



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spence, 2018 ONCA 427

DATE: 20180507

DOCKET: C55613

Doherty, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lenworth Spence

Appellant

Catriona Verner and Lance Beechener, for the appellant

Elise Nakelsky, for the respondent

Heard: April 5, 2018

On appeal from the conviction
    entered by Justice Peter H. Howden of the Superior Court of Justice on
    September 23, 2011, with reasons reported at 2011 ONSC 5587.

Doherty J.A.:


I



[1]

On the morning of March 7, 2007, two vehicles stopped on the side of a
    country road north of Barrie. Lenworth Spence (the appellant) and Terrence
    Walker were in one car. Tafari Williams, Gregory Millar, Andrew Turner and
    Jonathan Chambers were in the other. Turner and Chambers exited their vehicle.
    Turner shot Chambers several times in the head. Turner got back into the
    vehicle he had exited and the two vehicles drove away, leaving Chambers dead
    near the roadside. His body was discovered later that day.

[2]

The police eventually charged everyone in the two vehicles. Turner, Walker
    and Millar pled guilty to manslaughter. Williams was charged with and pled
    guilty to being an accessory after-the-fact to murder. The appellant was tried
    on a charge of first degree murder by a judge alone.
[1]
He was convicted on that charge and sentenced to the mandatory term of life
    imprisonment without eligibility for parole for 25 years.
[2]
He appeals his conviction only. For the reasons that follow, I would dismiss
    the appeal.


II



[3]

The case for the Crown relied to a large extent on the evidence of
    Williams, Walker and Millar. All three had entered into plea agreements and had
    co-operated with the prosecution in exchange for reduced sentences. All three led
    criminal lifestyles and were involved in the events culminating in Chambers
    murder. Different parts of the evidence of each were shown by independent
    reliable evidence to be demonstrably false. Both Walker and Millar recanted the
    statements they had given to the police during their testimony. Millar then
    recanted part of the recantation. The trial judge ultimately admitted the
    out-of-court statements made by Walker and Millar for the truth of their
    contents.

[4]

The trial judge examined the evidence of the three accomplices at
    length. He was alive to the many frailties in their evidence. In the end, he
    concluded that Williams was credible. The trial judge accepted significant
    parts of Williams evidence, which he found to be confirmed in material ways by
    evidence independent of Williams (paras. 416 and 424).
[3]
With respect to Walker, the trial judge found that, while parts of his evidence
    were confirmed by independent evidence, his evidence still had to be approached
    with caution (paras. 354-55). In respect of Millar, the trial judge was blunt, writing
    at para. 356:

Apart from an instance where Gregory Millars evidence is
    supported by an objective credible source, I will not rely on his evidence or
    his B.(K.G.) statement for any conclusion that I draw factually. His testimony
    in court was a disgrace to himself and to rely on it would only compound the
    insult his performance posed to the court.

[5]

The appellant did not testify, but the defence called two witnesses.
    Only one, Quentin Gibon, testified about the relevant events. He was present at
    Turners residence with the appellant, Chambers and others the night before the
    murder. The trial judge found Mr. Gibon to be biased in favour of the appellant.
    The trial judge rejected most of his evidence, although he did conclude that it
    confirmed, to some extent, Williams evidence about the appellants anger
    toward Chambers the night before the murder (paras. 320-25).


III



[6]

The narrative that unfolded in the evidence of the three accomplices,
    especially Williams, began a few days before the murder. Chambers, a drug
    dealer, was trying to arrange for two associates to purchase a kilogram of
    cocaine. He approached Williams. He and Williams were long-time friends and had
    dealt drugs together in the past. Williams was an accomplished, large-scale
    drug dealer. He was higher on the drug dealing hierarchy than either Chambers
    or the appellant.

[7]

Williams did not have enough cocaine readily available to fill the
    order. He contacted the appellant to see if he could provide the cocaine.
    Williams and the appellant were friends with a history of working together in
    drug transactions. By the early evening of March 6, the details of the drug transaction
    had been worked out. The appellant, in possession of 1.5 kilograms of cocaine,
    was on his way with Chambers to meet the purchasers who had agreed to pay
    $52,000 for the cocaine.

[8]

The appellant and Chambers met the purchasers at around 8:30 p.m. near
    the appellants condominium. Chambers got into the buyers car. He turned over
    the cocaine and received what he believed to be $52,000 in cash. The buyers
    left with the cocaine and the appellant and Chambers returned to the
    appellants condominium. When the appellant looked at the bundles of cash, he
    realized that he had been duped. There were a few genuine bills on the outside
    of the bundles, but the rest of the cash consisted of paper cut to the size
    of bills.

[9]

After an aborted attempt to catch up to the purchasers, the appellant
    called Williams, who was at Turners apartment in Brampton. The appellant and
    Chambers went to Turners apartment to talk with Williams about the rip off.
    The appellant was angry and made it clear that he believed that Chambers was
    involved in the rip off. Williams was more sanguine and was concerned
    primarily with recovering the lost cocaine or the unpaid purchase price.

[10]

A
    number of people gathered at Turners apartment during the evening of March 6.
    Some, like Walker, were closely associated with Williams. Others, like Millar,
    were associated with the appellant.

[11]

During
    the evening, Chambers was threatened, both physically and with a gun, tied up
    and repeatedly assaulted. He insisted he was not party to any rip off. Phone
    calls were made by Chambers, at the insistence of the appellant and others, to
    friends and associates of Chambers, demanding that they come up with the cash
    that had been lost in the transaction.

[12]

Williams
    testified that during the evening, the appellant produced a handgun and
    threatened Chambers. The appellant gave the handgun to Turner at one point in
    the evening. Turner also assaulted Chambers. On the Crowns theory, this was
    the gun used to murder Chambers the next day.

[13]

Williams
    testified that the appellant told him during the evening of March 6 that he
    wanted to kill Chambers as a lesson to others who might be inclined to cheat
    him. Williams indicated that he tried to convince the appellant that they
    should focus on getting the money. Williams believed that as the evening went
    on the appellant calmed down and agreed that they should concentrate on the
    money. When Williams went to bed that night, he thought they were going to take
    steps to get the money the next day. He did not anticipate that anything would
    happen to Chambers.

[14]

The
    next day, shortly after 8:00 a.m. on March 7, the appellant, Williams,
    Chambers, Walker, Millar and Turner all left Turners apartment. Williams
    testified that he believed they were headed to Toronto to meet a person who
    could help them get to the bottom of the rip off the night before. After the
    six men exited the apartment building, Turner, Chambers, Williams and Millar
    got into one vehicle. Millar was driving. Williams was in the front seat. Chambers
    and Turner were in the backseat. Walker and the appellant got into the second
    vehicle. Walker was driving and the appellant was sitting in the front seat.

[15]

The
    two vehicles drove in tandem south to Highway 407 and then east toward Toronto.
    At the Highway 400 exit, Millars vehicle took the exit north toward Barrie.
    Walkers vehicle followed right behind.

[16]

Williams
    testified that he was surprised when the vehicles headed north towards Barrie.
    He had no idea where they were going and did not inquire. Walker testified that
    he turned north following Millars vehicle. Meanwhile, the appellant was on the
    cellphone constantly. Walker indicated that he pressed the appellant for some
    explanation of what was going on, but the appellant only told him that Chambers
    had messed up the drug deal the previous evening.

[17]

Millar
    testified that he had no idea why he was driving north towards Barrie and that
    he was following Williams instructions. In his statement to the police,
    subsequently admitted for the truth, Millar had said the appellant gave all of
    the instructions.

[18]

The
    vehicles proceeded north until they pulled over one behind the other on an
    isolated country road north of Barrie. Williams testified that Turner and
    Chambers got out of the vehicle. He could not recall any conversation. By this
    point, Williams expected that something bad was going to happen to Chambers,
    but he said nothing. Turner shot Chambers in the head and returned to the
    vehicle. There was no conversation. The vehicles left the scene and drove back
    to Toronto in tandem.

[19]

Walker
    testified that he pulled up behind the Millar vehicle and saw Turner and
    Chambers get out of the vehicle. Neither he nor the appellant got out of their
    vehicle. Walker indicated that he was shocked when Turner shot Chambers, but
    that the appellant had no reaction. According to Walker, he was angry on the
    drive back to Toronto because he was now implicated in a murder that he was not
    involved in and wanted nothing to do with.

[20]

The
    two vehicles drove back to Walkers residence in Toronto. There were discussions
    about the gun. Walker said he would hold it subject to further instructions.
    Walker testified that Williams was upset about the shooting, but the appellant
    insisted that there was no chance that they would recover the money from
    Chambers and that it was important to send a message to other drug dealers. In Millars
    statement, he also indicated that Williams described the killing as unnecessary.
    The appellant replied, it is what it is.


IV



[21]

The
    case for the Crown rested on five evidentiary building blocks. First the Crown
    argued that the appellant had motive. He had a financial interest in the failed
    drug transaction. All, or a significant part, of the cocaine belonged to the
    appellant and he was out $52,000. The appellant was also embarrassed by the way
    he had been duped. He had strong reason to seek retribution against Chambers and
    to send a message to others in the drug dealing community by killing Chambers.

[22]

Second,
    the Crown argued that the appellant was very angry with Chambers during the
    evening of March 6 and the early morning of March 7. The appellant assaulted
    and threatened Chambers, both physically and with a gun. The appellant demanded
    that Chambers act immediately to recover the drugs or the money and became
    upset when Chambers efforts failed.

[23]

Third,
    the Crown relied on the evidence placing the appellant in the group of men that
    left Turners apartment with Chambers and drove away. The Crown contended that
    the evidence showed that the appellant was involved in coordinating the trip
    north with his good friend, Millar, who was driving the lead vehicle. Millar
    knew the Barrie area.

[24]

Fourth,
    the Crown relied on the evidence placing the appellant at the scene of the
    murder, the absence of any reaction by him to the shooting, and the appellants
    return to Walkers residence with the murderer, Turner, and others after the
    murder.

[25]

Finally,
    the Crown argued that the gun used to commit the murder belonged to or at least
    came from the appellant.

[26]

The
    defence focused primarily on the credibility of the three main Crown witnesses
    and the unreliability of their evidence. The defence argued that their evidence
    was demonstrably untrue in many respects and that absent independent confirmation,
    the trial judge should not rely on any of it. The defence submitted that Williams
    was caught in several lies and had changed substantial parts of his evidence
    when confronted with other independent reliable evidence, such as cellphone records
    showing that his initial testimony was false.

[27]

The
    defence submitted that Walker and Millar were aware of Williams testimony
    before they gave statements to the police as part of their plea bargains.
    They were anxious to have those statements conform to Williams testimony, as
    they understood his statement to reflect the position of the prosecution. The
    defence argued that the evidence of Walker and Millar could not be regarded as
    independent of Williams evidence and therefore capable of confirming Williams
    evidence.

[28]

The
    defence accepted that Chambers murder was planned and deliberate, and
    connected to the drug rip off the night before. The defence maintained,
    however, that the evidence pointed to Williams as the person most likely to
    have directed the murder. The defence relied on evidence showing that Williams
    was the seller of the drugs and therefore the person with the strongest
    financial and reputational interest in killing Chambers. The defence argued that
    Williams was the boss among the various drug dealers at Turners residence and
    in the car on March 7. He was in the lead car with Chambers and the shooter,
    Turner, who was his very good friend. Turner hardly knew the appellant.

[29]

In
    addition to pointing the finger at Williams, the defence also relied on
    evidence suggesting Millar had a motive to kill Chambers. Millar had a violent
    temper and there was evidence that part of the cocaine belonged to him. Millar drove
    the vehicle in which Chambers and Turner were seated and Millar knew his way
    around the back roads in the Barrie area.


V



[30]

The
    trial judge made a careful and exhaustive review of the evidence. He ultimately
    made several material findings of fact, including the following:

·

the appellant was the person ripped off in the drug
    transaction, even if Williams also had an interest in the transaction. It was
    the appellant who was on the hook for the money (see paras. 336, 419 and 422);

·

the appellant was very angry with Chambers during the evening of
    March 6. He assaulted and threatened Chambers in the course of the evening (see
    paras. 337 and 342);

·

a decision was made by the appellant to kill Chambers sometime
    after he and Chambers arrived at Turners residence on the evening of March 6
    (see paras. 371-78, 426 and 432);

·

the appellant was in the group of people that left Turners
    residence and headed north with Chambers. He was at the scene of the execution
    (see paras. 347, 351 and 425-26);

·

the appellant, perhaps with the help of others, orchestrated and
    directed the trip northward (see paras. 426-27); and

·

the appellant was in possession of the murder weapon on the
    evening of March 6 and gave the weapon to the shooter, Turner (see paras. 391-92
    and 425).


VI



the grounds of appeal

A:  Could the evidence of
    Walker or Millar confirm the evidence of Williams?

[31]

The
    appellant accepts that the trial judge properly instructed himself that
    Williams, Walker and Millar were 
Vetrovec
 witnesses and that it was
    dangerous to rely on their evidence, absent independent confirmatory evidence
    that gave the trial judge confidence that he could rely on any material part of
    their evidence. The appellant does not quarrel with the trial judges
    description of the applicable legal principles (paras. 44-76). He does,
    however, contend that the trial judge failed to properly apply one of those
    principles to the evidence.

[32]

The
    appellant acknowledges that the evidence of one 
Vetrovec
 witness can
    sometimes confirm the evidence of another 
Vetrovec
 witness: see
R.
    v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 39;
R. v. Roks
, 2011 ONCA 526
, 274 C.C.C. (3d) 1, at
    para. 67. He submits, however, that to be confirmatory, the evidence must be
    independent of the evidence that it seeks to confirm. The appellant asserts
    that the evidence of Walker and Millar was not independent of the evidence of
    Williams and the trial judge therefore erred in using parts of their evidence
    to confirm material parts of the evidence of Williams: see
R. v. Pollock
(2004), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 161. The appellant points to
    four occasions in which he argues the trial judge improperly used the evidence
    of Walker and Millar as confirmatory. He contends that as the Crowns case depended
    largely on Williams evidence, this error necessitates the quashing of the
    conviction.

[33]

The
    argument that the evidence of Walker and Millar was not independent of the
    evidence of Williams rests on the uncontested evidence that Walker and Millar
    heard Williams testimony before they chose to enter guilty pleas to included
    offences. Both men were present at the preliminary inquiry when Williams
    testified. Further, both men testified that when they gave statements to the
    police, they appreciated that it was important for them to conform to the
    prosecutions theory, as reflected in Williams testimony.

[34]

The
    appellant maintains that the willingness of Walker and Millar to shape their
    statements to conform to Williams testimony is evident in the similarity of
    their evidence to Williams testimony and, in Millars case, in his repetition
    of parts of Williams evidence that were later shown to be false. The appellant
    argues that in the face of this evidence, the trial judge was obliged to
    conclude that the evidence of Walker and Millar was tainted and incapable of
    constituting independent evidence confirming any part of Williams testimony.

[35]

The
    appellant further submits that although the trial judge appreciated that a
    witnesss evidence could be tainted by some connection with the evidence of
    the 
Vetrovec
 witness so as to negate the requisite independence, he
    failed to appreciate that the entirety of the evidence of Walker and Millar was
    tainted by their knowledge of Williams testimony and their willingness to
    offer testimony consistent with Williams evidence.

[36]

There
    can be no gainsaying the risk that the evidence of Walker and Millar was tainted
    by their knowledge of Williams testimony and their interest in testifying in
    conformity with his evidence. The trial judge was alive to the evidence that
    Walker and Millar had heard Williams testimony and saw a need to conform with
    it in their own evidence. He recognized that this evidence negatively impacted on
    the reliability of evidence given by Walker and Millar (
e.g.
see para.
    415). The appellant is correct, however, that the trial judge did not specifically
    identify the evidence of tainting as relevant to his determination of whether
    anything Walker or Millar said in their evidence could confirm the testimony of
    Williams.

[37]

The
    appellant refers to the following passage, at para. 182, to support his claim
    that the trial judge used the evidence of Walker and Millar to confirm
    Williams evidence:

Nevertheless, the cellphone evidence and later evidence from
    Walker and Gregory Millar does lend support to Tafari Williams evidence as to
    the overall course of events, the humiliation and anger of Lenworth Spence, the
    presence of the named people in the apartment that night, and on the road to
    Oro-Medonte in the morning, and the disguised pattern of phone contact by
    Spence with Millar before, leading up to, and after the shooting.

[38]

With
    respect, the appellants reliance on the extract from the judgment quoted above
    demonstrates the error in examining one passage from the trial judges reasons
    in isolation from the rest of the reasons. The reasons were lengthy, detailed
    and, in my view, carefully constructed.

[39]

The
    passage quoted above appears in the part of the reasons in which the trial
    judge examined, at length, the evidence of Williams. After reviewing the cross-examination
    and noting the many deficiencies that it disclosed in Williams testimony, the
    trial judge went on to observe that other parts of the evidence, including
    evidence from Walker and Millar, lend[s] support to Williams testimony.

[40]

The
    trial judge was not discussing confirmatory evidence in the 
Vetrovec

    sense in para. 182 of his reasons. He devoted a later lengthy section of his
    reasons to that specific topic. The trial judge was indicating only that,
    despite the significant problems with the reliability of Williams evidence,
    there were parts of the evidence, including evidence from Walker and Millar, that
    lent some credence to his testimony. Paragraph 182, standing alone, does not
    advance the appellants argument. The submission requires an examination of the
    parts of the reasons which expressly address the 
Vetrovec
 concerns.

[41]

The
    trial judge was alive to the very real dangers inherent in relying on the
    evidence of Williams, Walker and Millar. He addressed the existence of
    confirmatory evidence at length in his reasons (see paras. 305-356 and
    393-412). I begin with some preliminary observations about those parts of the
    reasons that do not speak directly to the appellants submissions.

[42]

The
    trial judge began this part of his reasons by reminding himself that
    confirmatory evidence had to be independent and sufficiently material or
    relevant so as to restore confidence in the witnesss otherwise questionable
    credibility (para. 305). The trial judge searched for potentially confirmatory
    evidence as it applied to each of the three 
Vetrovec
 witnesses. He
    looked for confirmation of evidence relevant to the material features of the
    case advanced by the Crown. He examined these features separately, looking for
    confirmatory evidence. For example, at paras. 337-42, he considered whether
    there was confirmatory evidence of Williams testimony about the events at
    Turners residence during the evening of March 6 and the early morning of March
    7. At paras. 350-51, he considered whether there was evidence confirmatory of
    Williams evidence placing the appellant at the scene of the murder.

[43]

The
    trial judge took a granular approach in his analysis of the evidence. His
    reasons lay bare the
minutiae
of his thought process. He rejected various
    items of evidence offered by the Crown as confirmatory, either because they were
    ambivalent (
e.g.
see paras. 311 and 339), or because the evidence was
    not truly independent from the evidence of the 
Vetrovec
 witness (
e.g.
see para. 338).

[44]

Ultimately,
    the trial judge determined that the evidence of Williams, as it related to each
    of the central features of the Crowns case, was confirmed by a great deal of
    independent evidence, most of it from sources other than Walker and Millar. For
    example, in finding that Williams evidence about the events at Turners
    apartment was confirmed by other evidence, the trial judge referred to four
    areas of evidence, only one of which involved the evidence of either Walker or
    Millar. In that single instance, although the trial judge referred to the
    evidence of Millar as confirmatory, he noted that there was evidence from
    another source, the defence witness Gibon, that also provided confirmation (see
    paras. 337-42).

[45]

It
    is also significant that even when the trial judge was prepared to accept
    Millars evidence as confirmatory to some extent of Williams evidence, he took
    into account the very serious problems with Millars credibility. Thus, while
    he was prepared to accept that Millars evidence was confirmatory of Williams
    evidence about the appellants animus toward Chambers during the evening of
    March 6 and the early morning of March 7, he was not prepared to accept
    Millars evidence of specific statements made by the appellant demonstrating
    that animus, as those statements were unconfirmed by any other source (see
    para. 328).

[46]

I
    come now to the appellants submission that the trial judge erred in treating
    any of the evidence of Walker and Millar as confirmatory of Williams
    testimony. There is no doubt that the trial judge did find some parts of
    Williams evidence to be confirmed by evidence given by Walker and Millar. In
    addition to the example referred to above, there were others. For example, the
    trial judge found that Williams evidence that the drugs lost in the rip off
    belonged to the appellant was confirmed by Walkers evidence of statements made
    to him by the appellant on the trip north to Barrie (see para. 331).

[47]

It
    is also clear that the evidence of Walker and Millar was potentially tainted in
    the sense that they had prior knowledge of the substance of Williams evidence
    and had reason to give evidence that was consistent with Williams testimony.

[48]

The
    presence of tainting does not automatically disqualify a witnesss evidence
    from being confirmatory of the evidence of another witness. The taint is a
    factor, albeit an important factor, to be considered by the trier of fact when
    assessing whether one witness evidence can play any role in restoring the
    trier of facts faith in the veracity of the evidence given by a 
Vetrovec

    witness. That assessment is situation-specific. It is the trier of fact, as the
    arbiter of the credibility of witnesses and the reliability of evidence, who
    must ultimately decide whether the evidence of one witness restores the triers
    confidence in the reliability of the evidence of another: see
R. v. Winmill
(1999), 42 O.R. (3d) 582 (C.A.), at p. 609;
R. v. Magno
, 2015 ONCA
    111, 321 C.C.C. (3d) 554, at paras. 29-30;
R. v. Tse
, 2013 BCCA 121,
    at paras. 108-18.

[49]

The
    settled law is well put in
Magno
, at para. 30:

Therefore, collusion among
Vetrovec
witnesses does not necessarily prevent the evidence
    of one such witness from confirming the evidence of another.
It is not
    enough that the unsavoury witnesses are tainted by allegations of collusion;
    the evidence they provide and that is potentially confirmatory of each others
    evidence must be so tainted by collusion that it loses its required
    independence and cannot reasonably be used as confirmation. This is a matter
    for the jury to decide.
[Emphasis
    added.]

[50]

Tainting
    may render one part of a witness evidence insufficiently independent from the
    evidence of the 
Vetrovec
 witness to provide confirmation of that
    part of the witness testimony. However, that taint may not have the same effect
    on another part of the witness evidence. Similarly, there may be other factors
    relevant to the assessment of a witness credibility and reliability that
    sufficiently counteract the tainting and lead the trier of fact to conclude
    that despite the tainting, some part of that witness evidence does confirm a
    material part of the testimony of the 
Vetrovec
 witness.

[51]

For
    example, the trial judge concluded that Walkers evidence about a statement
    made to him by the appellant in the car ride north was confirmatory of Williams
    evidence that the drugs lost in the rip off belonged to the appellant. The
    trial judge observed that Walker was obviously attempting to protect the
    appellant throughout his testimony. Consequently, evidence from Walker that
    implicated the appellant had some inherent reliability. The trial judge took
    that reliability into account when considering whether Walkers evidence could
    confirm a particular aspect of Williams testimony (see para. 331).

[52]

This
    was a trial by judge alone. It was for the trial judge, as the trier of fact, to
    ultimately decide whether parts of the evidence of Walker and Millar could
    confirm parts of the evidence of Williams, despite the evidence of tainting.
    While it is true that the trial judge did not expressly address the specific
    evidence of tainting in the context of considering whether Walkers and
    Millars evidence was independent, his reasons, as a whole, reflect an
    appreciation of that risk. He referred to the evidence of tainting more than
    once. He resorted to the evidence of Walker and Millar to confirm Williams
    testimony only in respect of specific parts of Williams testimony and only
    when there was other confirmatory evidence of the same parts of Williams
    testimony.

[53]

The
    trial judges reasons reveal a full and careful analysis of the evidence of
    Williams, Walker and Millar. He was alive to the need to look for evidence that
    could confirm material aspects of their testimony. To the extent that he concluded
    that he could rely on parts of the evidence of Walker and Millar to confirm material
    parts of Williams testimony, the trial judge made no error in law. To the
    extent that he actually found confirmation in their evidence, his findings are fully
    explained in his reasons and fall within his purview as the trier of fact.

B: Did the trial judge misapprehend
    the evidence?

[54]

The
    appellant submits that the trial judge misapprehended the evidence in several
    respects and that, cumulatively, those errors satisfied the test for reversal
    based on material misapprehension of the evidence. As stated in
R. v. Lohrer
,
    [2004] 3 S.C.R. 732, at para. 2:

The misapprehension of the evidence must go to the substance
    rather than to the detail. It must be material rather than peripheral to the
    reasoning of the trial judge. Once those hurdles are surmounted, there is the
    further hurdle (the test is expressed as conjunctive rather than disjunctive)
    that the errors thus identified must play an essential part not just in the
    narrative of the judgment but in the reasoning process resulting in a
    conviction.

[55]

In
    his factum, the appellant refers to eight specific instances in which he
    contends the trial judge materially misapprehended the evidence. I do not
    propose to examine each individually. None warrant reversal.

[56]

Most
    of the alleged misapprehensions of evidence are, on closer examination,
    complaints that the trial judge preferred the Crowns submissions as to the
    proper interpretation of certain evidence over the defences submissions. For
    example, the appellant contends that the trial judge misapprehended the
    evidence about Williams delay in contacting the appellant concerning Chambers
    request to purchase cocaine. The appellant argues that evidence of this delay,
    if properly understood by the trial judge, demonstrated that it was Williams,
    and not the appellant, who was the source of the cocaine to be sold to the
    purchasers introduced by Chambers.

[57]

This
    same argument was put to the trial judge (paras. 310-11). The trial judge reviewed
    the relevant evidence and concluded that the relevant events occurred over a
    shorter period of time than urged by the defence and that this evidence was
    ambivalent as to who was to be the supplier of the cocaine. Both findings
    were available on the evidence.

[58]

A
    second example in which the appellant alleges a misapprehension of the
    evidence, but actually argues about the inferences the trial judge chose to
    draw from the evidence, relates to the trial judges finding that the gun used
    to commit the murder belonged to the appellant. The appellant argues that the
    trial judge based this finding exclusively on a telephone call between Walker and
    the appellant on March 8, the day after the shooting. Walker had testified that
    he took possession of the gun on March 7, after he and the others had returned
    from the shooting. According to Walker, he told all present, including the
    appellant and Williams, that he would hold the gun and await instructions as to
    what he should do with it. The Crown submitted that the call by the appellant on
    March 8 was in reference to the gun being held by Walker.

[59]

The
    appellant submits that the trial judge improperly inferred from the single
    telephone call that it was the appellant who was calling Walker about the gun.
    The appellant argues that there was also evidence that Williams called Walker after
    Walker agreed to hold the gun. How, the appellant asks, could the trial judge
    infer that it was the appellants call, and not Williams call, that related to
    the gun?

[60]

The
    trial judge reviewed the evidence of these phone calls (paras. 411-12). His
    finding that the appellant called Walker about the gun is supported by other
    evidence. The appellant and Walker were not friends. Williams and Walker were
    close friends. It was reasonable for the trial judge to infer that the only
    reason the appellant had to speak to Walker the day after the murder was in connection
    with the gun that Walker said he would hold, pending further instructions.

[61]

The
    inference that the appellant was calling Walker about the gun was also
    supported by conversations involving the appellant several months later. These
    conversations were intercepted pursuant to a wiretap order. Walker had been
    charged with possession of a restricted firearm and the appellant was upset. In
    one conversation, he indicated that Walker did not get rid of the gun as he was
    supposed to do (paras. 400-08). It was open to the trial judge to infer from
    the entirety of this evidence that the gun belonged to the appellant.

[62]

Two
    of the appellants submissions do reveal a misapprehension of evidence by the
    trial judge. The first arises out of the evidence concerning the instructions that
    passed between the two vehicles as they turned north toward Barrie. The trial
    judge, relying on the timing of certain cellphone calls, found that the appellant,
    in the second car, gave Millar, the driver of the first car, an instruction to
    turn north immediately before Millars vehicle turned north toward Highway 400
    (para. 426).

[63]

In
    making this finding, the trial judge relied on cellphone records providing the
    time the call was sent from the cellphone in Walkers vehicle. The trial judge,
    however, failed to consider the records pertinent to the time at which the
    cellphone in the Millar car received the call. Based on the time the call was
    received, Millars vehicle was headed north seconds before the call was received.
    I agree with the appellant that the trial judge misapprehended this evidence.

[64]

I
    do not agree, however, that the error was material in that it played an
    essential part in the trial judges reasoning process:
Lohrer
, at
    para. 2. In his reasons, the trial judge immediately after reviewing the
    evidence of the timing of that call, went on to indicate at para. 427:

Even if Mr. Spence did not direct events and Millar did, or if
    they did so together, there is no doubt that from their frequent communications
    up to and after the killing, and from the ownership and transfer of possession
    by Spence to Turner of his gun, and Spences presence at the scene of the
    shooting, ensuring that it would be done without any chance for escape, that he
    promoted and encouraged the execution of Jonathan Chambers.

[65]

As
    is apparent from the trial judges reasons, his finding that the appellant was
    directing, either alone or with others, the trip north, did not turn on his
    finding of the timing of a single specific communication between Millar and the
    appellant. There were many factors that led the trial judge to conclude that the
    appellant, alone or perhaps with Millar, orchestrated the trip north.

[66]

The
    second error made by the trial judge arises out of his finding that the
    appellant used Turner, a mentally compromised young man who was known to be
    easily manipulated by others, to cause the death of Jonathan Chambers (para.
    432).

[67]

The
    only reference to Turners mental state in the trial evidence
[4]
came in a single answer given by Williams. Williams referred to the appellant
    as taking advantage of Turner cause of his mental situation. There is no
    evidence that the appellant knew anything about Turners mental state. Williams
    testimony is not evidence that Turner was mentally compromised, much less
    that the appellant took advantage of that circumstance.

[68]

However,
    the trial judges characterization of Turners mental state had no significance
    to any essential finding of fact made by the trial judge. There was no
    suggestion that Turner acted alone in shooting Chambers. Someone, the Crown
    said the appellant and the defence said Williams, put Turner up to the
    shooting. Whether Turner agreed to shoot Chambers for money, or because he was
    easily manipulated, or for some other reason, did not matter to the trial
    judges finding that it was the appellant who solicited Turners assistance as the
    shooter in the execution of Chambers.

[69]

It
    is not surprising that, after a long trial involving lengthy and often conflicting
    evidence, the trial judge made a few factual errors in his lengthy recitation and
    analysis of the evidence. None of those errors were material to the outcome.
    Nor do the inferences he drew after his analysis of the evidence warrant the
    finding that he misapprehended any evidence in a material way.

C: The trial judges treatment
    of the evidence of the defence witness, Gibon.

[70]

The
    trial judge rejected most of Gibons evidence because of what the trial judge concluded
    was Gibons obvious determination to say what he could to help his close
    friend, the appellant. The trial judge found that some of Gibons evidence
    describing specific events at Turners residence during the evening of March 6
    and the morning of March 7 was implausible. However, the trial judge did
    accept Gibons evidence that the appellant was hot at Chambers and demanded
    that Chambers get his money back (see paras. 320-25, 391 and 429).

[71]

This
    court defers to a trial judges credibility findings. I do not understand the
    appellant to argue that it was not open to the trial judge to reject most of
    Gibons evidence for the very reason given by the trial judge. Nor, in my view,
    is it surprising that the trial judge would find parts of Gibons evidence that
    implicated the appellant more credible than the rest of his evidence. This
    assessment flows logically from the trial judges observation that Gibon was
    doing whatever he could to exculpate the appellant.

[72]

Perhaps
    the trial judge did overstate Gibons commitment to assist the appellant when
    he described Gibon as treating the appellant as a kind of lord to be obeyed
    (para. 429). That literary flourish, even if unwarranted, however, does not
    demonstrate any error by the trial judge in his assessment of Gibons evidence.


VII



conclusion

[73]

I would dismiss the appeal.

Released: DD  MAY 07
    2018

Doherty J.A.

I agree K.M. van Rensburg J.A.

I agree I.V.B. Nordheimer J.A.





[1]

The trial judges ruling that the appellants trial would
    proceed without a jury is not a ground of appeal: see
R. v. Spence
, 2011 ONSC 5587, at paras. 10-13.



[2]

The appellant was also found guilty of kidnapping, however,
    the trial judge stayed that conviction based on the principle against
    punishment for multiple convictions: see
R. v. Kienappple
, [1975] 1 S.C.R. 729.



[3]

All paragraph references in these reasons refer to the trial
    judgment.



[4]

It may be that the trial judge heard more detailed evidence
    about Turners mental state in the course of a motion brought during the trial.


