


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Badiru, 2012 ONCA
    124

DATE: 20120223

DOCKET: C50244 and C50557

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Respondent
(Appellant on sentence appeal)

and

Peyton Badiru

Appellant (Respondent
    on sentence appeal)

Howard L. Krongold and Matthew Webber, for the
    appellant/respondent on sentence appeal

Susan Ficek, for the respondent/appellant on sentence
    appeal

Heard: January 23, 2012

On appeal from the conviction entered by Justice Harriet
    E. Sachs of the Superior Court of Justice, sitting with a jury, on October 17,
    2008, and the sentence imposed on February 26, 2009.

By the Court
:

A.
INTRODUCTION

[1]

The appellant Peyton Badiru appeals from his conviction for second
    degree murder.

[2]

The appellant Crown appeals from the 13-year period of parole
    ineligibility imposed as part of Badirus sentence.

B.
FACTS

[3]

Gabriel Jaramillo was shot to death in a basement after-hours club in
    Toronto at about 6:00 a.m. on Saturday, June 3, 2006.

[4]

The core of the Crowns case against Badiru was the eyewitness testimony
    of Francisco Gellibert, the owner of the club, and Reza Talebi, the clubs
    bouncer.  Gellibert and Talebi testified that they saw Badiru shoot Jaramillo
    inside the club immediately after a fist fight between Jaramillo and Luis
    Rosales, the brother of Badirus girlfriend or wife.  They said that just as Talebi
    separated Jaramillo and Rosales, Badiru walked into the room with a handgun and
    shot Jaramillo.  Gellibert testified that there were four shots; Talebi
    testified that there were three.  An autopy revealed that one bullet struck
    Jaramillo in the neck, killing him almost instantly.  Talebi testified that
    Badiru showed up at his house after the shooting, and told him you know that
    in there, it was just me and you and no one else.  This appears to have been
    an effort to discourage Talebi from going to the police.

[5]

The defence case emphasized Gellibert and Talebis lack of credibility. 
    Both witnesses were subject to
Vetrovec
[1]
warnings and there were substantial inconsistencies between their statements. 
    Notably, in his initial statement to police, Gellibert did not mention Talebis
    presence or role at the murder scene.

[6]

Badiru testified that he was at the club, but was not involved in the
    shooting.  A defence witness, Jorge Riberio, testified that he was with Badiru
    in a different room of the club when the shots were fired.

[7]

After an 18-day trial, the jury convicted Badiru of second degree
    murder.  The trial judge, Sachs J., imposed a sentence of life imprisonment
    with a parole ineligibility period of 13 years.

[8]

Badiru appeals his conviction.  The Crown appeals the sentence, seeking
    to increase the parole ineligibility period to 15 years.

C.
DISCUSSION

(1)
Badirus conviction appeal

(a)

Instruction on collusion between
    Crown witnesses

Badiru contends that the trial
    judge erred by failing to instruct the jury that they could rely on mutual
    confirmation between Crown witnesses Gellibert and Talebi only if they were
    satisfied that the witnesses had not colluded about their

testimony.

[9]

Badiru does not challenge the contents of the trial judges
Vetrovec
warnings about Gellibert and Talebi.  Nor does he contend that the trial judge
    erred in instructing the jury that it was open to them to rely on similarities
    between Gellibert and Talebis accounts of the shooting as confirmatory
    evidence.  Rather, Badiru submits that once the mutual confirmation door is
    opened the jury must be cautioned about the potential for collusion between the
    witnesses.  This is so because, if there has been collusion, the evidence of
    each
Vetrovec
witness is not independent of the other and cannot,
    therefore, be confirmatory.

[10]

We
    do not accept this submission.  Defence counsel at trial did not request that
    the possibility of collusion be included in the jury charge, a copy of which
    had been provided to counsel before the pre-charge meeting.  In the pre-charge
    discussions no objection was taken to the absence of a collusion charge.  Nor
    did counsel object to its absence after the charge was delivered.  Importantly,
    defence counsel never put to either
Vetrovec
witness in
    cross-examination that they had colluded with each other.

[11]

All
    of this silence on the defence side about possible collusion between the two
    main Crown witnesses was not, in our view, accidental.  The thrust of the
    defence case was, in fact, the opposite of collusion between Crown witnesses: it
    was that the number and quality of inconsistencies between the two
Vetrovec
witnesses were so striking that it made their testimony not reliable or
    credible.

[12]

This
    focus of the defence case is well illustrated by defence counsels closing
    address to the jury:

Now two witnesses have been presented to you and Im going to
    suggest to you that theyre totally unsatisfactory.  Theyre criminal
    perjurers.  You watched them commit some crimes right in this box.  You watched
    them commit crimes on a big technicolour screen.  They have deliberately and
    repeatedly lied under oath.  They committed a daily double and triple of
    perjury.  They have lied under oath about lying while they were lying about the
    next thing.

Importantly, the two Crown witnesses that are of any
    importance in this case contradict each other on every material point including
    what happened in room number three.  On every point they contradict themselves
    from their prior statements to the next statement to what they say here in this
    trial over and over again
.                                                                                  [Emphasis
    added.]

[13]

In
    short, the emphatic defence position was that Gellibert and Talebi were liars,
    as demonstrated by inconsistencies within and between their testimony, not that
    they were liars because they concocted an identical story about the events
    surrounding the shooting.  The trial judges jury charge fairly reflected the
    defence position.

(b)
Instruction on fabrication of alibi evidence

[14]

Badirus
    second ground of appeal is that the trial judge failed to properly instruct the
    jury on how to deal with the Crowns allegation in its closing address to the
    jury of a jointly concocted fabrication by Badiru and Riberio.

[15]

We
    agree with Badiru that the Crowns closing submission that Riberio and Badiru
    had concocted and colluded together to prepare their testimony overreached
    the evidence.  The Crown did not lead evidence of joint concoction, nor did it
    ask the jury to draw an inference of guilt based on joint concoction.  However,
    the trial judge did explicitly address defence counsels two main objections to
    the Crowns closing address in this domain:

During her closing address to you, Crown counsel
    suggested that Mr. Riberio gave his statement to the private investigator on
    July 25
th
, 2006 after he had had the opportunity to view Francisco
    Gelliberts videotaped statement to the police.  Crown counsel then went on to
    argue that Mr. Riberio tailored his statement to the private investigator using
    information that he had learned from viewing Mr. Gelliberts videotaped
    statement.

Members of the jury, there is
no evidence
before you that before Mr. Riberio gave his statement to the private
    investigator on July 25
th
, 2006, he had had the opportunity to view
    Mr. Gelliberts videotaped statement or even that that statement had been
    disclosed to the defence by that time.  Therefore, I am instructing you to
    ignore this aspect of Crown counsels closing remarks to you.

I am also instructing you to ignore any suggestion by
    the Crown that defence somehow participated in finding Mr. Riberio to be Mr.
    Badirus alibi witness because he was a person with no criminal record and a
    sad story to tell.  There is no evidence of any kind of misconduct
on the
    part of Mr. Badirus defence counsel
.  According to Mr. Riberio, he tried
    to contact Mr. Badiru shortly after he saw the newscast with Mr. Badirus
    picture and the mother of Mr. Badirus child got back to him.  [Emphasis
    added.]

[16]

On
    appeal, Badiru renews trial counsels assertion that no evidence was not
    strong enough; that the language should have been it was impossible.  This
    strikes us as a very minor distinction.  Badiru also submits that the
    correction relating to defence counsels conduct might have left the jury
    speculating about Badirus own role in obtaining Riberios testimony.  However,
    a fair reading of trial counsels objection to the Crown closing, both
    immediately after it was made and later in discussions about the trial judges
    draft jury charge, establishes that the central focus of the objection related
    to defence counsels conduct.  The trial judge was simply responding to the
    main thrust of the submission before her.

[17]

Badiru goes on to argue that the trial judge erred in the way she
    addressed the joint concoction issue in her charge.  In summarizing the Crowns
    position, she said: This demonstrated that their story [Badiru and Riberios]
    was a jointly concocted fabrication.

[18]

Badiru
    argues that the trial judge erred in including this statement in her charge. 
    Moreover, having done so, she erred in failing to instruct the jury (1) that
    there was no evidence that Badiru and Riberio had colluded and (2) that if the
    jury disbelieved Badiru and Riberios evidence, they should not draw an
    inference that Badiru and Riberio jointly concocted their evidence and use that
    inference as evidence of guilt.

[19]

We
    would not give effect to these submissions.

[20]

We
    start by noting that, consistent with the position taken by both counsel, the
    trial judge did not instruct the jury that they were entitled to draw an
    inference adverse to Badiru if they believed that he and Riberio had concocted
    evidence.

[21]

Defence
    counsel had an opportunity to vet the trial judges charge beforehand and did
    not ask the trial judge to remove the impugned statement from her charge.  Nor
    did he ask that the trial judge give the instruction relating to the
    possibility of an adverse inference now sought.

[22]

We
    also note that the trial judge gave a carefully worded
W.D.
[2]
charge.  She instructed that if the defence evidence did not leave the jury
    with a reasonable doubt, they could find Badiru guilty only if the rest of the
    evidence that they did accept proved guilt beyond a reasonable doubt.  The
    trial judge made it clear that the Crowns case depended almost entirely on the
    evidence of Gellibert and Talebi.

[23]

Badiru
    relies on
R. v. OConnor
(2002), 62 O.R. (3d) 263, at para. 36, for
    the proposition that an instruction is required to prevent the jury from
    improperly using disbelief of an exculpatory statement to infer guilt despite
    an absence of independent evidence of fabrication.
OConnor
, like
R.
    v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5, involved allegedly false out of
    court statements introduced by the Crown to raise an inference of guilty
    fabrication.  In this case, however, Badirus and Riberios testimony was
    offered by the defence for exculpatory purposes.  We do not think that an
    instruction on the difference between disbelief and a finding of fabrication
    was mandatory here, given that the allegedly false statement was part of the
    defence evidence, the trial judge gave an adequate
W.D.
instruction, the
    Crown did not ask the jury to infer guilt from disbelief, and the defence did
    not request the instruction now sought.

(c)
Instruction on Crown witnesses lack of motive to lie

[24]

Third,
    Badiru submits that the trial judge erred by failing to instruct the jury on
    how to assess the Crowns claim that Gellibert and Talebi had no motive to lie
    about what had happened at the club, thereby improperly shifting the burden of
    proof to the defence.

[25]

We
    do not accept this submission.  The closing submission of Crown counsel on this
    point was not inappropriate; nor did it require a corrective instruction from
    the trial judge in relation to the burden of proof.  The comments of trial
    counsel did not improperly place the burden of proof on the defence.  There is
    a difference between submitting that the witnesses had no motive to lie in a
    case where the defence submits that Crown witnesses are lying, and a submission
    that the defence should have called evidence of motive to lie and failed to do
    so.  The Crown did not cross-examine Badiru to suggest that there was a burden
    on him to establish that the Crown witnesses had a motive to lie.  Defence
    counsel went to the jury almost entirely on the basis that the two main Crown
    witnesses were lying.  The Crown was entitled to counter that defence within
    limits and submit that these witnesses had no motive to lie: see
R. v.
    LeBrocq
(2011), 2011 ONCA 405, 278 O.A.C. 142, at para. 19.

(d)
Instruction on Badirus exclusive motive to kill

[26]

Badirus
    final submission is that the trial judge erred in failing to give a corrective
    instruction concerning the Crowns improper submission that Badiru was the only
    person in the club with a motive to kill Jaramillo.  Since there were many
    people in the club, most of whose relationship with the deceased is unknown,
    the trial judge should have instructed the jury to disregard the suggestion
    that only Badiru had a motive to kill the deceased.

[27]

We
    do not accept this submission.  The only evidence about anyone having a motive
    to kill Jaramillo that emerged from the trial was the fact that Rosales, the
    brother of Badirus girlfriend or wife, was in a fight with the deceased
    moments before the shooting.  The suggestion that any one among the many
    unknown people at the club could have had a motive to kill is mere
    speculation.  The jury was instructed to avoid speculation when assessing
    evidence.  Accordingly, based on the evidence, the Crowns submission on this
    point did not require correction.

[28]

For
    these reasons, we would dismiss the conviction appeal.

(2)
The Crowns sentence appeal

[29]

The
    Crown submits that in imposing a 13-year period of parole ineligibility, the
    trial judge gave insufficient consideration to the aggravating circumstances of
    the offence.  This court has said that the use of handguns in public places
    cries out for lengthy increased periods of parole eligibility:
R. v.
    Danvers
(2005), 199 C.C.C. (3d) 490, at para. 77.  Badirus callous
    execution-style shooting of an unarmed man in a club in the presence of bystanders
    showed a wanton disregard for the lives of others and warrants an exemplary
    sentence.  The Crown submits that Badirus parole ineligibility should be
    increased to 15 years.

[30]

We
    do not accept this submission.  In our view, the trial judge engaged in a
    comprehensive and fair assessment of the relevant factors.  It needs to be
    recalled that the sentence in this case is one of life imprisonment with the
    possibility  not the certainty  of parole after 13 years.  This is a lengthy
    sentence.

[31]

Moreover,
    we note that in
R. v. Dooley
, 2009 ONCA 910, 249 C.C.C. (3d) 449 at
    para. 179, Doherty J.A. observed: It is hard, absent some error in principle
    or misapprehension of material evidence, to justify appellate intervention to
    adjust a mandatory period of parole ineligibility downward by two or three
    years.  By parity of reasoning, this observation should apply with equal force
    to a Crown request to increase a period of parole ineligibility by two or three
    years, which is the Crown position in this case.

[32]

For
    these reasons, we would dismiss the sentence appeal.

D.
DISPOSITION

[33]

The
    conviction and sentence appeals are dismissed.

Released: February 23, 2012 (D.OC.)

Dennis OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (
ad hoc
)





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



[2]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


