



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abbey, 2013 ONCA 206

DATE: 20130402

DOCKET: M42155  C53729

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Warren Abbey

Applicant/Appellant

Laurence C. Beechener, for the applicant/appellant

Robert Gattrell, for the respondent

Heard:  February 12, 2013

Application for an order assigning counsel under s.
    684(1) of the
Criminal Code
to act on behalf of the appellant on his
    appeal from a conviction of first degree murder entered by Justice J.D. McCombs
    of the Superior Court of Justice, sitting with a jury, on March 28, 2011.

Watt J.A.:

[1]

Two juries have been asked to decide whether Warren Abbey, the
    appellant, shot Simeon Peter to death. Each one reached a different conclusion.

[2]

The first jury was not satisfied beyond a reasonable doubt that the
    appellant killed Simeon Peter, and found him not guilty.

[3]

The first jury heard no evidence about the significance of teardrop
    tattoos among members of urban street gangs. The appellant had a teardrop
    tattoo near his eye. An expert was prepared to instruct the jury about the
    possible meanings of teardrop tattoos. One possible meaning was that the wearer
    had killed somebody, specifically, a member of a rival gang. However, the judge
    at the first trial ruled the experts evidence inadmissible. This court held
    that the judge erred in doing so and ordered a new trial.

[4]

The second jury heard the experts evidence, along with the evidence the
    first jury had heard. The second jury found the appellant guilty of first
    degree murder.

[5]

The appellant appeals his conviction. His inmate notice of appeal simply
    states that his conviction is unreasonable.

[6]

The appellant was represented by counsel at trial. He would like to be
    represented by counsel on appeal. However, Legal Aid Ontario has dismissed his application
    for a certificate for a lawyer to argue his appeal. Consequently, the appellant
    applies under s. 684 of the
Criminal Code
to have counsel
    appointed to argue his appeal.

[7]

The respondent Crown acknowledges that the appellant lacks both the
    financial means to pay counsel to argue his appeal, as well as the ability to
    argue the appeal on his own behalf. The respondent opposes the application on
    the basis that the single ground of appeal to be advanced, unreasonable
    verdict, has no merit in the circumstances of this case.

[8]

The reasons which follow explain why I would dismiss the application to
    appoint counsel to represent the appellant on appeal.

the background

[9]

It is helpful to begin with an overview of the positions advanced at
    trial and those taken by the parties on this application.

The Case for the Crown

[10]

At
    trial, the Crown invited the jury to conclude that the combined force of
    several pieces of circumstantial evidence established beyond a reasonable doubt
    that the appellant shot Simeon Peter to death in circumstances that amounted to
    planned and deliberate first degree murder.

[11]

The
    Crown relied upon an eyewitness account of some of the events surrounding the
    shooting provided by the deceaseds girlfriend. She did not identify the
    appellant as the shooter, but provided a description of the shooters
    appearance that was generally consistent with his features. The Crown confirmed
    the appellants presence in the vicinity of the shooting at the time when it
    occurred through other evidence, such as cell phone records and the testimony
    of two members of the gang to which the appellant belonged. Three gang members
    testified that the appellant confessed to having shot the deceased. Their
    evidence was subject to strong
Vetrovec
cautions.

[12]

The
    Crown also relied upon the opinion evidence of an urban street gangs expert,
    Dr. Totten. Dr. Totten gave generic evidence about the significance of teardrop
    tattoos on gang members. His evidence was designated as generic because he had
    no direct knowledge of the culture and practices of the appellants specific
    street gang.

The Defence Case

[13]

The
    appellant did not testify or call any witnesses.

[14]

The
    defences theory at trial was that the evidence, considered as a whole, did not
    establish beyond a reasonable doubt that it was the appellant who shot and
    killed the deceased.

[15]

Trial
    counsel for the appellant attacked the credibility of the Crowns witnesses,
    especially the fellow gang members who testified, and the reliability of their
    evidence. Counsel also challenged the methodology and conclusions of the expert
    who testified about the significance of teardrop tattoos on the faces of urban
    street gang members.

The Proposed Ground of Appeal

[16]

In
    his inmate notice of appeal, the appellant contends that the jurys verdict was
    unreasonable. In support of his application, he includes a copy of the charge to
    the jury, as well as an affidavit from an experienced appellate lawyer who has
    familiarized himself with the trial record and considered the particularized
    grounds of appeal.

[17]

The
    appellant maintains his claim that the jurys verdict was unreasonable.  He
    says that the unreasonableness of the finding of guilt is established by the
    fact that two inconsistent verdicts were reached on substantially the same
    evidence. He points out that subsequent events in an unrelated trial have
    neutered the probative value of the expert opinion evidence, thus leaving
    identical trial records with incompatible results.

[18]

The
    appellant also submits that two legal errors were committed in the conduct of
    the trial:


i.

permitting Crown counsel to invoke s. 715 of the
Criminal Code
to
    read testimony given by a gang member at the first trial into the record, since
    that gang member refused to testify at the second trial; and


ii.

inadequate
Vetrovec
cautions on the testimony of various gang
    members, particularly instructions that permitted mutual confirmation of their
    evidence.

The Positions of the Parties

[19]

The
    parties concentrated their submissions on the single controverted issue:
    whether the proposed grounds of appeal have sufficient merit to warrant this
    court to appoint counsel.

[20]

For
    the appellant, Mr. Beechener contends that the proposed ground of appeal, the
    alleged unreasonableness of the finding of guilt of first degree murder, has
    sufficient merit to satisfy the standard required under s.684 of the
Criminal
    Code
.

[21]

Mr.
    Beechener says that the only difference between the evidence adduced at the
    appellants first trial, following which he was found not guilty, and his
    second trial, following which he was found guilty, was the opinion evidence of
    the expert Dr. Totten, which was led in the second trial but not the first.  Furthermore,
    Dr. Totten was discredited by the Crown in a separate and later matter. The
    balance of the evidence consisted of dubious testimony from an eyewitness, who
    later queried whether the police had arrested the wrong man upon seeing the
    appellant in court, and the testimony of a trio of thoroughly disreputable gang
    members whose evidence necessitated, but did not receive, confirmation from
    independent sources. The cumulative impact of this evidence, Mr. Beechener
    submits, falls significantly short of the standard of proof required for a
    criminal conviction, especially a conviction of the most serious offence under
    our criminal law.

[22]

Counsel
    for the appellant alleges two legal errors affected the outcome of the trial
    and contributed to the unreasonableness of the verdict.

[23]

First,
    counsel for the appellant alleges that the trial judge should not have
    permitted the Crown to read in the testimony of Duane Williams, given at the
    appellants first trial. Williams refused to testify at the appellants second
    trial, requiring the Crown to read in his testimony in order to lead it as
    evidence. At the very least, the appellant says, the trial judge should have
    instructed the jury not to rely on Williams evidence at all in reaching their
    verdict. The trial judges admission of this evidence, and failure to provide a
    proper instruction for it, contributed to the unreasonableness of the verdict
    and constituted legal error.

[24]

Mr.
    Beechener further submits that the trial judge erred in law in instructing the
    jury that the evidence of witnesses which was subject to a
Vetrovec
caution, namely Raoul Burton, Thomas Sams, and Duane Williams, could be
    mutually confirmatory. This instruction, Mr. Beechener says, was legally wrong
    in the circumstances of this case and contributed to the unreasonable verdict
    rendered by the jury.

[25]

For
    the respondent, Mr. Gattrell submits that the proposed grounds of appeal lack
    sufficient merit to warrant the order sought.

[26]

Mr.
    Gattrell says that the principles upon which the appellant relies in support of
    his submission that the verdict was unreasonable are legally unsound. A verdict
    is not unreasonable because a jury in a previous trial, upon hearing different
    evidence and in accordance with different jury instructions, reached a
    different conclusion than this jury at the end of this trial. Nor is a verdict
    unreasonable because some of the evidence on which it was based was given by a
    witness whose evidence was challenged in later proceedings by the party who
    called him in the proceedings under review.

[27]

Mr.
    Gattrell says that the appellants objections to the trial judges instructions
    allowing mutual confirmation among the trio of
Vetrovec
witnesses reflect
    the prevailing state of the law in this province. He says that it was within
    the trial judges discretion to admit Williams prior evidence under s. 715 of
    the
Criminal Code
. This decision is subject to deference from an
    appellate court. Particularly high deference is warranted in the present case, Mr.
    Gattrell submits, where nothing on the record suggests any error in the trial
    judges exercise of his discretion.

the governing principles

[28]

Under
    s. 684(1) of the
Criminal Code
, a judge or a panel of this court have
    concurrent authority to assign counsel to act on behalf of an accused who is a
    party to an appeal or to any proceedings preliminary or incidental to an appeal
    to this court. The authority is engaged where the judge or panel of judges is
    satisfied that it appears desirable in the interests of justice that the
    accused should have legal assistance and where it appears that the accused has
    not sufficient means to obtain that assistance.

[29]

The
    ubiquitous phrase the interests of justice is a legal chameleon that takes
    its meaning from its surroundings. The phrase contemplates a judicial
    discretion exercisable on a case-by-case basis:
R. v. Bernardo
(1997),
    121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.  Section 684 offers no list of
    factors, whether exhaustive or expansive, to inform the exercise of the
    discretion conferred by s. 684(1).

[30]

The
    interests of justice in s. 684(1) must take cognizance not only of the broad
    access to appellate review contemplated by s. 675 of the
Criminal Code
,
    but also of the expansive remedial powers of a court of appeal for which s. 686
    provides. Justice demands that an accused who appeals against conviction for an
    indictable offence under s. 675 be afforded a meaningful opportunity to
    establish the merits of the grounds of appeal he or she advances.  Justice demands,
    equally, that the court to which the appeal is taken be able to fully and
    properly exercise its broad review jurisdiction at the conclusion of the
    appeal:
Bernardo
, at para. 20.

[31]

Under
    s. 684(1), the onus is on the appellant to satisfy the judge or panel of judges
    that it appears desirable in the interests of justice that the accused should
    have legal assistance:
R. v. Kampe
, 2012 ONCA 858 (Chrs), at para.
    2.

[32]

To
    determine whether counsel should be appointed, the judge or panel of judges
    should inquire into the merits of the appeal on the basis of the record . In
    most instances, the available record will be incomplete. Accordingly, the
    merits inquiry simply requires the judge or panel of judges to determine whether
    the grounds of appeal to be advanced are arguable:
Bernardo
, at para.
    22. This standard or threshold of an arguable case is a modest one:
R. v. Ariaratnam
,
    January 25, 2013. (Ont. C.A. #M42097), at para. 13.

[33]

Where
    an appellant advances arguable grounds, a second inquiry to determine whether
    the appellant can effectively advance the grounds of appeal without the
    assistance of counsel is necessary. This inquiry examines the complexities of
    the arguments to be advanced and the appellants ability to make legal argument
    in support of the grounds of appeal to be advanced:
Bernardo
, at para.
    24.

the principles applied

[34]

The
    decision on this application reduces to an assessment of whether the sole
    ground of appeal advanced, the unreasonableness of the jurys verdict, is
    arguable.  The respondent acknowledges that if the proposed ground of appeal is
    arguable, counsel should be appointed pursuant to s. 684(1) because the
    appellant lacks the means to retain counsel, as well as the ability or capacity
    to effectively present the appeal without a lawyer.

[35]

Whether
    a jury finding of guilt is unreasonable depends on whether the verdict was one
    that a properly instructed jury, acting judicially, could reasonably have
    rendered:
R. v. Biniaris
, 2000 SCC 15, at para. 36. A court of appeal
    must thoroughly re-examine the evidence and bring to bear the weight of its
    judicial experience in deciding whether, on the basis of the record, the
    verdict was unreasonable:
Biniaris
, at paras. 39-40.

[36]

In
    support of his contention that the unreasonable verdict ground is arguable, the
    appellant says that:


i.

his acquittal at the first trial renders the finding of guilt at the
    second trial
prima facie
unreasonable;


ii.

the opinion evidence adduced and relied upon by the Crown at the second
    trial has subsequently been impeached by the Crown in another prosecution and
    found unreliable; and


iii.

the conviction rested on the testimony of an eyewitness whose evidence
    was more exculpatory than inculpatory and thoroughly disreputable
Vetrovec
witnesses whose evidence was manifestly unreliable.

[37]

Despite
    the modest threshold to be met, for reasons that I will develop, I am not
    satisfied that as advanced on the materials filed, the claim of an unreasonable
    verdict represents an arguable ground of appeal.

[38]

First,
    the appellant invokes the conclusion reached by the first jury to demonstrate
    the unreasonableness of the second jurys finding of guilt. The conclusion
    reached by the first jury, on the evidence adduced and instructions given
    there, is irrelevant to a determination of whether the verdict of the second
    jury, on the evidence adduced and instructions given in that trial, was
    unreasonable. The reasonableness of the finding of guilt made by the second
    jury is determined by the application of the governing test to the evidence
    adduced at the second trial. Provided the finding of guilt is a conclusion that
    a properly instructed jury, acting judicially, could reasonably have rendered,
    the verdict is not unreasonable:
R. v. Burke
, [1996] 1 S.C.R. 474, at
    para. 4.  In this case-specific reasonableness inquiry, the verdict of the
    previous jury on different evidence moves no freight on the inquiry into the
    unreasonableness of the verdict under appeal.

[39]

Second,
    the appellant summons a position taken by the Crown and a ruling made by a
    trial judge in a subsequent trial concerning expert evidence from a witness who
    testified at the appellants trial as the basis for a submission that the
    jurys finding here was unreasonable. In my view, this argument is misplaced.

[40]

At
    trial, Dr. Totten was tendered and qualified as an expert witness. He gave his
    opinion in generic terms about the meaning of a tear drop tattoo on the face of
    a member of an urban street gang. The opinion was admitted and the jury instructed
    about its use in accordance with the decision of this court in
R. v. Abbey
,
    2009 ONCA 624.  In a separate and subsequent trial, counsel for one of two
    accused on trial together sought to have Dr. Totten qualified as an expert in
    the field of street gangs.  Counsel for the Crown at that trial took the
    position that Dr. Totten was not sufficiently qualified to give expert opinion
    evidence because he had no direct knowledge of the gangs involved in that case.

[41]

In
    the later trial, the presiding judge determined that Dr. Totten was
    sufficiently qualified to give expert opinion evidence on a number of subjects
    including


i.

the existence, hierarchy, operation, behaviour, and characteristics of
    gangs and gang members;


ii.

the language, terminology, symbols, and expressions used by gang
    members; and


iii.

gang culture and the relationship of gang members with non-gang members
    in neighbourhoods with a prominent gang presence.

The trial judge excluded Dr. Tottens opinion about
    the
specific
gangs
involved
in that case because it trenches on the ultimate issue:
R. v. Gager
,
    2012 ONSC 1472, at paras. 114-117.

[42]

Admissibility
    issues, including the qualifications of witnesses proposed as experts and, if
    qualified, the scope of the opinions they may proffer, are determined on a
    case-by-case basis, not
in rem
as the appellant suggests.  A party who
    tenders a witness as an expert on specific issues in one proceeding is not estopped
    from challenging the same witness qualifications, or the scope of the witness
    testimony, in another proceeding. Nor does the later challenge render the
    verdict in the prior proceeding so vulnerable as to be deemed unreasonable.
    Whether a verdict is unreasonable is determined by applying the governing
    principles to the evidence adduced in the proceedings under review. For the
    purposes of that inquiry, what happened in another trial is irrelevant.

[43]

Third,
    setting aside the influence of the circumstances detailed above on the
    reasonableness of the verdict, the application of the governing principles to
    the evidentiary record in this case leaves the argument of unreasonable verdict
    short of what is required under s. 684(1).  The evidence included


i.

the testimony of an eyewitness, who described the assailant in a manner
    that generally fit the appellant, despite her professed disbelief that it was
    the appellant;


ii.

evidence from cell phone records that the appellant was in the area
    where the killing occurred at the time the shooting took place;


iii.

evidence of admissions made by the appellant about the shooting to fellow
    gang members; and


iv.

evidence of motive, both general (gang rivalry) and specific (a prior
    robbery of the appellant by another for whom the deceased may have been
    mistaken).

In addition, and of significance to an appellate courts
    task of assessing the reasonableness of a trial verdict, the appellant does not
    appear to have sought a directed verdict of acquittal at the end of the Crowns
    case at trial.  Nor did the appellant testify at trial. The jury was entitled
    to consider the failure of the appellant to testify in their deliberations, as
    is an appellate court:
R. v. Corbett
[1975] 2 S.C.R. 275, at pp. 280-281.

[44]

Mr.
    Beechener buttresses his claim that the finding of guilt was unreasonable with
    an argument that the trial judge made two legal errors in connection with the
Vetrovec
witnesses.  Those errors, he submits, consist


i.

in permitting the Crown to read in Duane Williams testimony from the
    previous trial when Williams refused to testify at the second trial; and


ii.

in instructing the jury that evidence of the
Vetrovec
witnesses
    could be mutually confirmatory

Taken together, the appellant submits that these
    errors have the effect of permitting unreliable evidence to be led before the
    jury that was not subject to proper caution, causing the jury to render an
    unreasonable verdict that.

[45]

The
    evidence of the three gang members, Burton, Sams, and Williams, was subject to strong
Vetrovec
warnings. The trial judge explained the reasons underlying
    the caution for each witness, told jurors about the dangers associated with
    mutual confirmation, and made specific mention of the jurors inability to
    assess the demeanour of Williams as a factor worthy of added consideration in
    their assessment of his evidence.

[46]

It
    is settled law that
Vetrovec
cautions need not follow a specific word
    formula. Rather, their content is left largely to the discretion of the trial
    judge:
R. v. Smith
, 2009 SCC 5, at para. 2. The trial judge gave
    illustrations of potentially confirmatory evidence.  His constructions adhered
    to the applicable legal requirements and appear to have attracted no objections
    at trial.

[47]

A
    trial judge has the discretion to exclude evidence tendered for admission under
    s. 715 of the
Criminal Code
or its common law equivalent:
R. v.
    Potvin
, [1989] 1 S.C.R. 525, at pp. 547-548; and
R. v. Hawkins
,
    [1996] 3 S.C.R. 1043, at para. 85. This exclusionary discretion may be
    exercised where admitting the evidence might operate unfairly to the accused,
    or where the prejudicial effect of the evidence predominates over its probative
    value.

[48]

The
    materials filed assert error, but leave me uninformed about the validity of
    either claim. On the materials filed, I cannot conclude that these grounds of
    appeal, whether taken as legal errors or components of an unreasonable verdict,
    are arguable.

conclusion

[49]

In
    the result, the application for appointment of counsel under s. 684(1) of the
Criminal
    Code
is dismissed, without prejudice to the appellants right to reapply
    with a more fulsome record.

David Watt J.A.


