





CITATION: R. v. Kelly, 2011 ONCA 549



DATE: 20110811



DOCKET: C48288



COURT OF APPEAL FOR ONTARIO



Doherty, LaForme and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Carl Kelly



Appellant



Philip Campbell and Michael Dineen, for the appellant



Roger A. Pinnock, for the respondent



Heard: March 23, 2011



On appeal from the conviction on a
          charge of second degree murder entered on October 13, 2006 at Brampton,
          Ontario by the Honourable Mr. Justice Kenneth A. Langdon of the Superior
          Court of Justice, sitting with a jury.



Doherty J.A.:



I

Introduction

[1]

The appellant was charged with first degree murder and
    convicted of second degree murder.  He
    appeals his conviction.

[2]

The appellant killed Nathaniel Wilson.  The Crown alleged that the homicide was
    planned and deliberate.  The appellant,
    who testified in his own defence, claimed that he acted in self defence.  The jury did not accept the position advanced
    by either the Crown or the defence.  The
    verdict indicates that the jury was not satisfied that the murder was planned
    and deliberate but was satisfied beyond a reasonable doubt that the appellant
    did not act in self defence.

[3]

The appellant pursues two arguments on appeal.  First, he submits that the trial judge erred
    in ruling that certain evidence, if proffered by the defence, would put the
    appellants propensity for violence in issue.  Second, the appellant submits that the trial judge misdirected the jury
    on the use it could make of out of court statements made by two Crown
    witnesses.  The appellant submits that
    the trial judge erred in explaining to the jury the pre-conditions necessary before
    a witness could be said to have adopted her prior statement.

[4]

I would dismiss the appeal.  The trial judge correctly addressed the
    evidentiary issue raised by counsel at trial.  The appellant puts a different issue before this court.  The trial judge did misdirect the jury as to
    the pre-conditions that had to be met before a witness could be said to have
    adopted a prior statement.  However, in
    the circumstances of this case, that misdirection caused no substantial wrong
    or miscarriage of justice.

II

The Facts

[5]

For
    the purposes of the appeal, the facts are straightforward.  The appellant and Nathaniel Wilson lived in
    the same housing complex in Mississauga.  While both were young men, they had relatively extensive criminal
    records and lived a criminal lifestyle.

[6]

Several
    weeks before the homicide the appellant became involved in a dispute with a man
    named Jackson.  The appellant believed
    that Jackson had stolen some electronic equipment from him.  As payback the appellant took $80 from
    Jackson under the pretense of purchasing drugs for him. The appellant kept the
    money and when Jackson made enquiries the appellant told him that he should
    consider it even.

[7]

About
    three weeks before the homicide, the appellant encountered Jackson who was with
    his friend Wilson, the deceased.  The
    appellant noticed that Wilson was carrying a baseball bat in one hand and had
    the other hand concealed in his pants.  Mr. Wilson approached the appellant and demanded that he return the
    money to Jackson.  The appellant refused and
    an argument ensued.  Both men used
    obscenities and made threats.  Wilson
    threatened to get his gun and shoot up this place and shoot you, and shoot
    your family.

[8]

Over
    the next three weeks the appellant saw Wilson on a few occasions at the housing
    complex where they lived.  The appellant
    was not afraid of Wilson but he was cautious.  Although violence was common-place in the housing complex, threats to
    shoot people were not and the appellant was concerned.

[9]

On
    July 6, 2004, shortly before midnight, the appellant and a friend decided to
    contact their drug dealer and arrange to buy some marijuana.  After getting the necessary cash, the
    appellant and his friend were walking toward the local Tim Hortons to meet the
    dealer.  They saw their dealer standing in
    the housing complex parking lot with a group of other men.  The appellant did not get along with some of
    those men.

[10]

The
    appellant testified that he and his friend stood behind a bush near the parking
    lot and tried to get their drug dealers attention.  The appellant was armed with a small knife
    that he had carried with him since he had been stabbed eight months earlier.

[11]

The
    appellant further testified that as he was trying to get his drug dealers
    attention two young women, Tacita Ashman and Georgeia Pinto, walked away from
    the group of men in the parking lot and past the appellant and his friend.  After they had passed the appellant, they
    paused and appeared to be speaking on a cell phone.

[12]

The
    appellant testified that his friend then said something that caught the appellants
    attention.  The appellant turned around
    and saw the deceased Wilson approaching on the other side of the bush.  Wilson was hunched over with his hands behind
    his back and appeared to be sneaking up on them.  Wilson was about 15 feet away.

[13]

The
    appellant testified that he was afraid that Wilson was about to carry out his earlier
    threat to shoot him.  As Wilson continued
    to approach, the appellant jumped forward from behind the bush and tried to
    stab Wilson in the shoulder hoping to disarm him.  Wilson was struck in the neck with sufficient
    force to sever his carotid artery and puncture his lung.  Wilson staggered backward and his blood spurted
    into the appellants face.  Wilson turned
    and ran.

[14]

The
    appellant was temporarily blinded by Wilsons blood, but when his vision
    cleared he saw Wilson running away from him down the path.  The appellant, who still had his knife,
    chased Wilson.  According to the
    appellant he did this because he was afraid that Wilson would stop, turn around
    and shoot him.  The appellant gave up the
    chase after a short distance and fled to his home.  He insisted that he did not at any time intend
    to kill Wilson.  The appellant agreed
    that it sounds stupid to chase someone who has a gun, but maintained he was
    looking for a safe avenue of escape.

[15]

Wilson
    was rushed to the hospital and died after a few days on life support.

[16]

The
    appellant ran to his home and immediately took steps to dispose of any incriminating
    evidence.  He gave his blood-covered
    sweater to a friend and put the remainder of his clothes in the wash.  He disposed of his knife.

[17]

The
    trial judge instructed the jury on the defence of self defence and in
    particular on the operation of self defence as described in s. 34(2) of the
Criminal Code
. It is no small compliment
    to the trial judge that no objection is taken to his instruction on what is a
    notoriously complex and cumbersome part of the criminal law.

III

The Evidentiary Ruling

[18]

During
    the case for the Crown, defence counsel requested a ruling on the consequences
    of adducing certain evidence.  The
    defence was aware from the preliminary inquiry testimony that a Crown witness
    named Chrisjohn would testify that his younger brother had told him that Wilson
    had recruited the younger brother and his friends as soldiers to commit
    robberies for him.  Wilson offered to
    provide the youngsters with weapons for use in the robberies.  Chrisjohn confronted Wilson who confirmed the
    offer.  Chrisjohn emphatically told
    Wilson to leave his younger brother alone.

[19]

Defence
    counsel told the court that he could not say whether Chrisjohn would testify
    that he had told the appellant about Wilsons attempt to recruit his younger
    brother to commit armed robberies.  Defence counsel took the position that the evidence was admissible
    regardless of whether the appellant was aware of what Wilson had done.  Counsel further indicated, however, that if
    necessary to get that evidence before the jury he would undertake that the
    appellant would testify that Chrisjohn did tell him about Wilsons attempt to
    recruit his younger brother.

[20]

In
    his submissions, defence counsel at trial indicated that Chrisjohns evidence,
    in conjunction with other evidence, was offered to show:

[T]hat
    he [Wilson] was a person who had easy access
and
a willingness to use firearms.
    [Emphasis added.]

[21]

Counsel
    submitted that Wilsons access to and willingness to use guns had a dual
    relevance.  He said that the evidence was:

relevant
    to the question of self defence
and
what was in my clients mind at the
    time of the incident.  [Emphasis added.]

[22]

As
    counsels submissions made clear, the evidence was tendered both as
    circumstantial evidence of who, as between Wilson and the appellant, was the
    aggressor (the question of self defence) and as evidence of the appellants
    belief that Wilson was armed and dangerous.

[23]

Defence
    counsel requested an advance ruling not because he doubted the admissibility of
    the evidence, but because he was concerned about the consequences of eliciting the
    evidence.  Counsel asked the trial judge
    to hold that by leading evidence of Wilsons access to and willingness to use
    guns, the defence was not putting Wilsons disposition for violence in issue and
    opening the evidentiary door to evidence of the appellants disposition for
    violence:  see
R. v. Sparkes
, [2005] O.J. No. 1883 (C.A.);
R. v. Williams
(2008), 233 C.C.C. (3d) 40 (Ont. C.A.).  The Crown had evidence that was capable of
    showing that the appellant had a violent disposition.

[24]

The
    Crown did not challenge the admissibility of the proffered evidence, but argued
    that it was evidence of Wilsons disposition for violence and if tendered would
    allow the Crown to lead evidence of the appellants disposition for violence.

[25]

The
    trial judge accepted the Crowns submission holding, at paras. 18-19:

Mr.
    Derstein has argued that by introducing the evidence of recruitment of
    soldiers and supply of firearms, defence is not seeking to bring up
    deceaseds
general reputation for
    violence
.  It is true that if he was
    known to be a person with access to firearms and/or the willingness to use them
    unlawfully, it is discreditable to the deceased; but defence does not seek to
    put deceaseds
general reputation for
    violence
in issue.  Defence simply
    wants to lead evidence to show deceased was a person with access to firearms
    and a willingness to use them.  Mr. Chrisjohns
    testimony only shows access.  This, Mr.
    Derstein argues, is relevant to the issue of self defence and the accuseds
    state of mind at the time of [the] occurrence.

With
    great respect to Mr. Derstein, I opine that he seeks to make a distinction
    without a difference.  [Emphasis in
    original.]

[26]

The
    trial judge acknowledged that if the appellant testified that he was aware of
    Wilsons attempt to recruit Chrisjohns brother to commit armed robberies, the
    evidence would be admissible as relevant to the appellants state of mind when
    he stabbed Wilson.  Admissibility as
    evidence of the appellants state of mind would not, however, affect the fact
    that the evidence also constituted evidence of Wilsons propensity for violence.
    The trial judge held that if the defence chose to call that evidence, the Crown
    could respond with evidence of the appellants propensity for violence. Counsel
    chose not to adduce the evidence.

[27]

On
    appeal, counsel submits that:

The
    defence wished to adduce the evidence
solely
on the issue of the
    appellants state of mind. [Emphasis added.]

[28]

This
    submission mischaracterizes the basis upon which the evidence was put forward
    at trial and the ruling sought at trial.  Trial counsel emphatically argued that the evidence was admissible
    whether or not the appellant was aware of it.  This position belies any suggestion the evidence was offered solely on
    the issue of the appellants state of mind.

[29]

Trial
    counsel argued that the evidence supported the inference that Wilson had ready
    access to and a willingness to use firearms. That inference could, according to
    the defence, support the further inference that Wilson was armed at the time of
    the homicide. If Wilson was armed, the jury could infer that Wilson was the
    aggressor. Counsel further submitted that the inference that Wilson was armed
    was available without any reference to Wilsons general character or propensity
    for violence. Like the trial judge I think the distinction defence counsel
    struggled to make was an untenable one.

[30]

The
    proffered evidence invited the jury to conclude that Wilson had ready access to
    and a willingness to use firearms. In short, he was a violent person. His
    willingness to obtain and use firearms reflected his propensity for violence.
    On the defence argument, Wilson was the kind of person who would carry a gun
    and would be prepared to use it. This propensity supported the inference that
    he was carrying a gun at the time of the homicide.

[31]

I
    agree with the trial judge that the line of reasoning relied on by the defence
    was in reality an argument based on Wilsons disposition to use firearms in a
    criminal and violent manner, as reflected in his attempt to recruit Chrisjohns
    brother.  That evidence amounted to
    evidence of Wilsons disposition for violence and would have, if elicited by
    the defence, opened the evidentiary door to evidence of the appellants
    disposition for violence.

[32]

It
    is important to appreciate that at no time did the trial judge foreclose the
    defence from leading evidence from the appellant or others as to what the
    appellant was told about Wilsons attempt to recruit and arm young boys as
    robbers.  As the trial judge
    acknowledged, and both defence and Crown counsel clearly appreciated, evidence
    of what the appellant was told could be relevant to his belief that Wilson
    posed a serious threat.  Evidence offered
    for that limited basis would not, however, involve testimony about the
    conversation between Chrisjohn and his younger brother or the conversation
    between Chrisjohn and Wilson.  The
    evidence would have been limited to what the appellant was told about the
    incident.  If the evidence had been
    offered solely as evidence of the appellants state of mind, there would have
    been no need to lead evidence of what Chrisjohn was told by his brother or
    Wilson. Clearly the defence wanted to lead evidence from which the jury could
    find that Wilson had in fact attempted to recruit Chrisjohns younger brother
    and other young boys to commit armed robberies.

[33]

The
    defence chose not to elicit any evidence of what the appellant was told about
    Wilsons efforts to recruit Chrisjohns younger brother.  The trial judge cannot be criticized for
    failing to make a ruling he was never asked to make by the defence.  Nor can his ruling as to the affect of
    leading certain evidence be converted into a ruling excluding evidence that the
    defence never sought to tender.  The
    trial judge was asked to rule on whether evidence of Wilsons efforts to
    recruit Chrisjohns younger brother to commit armed robberies would be viewed
    as evidence of Wilsons propensity for violence, thereby putting the
    appellants disposition for violence into issue. The trial judge ruled on that
    question only and in my view he ruled correctly.

[34]

I
    would add that there is and can be no suggestion of ineffective representation
    at trial. The self defence claim rested largely on the unchallenged evidence of
    Wilsons threat made directly against the appellant a few weeks earlier.  There was also evidence of the appellant that
    he was told by others that Wilson was going to shoot him and that Wilson had
    access to guns.  These people told the
    appellant to watch my back.

[35]

Evidence
    that the appellant had been told about Wilsons attempt to recruit Chrisjohns
    brother to commit armed robberies had significantly less probative value on the
    question of the appellants state of mind than did the evidence of Wilsons
    direct threat to kill and the evidence of the information the appellant
    received from others about the threat posed to him by Wilson. The connection
    between Wilsons attempt to recruit Chrisjohns brother and the threat he posed
    to the appellant was a tenuous one. Even that limited probative value was
    placed in doubt by the uncertainty surrounding Chrisjohns evidence. It was far
    from clear that he would testify that he told the appellant about Wilsons
    efforts to recruit his younger brother.  I
    am satisfied that the defence made a reasonable assessment that, unless the
    jury could use the evidence to find as a fact that Wilson had recruited young
    boys to commit armed robberies, it had little or no value to the defence.

IV

The Misdirection on the Adoption of Prior Statements

[36]

The
    Crown called Wanda Sconci and Amanda Parris.  Both witnesses had seen the appellant and his
    friend walking along the path toward the parking lot area in the housing
    complex where the group of men, including the appellants drug dealer, was
    congregated. The Crown called these two witnesses in an effort to establish
    that the appellant had looked sufficiently suspicious to them that they had
    immediately called one of their friends who was at the parking lot to warn him
    that the appellant was on his way.

[37]

Sconci
    had given a lengthy videotaped interview to the police. At trial, she professed
    to have little if any recollection of either the actual events or making the
    videotaped statement.

[38]

The
    trial judge made it clear that Ms. Sconci had lied over and over again in her
    evidence. He instructed the jury that anything she said that implicated the
    appellant should be viewed with the greatest of caution. He told the jury that
    it would be dangerous to convict based on her evidence.

[39]

The
    Crown had been permitted to cross-examine Ms. Sconci and had put her videotaped
    statement to her during that cross-examination. The trial judge instructed the
    jury as to the use it could make of the videotaped statement in these words:

The
    more difficult issue for you will be to decide whether or to what extent Ms.
    Sconci adopted at trial, portions of her previous police interview. She could
    not deny having said what was recorded on the tape.
Sometimes she said that
    she was speaking the truth when she made a certain statement, but that she had
    no current memory of the event. If she said that, then you might accept her
    previous statement as evidence of the truth of what she said
[Emphasis
    added.]

[40]

After reviewing parts of the videotaped statement, the
    trial judge told the jury:

You cannot use the earlier statement as evidence of
    what actually happened, unless you are satisfied the witness accepted it as
    true while in the witness box.
That is what I mean by adopted. For instance,
    Wanda Sconci said that certain parts of her police statement in respect of matters
    she now did not remember at all, were true. If you accept that, then you might
    find she had adopted a prior inconsistent statement.
[Emphasis added.]

[41]

Counsel for the appellant submits, and the Crown agrees,
    that the trial judge misdirected the jury as to the prerequisites to the
    adoption of a prior statement. Under the prevailing authority a witness cannot
    adopt a prior inconsistent statement unless that witness has a present
    recollection of the events referred to in the statement and can attest to the
    accuracy of the statement based on a present recollection of those events. A
    witness who has no present recollection of the events but insists that the
    statement was true because, for example, she would not lie to the police, has
    not adopted the prior statement and subject to some other rule of evidence, the
    prior statement is not admissible for its truth: see
R. v. Toten
(1993), 83 C.C.C. (3d) 5, at p. 23 (Ont. C.A.);
R. v. McCarroll
(2008), 238 C.C.C. (3d)
    404, at paras. 38-39 (Ont. C.A.).
[1]
Sconci purported to have virtually no recollection of the events she spoke of
    in her statement. Without that present recollection, her testimony that parts
    of the statement were true could not constitute an adoption of it. On a proper
    application of the law, Sconci adopted little if anything from her videotaped
    statement.

[42]

I am satisfied, however, that the error did not cause
    any substantial wrong or miscarriage of justice. Bearing in mind the patently
    unbelievable nature of most of Sconcis evidence and the strong language used
    by the trial judge in describing the evidence, I see virtually no chance that
    the jury used anything Sconci said to implicate the appellant.

[43]

In argument, counsel for the appellant pointed to the
    comment in Sconcis statement to the effect that the appellant looked like he
    was up to something as a part of the statement that could possibly harm the
    appellant if used by the jury for its truth. The appellant himself admitted he
    was up to something. He testified that he was trying to get his drug dealers
    attention without getting the attention of the other people who were with the
    drug dealer in the parking lot and with whom the appellant had bad relations.
    Sconcis reference to the appellant looking like he was up to something added
    nothing to the evidentiary landscape.

[44]

The witness Parris was somewhat more forthcoming than
    Sconci in her testimony. She testified that she made a phone call to a friend
    in the parking lot to tell him that the appellant was approaching the group in
    the parking lot.

[45]

After being referred to her statement to the police,
    Parris testified that the appellant wore a tuque pulled over his head in a
    manner that would conceal his distinct haircut. Although it is not entirely
    clear, it would appear that Parris had no actual recollection of what the
    appellant was wearing, but was simply accepting that what she had said to the
    police must have been true. As explained above, this could not constitute an
    adoption of that part of her statement.

[46]

The trial judge did not deal separately with the
    evidence of Parris when instructing the jury on the concept of the adoption of
    prior statements. Assuming the jury applied the earlier described misdirection
    to Parriss evidence, I am satisfied that it could not have occasioned any
    substantial wrong or miscarriage of justice. In her statement Parris referred
    to the appellant as wearing a tuque over his hair. Other witnesses described
    him as wearing a hood. The appellant admitted he had a hat with him. Whether
    the appellant was wearing a tuque, or a hood, or had some other hat with him is
    of minimal if any significance to the question of whether the Crown had proved
    that the appellant did not act in self defence when he killed Wilson. Any
    misdirection in respect of Ms. Parriss evidence was of no consequence.

V

CONCLUSION

[47]

I would dismiss the appeal.

RELEASED:  DD  AUG 11 2011

Doherty J.A.

I agree H.S. LaForme
    J.A.

I agree G. Epstein
    J.A.





[1]
The
    trial judges description of the preconditions to adoption are consistent with
    those applicable where the statement falls within s. 715.1 of the Criminal
    Code: see
R. v. C.(C.F.)
,
[1997] 3 S.C.R. 1183,
at para. 36-41.


