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PROCEDURE - Trial judge’s duties - Charge or directions

Tuesday, May 05, 2020 @ 9:26 AM  

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Appeal by the accused Campbell and David from convictions for first-degree murder. The victim was the boyfriend of Campbell’s former girlfriend. She began a relationship with the victim while Campbell was in prison. The appellants were close friends. Both had issues with the victim. The victim was shot outside a residence where the appellants and LS, a mutual friend, met by chance. LS testified that after Campbell and David met behind the victim’s car, David began moving like he had the weapon. David moved first toward the victim. Campbell followed but then stopped. David had his arm held at an angle like he was concealing a gun. Campbell also walked toward Vincent but stopped. David continued to move toward the victim. LS heard five shots fired. He looked back and saw David holding a revolver and looking around. Campbell had his mouth wide open. The Crown alleged that Campbell passed the gun to David and instructed him to kill the victim. Campbell denied having a gun on the day of the shooting and denied instructing David to shoot the victim. David denied knowing anything about the dispute between Campbell and the victim and denied being told by Campbell to shoot him. The appellants argued that the first-degree murder verdict was unreasonable. They also argued the trial judge erred in his charge to the jury on post-offence conduct, party participation, the Vetrovec warning, the pathology evidence and the use of the criminal record of the deceased and that a new trial was thus required.

HELD:  Appeal allowed in part. A verdict of second-degree murder was substituted. No new trial was required. The verdict of first-degree murder was unreasonable. The evidence did not establish that a reasonable jury could have been satisfied beyond a reasonable doubt that the appellants had carefully thought out and calculated a scheme, considered the nature and consequences and weighed the pros and cons of the murder. The evidence of the appellants meeting behind the victim’s car could not possibly establish planning and deliberation. There was no time at the back of the car for a carefully thought-out scheme with a weighing of the advantages and disadvantages. Nor was there evidence to support the planning and deliberation. The evidence relied on is equally consistent with an impulsive act of Campbell being angry with the victim and impulsively telling David to shoot. The evidence before the jury was sufficient for the jury to find motive and intent. The risk was that this could lead the jury to a determination of planning and deliberation. The jury charge was appropriate. No limiting charge was required with respect to the appellants’ post-offence conduct of leaving the scene. The conduct was mentioned only in the context of planning and deliberation for first-degree murder. Intent for murder was unrelated and could not be informed by the fact that they left the scene. There was no risk of misuse of the evidence by the jury. The Vetrovec instruction respecting LS’s evidence was appropriate and sufficient. While LS had unrelated outstanding charges, he knew that the police and Crown would give him no consideration for his testimony at this trial. On the spectrum of unsavoury witnesses, LS was on the lower end. The Vetrovec instruction given by the trial judge accomplished all the objectives. The trial judge did no err when he instructed the jury that the victim’s prior record was only relevant to self-defence. No further instruction was appropriate or necessary. The trial judge did not err by not including an instruction on party participation. The Crown relied on Campbell’s role as principal to the murder. It was open to the jury to find that his actions in giving David the gun and instructing David to shoot were a significant contributing cause of the victim’s death. A charge on party participation was not necessary and would have imported unnecessary confusion.

R. v. Campbell, [2020] O.J. No. 1163, Ontario Court of Appeal, M.L. Benotto, G. Huscroft and M. Jamal JJ.A., March 17, 2020. Digest No. TLD-May42020004