sitting in the barbershop. Mr.
    Dumpfrey also said he saw Mr. Reid give Mr. Abrahams the clothing he (Mr. Reid)
    was wearing at the time of the shooting. Police later recovered Mr. Reids
    hoodie during a search of Ms. Bernards home.

[26]

In addition, Mr. Dumpfrey testified that the
    appellant made inculpatory statements while the two shared a jail cell in July
    2016. Among other things, he said the appellant blamed Mr. Reid for causing the
    shooting because Mr. Reid failed to block the barbershop doorway. Further, he
    claimed that, at the appellants request, he invited Mr. Abrahams, who was also
    then incarcerated, to their cell. According to Mr. Dumpfrey, the appellant and
    Mr. Abrahams had a lengthy and heated conversation about what Mr. Abrahams may
    have told Ms. Bernard and, at one point, the appellant pulled out a shank and
    threatened to stab Mr. Abrahams.

[27]

Closely associated with category two, the
    category three witness, Mr. Dunkley, was what trial counsel called a reluctant
    witness. Mr. Harris was cutting Mr. Dunkleys hair while Mr. Dunkley sat in a
    barbers chair near the back of the shop when the two men wearing hoodies
    entered. At trial, Mr. Dunkley was reluctant to testify, claiming he had
    already given an account of the events. He said the perpetrators were masked,
    but he had little other recall of the event. His preliminary inquiry testimony
    was admitted on consent under
KGB
.
[2]
At the preliminary inquiry, he testified that he was facing the door when two
    masked men entered, and one stayed at the door while the other approached Mr.
    Harris. No words were spoken prior to the shooting, and it was the man who
    approached Mr. Harris who shot him.

[28]

Trial counsel described the category four
    witnesses as police, forensic, cell phone, and professional witnesses. This
    category consisted of eight police officers or police employees, one
    correctional officer, the pathologist who conducted the autopsy, two forensics
    experts who testified about the DNA and fibre evidence, and three cell phone
    company witnesses.

[29]

Although there were intervening witnesses, the
    police/corrections witnesses testified in the following order:

·

Michael Plaxton, a forensic video analyst who
    compiled the surveillance evidence presented at trial;

·

Sergeant Timothy OKeefe, the exhibits officer,
    who among other things, produced photographs of the murder scene, including
    depictions of a discharged semi-automatic cartridge, a spent bullet, and what
    he described as a probable bullet strike mark on a wall;

·

Detective Constable Tamara McGillivray, who attended
    the autopsy;

·

Detective Kwabena Saffu, who recovered Mr.
    Reids hoodie from Ms. Barnards home;

·

Sergeant Jonathyn Murphy, the lead investigator
    who testified concerning various exhibits and Mr. Edwards and the appellants
    statements to the police, and confirmed what information had or had not been told
    to Mr. Edwards and that police did not assist him in obtaining bail;

·

Anthony Veith, a jail security manager for the
    Barton Street Jail (where the appellant, Mr. Dumpfrey, and Mr. Abrahams were
    incarcerated), who testified that corrections officers would have noted it had there
    been a heated exchange involving a third person in the cell occupied by the
    appellant and Mr. Dumpfrey;

·

Officer Anthony Volpe, a firearms specialist, who
    testified that if a gun jams after the successful firing of a bullet and
    ejection of the cartridge, this indicates a failed effort to fire again;

·

Sergeant John Tselepakis, who testified about
    extracting photographs of Mr. Reid wearing a hoodie from a cell phone; and

·

Jovan Krasulja, an investigative crime analyst who
    analyzed the cell phone records produced as evidence.

[30]

The category five witnesses were the defence
    witnesses: Mr. Reid, who testified in his own defence, and Ms. Bernard, who
    testified that the hoodie police found at her house did not belong to Mr.
    Abrahams. In cross-examination she also described, among other things, various
    contacts she had with the appellant through Mr. Abrahams.

(2)

The Structure of the Trial Judges Jury Charge

[31]

The main issue raised by the appellant on appeal
    relates to the manner in which the trial judge summarized the evidence for the
    jury and related it to the issues the jury had to determine. To appreciate the
    appellants position concerning the issue, it is important to understand the
    structure of the trial judges jury charge.

[32]

In total, the trial judges charge spans
    approximately 258 pages of transcript.
[3]
As
    is customary, the trial judge gave the jury standard instructions relating to
    many general issues before turning to the elements of first degree murder. The
    standard instructions begin on p. 10 of the transcript and continue to p. 110.
    Notably, they include standard instructions with detailed examples concerning
    the following issues:

·

previous convictions of a non-accused witness
    relating to the evidence of Mr. Edwards (nine convictions), Mr. Dunkley (three
    convictions), Mr. Dumpfrey (approximately 40 convictions in addition to
    youth court findings of guilt), and Ms. Bernard (five convictions);

·

prior inconsistent statements of a non-accused
    witness, with a nine-page example relating to Mr. Edwards evidence;

·

a Vetrovec
[4]
caution,

concerning the evidence of Mr. Edwards, Mr. Dunkley, and Mr.
    Dumpfrey, spanning about nine-and-one-half pages;

·

an instruction about the dangers of eyewitness
    identification evidence, linked also to the
Vetrovec
caution,
    concerning Mr. Edwards evidence, totaling about nine pages; and

·

a caution relating to outstanding charges
    against a prosecution witness (Mr. Dumpfrey), who, at the time of trial,
    was facing charges for drug trafficking and second degree murder.

[33]

Following the standard instructions, at p. 113
    of the transcript, the trial judge turned to planned and deliberate first
    degree murder. From pp. 113 to 117, he described the offence charged against
    the appellant and Mr. Reid as set out in the indictment and the four elements
    of first degree murder (causation, unlawful act, intent for murder, and
    planning and deliberation). He framed the questions the jury had to answer as
    follows:

For you to find any of the two particular
    accused, Odain Gardner and/or Erick Reid, guilty of first degree murder, Crown
    counsel must prove each of these essential elements beyond a reasonable doubt:

(1)

that the particular accused, Odain Gardner
    and/or Erick Reid, caused the death of Neil Harris;

(2)

that the particular accused, Odain Gardner
    and/or Erick Reid, caused the death of Neil Harris unlawfully;

(3)

that the particular accused, Odain Gardner
    and/or Erick Reid had the state of mind required for murder; and

(4)

that the particular accused, Odain Gardner
    and/or Erick Reids murder of Neil Harris was both planned and deliberate.

[34]

The trial judge began his review of the evidence
    relating to the first element of first degree murder, causation, at p. 117 of
    the transcript. He began with the question of the medical cause of death and
    the evidence of the pathologist. He then reviewed the evidence of the following
    witnesses in the following order and with the headings or introductions noted
    below. Where noted, the trial judge reviewed a particular witness evidence by
    summarizing portions of the examination-in-chief, cross-examination by each
    defence counsel, and re-examination (where applicable).

Witnesses to Scene of Shooting

·

Each of the five neighbourhood witnesses in the
    order in which they testified (Ms. Mack, Mr. Lamothe, Ms. Bell, Mr. Scott, Mr.
    Thetrault): five pages in total;

·

Mr. Edwards (chief, cross, re-exam): 10 pages;
    and

·

Mr. Dunkley (chief, Crown-cross, defence cross):
    four pages.

Witnesses Post Shooting

·

Mr. Dumpfrey (chief, cross, re-exam): 10 pages;

·

lead investigator, Sergeant Murphy (chief,
    cross): three pages; and

·

jail security manager, Mr. Veith: one page.

Forensic Evidence

·

Exhibits officer, Sergeant OKeefe: one page;

·

search warrant officer, Detective Saffu: half a
    page;

·

DNA expert, Kelly Jo Walden: one page;

·

fibre collection expert, Barbara Doupe: two
    pages; and

·

firearms specialist, Officer Volpe: one page.

Cell Phone Evidence

·

Freedom Mobile security analyst, Gord Kent (Mr.
    Dumpfreys cell phone): two pages;

·

Telus Communications security analyst, Rebecca OGrady
    (Mr. Reids cell phone): one page;

·

Rogers Communications senior investigator, Danielle
    Fortier (the appellants cell phone): one-and-one-quarter pages;

·

cell phone photograph extraction officer,
    Sergeant Tselepakis: half a page; and

·

cell phone data analyst, Mr. Krasulja (chief,
    cross, re-exam): seven pages.

Evidence Solely Admissible for or Against
    Odain Gardner

·

Statements by Mr. Gardner to Mr. Dumpfrey
    (chief, cross, re-exam): four-and-one-half pages.

Evidence Solely Admissible for or Against
    Erick Reid

·

Statements by Mr. Reid to Mr. Dumpfrey (chief,
    cross): three-and-one-half pages.

Defence Evidence

·

Ms. Bernard (chief, cross, re-exam): two-and-one-half
    pages; and

·

Mr. Reid (chief, cross): 14 pages.

[35]

The trial judge completed his review of the
    evidence related to element one (causation) at the top of p. 200 of the
    transcript. Before turning to element two he gave the jury the following
    instruction, essentially telling the jury that if they were not satisfied that
    a particular accused caused Mr. Harris death, their deliberations in relation
    to that accused under this section would be over:

If you are not satisfied
    beyond a reasonable doubt that the particular accused, Odain Gardner and/or
    Erick Reid caused Neil Harris death, you must find that [
sic
] the particular accused, Odain Gardner and/or
    Erick Reid not guilty. Your deliberations would be over for that particular
    accused.

If you are satisfied beyond a reasonable doubt
    that the particular accused, Odain Gardner and/or Erick Reid caused Neil Harris
    death, you must go on to the next question with respect to that particular
    accused. [Emphasis added.]

[36]

Concerning element two, unlawful act, the trial
    judge described the unlawful act alleged as follows: Neil Harris was assaulted
    by a gunshot at a relatively close range. In his evidence review, he told the
    jury to consider the surveillance videos, the pathologists evidence concerning
    the cause of death, and the evidence summarized under element one.

[37]

Concerning element three, intent for murder, in
    addition to standard instructions explaining this element (including the common
    sense inference that a person usually knows the predictable consequences of
    their conduct and intends to bring them about), the trial judge told the jury
    to consider for both the appellant and Mr. Reid the evidence already summarized
    under elements one and two (other than the after-the-fact conduct evidence),
    and nine other listed items, one of which was evidence admissible only for or against
    Mr. Reid.

[38]

Concerning element four, planning and
    deliberation, in addition to the standard instructions, the trial judge told
    the jury to consider for both the appellant and Mr. Reid the evidence already
    summarized under elements one, two, and three (other than the after-the-fact
    conduct evidence), the short time frame during which the shooter and Mr. Reid
    were in the shop, and eight of the nine items he had listed under element
    three.

[39]

After completing his instructions on the
    elements of first degree murder,
[5]
the trial judge turned to his instructions on Parties. He explained that a
    person commits an offence if he does everything necessary to constitute the
    offence and also if he does anything for the purpose of helping another person
    to commit it. The trial judge confirmed that the Crowns position was that the
    appellant was a principal to the first degree murder of Mr. Harris, that is,
    the appellant was the shooter, and further, that Mr. Reid aided the appellant
    in that first degree murder. The trial judge also confirmed it was the position
    of the defence that neither accused had the required mental state to commit
    first or second degree murder and that neither was involved in the shooting of
    Mr. Harris. Following his discussion of aiding, the trial judge discussed
    common purpose liability under s. 21(2) of the
Criminal Code
.

[40]

Before completing his charge, the trial judge
    provided the jury with a decision tree to assist them in their deliberations.
    He explained that the decision tree addressed the appellant and Mr. Reid
    separately. The decision tree relating to Mr. Reid dealt with liability solely
    as an aider under s. 21(1) of the
Criminal Cod
e or through common
    purpose under s. 21(2). The trial judge completed his charge by setting out the
    positions of the Crown, the appellant, and Mr. Reid.

Issues

(1)

Did
    the Trial Judge Err in Failing to Properly Relate the Material  Evidence to the
    Issues to be Determined by the Jury?

(a)

Overview of the Appellants Position on Appeal

[41]

The appellant points out there are two aspects
    to a trial judges duty to assist a jury by relating the material evidence to
    the factual issues to be determined to reach a true verdict. First, the trial
    judge must distill the evidence to what is material to the issues that are
    still in play at the end of the trial. Second, the trial judge must relate the
    relevant parts of the material evidence to the particular issues to which the
    evidence relates.

[42]

In this case, by the end of the trial, the live
    issues for the two accused were distinctly different. The fundamental issue for
    the appellant was identity  was he the shooter who caused Mr. Harris death? If
    the appellant was found to be the shooter, the additional issues were whether
    he possessed a murderous intent and whether the killing was planned and
    deliberate.

[43]

On the other hand, for Mr. Reid, there was no
    issue that he was the shooter. Rather, as the person who was admittedly with
    the shooter, the issues were whether he acted as a party under either s.
    21(1)(b) or s. 21(2) of the
Criminal Code
and, if he did, whether he
    was a party to a planned and deliberate murder.

[44]

The appellant acknowledges that the trial judge
    had discretion to structure his charge as he saw fit, including by providing a
    single review of the evidence for both accused and by incorporating evidence by
    reference into his discussion where material evidence was relevant to more than
    one issue. However, the appellant submits that, in this case, the trial judge
    erred in two ways.

[45]

First, the trial judge failed to distill the
    evidence to that which was material to the live issues still in play at the end
    of the trial. Second, he erred in failing to make clear for the jury which
    parts of the material evidence were to be considered in relation to the live
    issues for each of the two accused.

[46]

The appellants submissions focus on the trial
    judges review of the evidence in relation to element one, causation. However,
    while the appellant submits that the trial judges erroneous approach to
    reviewing the evidence under element one is sufficient to warrant a new trial,
    he contends that the trial judge made further errors in his review of the
    evidence for elements two (unlawful act), three (intent for murder), and four
    (planning and deliberation). I will discuss the appellants position regarding
    each element in turn. Before doing so, I will review the general principles
    relating to appellate review of the structure of a criminal jury charge.

(b)

Appellate Review of the Structure a Criminal
    Jury Charge

[47]

In
R. v. Newton
, 2017 ONCA 496, 349
    C.C.C. (3d) 508, at paras. 11 to 13, Laskin J.A. summarized the necessary
    components of a trial judges instructions to the jury in a criminal jury
    trial. He also explained that trial judges have a broad discretion in
    structuring a jury charge; that the standard of review on appeal is adequacy,
    not perfection; and that appellate courts must adopt a functional approach in
    reviewing jury instructions that assesses the adequacy of the instructions
    against their purpose. The further question is whether the trial judges
    instructions provided the jury with a sufficient understanding of the facts as
    they related to the various issues:

In brief, trial judges have a broad discretion in how to charge
    a jury. Their decision about how much evidence to review, what structure to use
    and how to organize the charge falls within that discretion.
But, ideally, the charge should contain some
    basic components
. In addition to general instructions on the
    presumption of innocence, the burden of proof, how to assess the credibility
    and reliability of witnesses testimony and the like,
the charge on the particular case should contain the following five
    components
:

i.

the legal framework, typically the elements of the offence or
    offences with which the accused is charged;

ii.

the factual issues arising out of the legal framework that the jury
    must resolve;

iii.

the material evidence relevant to these issues;

iv.

the position of the Crown and defence on these issues; and

v.

the evidence supporting each of their
    positions on these issues
.

A charge containing these five components best enables the jury
    to appreciate the value and effect of that evidence, and how the law is to be
    applied to the facts as
they
find them
    (emphasis in original). See
Azoulay v. The Queen
,
    [1952] 2. S.C.R. 495, at p. 498.

On appeal, the standard
    of review is adequacy, not perfection. An appellate courts approach is
    functional. It assesses the adequacy of the charge in the light of its purpose
.
    Even if a trial judge strays from the ideal, the fundamental question an
    appellate court must ask is:
has the
    jury been left with a sufficient understanding of the facts as they relate to
    the relevant issues
. See
R. v. Jacquard,
[1997] 1 S.C.R. 314, at para. 14. Or,
are we satisfied that the jurors would adequately understand the
    issues involved, the law relating to the charge the accused is facing, and the
    evidence they should consider in resolving the issues
. See
R. v. Cooper
, [1993] 1 S.C.R. 146, at p. 163. If
    the answer to either question is yes, then the charge will be upheld on
    appeal, despite any imperfections. If the answer is no, then the accused will
    have been denied a fair trial and any convictions must be set aside. [Emphasis
    added.]

[48]

Particularly where, as here, trial counsel had a
    full copy of the trial judges instructions to the jury prior to making her
    closing address, the failure to object to the manner in which the trial judge
    reviewed the evidence can be of some significance on appeal:
R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 54-58;
R. v. P.J.B.
,
    2012 ONCA 730, 97 C.R. (6th) 195, at paras. 44-49.

(c)

The Trial Judges Review of the Evidence
    Relating to Element One, Causation

(i)

The Appellants Position

[49]

As I have said, by the end of the trial, causation
    boiled down to whether the Crown had proven identity beyond a reasonable doubt,
i.e.
, was the appellant the shooter? There was no live issue
    concerning the cause of death, nor did anyone take the position that Mr. Reid
    was the shooter.

[50]

However, in reviewing the evidence in relation
    to causation, the appellant submits that, with minor exceptions, the trial
    judge reviewed all of the evidence from the trial in the order in which was
    presented, much of which he claims was irrelevant to element one.

[51]

As set out above, the trial judge began by
    reviewing the pathologists evidence concerning cause of death, which was not a
    live issue. According to the appellant, the trial judge then proceeded with a witness-by-witness
    review of the remaining witnesses, essentially in the order in which they
    testified. The only witnesses omitted were the deceaseds widow, Mrs. Harris;
    the deceaseds friend, Mr. Richards, who gave evidence relevant to motive; and
    two police witnesses called to prove exhibits (Detective Constable McGillivray,
    who attended the autopsy, and Mr. Plaxton, the forensic video analyst). The
    appellant claims that the only witnesses whose evidence the trial judge
    reviewed out of order were three police witnesses who testified about
    statements they took or the operation of semi-automatic weapons.

[52]

The appellant submits that by proceeding in this
    fashion, the trial judge erred in both failing to distil the evidence to what
    was material at the end of the trial and in failing to relate material evidence
    to the issue to which it was relevant. He submits that the trial judge should
    not have reviewed the evidence of the following witnesses at all under element
    one, because they had no relevant evidence to give concerning the key issue on
    causation,
i.e.
, whether the appellant was the shooter:

·

the pathologist (cause of death);

·

the five neighbourhood witnesses (could not
    identify the shooter);

·

Mr. Dunkley (could not identify the shooter);

·

Sergeant OKeefe (forensic evidence from the
    scene);

·

Detective Saffu (seized Mr. Reids hoodie);

·

Ms. Walden (DNA evidence regarding Mr. Reid);

·

Ms. Doupe (fibre evidence regarding Mr. Reids
    hoodie);

·

Officer Volpe (firearms evidence regarding a gun
    that jams);

·

statement evidence regarding statements made by
    Mr. Reid to Mr. Dumpfrey;

·

Ms. Bernard (evidence regarding Mr. Reids
    hoodie); and

·

Mr. Reid (in his own defence).

[53]

The appellant contends that including the
    evidence of witnesses that had no relevant evidence to give concerning a
    particular issue could only have led to confusion on the part of the jury.

[54]

The appellant likens this case to
R. v. Barreira
,
    2020 ONCA 218, 62 C.R. (7th) 101, a multiple-accused first degree murder trial
    presided over by the same trial judge who presided over the appellants trial.
    The appellant submits the trial judge used essentially the same methodology to
    review the evidence in this case as he did in
Barreira
. This court
    described the trial judges approach in
Barreira
, at para. 28, and
    ultimately set aside the first degree murder convictions of the alleged
    principal and two parties, at para. 28:

[T]he trial judge
    proceeded [under Element 1] to review the evidence of each and every witness at
    the trial
, over 145 pages of transcript.
The trial judge did not make any effort to relate any of this
    evidence to particular elements of the offence or to particular issues raised
.
    Instead, the trial judge simply repeated the evidence from start to finish.
    [Emphasis added.]

[55]

The appellant also relies on this courts
    comments in
Newton
, at paras. 15 and 16, another murder case from the
    same jurisdiction (but presided over by a different trial judge), in which this
    court quashed the convictions and ordered a new trial:

A witness by witness
    recitation of the evidence is almost always ineffective
. It is ineffective for at least two reasons. First
the recitation tends to be unnecessarily detailed
, as
    was the trial judges recitation. When a trial judge simply recites all the
    evidence of each witness, instead of trying to distill it for the jury, the
    jurors will naturally have difficulty processing what evidence is important and
    what evidence is not.

The second and most important reason a witness
    by witness recitation is ineffective is that
the summary
    of the evidence bears no relationship whatsoever to the issues in dispute
.
    We are not court reporters.
The evidence at trial has to
    be organized for the jury according to its relevance to the issues. Otherwise
    the jury will not appreciate its significance.
[Emphasis added.]

(ii)

Discussion

[56]

On the facts of this case, I am not satisfied that
    the trial judge committed reversible error by reviewing the bulk of the trial
    evidence when addressing causation, the first of the four elements of first
    degree murder. Nor am I satisfied that the trial judges review of the evidence
    under element one was simply a holus bolus regurgitation of virtually the whole
    of the trial evidence, unrelated to the issues presented to the jury, which
    would have left them with an insufficient understanding of the evidence as it
    related to those issues.

[57]

The trial judge presented the case to the jury
    as if either the appellant or Mr. Reid was a potential principal,
i.e.,
the shooter. In oral argument on appeal, the Crown acknowledged that it would
    have been preferable had the trial judge not done so but argued that the
    appellant was not prejudiced in the result. I agree. In my view, the trial
    judge overcomplicated his instructions by proceeding in this fashion.
    Nonetheless, on the facts of this case, the issues relating to whether the
    appellant was the shooter were obvious and the trial judge reviewed the
    evidence relating to those issues repeatedly. Further, it would have obvious to
    the jury what evidence reviewed under element one related to Mr. Reid.

[58]

The contentious issue vis-à-vis the appellant
    under element one was identity. In the context of this case, the identity issue
    boiled down to questions of credibility and an assessment of the cell phone
    evidence.

[59]

Two witnesses identified the appellant as the
    shooter. Both knew him. One, Mr. Edwards, was present when the shooting took
    place. He initially told the police he could not identify the assailants, but
    changed his story following his arrest on serious charges. The other witness,
    Mr. Dumpfrey, claimed to have seen the appellant and Mr. Reid arrive at the
    office shortly after the shooting, to have seen the appellant with a gun, and
    to have heard both the appellant and Mr. Reid make inculpatory statements at
    that location. He also claimed to have heard the appellant make additional
    inculpatory statements when the two were subsequently incarcerated. The
    credibility of Mr. Edwards and Mr. Dumpfrey was thus central to the issue of
    the identity of the shooter.

[60]

The cell phone evidence was also central to the
    Crowns case concerning the identity of the shooter. On one interpretation of
    the evidence, Mr. Reid acknowledged in his evidence that the last telephone
    call he received on his cell phone before the shooting  being the call he
    received at approximately 4:06 p.m. on February 18, 2016  was from the
    shooter. Cell phone records demonstrated that this call came from a cell phone
    with which the appellant was known to be associated.

[61]

In my view, considering the trial judges charge
    as a whole, I am satisfied the jury would have understood that the central
    issues relating to whether the appellant was the shooter were the credibility
    of Mr. Edwards and Mr. Dumpfrey and the assessment of the cell phone evidence.

[62]

The jury would also have appreciated the
    frailties in Mr. Edwards and Mr. Dumpfreys evidence and the caution they
    were required to exercise in evaluating that evidence. The trial judge
    cautioned the jury repeatedly concerning the frailties in Mr. Edwards and Mr.
    Dumpfreys evidence, both in his
Vetrovec
caution and in his
    instructions on the following matters: previous criminal records of non-accused
    witnesses; prior inconsistent statements; eyewitness identification evidence;
    and outstanding charges against a non-accused witness.

[63]

As set out above, the trial judge organized his
    recitation of the evidence under headings or introductions, such as the
    following:

·

Medical Cause of Death;

·

Witnesses to Scene of Shooting;

·

Witnesses Post Shooting;

·

Forensic Evidence;

·

Cell Phone Evidence;

·

Evidence Solely Admissible for or Against Odain
    Gardner (statements to Mr. Dumpfrey);

·

Evidence Solely Admissible for or Against Erick
    Reid (statements to Mr. Dumpfrey); and

·

Defence Evidence.

[64]

Much of this evidence followed the sequence in
    which the witnesses testified at trial. However, contrary to the appellants
    submissions, in my view, the trial judge organized the evidence in an
    intelligible manner, which would have allowed the jury to appreciate what
    issues each witness evidence pertained to: the medical cause of death; whether
    the appellant was the shooter and the reliability and credibility of the
    witnesses who claimed that he was; Mr. Reids participation in the shooting and
    how his evidence reflected on the reliability and credibility of the
    identification witnesses; and the impact of the cell phone evidence.

[65]

The fact that the medical cause of death was not
    a contentious issue by the end of the trial does not mean the trial judge erred
    in reviewing the pathologists evidence under element one. Cause of death was
    not conceded. Moreover, the pathologists evidence about lack of stippling
    demonstrated that the shooter and the barber were at least one metre apart,
    potentially supporting Mr. Edwards evidence that Mr. Harris tried to run away.

[66]

The evidence of the scene witnesses who could
    not identify the assailants, including Mr. Dunkley, nonetheless provided
    context for the jury to evaluate the reliability and credibility of Mr.
    Edwards evidence. Some, including Mr. Dunkley, testified about whether they
    saw masks. Some testified about what they heard or saw Mr. Edwards say or do as
    he exited the barbershop. This provided not only a backdrop from which the jury
    could evaluate Mr. Edwards evidence, but also evidence relevant to specific
    aspects of his evidence. Moreover, the very fact that these witnesses could not
    identify the assailants was relevant to the question whether identity had been
    proven.

[67]

The two post-shooting witnesses whose evidence
    the trial judge reviewed in addition to Mr. Dumpfreys (Sergeant Murphy and Mr.
    Veith), provided context for the jury to evaluate the reliability and
    credibility of the identification witnesses. The review of Sergeant Murphys
    evidence related primarily to the police contact with Mr. Edwards and what, if
    any, information or help they gave him. The review of Mr. Veiths evidence
    cast suspicion on Mr. Dumpfreys evidence concerning the appellants
    interaction with Mr. Abrahams while in jail.

[68]

I agree that most of the witnesses evidence
    that the trial judge reviewed under the heading Forensic Evidence pertained
    to identifying Mr. Reid, a matter not in issue by the end of the trial.
    However, that that evidence pertained solely to identifying Mr. Reid as a possible
    shooter would have been obvious to the jury. I fail to see how it could have
    confused them when, at least in this segment of his charge, the trial judge was
    treating Mr. Reid as a possible shooter. Sergeant OKeefes evidence, also
    reviewed under the Forensic Evidence heading, once again provided the jury
    with context in which to evaluate the reliability and credibility of both Mr.
    Edwards and Mr. Dumpfreys evidence. Sergeant OKeefe provided photographs of
    the scene and gave evidence about finding a cartridge case and probable bullet
    strike mark at the scene. This evidence was relevant to Mr. Edwards evidence
    concerning how events unfolded (thus his credibility) and to Mr. Dumpfreys
    evidence about the gun jamming.

[69]

The appellant does not contest the propriety of
    the trial judge reviewing the evidence of the cell phone witnesses, save for
    Sergeant Tselepakis, who extracted a photograph of Mr. Reid wearing a
    particular garment from a cell phone. Once again, I am confident the jury would
    have easily understood that this evidence related to the identification of Mr.
    Reid, and that it did not prejudice the appellant.

[70]

As for the evidence the trial judge reviewed
    under the headings Evidence Solely Admissible for or Against Erick Reid and
    Statements Made by Erick Reid to Justin Dumpfrey, this evidence related to
    statements Mr. Reid allegedly made to Mr. Dumpfrey two days after the shooting,
    when Mr. Dumpfrey again met Mr. Reid to buy weed. The alleged statements
    included assertions that the appellant fucked up Mr. Reids life, that the
    shooting was not supposed to happen, and that Mr. Reid felt the murder was a
    hit based on someone paying the appellant to do it. Undoubtedly, the trial
    judge reviewed this evidence because, in this section of the charge, he treated
    Mr. Reid as a potential principal to the offence of first degree murder. Once
    again, I acknowledge that it would have been preferable had the trial judge not
    done so. However, I reiterate that given the manner in which the trial judge
    structured his charge, I am confident the jury would have understood this
    evidence related solely to Mr. Reids participation and, equally important,
    that this evidence was not admissible against the appellant.

[71]

As for the defence evidence reviewed under
    element one, in addition to treating Mr. Reid as a potential principal in this
    section of the charge, I conclude it was open to the trial judge to review Mr.
    Reids evidence to provide a context for the jury to assess the reliability and
    credibility of Mr. Edwards and Mr. Dumpfreys evidence, specifically as it
    related to the shooting and events immediately preceding and following it. Ms.
    Bernards evidence went primarily to the identification of Mr. Reid. However,
    she was also cross-examined by the Crown and gave evidence relevant to the cell
    phone number used by the appellant.

[72]

Reviewing the charge as a whole, I am satisfied
    that the jury would have understood that the issues relating to the appellants
    identity as the shooter centred on the credibility of Mr. Edwards and Mr.
    Dumpfrey and an assessment of the cell phone evidence. I am also satisfied that
    the jury would have understood that they were required to determine those
    issues, not by examining that evidence in isolation, but by examining it in the
    context of the evidence of other witnesses who gave evidence relevant to it. I
    am not satisfied the jury would have been confused by the evidence relating to
    the identification of Mr. Reid. The trial judge charged the jury as if Mr. Reid
    was a potential principal to the offence of first degree murder,
i.e.
,
    the shooter. It would have been obvious to the jury that evidence relevant to
    his identity pertained to that issue.

[73]

In my view, this case is distinguishable from
    this courts decisions in both
Barreira
and
Newton
, on which
    the appellant relies.

[74]

Unlike this case, in
Barreira
, the
    shooter admitted through counsel that he was the person who shot the deceased.
    He took the position that he had done so instinctively as a reaction to the
    deceased punching him. The remaining defendants admitted through counsel to
    being present at the shooting, but denied they were parties to it. In
Barreira
,
    the trial judge reviewed the evidence of
all
the
    witnesses at trial in the order in which they testified under element one of
    first degree murder (causation). However, in
Barreira
neither
    causation nor identity were in issue. Concerning intent for murder and planning
    and deliberation  the two live issues at the trial for the shooter  this
    court plainly found the trial judges evidentiary review inadequate. In
    relation to intent for murder, the trial judge told the jury only to consider
    the evidence already summarized and then made brief reference to the issue of
    intoxication and one reference to a piece of post-offence conduct: at para.
    34. After setting out the evidence the trial judge reviewed under element four,
    planning and deliberation, this court said, at para. 35: None of this had any
    potential to assist the jury in terms of the issues they had to decide.

[75]

In
Newton
, again the shooter admitted
    his identity, but asserted the murder was not planned and deliberate and also
    claimed he lacked the intent for murder, as he had just been shooting randomly.
    This court noted that the trial judge reviewed the evidence of most of the
    witnesses who testified but did so by reading her notes of their evidence,
    roughly in the order each witness gave evidence. This court stated, at para.
    20, in part:

The issues were numerous and some were
    difficult. [The shooters] main defence was that he did not plan and deliberate
    on the killing so he should not be found guilty of first degree murder.
A considerable amount of evidence was relevant to the issue of
    planning and deliberation
.
The jury needed help to
    assess this evidence. Unfortunately, the trial judge did not help it to do so.
[
The shooters] secondary position
was that he
    lacked the
mens rea
or mental state for murder
he was just stupidly firing bullets to scare [one of the
    victims]. Again the trial judge did not discuss the evidence bearing on that
    issue
. [Emphasis added.]

[76]

In this case, the trial judge conducted the bulk
    of his evidentiary review in relation to the main issue for the shooter,
i.e.
,
    his identity. Again, I agree that it would have been preferable had the trial
    judge not referred to Mr. Reid as a potential principal to first degree murder
    and not reviewed the evidence relating to Mr. Reids identification under
    element one, or under the remaining elements of first degree murder. That said,
    there was no objection to the trial judges approach in that respect, and
    having reviewed the charge as a whole, I am satisfied that the jury would have
    understood the issues relating to the shooters identity and the evidence they
    had to consider in determining those issues.

[77]

The instructions concerning element one were not
    perfect. By instructing the jury as if Mr. Reid were a potential shooter and
    then taking that option away, the trial judge made his instructions to the jury
    more complicated than was necessary. However, taking a functional approach to
    these instructions, I conclude they were adequate in the circumstances of this
    case, where the issues concerning whether the appellant or Mr. Reid was the
    shooter and the evidence relevant to those issues were obvious. Adequacy is the
    standard to be met.

(d)

The Trial Judges Review of the Evidence
    Relating to Element Two, Unlawful Act

(i)

The Appellants Position

[78]

Under element two, unlawful act, the trial judge
    instructed the jury to consider the surveillance recordings, the pathology
    evidence, and the evidence that he had already summarized under element one.

[79]

The appellant submits that this approach was
    both unnecessary and wrong. It was unnecessary because the question whether Mr.
    Harris was killed unlawfully was not a live issue by the end of the trial. It
    was wrong because much of the evidence summarized under element one was
    irrelevant to the question whether the homicide was unlawful. Although the
    appellant acknowledges that this instruction caused him no harm, he submits
    that it demonstrates the continuation of the trial judges erroneous approach.

(ii)

Discussion

[80]

I agree with the appellant that he was not
    prejudiced by the manner in which the trial judge reviewed the evidence
    relating to element two. While the issue was not conceded, no issue was raised
    at trial that shooting Mr. Harris was somehow lawful. However, the evidentiary
    review consisted of only three paragraphs and focused on the pathologists
    evidence of the gunshot wound Mr. Harris suffered. The trial judges remaining
    instructions to consider the circumstances of each accused, the nature of the
    act alleged, anything said around the time of the incident, the surveillance
    evidence, and the evidence reviewed under element one, were in accordance with
    standard instructions that a jury should not consider evidence in isolation and
    should bear in mind the whole of the evidence.

(e)

The Trial Judges Review of the Evidence
    Relating to Element Three, Intent for Murder

(i)

The
    Appellants Position

[81]

Concerning
    element three, intent for murder, after setting out the standard instructions,
    the trial judge instructed the jury to consider, with respect to both the
    appellant and Mr. Reid, the evidence he had already summarized under elements one
    and two (other than the after-the-fact conduct evidence) and nine other listed
    items, including Mr. Reids evidence that his only purpose in going to the
    barbershop was to buy weed and possibly get a haircut. The appellant contends
    that the trial judge committed reversible error by proceeding in this way.

[82]

As
    a starting point, the appellant argues that much of the evidence summarized
    under element one was irrelevant to the shooters intent. More importantly,
    since no one took the position Mr. Reid was the shooter, the issue concerning
    his intention had to be dealt with when addressing party liability. The
    requisite intent for a party under ss. 21(1)(b) or 21(2) and a principal is different.
    Accordingly, it was an error to identify Mr. Reids intention as an issue in this
    section of the charge and review evidence relevant to his intention. The
    appellant submits this was not a harmless error vis-à-vis him because evidence
    relevant to Mr. Reids intent was not material to the intent of the shooter.

[83]

Finally,
    the trial judges erroneous approach to reviewing the evidence relevant to
    element three was compounded by his use of and/or language.
Overall,
    the trial judge used the phrase and/or 23 times when discussing this element.
    Use of this language was improper and could only have increased the potential
    for the jury to use irrelevant evidence to assess the shooters intention:
R.
    v. Josipovic
, 2019 ONCA 633, 147 O.R. (3d) 346, at paras. 46-58.

(ii)

Discussion

[84]

Concerning element three, intent for murder, the
    focus of the appellants complaints is on the trial judges review of the
    evidence relating to Mr. Reids intent and the trial judges use of and/or
    language in relation to the appellant and Mr. Reid. The appellant submits
    this created a risk the jury would have relied on evidence irrelevant to his
    intent to decide whether he had the intent for murder.

[85]

I would not accept these submissions. As I have
    said, I agree the trial judge overcomplicated the charge by including Mr. Reid
    in his instructions concerning a principals liability for first degree murder.
    However, overall, I am not satisfied the appellant was prejudiced by this
    approach.

[86]

The trial judge began this section of his charge
    with the following instruction:

Did the particular accused, Odain Gardner
    and/or Erick Reid have the state of mind required for murder?

[87]

He repeated the and/or language throughout his
    discussion of the intent issue (and throughout his discussion of the liability
    of a principal for first degree murder).

[88]

As I have said, in my view, it would have been
    obvious to the jury that in the section of his charge dealing with the
    liability of a principal for first degree murder, the trial judge was treating
    both the appellant and Mr. Reid as a potential principal,
i.e.
as a
    possible shooter. By the time the jury reached element three of first degree
    murder, they would have determined that the appellant was the shooter and it
    would have been obvious to them that evidence relating to Mr. Reids intent was
    not relevant to that issue. As this court explained in
Josipovic
, at
    para. 44, and/or language is not in and of itself improper. Jury instructions
    must be evaluated by reference to the overall meaning conveyed, having regard
    to the context of the evidence and the trial as a whole: at para. 44.

[89]

The appellant also submits that the trial
    judges instruction to consider the evidence reviewed under elements one and
    two (save for the after-the-fact conduct evidence previously discussed) was
    simply wrong. Much, if not all, of such evidence was irrelevant to the issue of
    the shooters intention.

[90]

I would not accept this submission. The trial
    judge highlighted for the jury evidence that was specifically relevant to the
    intent of the shooter. I am not persuaded the jury would have been confused by
    references to additional evidence.

[91]

Under the heading Evidence Admissible for or Against
    Both Accused, in addition to his instructions to consider the evidence already
    reviewed under elements one and two (apart from the after-the-fact conduct
    evidence), the trial judge instructed the jury to consider the following
    evidence admissible for or against both accused:

·

the surveillance videos, phone records, and
    contact by the various accused prior to the shooting;

·

Mr. Edwards evidence that upon entering the
    barbershop Mr. Reid shoved a gun in his side while the appellant pulled a gun
    on Mr. Harris who slapped at the gun and ran  the appellant then shot Mr.
    Harris and both accused ran away;

·

Mr. Dunkleys evidence that one of the two
    masked men who entered the barbershop approached him and H, there was a
    moment of silence, no words were exchanged, the barber just ran and got shot;

·

Mr. Dumpfreys evidence that he overheard an
    argument between the appellant and Mr. Reid at the office in which each blamed
    the other for the shooting;

·

the forensic evidence demonstrating the hoodie
    recovered by police contained Mr. Reids DNA and that fibres from that hoodie
    were indistinguishable from fibres found on the undershirt Mr. Harris was
    wearing when he was shot;

·

Officer Volpes evidence that a jammed gun after
    a successful first shot indicates a failed attempt to fire another shot; and

·

Mr. Reids evidence that his only purpose in
    going to the barbershop was to buy weed and possibly get a haircut, that he was
    not involved in any plan to rob or shoot Mr. Harris, and that he did not know
    the shooter had a gun or that he would use it to shoot Mr. Harris.

[92]

Concerning the appellant, the trial judge also
    instructed the jury to consider Mr. Dumpfreys evidence that, while the two
    were in jail, the appellant told Mr. Dumpfrey that he blamed Mr. Reid for
    the shooting and said the shooting would not have been necessary had Mr. Reid
    done his job.

[93]

I acknowledge that much of the evidence reviewed
    under elements one and two and the forensic evidence identifying Mr. Reid would
    not have been relevant to the shooters intent and that the surveillance
    evidence would have had marginal, if any, relevance to that issue. However, the
    remaining items specifically reviewed by the trial judge, as well as the
    pathologists evidence, Mr. Dumpfreys evidence about the jammed gun, and the
    exhibit officers evidence relating to the scene of the crime, would have been
    very relevant to that issue.

[94]

Given the specific items of evidence that the
    trial judge did review, I see little likelihood that the jury would have been
    in any way confused about the evidence that was relevant to this issue. In
    other words, given that the trial judge specifically reviewed evidence relevant
    to determining the issue of intent, I am not convinced the jury would have been
    confused by an instruction to bear in mind the whole of the evidence.

[95]

Finally, I observe that on the facts of this
    case, the question of the shooters intent was barely, if at all, a live issue.
    Mr. Harris was shot in the chest at relatively close range. While not conceding
    intent, appellants counsel did not raise any issues in her closing suggesting
    how the jury might find a reasonable doubt concerning at least the secondary
    intent for murder.

(f)

The Trial Judges Review of the Evidence
    Relating to Element Four, Planning and Deliberation

(i)

The Appellants Position

[96]

Concerning element four, after explaining the
    concepts of planning and deliberation, the trial judge instructed the jury to
    consider the evidence he had summarized under elements one to three (other than
    the after-the-fact conduct), the short time frame during which Mr. Reid and the
    shooter were in the barbershop, and eight of the nine items he had listed under
    element three. Once again, the appellant submits that the instruction to
    consider the evidence summarized under element one was an error because much of
    that evidence was irrelevant to planning and deliberation. Moreover, use of the
    and/or language under this element improperly suggested either that Mr. Reid
    and the shooter had both committed a planned and deliberate murder, or that at
    least one of them had done so.

(ii)

Discussion

[97]

I would not accept these submissions. The
    specific items of evidence the trial judge did review were very relevant to the
    question of planning and deliberation and would have provided the jury with a
    clear understanding of the type of evidence that was relevant to that issue.

[98]

The appellants specific objection to the trial
    judges use of and/or language under this heading is that the 15 times the
    trial judge used such language in this section of the charge may have misled
    the jury into thinking either both (the and of the phrase) or at least one of
    them (the or of the phrase) committed a planned and deliberate murder. In
    other words, the jury may have understood they were required to find at least
    one of the accused committed a planned and deliberate murder.

[99]

However, the trial judges opening statement to
    the jury under this heading reads:

Was the particular accused, Odain Gardner
    and/or Erick Reids murder of Neil Harris both planned and deliberate?

[100]

Nothing about this question suggests at least one of the named
    accused must have committed a planned and deliberate murder. In any event, the
    trial judge closed his instructions on this issue with the following
    statements:

If you are not satisfied
    beyond a reasonable doubt that the murder of Neil Harris was both planned and
    deliberate, you must find the particular accused, Odain Gardner and/or Erick
    Reid not guilty
of first degree murder, but
    guilty of second degree murder.

If you are satisfied beyond a reasonable doubt
    that the murder of Neil Harris was both planned and deliberate, you must find
    the particular accused, Odain Gardner and/or Erick Reid guilty of first degree
    murder. [Emphasis added.]

[101]

In my view, the first of these statements made it clear that the
    central question was whether the murder was planned and deliberate. If it was
    not, the jury was required to find whichever person they were considering not
    guilty of first degree murder.

(2)

Did the Trial Judge Err by Giving an Erroneous
    After-the-Fact Conduct Instruction?

(a)

The Appellants
    Position

[102]

In his factum, the appellant submitted that two aspects of the trial
    judges after-the-fact conduct instruction amounted to reversible error: i) the
    Flight from the Scene instruction; and ii) the Lies to the Police
    instruction. In oral argument, the appellant abandoned his argument about the lies
    to the police instruction. However, he maintained his position that, vis-à-vis
    him, the trial judge erred in his after-the-fact conduct instruction concerning
    flight from the police.

[103]

As part of his after-the-fact conduct instructions, the trial judge
    told the jury they could find that any, all or some of the accuseds flight
    from the scene was circumstantial evidence that an accused was a participant
    to the unlawful act of shooting Neil Harris. The appellant acknowledges that
    this instruction was correct concerning Mr. Reid: his flight from the scene was
    some evidence that he was not an innocent dupe but rather a knowing participant
    in the shooting. However, the appellant submits that the instruction was not
    correct vis-à-vis him. Only if the jury found that the appellant was the
    shooter could they then find that he fled from the police because he was
    conscious of being a participant in the shooting  and only then could they
    consider his flight as circumstantial evidence that he was the shooter. Since
    the jury had to find the appellant was the shooter before it could use his
    flight as circumstantial evidence that he was the shooter, vis-à-vis him, the
    instruction was wrong. Such circular or tautological reasoning is improper: see
R. v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras.
    141-43, leave to appeal refused, [2010] S.C.C.A. No. 499.

[104]

The appellant submits that this ground, standing alone, constitutes
    reversible error warranting a new trial.

(b)

Discussion

[105]

I would not accept this submission.

[106]

The impugned instruction from
Hall
reads as follows:

If you do not or cannot find that Carl Hall
    did or said those things because he was conscious of having done what is
    alleged against him, you must not use this evidence in deciding or helping you
    decide that Carl Hall committed the offence charged. On the other hand, if you
    find that anything Carl Hall did or said afterwards was
because he was conscious of having done what is alleged against him
, you
    may consider this evidence together with all of the other evidence in reaching
    your verdict. [Emphasis added.]

[107]

This courts concern in
Hall
was that the jury was invited
    to jump directly to the issue of guilt as a precondition to deciding the use
    they would make of the after-the-fact conduct. Nonetheless, in
Hall
,
    this court found that this flaw in the instructions, standing alone, did not
    constitute reversible error.

[108]

In this case, the trial judge did not use the impugned language from
Hall
. Instead, prior to giving the instruction with which the
    appellant takes issue, the trial judge told the jury that before they used the
    after-the-fact conduct evidence for any purpose, they first had to decide if
    the appellant (or Mr. Reid) had engaged in the conduct alleged:

You may find it helpful to approach this
    evidence of what the accused are alleged to have said or done afterwards in two
    steps.

The first step requires you to decide whether
    any of the accused actually did or said what he is alleged to have said or done
    after the offence was committed.

If you find that a particular accused did not
    do or say what he is alleged to have done or said after the offence was
    committed, you must not consider this evidence in reaching or helping you reach
    your verdict.

[109]

These instructions would have made it clear to the jury that to
    consider the appellants flight from the scene as after-the-fact conduct, they
    first had to conclude that he was one of the men seen fleeing in a southerly
    direction immediately after the shooting. The subsequent instruction that, if
    they were so satisfied, they could use the after-the-fact conduct evidence to
    find the appellant was a participant in the shooting, may have been both unnecessary
    and circular, but it did not prejudice the appellant. In any event, as
Hall
makes clear, such an instruction, standing alone, does not constitute
    reversible error.

Disposition

[110]

Based on the foregoing reasons, I would dismiss the appeal.

Released: July 27, 2021 J.S.

Janet
    Simmons J.A.

I
    agree. E.E. Gillese J.A.

I
    agree. Grant Huscroft J.A.

[1]
The five neighbourhood witnesses were: Melody Mack, Daniel Lamothe,
    Shirley Bell, Paul Scott, and Adam Thetrault.

[2]

R. v. B.(K.G.)
, [1993] 1 S.C.R. 740.

[3]
The charge begins at p. 10 of the transcript of proceedings for May
    15 and 16, 2018 and ends on p. 268. There were various breaks during the course
    of the charge and comments by counsel on at least one occasion.

[4]

Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.

[5]
The trial judge addressed second degree murder and manslaughter as
    part of this discussion.


COURT
    OF APPEAL FOR ONTARIO

CITATION: Charlesfort Developments Limited
    v. Ottawa (City), 2021 ONCA 542

DATE: 20210726

DOCKET: C67355

Doherty,
    Nordheimer and Harvison Young JJ.A.

BETWEEN

Charlesfort
    Developments Limited

Plaintiff (Respondent)

and

The
    Corporation of the City of Ottawa

Defendant (Appellant)

Alyssa Tomkins and Anne
    Tardif, for the appellant

Timothy J. Hill and Mark van
    Zandvoort, for the respondent

Heard: in writing

On appeal
    from the judgment of Justice Sally A. Gomery of the Superior Court of Justice,
    dated July 24, 2019, with reasons reported at 2019 ONSC 4460.

COSTS ENDORSEMENT

[1]

On June 11, 2021, we released our decision in
    which we allowed the appeal in this matter and dismissed the respondents
    action. We invited written submissions regarding the costs of the appeal and of
    the proceeding below.

[2]

We have now received and reviewed the written
    submissions of the parties. The respondent does not dispute the amount sought
    for the costs of the appeal in the amount of $54,390.06, inclusive of
    disbursements and HST. The respondent also does not dispute the fees sought for
    the proceeding below in the amount of $258,071.53 plus HST. Where the
    respondent does take issue is with respect to the amount of $566,620.01 sought
    by the appellant as disbursements for the proceeding below.

[3]

The single largest component of the
    disbursements sought is the amount of $478,860.28 for the fees of Deloitte
    & Touche, who were experts retained by the appellant. The respondent
    submits that these fees are not properly supported by the material filed and
    are, in any event, excessive. The first complaint was largely addressed when
    the appellant subsequently filed additional support for those fees.

[4]

The fees of experts are subject to a
    reasonableness test, just as are the fees of counsel. The fees of experts are
    not, however, subject to further reduction based on the distinction between
    substantial indemnity costs and partial indemnity costs:

3664902 Canada
    Inc. v. Hudson's Bay Co. (c.o.b. Bay Department Stores)
,
(2003), 169 O.A.C.
    283, at para. 17. Put another way, the fact that a party may have paid its
    expert an exorbitant fee for their services does not mean that the other party
    must pay that amount. The other party must only pay what the court views as
    reasonable for the services provided:
Yip v. HSBC Holdings plc
, 2018
    ONCA 626, 141 O.R. (3d) 641, at paras. 89, 91.

[5]

In considering the reasonableness of the expert
    fees, we have taken into account the complexity of this matter as well as the fact
    that the appellant was facing a multi-million dollar claim which could also
    have had precedential impact, if sustained. We are also aware that the expert
    fees, while emanating from one firm, actually comprised four experts within
    their account. In the end result, none of the experts gave evidence because the
    parties were able to come to a partial agreement on damages that obviated the
    need to call the experts. Among other things, the agreement meant that the
    trial judge was not called to determine if the appellant would be given leave
    to call more than three experts:
Evidence Act
, R.S.O. 1990, c. E.23,
    s. 12.

[6]

That said, a party is entitled to be paid appropriate
    amounts for expert reports reasonably necessary for the conduct of the
    proceeding, regardless of whether the expert is called to give evidence:
Harding
    v. First Associates Investments Inc.
,
[2003] O.J. No. 4652, at
    para. 49. We agree with that principle. The mere fact that the expert is not
    called does not mean that the expert report did not contribute to the
    advancement, or defence, of the claim. Indeed, an expert report may help
    resolve certain issues in the proceeding and thus promote settlement, or at
    least reduce the issues for trial. Indeed, that appears to have been what
    happened in this case.

[7]

Nonetheless, the fact that the expert was not
    called to give evidence is a factor that ought to be taken into account in
    determining the reasonableness of the overall fees charged.

[8]

We view the fees charged by Deloitte &
    Touche to be more than is reasonable for the other party to bear. We reach that
    conclusion, in part, by noting that the expert fees allowed to the respondent by
    the trial judge were about half what the appellant now claims. We also contrast
    the amount of fees charged by the experts to the fees to which counsel are
    entitled. While we recognize that the expert fees are, in essence, on a full
    indemnity basis whereas counsel fees are on a partial indemnity basis, the size
    differential is still noticeable. On that point, counsel must, of course, deal
    with all aspects of the claim whereas the experts tasks are more narrowly
    confined.

[9]

In the result, we award the appellant the costs
    of the appeal fixed at $54,390.06, inclusive of disbursements and HST. We award
    the appellant the costs of the proceeding below fixed at $700,000, inclusive of
    disbursements and HST.

Doherty
    J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.