



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noureddine,
2022 ONCA 91

DATE: 20220202

DOCKET: C66593

Simmons, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chad Noureddine

Applicant (Appellant)

Carol Cahill, for the appellant

Amy Alyea, for the respondent

Heard: December 9, 2021

On appeal from the conviction entered on
    June 7, 2017, by Justice Edward Then of the Superior Court of Justice, sitting
    with a jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for the second
    degree murder of Andre Pelliccione following a trial before a judge and jury.

[2]

Mr. Pelliccione's body was found in a dumpster in
    Toronto on August 27, 2008. The appellant and four others were
    initially charged with first degree murder.

[3]

The appellant and Richard Sheridan were tried
    together. The other three accused pleaded guilty to manslaughter. Bryan Smith
    was sentenced to eight years of imprisonment; Jennifer Dunsford to five years;
    and Michelle Sterling to two years. All three testified for the Crown at the
    appellant's trial. Their testimony was the only evidence implicating the
    appellant in the killing.

Background Facts

[4]

The appellants co-accused, Mr. Sheridan, was
    addicted to, and trafficked in, crack cocaine. Mr. Sheridan befriended the
    owner of Don Yards, a movie trailer storage facility in Torontos east end. The
    owner allowed Mr. Sheridan to reside in one of the recreational vehicles
    situated on the lot in order to provide security services for the premises. Mr.
    Sheridan in turn permitted the appellant, as well as Mr. Smith, Ms. Sterling,
    and Ms. Dunsford, to reside on the premises from time to time. They too were addicted
    to crack cocaine. They purported to assist Mr. Sheridan in providing
    security but actually worked in his crack cocaine operation. Mr. Sheridan was
    the undisputed leader of the crack cocaine operation.

[5]

On the evening of August 22, 2008, Mr. Pelliccione
    came to the Don Yards and encountered Mr. Sheridan. An argument ensued between
    the two men. Mr. Sheridan, the appellant, and Mr. Smith confronted Mr. Pelliccione
    and he was ordered to leave. According to Mr. Smiths testimony, Mr. Pelliccione
    agreed to leave, but threatened to return with men and weapons and kill them
    all. Mr. Sheridan ordered the gates locked, knocked Mr. Pelliccione to the
    ground, and pepper sprayed him. Mr. Smith testified that Mr. Sheridan ordered
    the appellant, Mr. Smith and Ms. Dunsford to kick and punch him, which they did.
    The beating continued in another area behind some dumpsters. The group kept
    kicking and punching Mr. Pelliccione, now also using rocks. He was then dragged
    to another area where the beating continued at Mr. Sheridans direction. The
    appellant hit the deceased in the head with a rock, as did Mr. Smith and Ms. Dunsford.
    Mr. Pelliccione meanwhile begged for his life.

[6]

According to Mr. Smith, he suggested to Mr. Sheridan
    that they end the beating. The three main Crown witnesses testified
[1]
that Mr. Sheridan stated,
    you are either with us or with [Pelliccione], or words to that effect. Ms. Dunsford
    testified that the group knew, at this point, that Mr. Pelliccione had to be
    killed; it was decided he was going to have to die. No one disagreed. He was
    then dragged to another area. Ms. Sterling emerged from a trailer and observed
    the appellant and Mr. Smith beating Mr. Pelliccione. Mr. Sheridan ordered that Mr. Pelliccione
    be placed in another trailer, trailer T19, which he was. At this stage, Mr. Pelliccione
    was drifting in and out of consciousness. While Mr. Pelliccione was still
    alive, Mr. Sheridan ordered the two women to do what needed to be done.
    They both testified that they were threatened with death if they did not
    comply. They proceeded to drop a 19-pound rock on his head, which was provided by
    the appellant. Mr. Smith testified that he heard loud thumps come from the
    trailer when the appellant, Ms. Dunsford and Ms. Sterling were inside.

[7]

In the hours that followed, the appellant
    collected and disposed of the bloody clothes of the two women. Everyone
    showered to eliminate traces of blood. Mr. Sheridan subsequently attempted
    to frame the owner of the Don Yards by ordering the women to spread Mr. Pellicciones
    blood on the owners clothing. This attempt did not prove to be a success.

[8]

Two days after the murder, the appellant, Ms. Sterling
    and Mr. Sheridan attempted to dispose of the body by placing it and the
    19-pound rock in a dumpster on the premises. Mr. Pellicciones body was found
    five days later.

[9]

According to the testimony of Dr. Pollanen, the
    forensic pathologist who conducted the autopsy of Mr. Pelliccione, his ultimate
    cause of death was blunt force injury to the face and head and the mechanism of
    death was blood loss or obstruction of the upper airways and sinuses. Mr.
    Pelliccione had several skull fractures, a broken nose, dislocated cheek bones,
    and significant defensive bruising. Mr. Pelliccione was not reported to have
    struck a single blow in self-defence.

[10]

As mentioned, the five people involved were all
    initially charged with first degree murder and the three Crown witnesses were
    in custody on those charges when they gave their police statements.

[11]

The appellant and Mr. Sheridan were convicted of
    second degree murder after their first trial but successfully appealed the
    convictions. Their second trial again resulted in convictions for second degree
    murder, and the appellants conviction following the second trial is the
    subject matter of this appeal.

[12]

At trial, Ms. Dunsford, Mr. Smith and Ms. Sterling
    gave different accounts of what had happened. The jury heard extensive evidence
    of their discreditable backgrounds, the withdrawal of each of their first degree
    murder charges in exchange for manslaughter plea deals, and that they were each
    heavily addicted to crack cocaine which impaired their ability to remember.

[13]

The appellant's position at trial was that the evidence of these
    three Crown witnesses concerning his participation in the beating was neither
    credible nor reliable. All three had participated in the killing, all three
    were charged with first degree murder when they made statements to the police,
    and all three acted in their own self-interest to minimize their individual
    roles and embellish the roles of others. Further, there were specific problems
    with the evidence of each of them.

[14]

For instance, Ms. Sterling admitted to perjury at the appellant's
    first trial. She also lied to the police in the first 85 pages of her police
    statement claiming she was not present at the killing. Further, she was not
    forthcoming in her evidence at the second trial. Ms. Dunsford had given many
    inconsistent statements, she had a poor memory that was exacerbated by
    persistent heavy drug use, including drug use on the evening in question.
    Nonetheless, she maintained her present memory was more accurate than a
    previous version of the events. Mr. Smith was an unsavoury witness with a
    lengthy criminal record that began when he was age twelve.

Grounds of Appeal

[15]

The appellant raises four grounds of appeal, all
    related to the trial judges jury instructions: (1) the trial judge erred by
    limiting the use the jury was entitled to make of Mr. Smiths criminal record;
    (2) the trial judge provided an insufficient
Vetrovec
instruction
[2]
; (3) the trial
    judge failed to set out the defence position on intent and motive; and (4) the
    trial judge erred in leaving with the jury an alternate path to conviction that
    had not been included in the Crowns closing submissions. The appellant submits
    that this was not a balanced charge and that these errors, either individually
    or taken together, resulted in an unfair trial.

[16]

We do not agree and, for the following reasons,
    dismiss the appeal.

Use of Mr. Smiths Criminal Record

[17]

The appellant submits that the trial judge erred
    in limiting the use the jury could make of Mr. Smiths criminal record to the
    fact, number, and nature of the convictions when assessing his credibility and
    the weight to be given his testimony. At trial, the appellants position was
    that Mr. Smith minimized his involvement in Mr. Pellicciones death and
    exaggerated the appellants involvement. On appeal, the appellant submits that
    the trial judge should have instructed the jury that, in addition to the fact,
    number and nature of Mr. Smiths convictions, they could consider Mr. Smiths
    disposition to minimize his wrongdoing when assessing whether he was similarly
    downplaying his role in Mr. Pellicciones death and exaggerating that of
    the appellant. To quote appellants counsel on appeal, when questioned about
    his criminal record, Mr. Smith became the valiant hero of his own
    stories.

[18]

We do not accept this submission. The trial
    judges instruction to consider the fact, number, and nature of previous
    convictions must be considered in the context of the charge as a whole. The
    trial judge gave a lengthy, detailed and thoughtful charge and gave a
    comprehensive instruction on how to assess a witnesss testimony. When he came
    to the instruction on criminal records, he advised the jury that the three
    Crown witnesses each had a criminal record and referenced many entries for Ms.
    Dunsford and Mr. Smith in addition to the manslaughter convictions. When
    instructing on the previous convictions of the three, he told the jury what
    they could consider and that some convictions, such as those involving
    dishonesty, may be more important in their assessment than others. The jury was
    also told to consider the age of the convictions. However, overall, the prior
    convictions were just one of many factors for the jury to consider in
    evaluating a witness evidence and they were encouraged to use their experience
    and common sense in their evaluation.

[19]

The trial judge also gave a special instruction
    with respect to Mr. Smith, Ms. Dunsford and Ms. Sterling on the
    significant risk that an accomplice may be falsely minimizing his or her
    involvement, and that the accomplice may be giving evidence favourable to the
    Crown because the Crown had consented to a favourable plea bargain. He gave a
    further instruction on the increased care required for the evidence of Mr. Smith
    because he was an unsavoury witness given his extensive criminal record. Considered
    in context, the trial judges instruction on the use to be made of Mr. Smiths
    criminal record would not have improperly limited the jurys consideration of
    his credibility. Nor would it have in any way foreclosed the jurys
    consideration of a tendency to minimize his wrongdoing at the expense of
    others.

[20]

Moreover, Mr. Smith was cross-examined at length
    on the facts of his convictions and his tendency to portray himself as a
    victim. The jury would have understood the thrust of this cross-examination. The
    closing addresses of both defence counsel also highlighted Mr. Smiths
    shortcomings and tendency to describe himself in a favourable light and to
    minimize his involvement in the killing of Mr. Pelliccione. For example, counsel
    for Mr. Sheridan argued, Mr. Smiths memory is clearly unreliable and, at
    times, his evidence, I think doesnt really accord  it doesnt make sense and
    he has a real tendency to portray himself as a victim of every bad circumstance
    he finds himself in. He went on to describe Mr. Smiths evidence on his
    past convictions as preposterous. The trial judge in his charge reiterated
    the appellants closing submission that the evidence of the three main Crown
    witnesses was manifestly unreliable.

[21]

We are satisfied that any concerns relating to
    any tendency by Mr. Smith to downplay his role at the expense of the appellant
    were fully addressed and would not have been lost on the jury. We dismiss this
    ground of appeal.

Vetrovec
Instruction

[22]

Second, the appellant takes issue with the trial
    judges
Vetrovec
instruction. There are two components to this
    submission.

[23]

As part of his instruction on the criminal
    records of the three main Crown witnesses, the trial judge stated that it was
    fair to say that none had been convicted of any other offences since the
    related conviction for manslaughter in 2010 and that the jury would note the
    efforts made by all three with respect to rehabilitation. The
Vetrovec
instruction followed shortly afterwards.

[24]

The appellant submits that the
Vetrovec
instruction was watered down by the trial judges comments on the time gaps in
    the criminal records and rehabilitation efforts. He also argues that the trial
    judge further erred by failing to
mention other specific
    concerns relating to the veracity of the evidence of these three Crown
    witnesses
. These concerns included Mr. Smiths and Ms. Dunsfords
    inconsistent statements and Ms. Sterling being an admitted perjurer and lying
    to police.

[25]

We do not accept these submissions. Trial judges
    are owed considerable deference in framing a
Vetrovec
caution as they
    are better situated than appellate courts to determine how to provide an
    effective and balanced caution tailored to the circumstances of the case:
R.
    v. Zebedee
, 81 O.R. (3d) 583 (C.A.), at para. 83. Moreover, a
Vetrovec
instruction should not be reviewed in isolation:
R. v. Salah
, 2015
    ONCA 23, 319 C.C.C. (3d) 373, at para. 106. Here, read in the context of the proceedings
    and the rest of the charge, the warning served its cautionary purpose. The
    trial judge gave considerable guidance on the evidence of the three main Crown
    witnesses. He addressed their guilty pleas to manslaughter and their negotiated
    plea agreements, their prior criminal records, their prior inconsistent
    statements, and gave a special instruction relating to their role as
    accomplices and the danger of relying on their evidence in the absence of any
    confirmatory evidence. The trial judge also described additional reasons why
    the utmost care and caution should be exercised including the effect of the witnesses
    addiction to crack cocaine on their credibility and reliability.

[26]

Concerning the watering down argument, one of
    the factors to be considered with respect to criminal records is whether they
    are dated. The trial judge noted that the prior convictions were just one of
    many factors for the jury to consider and the brief reference to rehabilitation
    and the time gaps served to provide a balanced charge. When defence counsel
    raised an objection to this instruction at trial, the trial judge considered
    the issue overnight and declined to say anything further. We see no basis on
    which to interfere with the trial judges exercise of discretion. We also note
    that the trial judges brief comments about rehabilitation and the time gaps
    were followed by a strong
Vetrovec
warning, and several specific references
    to inconsistencies in the evidence of the three main Crown witnesses, and
    defence counsels submissions. We are satisfied the jury would not have been
    left in any doubt about the serious shortcomings in the evidence of these three
    Crown witnesses.

[27]

As for the appellants complaint that the trial
    judge failed to mention other specific concerns relating to the veracity of the
    evidence of these three Crown witnesses, this is not borne out by the charge.
    Apart from his more generalized instructions on how to assess the witnesses
    testimony, as mentioned, the trial judge also provided a specific instruction
    on accomplices and specific examples of inconsistencies and concerns relating
    to each witness. In particular, without objection by the Crown, the trial judge
    included a list of inconsistencies provided by defence counsel and advised the
    jury that it could be of assistance to them. We do not accept that the trial
    judge was required to do more. The assessment of the Crown witnesses
    credibility and reliability was squarely within the jurys purview. We are
    satisfied they were well equipped to fulfill that responsibility.

[28]

Lastly, concerns relating to the credibility and
    reliability of the three were self-evident. As Watt J.A. stated in
R. v.
    Bradey
, 2015 ONCA 738, 127 O.R. (3d) 721, at para. 136: Where an
    appellant claims that a

Vetrovec
    caution is deficient because a trial judge failed to provide an exhaustive
    catalogue of the reasons for the caution, we should consider whether the
    characteristics omitted were latent or self-evident. It was abundantly clear
    that the credibility and reliability of the three main Crown witnesses were
    very much in issue and that their testimony was potentially dangerous given
    that they were accomplices who had secured plea agreements.

[29]

We reject the submission that the effectiveness
    of the
Vetrovec
caution was diminished in any way.

[30]

We dismiss this ground of appeal.

Relating Defence Position on Intent and
    Motive

[31]

On the issue of intent, the Crowns position in
    part was that the appellant was present while Sheridan led the discussion that
    they were all part of a family and Pelliccione had to die. He did not dissent. [The
    appellant] formed the fixed intention along with that of [Sheridan] that Pelliccione
    had to die. Ms. Dunsford had described this discussion in her testimony at
    trial.

[32]

The appellant submits that the trial judge erred
    in failing to alert the jury to the flaws and weaknesses in the Crowns
    evidence on intent. The appellant argues that there was no evidence that he was
    present during the discussion, was aware of what was being said, or agreed that
    Mr. Pelliccione had to die. The appellant also submits that the trial judge
    erred in leaving the question of intent with the jury because any inference
    that he was present for the discussion on which the Crown relies was
    speculative.

[33]

We do not accept these submissions. The trial
    judge began his instructions relevant to the issue of intent with a brief
    summary of the positions of the Crown and the defence. He then proceeded to
    review how intent was relevant to the different modes of participation, the
    relevant evidence and then reviewed in further detail the positions of counsel.
    This included the defence position that the Crown had not led any evidence of
    the appellants intent and that the evidence was so weak as to amount to no
    evidence at all.

[34]

Ms. Dunsford had testified that in the group
    discussion, it was decided that Mr. Pelliccione was going to have to die and
    that no one disagreed. An inference of intent was clearly available especially
    given that there was evidence that the appellant had been present during each
    escalating step of the beating, had been an active participant, including hitting
    and throwing rocks at Mr. Pelliccione, and had provided Ms. Dunsford and Ms. Sterling
    with the 19-pound rock used to hit him in T-19. The trial judge made no error
    in leaving this issue with the jury; an inference of intent was available on
    the evidence and was not speculative. Furthermore, as already discussed, the
    jury would have been well aware of the problems associated with Ms. Dunsfords
    evidence.

[35]

On the issue of motive, the appellant submits
    that the trial judge erred by failing to state to the jury the defence position
    that there was no evidence that the appellant was aware of Mr. Pellicciones
    threat that he would return with men and weapons and kill them or that he took
    this threat seriously. As with the issue of intent, the appellant submits that
    the jury would have had to speculate to infer motive.

[36]

Again, we are satisfied that the inference that
    the appellant was present and aware of this threat was available on the
    evidence, particularly given the evidence of Mr. Smith. The trial judge
    exercised his discretion not to recharge the jury, having concluded that the
    jury was fully equipped to address this issue. We agree and would not give
    effect to this ground of appeal.

Use of Crown Summary

[37]

Both the defence and the Crown provided written
    summaries of their positions to the trial judge following their closing
    addresses. The trial judge read their summaries to the jury. The defence
    objected, stating that the Crown had articulated an alternative path to
    conviction that had not been addressed in their closing, namely that the
    appellant had played a supervisory role and remained in the trailer to ensure
    that the two women killed Mr. Pelliccione. He argued that the jury should be
    instructed to disregard that theory, but the trial judge did not do so. Now
    before this court, the appellant argues that the Crown was in effect provided
    with a right of reply to the defence closing, deprived the defence of the
    opportunity to respond, and this resulted in trial unfairness.

[38]

We reject this ground of appeal.

[39]

The Crown made it clear in his pre-charge
    submissions that the Crown theory was that the appellant was liable for either
    manslaughter or second degree murder, as his participation from beginning to
    end was a substantial contributing cause of Mr. Pellicciones death. The Crown
    also made it clear that the appellant and Mr. Sheridan were potentially liable
    as either co-principals or parties to the offence. Then in his closing
    submissions, which were made prior to the written summaries being provided to
    the trial judge, the Crown stated to the jury that Chad Noureddine
    provided the rock and was there to make sure they did what they were told.

[40]

A trial judge has a duty to instruct the jury
    on all routes to liability which arise on the evidence:
R. v. Pickton
,
    2010 SCC 32, [2010] 2 S.C.R. 198, at para. 19;
R. v. Saleh
, 2019
    ONCA 819, 380 C.C.C. (3d) 445, at para. 168. Moreover, as noted by Cory J. in
R.
    v. Rose
, [1998] 3 S.C.R. 262, at para. 103, there is no evidence that an
    accused who addresses the jury first is less able to defend against the
    persuasive aspects of the Crown jury address than an accused who goes last.

[41]

The defence was alerted to the Crowns position
    and the trial judge was obliged to instruct on all routes to liability. We are
    not persuaded that a corrective instruction was required or that any trial
    unfairness ensued.

Disposition

[42]

For these reasons, we dismiss the appeal.

Janet
    Simmons J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.





[1]
Although all three main Crown witnesses testified they heard this
    statement, their evidence concerning when it was made was inconsistent.



[2]

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


