COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bedzra, 2015 ONCA 254

DATE: 20150414

DOCKET: C58195

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Evans Bedzra

Respondent

Susan Magotiaux, for the appellant

John Hale, for the respondent

Heard: March 27, 2015

On appeal from the sentence imposed by Justice Robert N. Fournier
    of the Ontario Court of Justice, dated December 20, 2013.

ENDORSEMENT

[1]

The respondent was convicted of thirty-six offences in relation to two
    domestic partners. His convictions included numerous assault offences, some of
    which were with a weapon. One conviction was for assault causing bodily harm.
    He was also convicted of several counts of criminal harassment, breach of
    probation, and mischief.  We note, in particular that the respondent assaulted
    his victims while they were pregnant with his child  he punched one in the
    stomach and threw a plate at the other.

[2]

The trial judge sentenced the respondent to a term of imprisonment of three
    years less one day. He credited the respondent with one year for his pre-trial
    custody leaving him to serve a sentence of two years less one day. The
    respondent had been held in custody for 133 days before being released on bail,
    17 of which were in lockdown. On being granted bail, he was on strict house
    arrest for approximately one year.

[3]

On this Crown appeal from sentence, the respondent properly conceded
    that the record does not support the trial judges finding that the
    respondents
Charter
rights were infringed when he was first denied
    bail, and that it was an error for the trial judge to grant credit of one year for
    133 days of pre-sentence custody, even if 17 days of that had been spent in lockdown.
    Despite these errors, the respondent submits that the overall sentence is fit.

[4]

On March 27, 2015 we granted the Crown leave to appeal and allowed the
    appeal. At that time, we set aside the respondents sentence and substituted
    the following sentence. We concluded that a fit sentence in all the
    circumstances is a sentence of 4.5 years imprisonment, less 199.5 days credit
    for pre-sentence custody. This leaves the respondent with a net sentence of 47.35
    months imprisonment. In addition, we made an order under s. 743.21(1) of the
Criminal
    Code
during the custodial portion of the sentence.

[5]

The sentence of imprisonment is to be apportioned as follows:

1.       Count 4  Assault: 9 months in
    prison

2.       Count 31  Assault: 9 months
consecutive

3.       Count 35  Assault Bodily
    Harm: 9 months
consecutive

4.       Count 38  Assault: 4.5 months
consecutive

5.       Count 41  Assault: 3 months
consecutive

6.       Count 1  Assault with a
    Weapon: 1.5 months
consecutive

7.       Count 8  Criminal Harassment: 4.5 months
consecutive

8.       Count 29  Criminal Harassment: 9 months
consecutive

9.       Count 44  Criminal Harassment: 4.5 months
consecutive

10.     Count 2  Assault with a Weapon: 0.75 months       concurrent

11.     Count 3  Assault with a Weapon: 0.75 months       concurrent

12.     Count 17  Criminal Harassment: 9 months   concurrent

13.     Count 39  Criminal Harassment: 6 months   concurrent

14.     Count 42  Criminal Harassment: 9 months   concurrent

15.     Count 7  Assault: 0.75 months concurrent

16.     Count 10  Assault: 0.75 months concurrent

17.     Count 12  Assault: 4.5 months concurrent

18.     Count 15  Assault with a Weapon: 1.5 months       concurrent

19.     Count 18  Mischief: 1.5
days
concurrent

20.     Count 21  Assault: 0.75 months concurrent

21.     Count 24  Assault: 2.25 months concurrent

22.     Count 26  Assault with a Weapon: 0.75 months     concurrent

23.     Count 28  Assault: 4.5 months concurrent

24.     Counts 6, 9, 11, 19, 23, 25, 27, 30, 32, 36, 40, 43,   45
     Breach of Probation: 0.75 months each     concurrent

[6]

We advised that reasons for our decision would follow; they are set out
    below.

[7]

The offences committed by the respondent were very serious. They were
    carried out over a lengthy period of time. They included 16 counts of assault
    consisting of hitting, kicking, slapping and throwing things at two of his domestic
    partners. He assaulted them when they were pregnant and when he felt they did
    not give him enough attention, or put others needs over his.

[8]

The respondent belittled his partners. When they attempted to leave or
    express resistance or discontent, he threatened them in words and conduct. Almost
    all of the offences were committed while the respondent was on probation for
    previous violence against one of the same victims. His conduct demonstrated a
    blatant and disturbing disregard for the courts supervision order.

[9]

Aside from his relatively youthful age, little mitigated in favour of
    the respondent. His expression of remorse was viewed by the trial judge with
    skepticism. He has a habit of shifting blame to his victims and has no record
    of rehabilitative success.

[10]

The
    respondent has a criminal record which, although not extensive, contained a
    prior offence of violence against one of the same victims. We do note, as did
    the trial judge, that the respondent was not sentenced to any terms of
    imprisonment for his prior convictions.

[11]

Previous
    efforts to deal with the respondents domestic violence issues reveal little or
    no impact. His probation officer reports that the respondent denies any abusive
    conduct and believes the efforts are not helpful or relevant to him. The trial
    judge found that his prospects for rehabilitation did not appear to be very
    promising.

[12]

The
    respondent, a father, has rarely had work and has made little effort to better
    himself or contribute to the financial and practical responsibilities of a
    household. According to the trial judge, his preference was to live off the
    avails of the complainants.

[13]

The
    victim impact statements in this case illustrate how his domestic partners
    viewed themselves as pathetic for staying with an abuser, how they lost their
    self-worth; and how they isolated themselves from others. The effects the
    victims suffered as a result of the respondents domestic abuse are ongoing.
    This case acutely reflects the comments from this court in
R. v. Bates
(2000), 146 C.C.C. (3d) 321 (Ont. C.A.), at para. 30:

Crimes involving abuse in domestic relationships are
    particularly heinous because they are not isolated events in the life of the
    victim. Rather, the victim is often subjected not only to continuing abuse,
    both physical and emotional, but also experiences perpetual fear of the
    offender.

[14]

This
    is a case where the principles of general deterrence, specific deterrence and
    denunciation, together with concern for the safety and security of the victims,
    predominate in determining a fit and proper sentence. The constellation of
    factors relating to the offences and the offender warranted a sentence in the
    range of 4.5 years less appropriate credit for pre-sentence custody. The
    sentence of three years less a day, as imposed by the trial judge, was
    manifestly unfit.

[15]

For
    these reasons, leave to appeal sentence was granted, the appeal allowed, and
    the sentence varied in the manner we have explained.

H.S.
    LaForme J.A.

"David
    Watt J.A."

"Gloria
    Epstein J.A. »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2015 ONCA 220

DATE: 20150401

DOCKET: C56735

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Brown

Appellant

Martin Kerbel Q.C., for the appellant

James Clark, for the respondent

Heard: March 25, 2015

On appeal from the conviction entered on October 25, 2012
    by Justice C. M. Harpur of the Ontario Court of Justice.

ENDORSEMENT

[1]

The police obtained a search
    warrant for the appellants residence. There they seized 17 one gram packets of
    cocaine in a pair of pants hanging on the bathroom door. The searchers also found
    $1,275 cash in his pants pocket, a digital scale with cocaine residue on it,
    empty baggies and bulk marijuana
.

[2]

The trial judge found that the appellants s. 8
Charter
rights
    had been breached and quashed the search warrant. He found that the information
    to obtain the search warrant (the ITO)  in its redacted form  did not
    disclose reasonable grounds to believe that controlled substances were present
    in the appellants residence. The trial judge was satisfied that the manner in
    which the warrant was executed, including the dynamic entry, was not itself
    unreasonable, thus did not offend s. 8. He went on to hold that the evidence
    should be admitted under s. 24(2). This resulted in the appellants being
    convicted of possession of cocaine for the purpose of trafficking.

[3]

On appeal, the appellant submits that the trial judge committed two errors.

[4]

First, he submits that contrary to the finding of the trial judge, the
    breach of s. 8 of the
Charter
was serious and therefore the results of
    the search should have been excluded as evidence under s. 24(2). The appellant
    places particular importance on his view that the police were negligent in
    preparing the ITO, which he says, makes the s. 8 breach serious under the first
    branch of the
Grant
analysis: see
R. v. Grant
, 2009 SCC
    32,  [2009] 2 S.C.R. 353.

[5]

The trial judge correctly conducted his s. 24(2) analysis based on the three
    lines of enquiry mandated by
Grant
. In doing so, he found the
    following: (i) the seriousness of the breach was moderate and favoured
    inclusion; (ii) the impact on the appellants
Charte
r rights was high,
    which favoured exclusion; (iii) the evidence was reliable and was essential to
    the Crowns case; and (iv) that exclusion of the evidence was not necessary to
    maintain the repute of the administration of justice. He admitted the evidence
    at trial.

[6]

For the appellant to succeed in challenging the trial judges s. 24(2)
    analysis he must demonstrate that the trial judge erred in principle,
    considered irrelevant facts, or made unreasonable findings. Failing this, the
    trial judges s. 24(2) analysis is owed considerable deference on appellate
    review: see
R. v. Peterkin
, 2015 ONCA 8, at para 75.

[7]

The appellants submission that the ITO was prepared negligently is not
    sufficient to demonstrate to this court that the trial judges findings are
    unreasonable. The trial judge concluded that the most significant omission in
    the ITO was narrow and did not warrant exclusion of the evidence underlying the
    Crowns entire case. We see no reason to disturb that conclusion. This ground
    of appeal fails.

[8]

Second, the appellant argues that the circumstantial evidence was
    incapable of proving beyond a reasonable doubt that the appellant was in
    possession of the cocaine. To succeed here, this court, after a review of the
    entirety of the evidence, must be satisfied that a reasonable trier of fact,
    properly instructed and acting judicially, could not have convicted the
    appellant of the offences: see
R. v. Mars
, [2006] O.J. No. 472 (C.A.),
    at para. 3.

[9]

The appellant places specific emphasis on the police officers opinion
    that the pants found in the bathroom containing the cocaine could fit the
    appellant. He argues that this is not sufficient to prove ownership of the
    pants, thus knowledge of and control over the cocaine in a pocket, beyond a
    reasonable doubt. However, the whole of the circumstantial evidence  including
    the fact that an investigating police officer said the pants belonged to a man
    and that the appellant was the only man living in the apartment  was
    sufficient to find the appellant in constructive possession of the cocaine.

[10]

We
    note that there was no explanation whatsoever for the presence of the cocaine
    in the appellants bathroom. He chose not to testify. This court, when
    considering the reasonableness of a verdict, is entitled to treat an
    appellant's silence as indicating that the appellant could not provide an
    innocent explanation of his or her conduct: see
R. v. Dell
, [2005]
    O.J. No. 863 (C.A.), at para. 35

[11]

Thus,
    it follows that the conclusion of the trial judge is amply supported by the
    evidence adduced at trial. This ground of appeal fails.

[12]

For
    these reasons, the appeal is dismissed.

H.S.
    LaForme J.A.

"David
    Watt J.A."

"Gloria
    Epstein J.A."


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Carter, 2015 ONCA 287

DATE: 20150427

DOCKET: C55594

Sharpe, Simmons and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy Carter

Appellant

Richard Litkowski and Catriona Verner, for the appellant

R. Pinnock, for the respondent

Heard: March 3-4, 2015

On appeal from the conviction entered on February 18,
    2012, and the sentence imposed on June 8, 2012, by Justice Renee M. Pomerance
    of the Superior Court of Justice, sitting with a jury.

Sharpe J.A.:

[1]

The appellant appeals his convictions for second-degree murder in the
    deaths of Peter Kambas and Vaois Koukousoulas.  He also appeals the imposition
    of a 17-year period of parole ineligibility.

[2]

This appeal was heard together with the appeal in
R. v. Dodd
.
    The reasons in both appeals are being released together. I agree with and adopt
    the summary of the facts giving rise to these appeals in my colleague Benotto J.A.s
    reasons in
Dodd
. I present here only the facts that have particular
    application to the case against the appellant Timothy Carter and to the issues
    he has raised on appeal.

FACTS

[3]

Carters presence in his own backyard in the early hours of June 29,
    2008, the last time and place that the two victims were seen or heard alive,
    was more or less admitted.  The appellant also does not contest the forensic
    pathology evidence that both victims died of significant blunt force trauma applied
    to their heads and chests.

[4]

There was evidence that Kambas and two other men got into a taxi in
    front of Kambass apartment just after 2:30 a.m. and went to Carters address.
    There was conflicting evidence that one of the other men in the taxi was
    Koukousoulas.

[5]

Mary McConnell, who was dating Kambas at the time of his disappearance,
    testified that Kambas had called her at around 2:00 a.m. that morning. Kambas requested
    a ride to Carters residence. McConnell declined, but she called Kambas later.
    He told her that he was at the Carter residence. She was alarmed by something
    Kambas said to someone else while on the phone with her.  She went to Carters
    residence and knocked on the front door. Carters girlfriend Krystal Hamelin
    answered, but she did not know where Kambas was. McConnell tried to call
    Kambass cellphone, but he did not answer and she left.

[6]

McConnell returned to Carters residence with her friend Manny Pereira
    around 3:15 a.m. The precise times at which McConnells car came and went from
    the area of Carters residence are known from surveillance footage of a parking
    lot near Carters residence where she parked her car. They approached Carters
    backyard on foot from the back alley.  They overheard male voices arguing in
    Carters backyard but saw nothing.  One of the voices was Kambass. McConnell
    looked through a small hole in the back wall of Carters garage.  The garages
    interior was lit.  She could see to the far end of the garage, and a couple of
    feet on each side, but she saw no people inside. McConnell and Pereira left in
    her car.

[7]

Pereira was not available to testify at trial but his sworn statement to
    the police was admitted into evidence. He recounted visiting the Carter
    residence with McConnell and stated as follows:

Theres an alley behind the house uh that we went to.  Um and
    there was a garage.  And we, as soon as we got near we could hear commotion,
    rah-rah-rah-rah-rah [makes sound], you know and then as we got closer, it got
    more clear.  Um and I heard Peter Kambas saying, What the fuck! What the
    fuck! And you know clearly a struggle, mother fucker, this just, it was
    fuck this, fuck that.  And then another guy was just I remember [pause] one
    voice stood out more than any cause he was just like, Hold him! Hold him!,
    like real loud.  And Im going, What the hell is going on?! [pause] Now,
    behind the garage there was a hole in the wall.  So we wanted to see whats
    going on.  But we looked in this hole and the garage was lit up brightly but
    there was nothing to be seen.  It was like, just a concrete floor.  There was
    nothing on the floor.  There was nothing we could visibly see.  Its just like
    lookin in at on a rough garage.  Uh, well lit.  No obstacle no obstructions,
    but we just couldnt see anything in the backyard.  In the, in the meantime
    were still hearing you know a-a very violent, what I would call a very violent
    struggle.

[8]

Pereira swore that he was familiar with Kambass voice, which he
    characterized as distinctive, and that he heard at least two other voices.
    Kambas was not the one to say hold him, hold him and what he heard indicated
    to Pereira that Kambas was struggling with the others.

[9]

McConnell and Pereira left in McConnells car around 3:18 a.m. and
    returned to Pereiras nearby home.

[10]

McConnell
    testified that she then returned by herself to the Carter residence.  She
    arrived around 3:22 a.m. and again approached by foot from the back alley.  She
    did not hear any noises in Carters backyard.  She looked through the hole into
    Carters garage. She saw Carter standing on the opposite end of the garage,
    moving his hands as if he were washing something. She also saw the arm from a
    human body on the floor near her end of the garage.  Her view of the rest of
    the body was obstructed.  The body did not move or make any noises.  She did
    not recognize the arm and on cross-examination acknowledged that, at the time,
    she did not think it was Kambass arm. She heard Koukousoulas, from a different
    part of the garage, ask Carter if he had a problem with him. Koukousoulas sounded
    distraught. Carter responded: No, I dont. Just shut up.  McConnell went to
    her car and drove back to Pereiras home.  It was around 3:26 a.m.

[11]

McConnell,
    at trial, and Pereira, in his police statement, both stated that they again
    returned to Carters residence.  Surveillance footage has McConnells car
    returning to the area around 3:49 a.m. Both McConnell and Pereira saw that the
    hole in the garage wall had been boarded up with plywood.

[12]

Carters next-door neighbour,
Denisa Lamanna,
    was awakened by noises from Carters backyard on the night of the alleged
    murders.  It was between 3:00 and 3:30 a.m.  She opened her bedroom window and
    listened. She heard what she described as ...groaning, very loud groaning
    which she had initially thought to be the sound of vomiting.  She heard one
    male yell, Stop hurting me, and then a different male yell in an angry way,
    Shut the fuck up. She heard this same exchange at least four to five times.
    She testified that she heard a third male voice in addition to the groaner
    and the man telling the groaner to shut up. She was not able to see into
    Carters backyard due to a high fence and foliage. She called 911 to report the
    incident at 3:33 a.m. The voices stopped and she heard an engine revving near
    Carters garage or back driveway.  She then saw an SUV or Jeep drive down the alley
    behind Carters house. As the noise had stopped, around 3:51 a.m., she called
    to cancel her 911 call.

[13]

My colleague has reviewed in some detail the
    evidence of Shawn Grubb, Carters other next-door neighbour. I summarize here
    Grubbs evidence as it relates particularly to Carter.  Around 3:30 a.m., Grubb
    heard a ruckus taking place in Carters backyard.  He looked and listened out
    of an open window facing Carters backyard.  One man was pleading with another,
    using words to the effect of [s]top hitting me and [g]et away from me.
    Grubb saw this man being beaten by a younger, bigger man.  Grubb also heard, at
    the same time, three or four thuds from Carters garage  away from the area of
    the physical altercation. Alarmed by the beating he saw being inflicted, Grubb
    yelled at the assailant and then called for Carter several times.  The
    assailant slowed his attack, but continued to cuff the thinner man on the head.
    Carter appeared about 10-15 seconds later.  Grubb looked down on Carter from
    his window, across the fence. Grubb could not see where exactly Carter came
    from in the backyard, but he was not one of the two men who were fighting.  When
    Grubb asked if he should call the police or if Carter needed any help, Carter
    responded, No, no, this is done. Theyre done.  He then saw Carter motion to
    the other men and heard him yell, Stop it, you guys.   Carter raised his two hands,
    palms up, a couple of times, saying, No, no, were good. The beating stopped.
    Carter looked and sounded like he was winded or out of breath, and was leaning
    on the fence with one hand for support. Grubb could see Carters face and hands
    clearly but he did not notice any blood or markings.

[14]

There was also some evidence suggesting that
    Carter was using a hose in the garage, arguably to clean up blood.  Grubb noticed
    a hose leading into the garage, which was lit on the inside. Hamelin testified
    that the following day she noticed puddles on the floor of the garage, although
    she agreed that this might have been from rain.

[15]

The Crown led a considerable body of
    post-offence conduct against Carter. Surveillance videos show a vehicle, which
    the Crown alleged was Carters GMC Jimmy, leaving the area of his residence at
    4:59 a.m. on the morning of June 29, 2008, and returning at 9:30 a.m.  Hamelin
    testified that Carter returned home around 9 a.m. that morning. The bodies of
    the two victims were found at a location that was a one hour and 17 minute return
    drive from Carters residence.

[16]

In the early evening of June 29, 2008, Carter left
    Windsor with Hamelin for a few days.  According to Hamelin, Carter brought up
    the idea of going on a vacation that morning when he returned home.  Instead of
    taking Carters GMC Jimmy, they drove a vehicle provided by Carters associate Adelino
    Moreira. Later that evening, a fire was reported at Carters garage that
    destroyed the garage and Carters GMC Jimmy, which was parked next to the
    garage.  One neighbour testified that the GMC Jimmy was already ablaze when the
    garage went up in flames.  When Hamelin learned of the fire one or two days
    into their vacation and told Carter, he told her that she did not have to worry
    about Kambas anymore.  He said that Moreira had taken care of it and that
    Kambas wont threaten our lives again.  Carter was drunk at the time.  Hamelin
    was arrested on July 1, 2008, for driving the vehicle Moreira had provided as
    it was stolen.

[17]

A neighbour saw Moreira running from the
    direction of Carters residence shortly after the fire broke out.  At trial,
    Moreira denied setting the fire.

[18]

Dentures and a blood-stained shoe were found in
    the burned-out husk of Carters GMC Jimmy.  The Crown led DNA evidence that the
    dentures and blood were Kambass.

[19]

An undercover police officer recorded statements
    indicating involvement in illegal activity and, arguably, the murders, made by
    Carter to Moreira while both men were in custody on unrelated matters.

ISSUES

[20]

Carter
    raises the following issues on appeal:

1.

Did the trial judge err by not leaving party liability with the jury, as
    that instruction would have provided an alternative route to a verdict of
    manslaughter?

2.

Did the trial judge invite the jury to speculate?

3.

Did the trial judge err in failing to correct the Crowns suggestion
    that Carter had exclusive opportunity and in failing to instruct the jury on
    exclusive opportunity?

4.

Was the verdict unreasonable?

5.

Should the sentence be varied by reducing the period of parole
    ineligibility?

ANALYSIS

Issue 1. Did the trial judge err by not leaving party
    liability with the jury, as that instruction would have provided an alternative
    route to a verdict of manslaughter?

[21]

The
    trial judge instructed the jury that to find Carter guilty of second degree
    murder they must be satisfied that the Crown had proven three essential
    elements beyond a reasonable doubt: (i) Carter caused the victims death; (ii)
    Carter caused the death unlawfully; and (iii) Carter had the state of mind for
    murder. She also instructed the jury that if the Crown had proven the first two
    elements, but not the third, then Carter had committed manslaughter rather than
    murder.

[22]

On
    appeal, the appellant submits that the jury should have been left with another
    route to a manslaughter verdict, namely party liability.

[23]

In
    the pre-charge conference with counsel, the trial judge raised the question of
    whether she should instruct the jury on party liability. Initially, both the Crown
    and Carters defence counsel favoured including an instruction on party
    liability. There was no question on the evidence but that Carter was present at
    the place where the two victims were last seen or heard alive, and it appeared
    likely that the jury would conclude that Carter had participated in the
    homicides in some way. .

[24]

From
    the Crowns perspective, party liability would provide a basis for a conviction
    for murder even if the jury were unable to decide the precise role played by
    each of the two accused.

[25]

From
    Carters perspective, defence counsel saw party liability as providing another
    potential route to a manslaughter verdict.  Party liability would permit the
    jury to conclude that while Carter played some role in the homicides, he could
    only be convicted of a lesser offence of manslaughter as his precise role and
    intention was not established on the evidence. At the same time, however, Carters
    defence counsel recognized that if the jury was not satisfied that Carter was a
    principal in the killings, they would have to acquit Carter in the absence of a
    charge on party liability. .

[26]

In
    the end, the trial judge decided that there was no air of reality to party
    liability.  She suggested during the pre-charge conference that in the absence
    of positive evidence of secondary involvement as a party, as opposed to active
    involvement as a principal, party liability should not be left with the jury. Eventually,
    all of the trial counsel agreed that there was no need to instruct on party
    liability.  In all likelihood, the trial judge thought that, on balance, an
    instruction on party liability would benefit the Crown and disadvantage the
    defence, particularly as she proposed to leave manslaughter with the jury and
    to instruct the jury only to convict Carter of murder if they were satisfied
    that he was an active participant in the fatal assaults and that he had the
    requisite intention for murder.

[27]

The
    following exchange during the pre-charge conference indicates how and why
    Carters trial counsel, Mr. Adams, altered his position. Carters counsel
    agreed that if the trial judge left manslaughter with the jury on some other
    basis, he was content that the jury not be instructed on party liability:

MR. ADAMS:  Im asking that manslaughter be left.  The initial
    submission was that the evidence from several sources of the conflict, of the
    fight, the struggle, of wrestling, a violent conflict suggests two people
    involved rather than one person smiting the other, beating him down.  Thats
    fairly thin, but it doesnt take much. If its possible that manslaughter is
    available there, I think it would be err[or] not to include it.

THE COURT:  Alright.  Now let me ask you this:  Do I need to go
     if  I understand your position on that and if theres a  an air of reality
    to manslaughter, it must be left, I agree.

MR. ADAMS: Yes.

THE COURT:
But do we need to go via section 21(1) of the
Criminal Code
to get there?

MR. ADAMS:
Well, thats your decision.  If you dont need
    to go there, then I wouldnt think Id want section 21(1) in, but if you do
    need to go there, I would want s. 21(1) there.

THE COURT:
Do you believe I need to go there?

MR. ADAMS:
No, I dont.

THE COURT:  Alright.

MR. ADAMS:  For the reasons that Ive just stated.

THE COURT:  Alright.

MR. ADAMS:  If, however, you seek to find  to go that route,
    then I think Ive given you two examples that you can use to do it.  [Emphasis
    added.]

[28]

The
    trial judge proceeded to instruct the jury that they were only to convict
    Carter of murder if the Crown established beyond a reasonable doubt that he had
    actively participated in an unlawful assault; that his actions contributed to
    the injuries that caused death in more than a trifling way and that he did so
    with the intention to kill or cause grievous bodily harm that he knew was
    likely to cause death. She further instructed the jury that if they found that
    Carter had actively participated in an unlawful assault, and that his participation
    was a contributing cause of death, but had a reasonable doubt as to whether he
    acted with the intention to kill or cause grievous bodily harm that he knew was
    likely to cause death, they should only convict him of manslaughter.

[29]

After
    the charge was delivered, Carters trial counsel raised no objection to the
    adequacy of the manslaughter instruction or the lack of instruction on party
    liability.

[30]

On
    appeal, Carter submits that the failure to instruct the jury on party liability
    was an error of law and that he was prejudiced by the error as a potential
    route to manslaughter was cut off. Carters position is that the jury was
    almost certain to conclude that he was at the scene when the fatal beatings
    occurred. The jury was only left with participation as a principal as a route
    to conviction. Carter submits that if the jury found that he had participated
    as a principal, there was no realistic possibility of a manslaughter verdict.
    Given the nature of the injuries, the jury was almost certain to find the
    intent to kill.  He submits that if the jury had considered party liability,
    they may have found that Carter was involved in the homicides, but only to the
    extent that he was involved in a plan to do some harm to the deceased, and
    knowingly assisted the actual attacker(s) in that regard.  This finding, says
    the appellant, could have supported a verdict of manslaughter instead of
    murder.

[31]

While
    I agree that the trial judge erred by failing to instruct the jury on party
    liability, I am not persuaded that this error prejudiced Carter or that it
    occasioned any substantial wrong or miscarriage of justice.

[32]

I
    will deal first with the error.

[33]

I
    respectfully disagree with the trial judges conclusion that there was no
    evidence to support party liability with respect to Carter. In my view, a secondary
    role could have been inferred from the evidence of his actions, as seen or
    overheard by several witnesses.

[34]

There
    was ample evidence that beatings were inflicted in Carters backyard or garage
    while he was present. It was apparent from the position taken by Carters trial
    counsel during the pre-charge conference and in his closing submissions to the
    jury that Carter more or less conceded that he was at the scene where the two
    victims were last seen or heard alive. There was also a considerable volume of
    evidence that at least one other person was present, in addition to Carter and
    the two victims.  The next-door neighbour Grubb witnessed assaults that Carter
    was not actively involved in but was clearly aware of.  The other next-door
    neighbour Lamanna testified that she heard a third man speaking in addition to
    the groaner and the aggressor.  In his sworn statement admitted into evidence
    at trial, Manuel Pereira stated that he heard noises from a struggle involving
    Kambas and that included someone saying, Hold him! Hold him!

[35]

In
    my view, the evidence of Carters involvement with one or more others was
    sufficient to give an air of reality to party liability and to require, as a
    matter of law, the trial judge to leave party liability with the jury.  The
    trial judge erred in suggesting to counsel that positive evidence of a
    secondary role was required.  In
R. v. Sparrow
(1979), 51 C.C.C. (2d)
    443, at pp. 457-58 (Ont. C.A.), Martin J.A. wrote for the court:

Where, on a joint trial, there is evidence that a crime was
    committed by two or more accused persons acting in concert, it is, of course,
    appropriate to charge the jury with respect to the provisions of s. 21 of the
Code
even though it is uncertain which accused was the actual perpetrator.
    [Citations omitted.]

[36]

As
    held by Doherty J.A. in
R. v. Portillo
(2003), 176 C.C.C. (3d) 467 (Ont.
    C.A.), at para. 70, if there is evidence that both accused were at the scene
    and somehow involved in the death of the deceased, party liability should be
    left even if the jury may be unable to determine the exact nature of each
    appellants participation in the homicide.

[37]

The
    trial judge almost certainly thought that putting party liability to the jury
    would be to Carters overall disadvantage, but that, of course, does not
    preclude this court from finding that she erred.

[38]

The
    real issue is whether the error caused any substantial wrong or miscarriage of
    justice in the circumstances of this case. In my view, it did not.

[39]

In
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53, writing
    for the majority, Moldaver J. summarized the use of the curative proviso, s.
    686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c. C-46:

[T]he curative proviso can only be applied where there is no reasonable
    possibility that the verdict would have been different had the error ... not
    been made. Flowing from this principle  there are two situations where the
    use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or
    trivial; or (2) where the evidence is so overwhelming that, notwithstanding
    that the error is not minor, the trier of fact would inevitably convict.
    [Citations omitted.]

[40]

The
    evidence of Carters guilt of murder was not overwhelming.  The issue is
    whether the error was harmless.

[41]

The
    jurys verdict of murder against Carter indicates that the jury was persuaded
    beyond a reasonable doubt that Carter was an active participant in the fatal
    beatings and that he had the requisite
mens rea
for murder.

[42]

At
    first blush, the verdict for murder would appear to answer any complaint about
    the lack of an adequate instruction on manslaughter.  However, on appeal,
    Carter relies on the well-established line of cases, thoroughly reviewed by
    Doherty J.A. in
R. v. Sarrazin
, 2010 ONCA 577, 259
    C.C.C. (3d) 293, affd 2011 SCC 54, [2011] 3 S.C.R. 505, holding that a conviction
    for a more serious offence does not overcome an error in failing to instruct
    the jury on a lesser, included offence. When assessing the impact of a failure
    to properly instruct on an included offence, an appellate court should not
    assume that a jurys fact-finding process involves a mechanistic analysis of
    the evidence without regard to the verdict which flows from the jurys findings
    of fact:
Sarrazin
, at para. 76, quoting from
R. v. Jackson
(1991), 68 C.C.C. (3d) 385 (Ont. C.A.), at p. 431, affd [1993] 4 S.C.R. 573.

[43]

Sarrazin
was a murder case where causation was at issue. The trial judge failed to leave
    the jury with the possibility of a verdict of attempted murder if they found
    that the appellants acts did not cause the death. The jury convicted the
    appellants of second degree murder. This court concluded that the trial judge
    had erred by failing to instruct the jury that it was open to them to return
    verdicts of not guilty of murder (or manslaughter) but guilty of attempted
    murder. The Crown had argued that the convictions for murder indicated that the
    jury was satisfied that the accused had caused the victims death and that the
    curative proviso should be applied. The majority rejected that submission. As
    Doherty J.A. explained, at para. 94, the concern is that a jurys fact-finding
    on a specific issue such as causation could be subconsciously influenced by
    what it is told about the legal consequences of that fact-finding. The problem
    with the instruction in
Sarrazin
was that the jury was left with an all-or-nothing
    choice between guilt of murder or manslaughter and an outright acquittal.

[44]

In
Jackson
, the trial judge erred by failing to instruct the jury that Davy
    could be convicted as a party to manslaughter even if his co-accused was
    convicted of murder. The trial judge also told the jury that all parties to the
    offence were equally guilty and that a manslaughter verdict may be unlikely as
    regards Davy.  This court and the Supreme Court refused to apply the curative
    proviso to save the verdict of second degree murder against Davy.

[45]

This
    case is readily distinguished from these cases. In
Sarrazin
, as a
    result of the trial judges error, the jury was left with a stark choice
    between culpable homicide and acquittal, without the option of finding the included
    offence of attempted murder, when deciding a single, highly disputed issue,
    causation. In the case at bar, the jury was left with the option of convicting
    for the lesser included offence, manslaughter, even if active involvement was
    found. In
Jackson
, the jury was wrongly instructed on the legal
    elements for manslaughter. In the case at bar, the manslaughter instruction was
    proper.

[46]

In
    the present case, for each of the two victims, the jury was left with the
    option of convicting of manslaughter if they were not satisfied  that Carter
    had the requisite intention for murder. That answers the problem identified in
    the
Sarrazin
line of cases, namely, that the jury may not always reason
    in a mechanistic, step-by-step manner, but may instead be focused on the
    ultimate conclusion, such that they will convict the accused of whatever charge
    is available, even if the elements are not made out, so as to avoid an outright
    acquittal. In my view, if this jury had adopted such a results-orientated mode
    of reasoning and wanted to convict Carter of something, even if they were left
    with a reasonable doubt as to causation of death or his active involvement in
    the assaults,  they were presented with a readily available route to the lesser
    included offence of manslaughter.   They did not choose this route.  It follows
    that the jury did not convict Carter of second degree murder solely to avoid an
    outright acquittal.

[47]

It
    is also argued that the jury could have found that Carter was an active
    participant in the fatal assaults on the basis of the evidence of his
    post-offence conduct. Had party liability been left, the trial judge would have
    been obliged to instruct the jury that evidence of post-offence conduct could not
    be used to determine whether he was an active participant or a party to the
    homicide. An instruction along those lines, it is submitted, would have limited
    the use the jury could make of the evidence of post-offence conduct and made a
    manslaughter verdict more likely.

[48]

I
    disagree. The trial judge gave a proper limiting instruction on the use of
    evidence of post-offence conduct. The jury was instructed that while the
    evidence of Carters post-offence conduct could be used to infer that he was
    involved in the homicides, it could not be used to infer whether he had the
    requisite
mens rea
for murder. No doubt, a more complicated
    instruction would have been required had party liability been left with the
    jury. However, from a practical and functional perspective, it was made
    abundantly clear to the jury that the evidence of post-offence conduct had no
    bearing when it came to deciding whether Carter was guilty of murder or
    manslaughter.

[49]

In
    assessing whether the failure to charge on party liability caused any
    substantial wrong or miscarriage of justice, we may consider the tactical
    choices made by Carter and his counsel at his trial:
R v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.), at paras. 15-16;
R. v. Kostyk
,
    2014 ONCA 447, 312 C.C.C. (3d) 101, at paras. 41-42. A party liability
    instruction might have provided an alternative route to manslaughter, but it
    would also have provided an alternate route to murder. Carters trial counsel
    expressly stated that if he could get a manslaughter instruction without party
    liability, then he did not want the trial judge to leave the jury with party
    liability. One can readily understand why. On balance, instructing the jury on
    party liability would have made a murder conviction more likely.

[50]

I
    conclude, accordingly, that while the trial judge did err in law in failing to
    instruct the jury on party liability, that error was harmless and not the
    occasion of any substantial wrong or miscarriage of justice.  Accordingly this
    ground should be rejected pursuant to s. 686(1)(b)(iii) of  the
Criminal
    Code
.

Issue 2. Did the trial judge invite the jury to speculate?

[51]

Carters
    position at trial was that there was no evidence that he was an active
    participant in the beatings, and that the jury could only conclude that he was
    an active participant by engaging in speculation.

[52]

First,
    Carter argues on appeal that the trial judge invited the jury to engage in
    speculation. Carter takes issue with the following extract from the trial
    judges jury charge:

It is important to distinguish between a
    reasonable inference and a speculative inference.  A reasonable inference is
    one that flows logically from the evidence.
A speculative inference
    is one that is so tenuous or remote that it is not reasonable.
[Emphasis added]

[53]

Similarly, at a later point in the charge, the trial judge
    instructed that
[a] speculative inference is one that is so remote or tenuous
    that [it] is not reasonable.

[54]

Second,
    Carter argues that when this instruction is combined with a series of
    rhetorical questions posed by the trial judge, she effectively invited the jury
    to speculate. Issue is taken with the following passage from the instruction in
    relation to the fatal beating of Kambas:

It is for you to determine whether and to what
    extent you believe or rely upon the testimony of Shawn Grubb and Mary
    McConnell.  If you do believe or rely upon their evidence, you must determine
    what if any inferences you draw from their testimony.  What was Timothy Carter
    doing before he was seen by Mr. Grubb?  What was he doing when he was seen by
    Mr. Grubb?  Was he involved in the violence being directed by the larger man to
    the smaller man?  Or was he trying to intervene and stop the violence that was
    taking place?  Would he know that anything more than some slapping was going
    on?  What was Timothy Carter doing in the garage?  Was that Peter Kambas lying
    prone on the ground?  Was it someone else?  Was it Adelino Moreira?  Did
    Timothy Carter know the extent of that persons injuries?  Was his remark to
    Vaois Koukousoulas designed to calm Vaois Koukousoulas down and allay his
    fears, or was the remark designed to silence Vaois Koukousoulas in a
    threatening way?

[55]

The impugned passage relating to the fatal
    beating of  Koukousoulas is as follows:

Consider whether Timothy Carter was
    intervening to stop the assault in the backyard when he spoke to Shawn Grubb or
    whether he was involved in it.  Consider whether Mr. Carter was trying to calm
    or assist Mr. Koukousoulas when he said that he did not have a problem with
    him, or whether he was silencing Mr. Koukousoulas in a threatening way.

Consider what Mr. Carter was doing with his
    hands when Mary McConnell saw him rubbing them in a circular motion, as if
    washing them.

[56]

Carter contends that as there was an absence of evidence upon
    which the jury could answer these questions, and as the trial judge did not point
    that out to the jury, she effectively invited the jury to speculate.

[57]

I
    agree that it would have been preferable had the trial judge not made reference
    to a speculative inference, as that phrase runs a risk of confusion. The
    jurys attention should have been focussed sharply on the difference between an
    inference on the one hand and speculation on the other. An inference can be reasonably
    and logically drawn from a fact or group of facts established by the evidence:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209. As
    stated in
U.S.A. v. Huynh
(2005), 200 C.C.C. (3d) 305, (Ont. C.A.) at
    para. 7: The process of drawing inferences from evidence is not  the same as
    speculating even where the circumstances permit an educated guess, and if
    there is an evidentiary gap between the primary fact and the inference sought,
    the inference cannot be drawn. The phase speculative inference mingles
    inferences, which the jury can draw, with speculation, which the jury cannot
    engage in, and thus runs the risk of muddying the distinction.

[58]

I
    am not persuaded, however, that the reference to speculative inference,
    whether read alone or in conjunction with the questions posed by the trial
    judge, amounted to an error of law in the circumstances of this case. In my
    view, when the charge is fairly read as a whole, the jury was properly
    instructed that an inference had to be logically and reasonably drawn from a
    fact or facts that were established, that the burden of establishing the inculpatory
    facts and inferences rested squarely on the Crown, and that any reasonable doubt
    on account of a lack of evidence had to result in an acquittal.

[59]

First,
    following the closing addresses of counsel and the judges instructions, the
    jury would have certainly understood that the Crowns case was largely
    circumstantial and that the central issue was whether the evidence offered by
    the Crown amounted to proof of guilt beyond a reasonable doubt. The trial judge
    thoroughly reviewed the evidence and identified what Carter submitted were the
    gaps that should lead to an acquittal or manslaughter verdict.

[60]

Second,
    while the phrase speculative inference should be avoided, it is important to
    point out that the trial judge clearly instructed the jury not to base the
    verdict on speculative inferences.

[61]

Third,
    it is also important to consider the trial judges use of the term speculative
    inference in context. The impugned uses of the term were immediately preceded or
    followed by clear instructions regarding circumstantial evidence, the
    obligation of the Crown to prove its case beyond a reasonable doubt, and the
    absence of any burden whatsoever on the accused to prove anything.

[62]

Immediately
    before one of the impugned uses of speculative inference, the trial judge
    instructed the jury that there was no direct evidence to indicate that Timothy
    Carter or Donald Dodd were responsible for causing the deaths. She then instructed
    the jury that:

A person may be convicted solely on the basis of circumstantial
    evidence.  However, in such a case, you can only return a finding of guilt if
    the guilt of the accused is the only reasonable conclusion to be drawn from the
    whole of the evidence. If the evidence reasonably supports another conclusion,
    other than the guilt of the accused, then the guilt of the accused has not been
    proved beyond a reasonable doubt.

[63]

Immediately
    following this same impugned use of speculative inference, the trial judge
    instructed the jury that the accused were not required to prove anything or to
    prove their innocence, and that, from start to finish, it was for the Crown
    to prove the accused were guilty beyond a reasonable doubt. This was followed by
    a clear instruction on the meaning of reasonable doubt that concluded:

If, at the end of the case, based on all of the evidence
or
    lack of evidence
, you are not sure that Timothy Carter or Donald Dodd
    committed an offence, then you should find them not guilty of that offence.
    [Emphasis added]

[64]

I
    do not read what Carter now characterizes as the trial judges rhetorical
    questions as invitations to speculate. These questions were nothing more and
    nothing less than an explanation of the issues the jury had to confront before
    reaching a verdict. In my view, the jury would have understood that the trial
    judge was identifying and focusing their attention on the issues that arose
    from the evidence or lack thereof. When the questions are assessed against the
    background of the trial judges careful review of the evidence, and her thorough
    and repeated instructions on reasonable doubt, the burden on the Crown and the
    lack of any burden on the accused, I cannot agree that the questions amounted
    to an invitation to speculate.

[65]

Finally,
    I note that the draft charge was thoroughly vetted in the pre-charge
    conference. The trial judge explicitly directed counsels attention to the very
    passage now complained of on appeal in relation to the distinction between a reasonable
    inference and a speculative inference. Carters trial counsel expressly
    indicated that he was content with that passage. Nor did Carters trial counsel
    raise any objections, before or after the charge was given, to the rhetorical
    questions now objected to on appeal. While failure to object is not fatal,
    [c]ounsels considered position after examining the proposed instruction sheds
    valuable light on whether that proposed instruction ensured that the jury
    understood how the evidence can and cannot be used in the context of the particular
    case and the positions taken by the defence and Crown with respect to that
    evidence:
R. v. Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para.
    97, leave to appeal refused, [2010] S.C.C.A. No. 263.

[66]

Nor
    do I accept the submission that the trial judge failed to deal adequately with
    comments made in the Crowns closing that could have been taken to suggest that
    there was some obligation on the accused to adduce evidence. She immediately
    admonished Crown counsel who then apologized to the jury and corrected himself
    in language that, in my view, adequately removed any prejudice his earlier
    remarks could have caused.

Issue 3.  Did the trial judge err in failing to correct the
    Crowns suggestion that Carter had exclusive opportunity and in failing to
    instruct the jury on exclusive opportunity?

[67]

In
    closing submissions to the jury, Crown counsel took the position that in
    addition to the victims, the only two people in Carters backyard that night were
    Carter and Dodd. Carter argues that this would have left the jury with the
    impression that the Crown was relying on a theory of exclusive opportunity and
    that an instruction was required to distinguish exclusive opportunity from mere
    opportunity: see
R. v. MacFarlane
(1981), 61 C.C.C. (2d) 458 (Ont.
    C.A.), at p. 460.

[68]

I
    disagree. While the Crown did allege that only Carter and Dodd were present at
    the scene with the victims, the Crown did not rest its case on a theory of
    exclusive opportunity. The Crown relied on a substantial body of other evidence
    inculpating Carter in the fatal assaults. The position that only Carter and
    Dodd were in the backyard with the victims was simply one piece of a larger
    body of circumstantial evidence which, the Crown submitted, when combined with Carters
    observed conduct at the scene and his post-offence conduct made out a case for
    conviction for culpable homicide, either murder or manslaughter.

[69]

I
    note finally that Carters trial counsel did not raise the need for an
    instruction along the lines now advanced on appeal.

Issue 4. Was the verdict unreasonable?

[70]

The
    appellant submits that, if a new trial is not warranted, this court should
    quash the murder convictions and replace them with convictions for
    manslaughter.  Carters position is that a properly instructed jury, acting
    judicially, could not have found that Carter had the
mens rea
for
    murder, particularly as there was a lack of evidence of active participation in
    the beatings.  At most, Carter argues, the jury could conclude that he was
    involved in a plan to harm the deceased, and that this plan resulted  through
    no intention of his own - in two deaths.

[71]

I
    am unable to agree with the submission.

[72]

My
    colleague Benotto J.A. has reviewed the legal authorities and the applicable
    legal test for unreasonable verdict in the companion appeal of
R. v. Dodd
.
    I adopt her analysis for the purpose of these reasons.

[73]

In
    my view, there was a substantial body of circumstantial evidence from which the
    jury could properly infer, beyond a reasonable doubt, that Carter was an active
    participant in the assaults and that he had the requisite
mens rea
for
    second degree murder.  In particular, I note the forensic pathology evidence
    establishing the amount of force imposed on the victims bodies; Pereiras and
    the neighbours evidence that there were loud, violent attacks in Carters
    backyard that occurred over a significant period of time; McConnells and
    Grubbs evidence that Carter was present in his backyard or garage at this
    time;  McConnells testimony as to the words spoken by Carter to a distraught
    Koukousoulas in the presence of an unmoving body; and Grubbs testimony that he
    heard loud thuds in the garage and that Carter was out-of-breath shortly
    thereafter.

Issue 5. Should the sentence be varied by reducing the
    period of parole ineligibility?

[74]

Carter
    seeks leave to appeal the period of 17 years parole ineligibility. At
    sentencing, his counsel submitted that the range was 12 to 15 years and, on
    appeal, Carter says the appropriate period was 12 to 13 years. He submits that
    the trial judge erred by failing to give appropriate weight to his limited
    criminal record, his prospects for rehabilitation and the uncertainty surrounding
    his precise role in the murders.

[75]

I
    would grant leave to appeal the period of parole ineligibility but dismiss the
    appeal. The trial judge gave careful reasons for sentence, properly considering
    the relevant factors. Carters role in the murders was determined by the jurys
    verdict. There were two victims and the murders were savage and brutal. The
    period of parole ineligibility was well within the range of a reasonable
    sentence for these crimes.

DISPOSITION

[76]

For
    these reasons, I would dismiss the appeal from conviction, grant leave to
    appeal the period of parole ineligibility, but dismiss the appeal.

Released: R.J.S. April 27, 2015

Robert J. Sharpe
    J.A.

I agree Janet
    Simmons J.A.

I agree M. L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Derby,
    2015 ONCA 222

DATE: 20150402

DOCKET: C59766

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerome Derby

Appellant

Paula Rochman, for the appellant

Michael Fawcett, for the respondent

Heard and released orally:  March 13, 2015

On appeal from the sentence imposed on October 11, 2013
    by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant, Jerome Derby, was tried by judge and jury on a charge of second
    degree murder. He was convicted of manslaughter and sentenced to eight years in
    custody, less credit for time served on a 1:1 basis.

[2]

The facts underlying the conviction are as follows. The appellant
    attended at the hotel room of a prostitute. The woman he was meeting identified
    him as the person possibly responsible for robbing other prostitutes at
    gunpoint. She called her pimp, Donald Grant, and he attended at the scene. A
    fight ensued between the appellant and Mr. Grant, which ended with the
    appellant fatally shooting Mr. Grant in the chest.

[3]

On this sentence appeal, the appellant raises two grounds of appeal: (i)
    he should have received enhanced pre-trial custody credit on a 1.5 to 1 basis;
    and (ii) the sentence was unfit given the sentencing judges findings of fact.

[4]

The pre-trial custody ground of appeal is conceded by the Crown. I note
    that the sentencing judge did not have the benefit of the Supreme Court of
    Canadas decision in
R
.
v.

Summers
[2014] S.C.J. No 26
    at the time of sentencing. Calculating pre-trial custody on a 1.5 to 1 basis
    increases pre-trial custody by 13 months to a total of 39 months.

[5]

On the issue of the fitness of sentence, the appellant submits that the
    sentencing judge failed to give sufficient weight to the fact that, although he
    fired the gun, he did not bring the gun to the hotel and only momentarily
    wrestled the weapon from Mr. Grant. He argues that this fact attenuates the
    aggravating features of the offence. In these circumstances, the appellant
    submits, a fit sentence should have been five years incarceration less
    pre-trial custody.

[6]

We would not give effect to this ground of appeal.

[7]

The Crown sought a sentence in the range of 12 years incarceration,
    less pre-trial custody credit. The defence sought a sentence of 4 years
    incarceration, less pre-trial custody credit.

[8]

The issue of who brought the gun to the hotel was an important factual
    determination on sentencing. The Crown sought to rely on the appellants
    bringing the gun to the hotel as an aggravating factor.

[9]

In very thorough and careful reasons for sentence, the sentencing judge
    found that the appellant did not bring the gun to the hotel. Rather, he
    concluded that Mr. Grant brought the gun to the hotel as part of a plan to
    ambush the appellant. He explicitly rejected the Crowns much higher position
    on sentence because he found that: the aggravating features that the Crown
    urged the Court to find, namely that Mr. Derby attended at the hotel with a
    loaded gun to commit a robbery, are absent.

[10]

In
    our view, therefore, in fashioning an appropriate sentence, the sentencing
    judge took into account the fact that the appellant did not bring the gun to
    the hotel room.

[11]

With
    respect to the fitness of the sentence generally, we note that the custodial
    sentence imposed was mid-way between the positions of the parties. The sentence
    also accords with sentences imposed in comparable manslaughter cases. In the
    circumstances of this case, including aggravating factors such as the
    appellants criminal record, the fact that he was on probation at the time of
    the shooting, and the fact that the shooting took place in a public place, we
    are of the view that the sentence imposed is fit subject to an adjustment in
    the credit for time spent in pre-sentence custody.

[12]

Accordingly,
    leave to appeal sentence is granted and the sentence is varied to increase the
    amount of credit for pre-trial custody to a total of 39 months. The appeal is
    otherwise dismissed.

David Watt J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dodd, 2015 ONCA 286

DATE: 20150427

DOCKET: C55606

Sharpe, Simmons and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Michael Dodd

Appellant

Brian H. Greenspan and Naomi Lutes, for the appellant

R. Pinnock, for the respondent

Heard: March 3-4, 2015

On appeal from the conviction entered on February 18,
    2012 and the sentence imposed on June 8, 2012 by Justice Renee M. Pomerance of
    the Superior Court of Justice, sitting with a jury.

Benotto J.A:

[1]

Two men disappeared after last being seen or heard in the garage and
    backyard of a home in Windsor.  Their decomposed bodies were discovered many
    months later.  They had been beaten to death.

[2]

The appellant was convicted,
    along with his co-accused Timothy Carter, of murdering both men.  His position
    at trial  maintained on appeal - was that he was not present when the fatal
    beatings took place.

[3]

The appellant and Carter were convicted of second degree murder for the
    deaths of Peter Kambas and Vaois Koukousoulas. Carters appeal of his
    conviction and sentence was heard together with this appeal.  The reasons in
    both appeals are being released together.

[4]

The last place at which the two
    victims were seen or heard was Carters residence. There was no evidence of any
    other location at which the two victims were assaulted and killed. Therefore,
    the first question for the jury was whether the appellant was present at
    Carters residence at the time of the beatings.

[5]

The evidence relied on by the
    Crown to establish the appellants presence was  individually and collectively
     so frail that a thorough judicial scrutiny is triggered.  When the evidence
    is examined through the lens of judicial experience, it is apparent that the
    fact-finding exercise applied by the jury was flawed in light of the
    unreasonable result it produced.

[6]

For the following reasons, I would
    allow the appeal on the basis of an unreasonable verdict.

OVERVIEW OF THE CROWNS CASE

[7]

The theory advanced by the Crown may
    be summarized as follows:

·

Kambas, Koukousoulas and the appellant were together at Kambass
    residence in the early morning hours of June 29, 2008.  The three then
    travelled by taxi - which had been summoned by the appellant - to Carters
    residence.

·

While at this residence, the victims  Kambas and Koukousoulas
    were killed by Carter and the appellant.  Witnesses saw or heard portions of
    assaults which took place in the garage and backyard of Carters home.  One
    witness thought she had heard Kambas moaning in pain, and the appellant
    threatening him. Another witness saw a thin man being assaulted in the backyard
    by a larger man that resembled the appellant in some respects.  Yet another
    witness observed Carter in his garage telling a distraught Koukousoulas to shut
    up, while a silent and unmoving body lay on the floor.

·

Carters vehicle was seen leaving his residence later that
    morning and was absent for several hours.  The same day, Carter left town with
    his girlfriend, driving a stolen pickup truck rather than his own vehicle.
    That very evening, a fire consumed Carters garage and vehicle. Dentures
    belonging to Kambas were located in the burned remains of Carters vehicle.

·

The skeletal remains of Kambas and Koukousoulas were discovered
    together some months later.

EVIDENCE OF THE EVENTS OF JUNE 28 AND 29, 2008

[8]

On June 28, 2008, Timothy Carter
    was living with his girlfriend Krystal Hamelin and their three-month-old baby
    in a detached house in Windsor. A friend, Adelino Moreira, often slept in the
    house as well. Moreira was helping Carter build a garage in the backyard that
    faced onto a back alleyway. The backyard had a deck next to the house. An above-ground
    pool was situated between the deck and the garage.

[9]

In addition to Moreira, Carters
    friends included Kambas, Koukousoulas, George Mavrakakis, Dan Ross, and the
    appellant.  There was evidence that at least Carter, Moreira, and Kambas were
    in the drug dealing business.

[10]

The events of June 28 and the
    early morning hours of June 29 were the subject of evidence from Hamelin,
    Kambass girlfriend Mary McConnell, McConnells friend Manny Pereira, and
    Carters next-door neighbours Denisa Lamanna and Shawn Grubb.

Krystal Hamelin

[11]

On June 28, 2008, Hamelin was at
    home with her baby.  Although she was regularly using cocaine at the time, she
    did not recall if she was using on that day. She did not drink alcohol that day
    or night. At some point in the afternoon or early evening, Hamelin spoke with
    Carter, who was on the back deck having a beer with the appellant and another
    man.  She could not recall hearing the appellants voice.

[12]

Hamelin described the appellant as
    of medium or average build (not heavy or skinny), bald, tattooed, with a goatee
    that was five to six inches long.  She did not know the third man but described
    him as bigger than Carter and the appellant, heavyset, in his forties, with a
    long, scruffy, goatee-style beard, kind of [a] biker-looking type.  The
    third man was wearing a hat so Hamelin did not know if he was bald.

[13]

At around 9 or 10 p.m., Moreira
    came into the house appearing agitated.  He asked Hamelin for the base to the
    baby monitor, which detected noise. He walked out the back door with it.
    Moreira came back inside, without the baby monitor, and barricaded the door.
    It was not clear where Moreira put the base. After he returned, Moreira and
    Hamelin listened to the receiver portion of the baby monitor for 10 or 20
    minutes.  They heard nothing. Moreira left out the back door.

[14]

Sometime in the early morning
    hours of June 29, 2008, around 1 or 2 a.m., McConnell came to the door.
    McConnell appeared upset. They had a brief conversation and McConnell left.

[15]

Hamelin then heard what sounded
    like someone fighting in the backyard.  She heard no voices, just noises like
    banging or rustling. It sounded as though the fighting was coming from between
    the pool and garage.  She looked out the window but saw nothing.  She
    barricaded the door with a piece of wood, just as Moreira had done earlier.

[16]

Hamelin turned on the baby
    monitor.  She heard what sounded to be Kambass voice in pain, grunting and
    groaning.  She recognized Kambass voice because she had heard it at least 50
    times before; he had a rough, raspy, sandpaperish-type of voice and a Greek
    accent.  She also expected Kambas to be in the backyard or garage as Kambas was
    the person Moreira had been afraid of earlier.

[17]

She then heard a voice say, Keep
    your voice down.  Shut up or Ill stomp your head. The voice was speaking over
    the moaning. It spoke for anywhere from four to ten seconds. There was static
    on the baby monitor.  Hamelin agreed that voices heard over the baby monitor
    were not as clear as over a cell phone. She had a head cold at the time, but it
    was possible she was using cocaine that day.  Hamelin turned the monitor off
    because she was scared.

[18]

Hamelin testified that she
    recognized the threatening voice as the appellants.  It sounded like the appellants
    voice because it was loud, deep and obnoxious.

[19]

Hamelin admitted not liking the
    appellant. She could not recall ever speaking directly to the appellant,
    including on the phone.  She had heard his voice when she and Carter would go
    out to bars with the appellant and his girlfriend, Teri Brinn.  During these
    times, music would be playing and Hamelin would be using alcohol and cocaine.
    She would talk with Brinn and Carter, but not the appellant. There were
    probably three occasions when they went out together, with the last occasion
    being possibly three to five years before June 2008.

[20]

Hamelins certainty that she heard
    the appellants voice had wavered in the lead-up to trial.  In September 2009,
    she had given a statement to Crown counsel that the voice could have been
    anyone else.  On re-examination, Hamelin said that she changed her story in
    September 2009 because she was scared.

[21]

After speaking to him on the deck
    in the afternoon or early evening of June 28, 2008, Hamelin did not see Carter
    until around 9 a.m. the next morning when he returned to the house and
    suggested that they go on a vacation.

Mary McConnell

[22]

Mary McConnell was Kambass
    girlfriend.  At about 9:30 p.m. on June 28, 2008, Kambas and Koukousoulas were
    with her at the bar where she worked.   At some point, Kambas and Koukousoulas
    left.  At about 2 a.m., Kambas called McConnell and asked for a ride to
    Carters residence. He was still with Koukousoulas. She told him she would not
    pick him up at home.

[23]

She expected that Kambas would
    come to the bar when her shift ended, but he did not arrive.   McConnell
    telephoned Kambas at 2:37 a.m. and 2:51 a.m. In at least one of those calls,
    Kambas told her that he was already at Carters and to come pick him up.   McConnell
    was alarmed when she overheard Kambas ask someone else, What are you talking
    about?  You dont trust me.

[24]

McConnell went to Carters house
    looking for Kambas. She knocked on the front door and Hamelin answered.
    Hamelin told her Kambas was not there.  McConnell tried calling Kambas several
    times, with no success.  She drove to the nearby home of her friend, Manny
    Pereira, and returned a few minutes later.

[25]

McConnell and Pereira parked near
    Carters residence around 3:15 a.m. They approached the house from the back
    alley.  They heard male voices arguing in Carters backyard but could see
    nothing.  One of the voices was Kambass.  McConnell and Pereira looked through
    a small hole in the back wall of the garage.  The garages interior was lit,
    but there were no people inside.  They left Carters residence and McConnell
    drove Pereira home.

[26]

McConnell returned again to
    Carters residence by herself a few minutes later, around 3:22 a.m. She did not
    hear any noise in the backyard.  She again looked through the hole in the
    garage wall.  This time she saw Carter standing at the opposite end of the
    garage making circular motions with his hands, as if he was cleaning something
    in his hands.   She saw the arm of someone who was lying on the floor near her
    end of the garage, not moving, not making any sounds.  Her view of the rest of
    the body was obstructed. She did not recognize the arm and acknowledged, on
    cross-examination, that she did not think, at the time, it was Kambass arm.
    McConnell heard Koukousoulas, whom she could not see, ask Carter if he had a
    problem with him. Carter responded, No, I dont. Just shut up. Koukousoulas
    sounded distraught. McConnells car left the area around 3:26 a.m.

[27]

When McConnell returned to
    Carters residence around 3:49 a.m. with Pereira, the hole in the garage wall
    had been boarded up.

[28]

During cross-examination,
    McConnell stated that she knew the appellants voice from social occasions.
    She agreed that his voice was high-pitched and [n]ot a deep voice.

Manny Pereira

[29]

Pereira did not testify at trial
    but his sworn police statement was admitted.  He told the police that when he
    and McConnell arrived (her second visit, around 3:15 a.m.), he heard Kambas
    saying in Carters backyard, What the fuck! What the fuck!   He heard another
    really loud voice say, Hold him! Hold him!  He heard a very violent
    struggle taking place, but couldnt see anything in the backyard.  He also
    looked in the hole in the garage and saw nothing of interest.  When he returned
    later that morning with McConnell, about 20-30 minutes after she saw the body
    in the garage, the hole was boarded up.

Denisa Lamanna

[30]

Carters next-door neighbour,
    Denisa Lamanna, was awakened by noises between 3:00 and 3:30 a.m. on June 29,
    2008.  She opened her bedroom window and heard very loud groaning coming from
    near Carters garage.  She heard a man yell, Stop hurting me. A different man
    yelled in an angry way, Shut the fuck up.  She also heard a third voice but
    it was muffled.  She could not see into Carters backyard due to a fence,
    trees, and shrubbery. She called 911, about 5-10 minutes after waking up.   The
    sounds stopped so she called 911 back to cancel her request for police.
    According to call records, the calls to 911 were made at 3:33 a.m. and 3:51
    a.m.

Shawn Grubb

[31]

Carters other next-door
    neighbour, Shawn Grubb, had come home from work between 3:20 and 3:30 am.  He
    had been working as a bouncer at a club. He sat down to watch TV and heard a
    ruckus. He opened a window that faced onto Carters backyard. He heard two
    voices.  A submissive voice was saying, Leave me alone. Stop hitting me. Get
    away from me. A loud aggressive voice was repeatedly yelling, You think Im
    kidding? You think Im kidding around with you? Shut up.  Grubb saw that the
    aggressive voice belonged to a heavyset man in his thirties, around 5 foot 10
    inches tall and weighing 220 pounds or more, with very short, brown hair. He
    had a long goatee around three to four inches long tapering down from his
    chin.  This man was overpowering a thinner, older man in his fifties, kicking
    him and striking him in the head with an open hand. The older man was cowering,
    trying to protect his head and face with his hands, and fell to the ground on
    several occasions.  The two men were in between the pool and garage in Carters
    backyard.

[32]

Grubb also heard three or four
    thuds emanating from Carters garage.

[33]

Grubb yelled at the men to stop.
    The younger man stopped his attack, but continued to occasionally open hand
    cuff the older man in the head.  Grubb called three or four times for Carter,
    who appeared after 10 or 15 seconds.  Carter was out of breath and using the
    fence for support.  Carter approached Grubb, who was above Carter in his open
    window, and the two men spoke across the fence.  Carter told the other two men
    to stop it and told Grubb that all was fine.   At this point, the older man was
    on the ground, behind the pool, but he later leaned up against the fence.  The
    younger man was at the pool, washing and rubbing his face and eyes with water.

[34]

There was some light in Carters
    backyard  emanating from Grubbs open window, from the inside of the garage
    through a door, and from the moon.  Light glistened off the surface of the
    pool.

[35]

When shown a photo line-up by the
    police, over two weeks after the night he saw the assaults, Grubb paused at the
    photo of the appellant but did not identify him as the man he saw in Carters
    back yard.  However, he testified at trial that the facial hair and the shape
    of the head, neck and shoulders in the photograph of the appellant matched his
    recollection of the man attacking the other.

The DNA evidence at Kambass apartment

[36]

It was admitted by the appellant
    that the DNA of the appellant, Kambas and Koukousoulas was isolated from
    drinking glasses found on a coffee table in Kambass apartment by police
    executing a search warrant following the disappearances. It was also admitted
    that the appellants DNA was found on cigarette butts found in an ashtray on
    the same coffee table. DNA from a fourth unidentified man was found on a
    cigarette butt. This DNA was not attributable to the appellant or either of the
    deceased.

The taxi

[37]

At 2:27 a.m. on June 29, 2008, a
    call was made from the appellants cellphone to a taxi company.  The same taxi
    company received a call that ordered a taxi at 2:29 a.m. to the apartment
    building where Kambas lived. A taxi was dispatched at 2:31 a.m.   Kambas and
    two other men got into a taxi in front of Kambass apartment.  The taxi dropped
    the three passengers off at Carters residence.

[38]

The appellants call to the taxi
    company registered at the cell tower closest to Kambass residence. The cell
    tower was also the closest one to the home of Brinn, the appellants
    girlfriend.

[39]

At 2:28 a.m., a call was placed
    from the appellants phone to Carters phone; the call lasted around two
    minutes.  The appellants phone records suggest that he made no calls after
    that until the following afternoon.

[40]

Allen Seguin was the taxi driver
    who picked up three men from Kambass apartment and drove them to Carters
    house.  Seguin was interviewed three times by the police: on June 30, 2008;
    July 5, 2008; and December 16, 2008.

[41]

On June 30, 2008, the day after
    the taxi ride, Seguin was shown three photographs by police officers: Kambas, Moreira,
    and Mavrakakis. Seguin identified Kambas and Moreira as two of the three
    passengers in the taxi and referred to one of them as elderly.  He described
    the third passenger to the police as [m]aybe 510, thin build, and the same
    age as the other two.

[42]

Five days later on July 5, 2008,
    he was shown photographs of two other men.  Seguin said that neither man was in
    the taxi but that the features of one of the men were similar to the third
    passenger. The photograph did not resemble the appellant, as the man in the
    photograph was not bald, did not have a goatee or beard, and was significantly
    older.

[43]

On December 16, 2008, Seguin was
    shown a line-up of photographs which included the appellant.   He did not
    identify any of the men as having been in the taxi.   But this time, he told
    the police that the third man was bald and husky.  Seguin also was shown a
    photo of Koukousoulas, but did not identify him as one of the men in his taxi.

[44]

At trial, Seguins testimony-in-chief was that the third
    passenger was bald and husky, but stated that he did not get a good look at
    him.  During cross-examination, Seguin said that he only saw the third passenger
    out of the corner of my eye. Seguin also acknowledged that it was possible
    his description on December 16, 2008, had been influenced subconsciously by the
    fact that he had just looked at a line-up of bald, stocky men.  He agreed that
    his memory would have been much better at the time of his initial
    description.

Subsequent events

[45]

Before she cancelled the 911 call
    at 3:51 a.m., Lamanna observed a SUV or truck leaving the area of Carters home
    and going down the back alley.

[46]

Carters GMC Jimmy truck was
    seen returning to the area at 4:27 a.m. At 4:59 a.m. his vehicle again left the
    area.  Carters vehicle returned home at around 9:30 a.m., which is about when
    Hamelin testified that she first saw Carter that morning.

[47]

That same evening, Carter and Hamelin
    left Windsor in a vehicle provided by Moreira, rather than driving Carters GMC
    Jimmy.  They drove to nearby Chatham for a vacation. They left the baby with
    Hamelins father.

[48]

Carters GMC Jimmy and garage were
    destroyed in a fire the night of June 29, 2008. Dentures and a shoe stained
    with blood were found in the burned-out vehicle. DNA and other evidence very
    strongly suggested that the dentures and blood were Kambass. The appellant
    does not dispute this on appeal.

[49]

The bodies of Kambas and Koukousoulas
    were found on December 8, 2008, near Harrow, about a 40 minute drive one way
    from Carters home.

[50]

The forensic evidence established
    that both men had died as a result of multiple blunt force injuries which would
    have damaged organs. In the case of Koukousoulas, his sternum had been broken
    and a severe skull fracture alone may have proved fatal.

EVIDENCE IMPLICATING THE APPELLANT

[51]

The first issue for the jury was
    whether the appellant was present at Carters residence at the time of the
    beatings.  There were four pieces of evidence relied upon by the Crown to establish
    his identity as a perpetrator:

·

DNA evidence placing the appellant at Kambass apartment before
    Kambas left for Carters residence;

·

cellphone records;

·

the evidence of voice recognition by Hamelin; and

·

the evidence of Grubb.

[52]

The Crown led no evidence of
    motive, post-offence conduct by the appellant, or forensic evidence connecting
    the appellant to the bodies or Carters backyard.

GROUNDS OF APPEAL

[53]

The appellant raises the following
    grounds of appeal:

1. The trial judge erred by admitting Hamelins voice
  identification evidence;
2. The trial judge erred in characterizing Grubbs evidence
  as identification evidence and by admitting it into evidence;
3.  The trial judge erred by not adequately instructing the
  jury with respect to the dangers of voice and eyewitness identification
  evidence;
4.  The verdicts were unreasonable.
ANALYSIS
[54]

As I agree with the appellant that
    the verdicts are unreasonable, it is not necessary for me to address the other
    three grounds of appeal.
[55]

The authority for a court of
    appeal to determine whether a jury reached an unreasonable verdict is found in
    s. 686(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46, which reads:
686. (1) On the hearing of an appeal against a
    conviction ... the court of appeal
(a) may allow the appeal where it is of the
    opinion that
(i) the verdict should be set aside on the
    ground that it is unreasonable or cannot be supported by the evidence,...
[56]

The test for an appellate court to
    determine whether the verdict of a jury is unreasonable or cannot be supported
    by the evidence has been explained by the Supreme Court of Canada.  In
R.
    v. Yebes
,
[1987] 2 S.C.R. 168, at p. 186, McIntyre J. wrote for the court:
The Court must determine on the whole of the evidence whether
    the verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered. While the Court of Appeal must not merely substitute
    its view for that of the jury, in order to apply the test the Court must
    re-examine and to some extent reweigh and consider the effect of the evidence.
[57]

The Supreme Court in
R.
    v. Biniaris
,
2000 SCC 15, [2000] 1 S.C.R. 381, further explained that the test
    imports both an objective and a subjective assessment. The reviewing court
    first looks at the sufficiency of the evidence objectively to determine if it
    is capable of supporting the verdict.  The subjective element requires the
    reviewing court to examine the weight of the evidence rather than its bare
    sufficiency.   When a jury verdict which does not involve errors in the charge
    is perceived as unreasonable, it was held in
Biniaris
that the only rationale inference is that the jury
    was not acting judicially. Arbour J. explained this at para 39:
This conclusion does not imply an impeachment of the integrity
    of the jury.  It may be that the jury reached its verdict pursuant to an
    analytical flaw similar to the errors occasionally incurred in the analysis of
    trial judges and revealed in their reasons for judgment. Such error would of
    course not be apparent on the face of the verdict by a jury. But the
    unreasonableness itself of the verdict would be apparent to the legally trained
    reviewer when, in all the circumstances of a given case, judicial fact-finding
    precludes the conclusion reached by the jury.
[58]

It is thus through the lens of
    judicial experience that there is an additional safeguard against unwarranted
    convictions:
Biniaris
, at para.
    40.
[59]

Individual items of evidence are
    not, in general, required to be proven beyond a reasonable doubt.  In
R.
    v. Uhrig
, 2012 ONCA 470, at para. 13, this
    court summarized the approach to be taken to the standard of proof in a case
    such as this one:
When arguments are advanced, as here, that individual items of
    circumstantial evidence are explicable on bases other than guilt, it is
    essential to keep in mind that it is, after all, the cumulative effect of all
    the evidence that must satisfy the standard of proof required of the Crown.
    Individual items of evidence are links in the chain of ultimate proof:
R.
    v. Morin
, [1988] 2 S.C.R. 345 (S.C.C.), at p. 361. Individual items of
    evidence are not to be examined separately and in isolation, then cast aside if
    the ultimate inference sought from their accumulation does not follow from each
    individual item alone. It may be and very often is the case that items of
    evidence adduced by the Crown, examined separately, have not a very strong
    probative value. But all the evidence has to be considered, each item in
    relation to the others and to the evidence as a whole, and it is all of them
    taken together that may constitute a proper basis for a conviction:
R. v.
    Côté
(1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[60]

When these legal principles are applied to the
    evidence relied on by the Crown to prove the identity of the appellant as a perpetrator,
    I find that the verdict is unreasonable.  There is no evidence upon which a
    jury acting judicially could reasonably have been satisfied beyond a reasonable
    doubt that the appellant was one of the persons who caused the deaths of Kambas
    and Koukousoulas.
[61]

In coming to this conclusion, I have examined the
    Crowns evidence individually and in the context of the evidence as a whole.
    The DNA and cellphone records, the eyewitness evidence of Grubb, and the
    evidence of Hamelin  considered individually and collectively  are not
    capable of establishing the identity of the appellant as one of the
    perpetrators.
DNA evidence and cellphone records
[62]

The DNA evidence on the coffee
    table at Kambass apartment in combination with the cellphone records suggests
    that the appellant was drinking with Kambas and Koukousoulas in the early hours
    of June 29, 2008, before Kambas, and presumably Koukousoulas, departed for
    Carters residence. The appellants presence at Kambass apartment when
    combined with the call from his phone to the taxi company and the dispatch of a
    driver to Kambass apartment, is capable of supporting an inference that the
    appellant was going to be a passenger in the taxi.
[63]

The Crowns theory was that the
    appellant called the taxi, got into the waiting vehicle with Kambas and
    Koukousoulas, called Carter to say they were coming and then arrived at
    Carters home.
[64]

However, the evidence of DNA and
    cellphone records must be assessed together with the whole of the evidence,
    including that of Seguin, the taxi driver. Seguin failed to identify the
    appellant as being in his car. Moreover, his initial description to the police
    of the third passenger did not correspond to the appellants appearance.
    Further, the DNA evidence indicated that a fourth man may have been present in
    Kambass apartment. All of this evidence is relevant to the Crowns assertion
    that the appellant travelled by taxi with the victims to Carters residence.
[65]

At law, an inference must be
    reasonably and logically drawn from a fact or group of facts established by
    the evidence:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.
[66]

On December 16, 2008, Seguin
    failed to recognize the appellants photograph from a photo line-up as one of
    the passengers in his taxi on June 29, 2008. Further, the appellant bore no
    resemblance to the third passenger Seguin originally described to the police.
    Although Seguin testified in-chief that the third passenger was bald and
    husky, he reasonably agreed that his memory of this mans appearance would
    have been much better at his June 30, 2008, and July 5, 2008, police interviews
    when he described the third passenger as 510, thinly built and elderly.  Seguins
    descriptions given in the two early police interviews bore no relationship to
    the appellants appearance.  These descriptions made no note of two of the
    appellants most distinctive features at the time: he was bald and had a very
    long goatee.
[67]

Kambass apartment was a few short
    blocks from where the appellants girlfriend Brinn lived at the time.  There
    was evidence that this was where the appellant resided as well.  There were no
    further recorded calls from the appellants phone for the remainder of the
    morning.
[68]

Considered together, the DNA,
    cellphone records and evidence of Seguin provide minimal, if any, support for
    the proposition that Dodd travelled to Carters home in Seguins taxi.
Eyewitness evidence of Grubb
[69]

Grubbs evidence was relied on by
    the Crown to put the appellant in Carters backyard.  However, his evidence was
    riddled with frailties.
[70]

Grubb said the man he saw in the
    backyard was heavy-set, 220 pounds or more, in his mid-thirties, with cropped
    hair, as short as five oclock shadow, and a long goatee.  Hamelin described
    the appellant differently.  She saw the appellant that previous afternoon or
    early evening.  She testified that the appellant was bald and had an
    average-build, neither heavy-set nor skinny.
[71]

On July 16, 2008, the Windsor
    police conducted a photo line-up which included a photograph of the appellant. Grubb
    paused at the photo of the appellant.  He did not identify the appellant.  His
    comments recorded on the viewing form were: Thats more like the facial hair
    the one guy had, cant say 100%.
[72]

During his examination in chief,
    the Crown showed Grubb the video of the photo line-up and then asked him: Are
    you able to assist us with what you were thinking or why you paused on
    photograph number four?
[73]

He answered, Yes, there were a
    few reasons.  In response to Crown counsels request for these reasons, Grubb
    stated:
[T]he facial hair matched my recollection of the bigger
    gentleman who was having his way physically in the altercation with the skinnier
    gentleman.  And also, I was holding [the photograph] at a distance cuz I saw
    him at a distance and the lighting at the time was from the back and I saw a
    silhouette and I was judging proportionally neck, shoulders, head, cuz thats
    really all I could see in  in the photo, and I was closing my eyes and trying
    to recollect the proportions of the gentleman I saw that night.  So, I was
    trying to do my due diligence in identifying people as clearly as I could...it
    seemed to match my memory, um, of that night
[74]

Leaving aside the propriety of
    these questions by the trial Crown, Grubbs evidence could only establish that:
    (i) the facial hair in the photograph of the appellant matched [his]
    recollection of the facial hair on the assailant in Carters backyard; and
    (ii) the proportions of the appellants head and shoulders in the photograph
    matched those of the assailant.
[75]

In
    my view, Grubbs evidence was no more than resemblance evidence which has
    little probative value: As a general rule, a resemblance, without more, does
    not amount to an identification:
R. v. Rybak
, 2008 ONCA 354, 90 O.R.
    (3d) 81, at para. 121, leave to appeal refused, [2008] S.C.C.A. No. 311.
    Indeed, [i]n the absence of some other inculpatory evidence, a resemblance is
    no evidence:
R. v. Boucher
(2000), 146 C.C.C. (3d) 52, at para. 19
    (Ont. C.A.).  I agree with the appellants submission that the other evidence
    relied upon by the Crown is so lacking in probative value that it fails to
    satisfy the test in
Rybak
and
Boucher
.
[76]

Even
    if Grubbs evidence is categorized as identification evidence, absent
    additional evidence supporting the identification, it is too frail to support the
    proposition that it was the appellant who was present in Carters backyard and
    a party to the beatings.
[77]

I
    turn to the propriety of the question.  The appellant, relying on
R. v. Tat
(1997), 35 O.R. (3d) 641 (C.A.), submits that Grubbs testimony as to the
    video in which Grubb perused the photo line-up was inadmissible in its entirety.
[78]

I do not need to address this
    issue.  Even assuming all of his testimony was admissible, Grubbs evidence is of
    little value.  He saw a person with facial hair and upper body proportions
    resembling that of the appellant in Carters backyard.  There was evidence from
    Hamelin of other men acquainted with Carter that had goatees. As a matter of
    everyday human experience, goatees and upper body proportions are not so
    uncommon or distinctive as to be capable of identifying an individual.  Grubbs
    description of the assailant at trial does not match the photograph of the
    appellant in that the appellant was totally bald - he did not have very short,
    brown hair. Grubbs description of the assailants hair and build was contrary
    to Hamelins description of the appellant contemporaneous to the beatings.
Voice Recognition by Hamelin
[79]

Voice identification evidence is
    even more fraught with dangers than eyewitness identification evidence. It
    ought to be treated with extreme caution:
R. v. Clouthier
, 2012 ONCA 636, at para. 19.
[80]

Hamelins identification of the
    appellants voice on the baby monitor had very little, if any, probative value.
    As largely exposed on cross-examination, the reliability and credibility of the
    appellants voice identification was dubious:
·

She heard the voice she said was the appellants for about four
    to ten seconds over static and the moaning of another man;
·

She could not recall speaking directly to the appellant or
    hearing his voice over the phone;
·

She could only recall overhearing the appellants voice speaking
    to Carter in bars where music was playing and where she was using alcohol and
    cocaine;
·

She had only spent time with the appellant a few times;
·

The last time she heard the appellants voice might have been
    three to five years before June 2008;
·

She did not like the appellant;
·

She gave a statement to the police, later recanted, that the
    voice could have been someone elses;
·

Her description of the appellants voice as deep was
    contradicted by McConnells testimony who described his voice as
high-pitched and [n]ot a deep voice.
[81]

The ability of a lay listener to
    correctly identify voices is subject to a number of variables.  The Court of
    Appeal of England and Wales commented on this in
R. v. Flynn and St.
    John
,
[2008] E.W.C.A. Crim. 970, [2008] 2 Cr. App. R. 20.  At para. 16, several
    factors are listed as relevant according to the expert evidence before that
    court.  Those applying here include:
·

The quality of the recording;
·

The gap in time between the listener hearing the known voice and
    the attempt to recognize the disputed voice;
·

The nature and duration of the voice which is sought to be
    identified;
·

The familiarity of the listener with the known voice.
[82]

There were four, possibly ten,
    seconds of a voice on a low quality broadcast purportedly belonging to a person
    the witness cannot recall speaking directly to or even hearing for three or
    more years.
[83]

Even if the trial judge did not err by admitting the
    evidence or by failing to give a sufficient caution to the jury in connection
    with it, the evidence was not capable of providing any meaningful support to
    the Crowns theory.
Combined effect of the evidence
[84]

When assessed as a whole, the
    evidence is not capable of supporting the inference that the appellant was present
    at the scene when the beatings took place. The frailties of each aspect of the
    evidence do not gain strength when considered together. The DNA and cell phone
    evidence have little, if any, probative value when considered in the light of
    Seguins evidence. The weaknesses of the evidence of Hamelin and Grubb are not
    cured by their combination. On the contrary, an attempt to use one to support
    the other  while potentially alluring to a finder of fact  is insupportable.
[85]

Hamelins
    voice identification evidence cannot raise Grubbs evidence beyond a finding of
    some resemblance between an assailant in Carters backyard and the appellant, a
    resemblance of little to no probative value given the conflicts between Grubbs
    description of the assailant and the appellants known appearance at the time.
    Likewise, Grubbs evidence does little to address the frailties in Hamelins
    voice-identification.
[86]

Grubbs eyewitness evidence of resemblance between the
    appellant and the backyard assailant had no relevance at all unless supported
    by the evidence of Hamelin.
The evidence of Hamelin cannot support the
    identification of the appellant so it follows that it cannot make Grubbs
    resemblance evidence stronger.
[87]

The
    evidence as a whole indicates that the timing and perhaps the location of the
    two assaults were different.  Grubb and Hamelin could well have witnessed
    different assailants.
Conclusion
[88]

The evidence relied upon by the
    Crown to prove the appellants presence at the scene of the homicides, when
    viewed collectively, cannot reasonably support a finding that the appellant was
    in Carters backyard at the necessary times.
[89]

For these reasons, I have found that
    the jury could not have been acting judicially in determining that the
    appellant was at the scene of the murders and caused the deaths of the two
    victims. In my view, the verdict of guilt against the appellant is
    unreasonable.
DISPOSITION
[90]

I would allow the appeal, quash
    the convictions of the appellant and enter acquittals.
Released: R.J.S. April 27, 2015
M.L. Benotto J.A.
I agree Robert J.
    Sharpe J.A.
I agree Janet
    Simmons J.A.