



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.


