



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is
    made under section 486.4, on application of the prosecutor in respect of a
    victim or a witness, or on application of a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application of the
    prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes
    of subsection (2) are

(a) an offence under section
    423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for
    the benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection
    16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information
    Act
; or

(d) an offence under subsection
    21(1) or section 23 of the
Security of Information Act
that is committed
    in relation to an offence referred to in paragraph (c).

(3)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for an order
    shall

(a) apply in writing to the
    presiding judge or justice or, if the judge or justice has not been determined,
    to a judge of a superior court of criminal jurisdiction in the judicial
    district where the proceedings will take place; and

(b) provide notice of the
    application to the prosecutor, the accused and any other person affected by the
    order that the judge or justice specifies.

(5)     An applicant for an order
    shall set out the grounds on which the applicant relies to establish that the
    order is necessary for the proper administration of justice.

(6)     The judge or justice may
    hold a hearing to determine whether an order should be made, and the hearing
    may be in private.

(7)     In determining whether to
    make an order, the judge or justice shall consider

(a) the right to a fair and
    public hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness
    or justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in
    encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed
    order on the freedom of
expression
of those affected by it; and

(h) any other factor that the
    judge or justice considers relevant.

(8)     An order may be subject to
    any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other information that
    could identify the person to whom the application relates as a victim, witness
    or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT
    OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Campbell, 2020 ONCA 221

DATE: 20200317

DOCKET: C62024 & C62289

Benotto, Huscroft and Jamal
    JJ.A.

DOCKET: C62024

BETWEEN

Her Majesty the Queen

Respondent

and

Orville Campbell

Appellant

DOCKET:
C62289

AND BETWEEN

Her Majesty the Queen

Respondent

and

Stanton David

Appellant

Philip Campbell, for the appellant Orville Campbell

James Lockyer and Mindy Caterina, for the appellant
    Stanton David

Deborah Krick and Linda Shin, for the
    respondent Her Majesty the Queen

Heard: February 19, 2020

On appeal from the conviction entered on
    November 4, 2015 by Justice I.V.B. Nordheimer of the Superior Court of Justice.

By the Court:

[1]

The appellants were convicted of first-degree
    murder. They appeal the convictions on the basis that the first-degree murder
    verdict was unreasonable. They also submit
that the
    trial judge erred in his charge to the jury on post-offence conduct, party
    participation, the
Vetrovec
warning, the pathology evidence, and the
    use of the criminal record of the deceased.

[2]

They seek a new trial on first-degree murder or
    in the alternative, a new trial on second-degree murder.

[3]

We have concluded that the verdict on first-degree
    murder was unreasonable and that there was no error requiring a new trial on
    second-degree murder
.

[4]

For the reasons that follow, we dismiss the
    appeal but substitute a verdict of second-degree murder and remit the matter to
    the Superior Court for sentencing.

FACTS

Background

[5]

In the spring of 2012, the appellants Orville
    Campbell and Stanton David were in custody. Campbell

s charges were ultimately withdrawn, but while he was in jail, his
    girlfriend Chelise Strong began a relationship with Ricardo Vincent. Campbell
    was released from prison on May 4, 2012. Over the following days, he
    encountered Vincent and animosity ensued.

[6]

On May 10, 2012, outside of a convenience store
    on Glamorgan Avenue in Scarborough, Campbell stared at Vincent from inside his
    car and Vincent yelled at Campbell to

fuck off

. Later
    that day Campbell left a voicemail for Strong saying

Tell your little boyfriend I

m not scared of him. If he wants an issue I

m not scared of him. Why is he telling me to fuck off.

On May 13, Campbell was at a night club in
    Scarborough with friends and coincidentally ran into Strong and Vincent. Vincent
    threatened to

fuck him up
 and
said that Strong didn

t want his

broke ugly ass

.
    Campbell retorted that he was still having sexual relations with Strong.
    Campbell later texted Strong saying: (i)

Now I see wat [sic] it is, tell ur lil bf when I see him he better
    have it

and (ii)

Yo if da nigga even try

s to crack to me he

s dead he better kno wha it is, and as for u jus holla at me! I

m done havin my feelings hurt from u parin
    wit nighas

.

[7]

After the incident at the nightclub, Campbell
    met with L.S., a friend of Vincent and an acquaintance of both appellants. L.S.
    told Campbell that it did not make sense to argue over a girl. L.S. told Vincent
    to either kill Campbell or to

lay
    low

.

[8]

On May 28, 2012, the appellant David was
    released from custody. On May 29, 2012, a mutual friend, Clayton Robichaud,
    introduced Campbell to David. David purchased marijuana from Campbell and the
    two began texting and speaking on the phone regularly. They appear to have
    become fast friends. Campbell, David and Robichaud were aspiring music artists.

[9]

On June 20, 2012, Campbell, David, L.S.,
    Robichaud, and others gathered at 6 Glamorgan Avenue to shoot a rap video.
    David was asked to get a gun to contribute to the

urban look

of the
    video. He borrowed a .357 revolver from a friend. It was used in the video.
    David can be seen dancing with the revolver. Scenes from the music video
    included Campbell, L.S., and others. David testified that he returned the gun
    to the friend after the video shoot. L.S. testified that in the days leading up
    to the shooting, he saw Campbell and David sharing the revolver and that they
    were the

only two with access

to the weapon.

June 22, 2012

[10]

On June 22, 2012, Campbell had plans to drive to
    Barrie to pick up some marijuana to sell. He drove to Barrie with some friends
    and purchased marijuana, returning to 6 Glamorgan around 3:30 p.m. By chance
    Vincent was there. Campbell saw Robichaud, sold some marijuana, and then left
    with friends to continue selling. David had also gone to 6 Glamorgan that
    morning to finish shooting the rap video. He had the revolver with him, which
    he claims he borrowed again from his friend. Around 4:00 p.m., David drove into
    the parking lot and met with friends. Robichaud, who had been hanging out with
    Vincent and L.S., invited David to have a drink with them. After the drink,
    David walked to a different area and waited for other friends to show up.

The nine minutes at 6 Glamorgan

[11]

Campbell returned to 6 Glamorgan around 5:31
    p.m. Nine minutes later, Vincent was dead.

[12]

When Campbell arrived at 6 Glamorgan, he testified
    that Vincent told him to get the fuck out of here.

[13]

L.S. was sitting with Robichaud about 150 feet away
.
L.S. testified that he saw a confrontation
    by Vincent

s car. Campbell and
    David and two or three other men were near the car. Vincent got out of his car
    and moved toward the playground/splash pad area. The group of men followed. L.S.
    testified that he saw Campbell with a gun and heard him tell Vincent

I told you bro, I

m locked and loaded

.
    The confrontation then ended.

[14]

In the moments following, Campbell texted
    someone about selling marijuana. Vincent walked back to his car. Campbell and
    David and the other men followed. Vincent was standing near the front of his
    car. L.S. saw Campbell acting like he had a gun. Campbell and David walked
    behind Vincents car and met very close together on a grassy area. L.S. did not
    hear what was said and he did not see a gun. However, he testified that it
    looked like

something

was handed over and he believed it was a
    gun. L.S. testified that after Campbell and David met behind Vincents car,
    David began moving like he had the weapon. David moved first toward Vincent. Campbell
    followed but then stopped. David was

not moving fast

, he
    was

sliding through the cars

. L.S. said that David appeared to be
    trying to hide his arm behind his hip as David walked along the passenger side
    of the car
.
David had his arm
    held at an angle like he was concealing a gun.

[15]

Campbell also walked toward Vincent but stopped.
    David continued to move toward Vincent. L.S. heard five shots fired: two
    together and then three more. L.S. looked back and saw David holding a revolver
    and looking around. Campbell had his mouth wide open

like the kid from Home Alone

.

[16]

Although brief, there was a separation in time
    between the exchange of insults between Campbell and Vincent and the meeting of
    Campbell and David behind the car.

[17]

The Crown alleged that Campbell passed the gun
    to David and instructed him to kill Vincent. They were charged with
    first-degree murder and tried before a jury as joint principals.

Motion for directed verdict

[18]

At the conclusion of the Crown

s case, the appellants brought motions for
    directed verdicts, seeking to remove first-degree murder from the jury

s consideration. In dismissing the
    application, with reasons reported at 2015 ONSC 6738, the trial judge concluded
    that if the jury found that Campbell and David participated in Vincent

s killing, then they could draw inferences
    of planning and deliberation from the following facts:

·

Campbell had previously
    sent a text message to Strong that amounted to a threat against Vincent;

·

Campbell and David were
    friends;

·

The gun was brought by
    one of them to the area where the shooting occurred;

·

Shortly before the
    shooting Campbell said he was locked and loaded;

·

Immediately before the
    shooting Campbell and David met behind Vincents car and the gun was allegedly
    passed from Campbell to David;

·

There is no evidence
    that either Campbell or David demonstrated surprise or alarm that might suggest
    the shooting was an unexpected event. L.S. expressly denied that Campbell
    looked shocked after the shooting;

·

While there is some evidence
    that words were exchanged between Campbell and David and Vincent prior to the
    shooting, there was a gap in time between that exchange and the shooting that
    tends to discount any suggestion that the shooting resulted from a sudden or
    impulsive act.

[19]

The trial continued.

Defence evidence

[20]

Campbell and David testified. Campbell denied
    having a gun on the day of the shooting and denied instructing David to shoot Vincent.
    He testified that after the confrontation with Vincent, David offered him a
    gun, but he declined it. He heard two gunshots, which did not come from David.
    He heard three more shots and saw Vincent

twist

and hit the
    ground. He did not see Vincent with a gun.

[21]

David testified that he heard Vincent yelling at
    Campbell. He said he went up to Vincent who had a gun. In an attempt to see the
    gun, he lifted Vincent

s shirt,
    but Vincent slapped away his hand and said no. The argument continued between
    the Vincent and Campbell. David heard Vincent threaten to kill Campbell. He
    then went to Campbell and offered him his gun, but Campbell declined. David
    heard a shot and then a second shot and saw Vincent with a gun. David started
    to

skate

toward Vincent and fired because it was

him or me

. David denied knowing anything about the dispute between Campbell
    and Vincent and denied being told by Campbell to shoot him.

Jury charge

(a)

The two scenarios

[22]

Two scenarios were put to the jury as to how Vincent
    came to his death:

1.

When the two men were behind Vincents car,
    Campbell told David to shoot Vincent; or

2.

David was acting alone. David used the gun
    to shoot Vincent when Vincent fired shots at him. On this scenario, David
    asserts self-defence.

[23]

Because the jury found both Campbell and David guilty
    of first-degree murder, the jury clearly relied on scenario one
.

(b)

Planning and deliberation

[24]

The trial judge correctly instructed the jury on
    the elements of planning and deliberation. Then, the charge continued:

[I]n terms of determining whether the murder was planned and
    deliberate you may wish to consider evidence that:

1. There was a gun that was used that was brought either by
    Orville Campbell or by Stanton David to the location;

2. Prior to the shooting Orville Campbell said to Ricardo
    Vincent I am always locked and loaded, if you accept that Mr. Campbell said
    that;

3. There was nothing apparently said between Orville Campbell
    and Stanton David immediately prior to the shooting taking place that might
    indicate surprise or alarm or otherwise suggest that the shooting was an
    unexpected event or done as a matter of impulse;

4. There was no discussion between Orville Campbell and Stanton
    David on the one hand, and Ricardo Vincent on the other, that would suggest the
    shooting resulted from a sudden or impulsive act;

5. The events of the shooting were preceded by a dispute
    between Orville Campbell and Ricardo Vincent that had been ongoing for some
    period of time, and during the course of which Mr. Campbell had made threats
    against Mr. Vincent; and

6. Neither Orville Campbell nor Stanton David remained at the
    scene or rendered any assistance to Ricardo Vincent.

These are not the only pieces of
    evidence that you will want to consider. There are other pieces of evidence
    that might argue against any conclusion that the murder of Mr. Vincent was
    planned and deliberate. The pieces of evidence that I have mentioned are just
    some factors that may assist you in deciding whether the murder of Ricardo
    Vincent was the result of a planned and deliberate act. That is not a
    conclusion that you would have to come to, but it is a conclusion you could come
    to. These factors may assist you or they may not. It will be up to you to
    decide.

[25]

The
    jury returned a guilty verdict.

ISSUES ON APPEAL

Campbell and David

[26]

Campbell and David appeal on the basis that the
    verdict of first-degree murder was unreasonable
.
They rely on the lack of evidence to support planning and
    deliberation and errors in the jury charge.

[27]

They also submit that the trial judge improperly
    invited the jury to rely on post-offence conduct to find planning and
    deliberation; failed to give a corrective instruction with respect to the Crown

s misstatement of the pathology evidence;
    erred by not limiting the use of the evidence of Vincents criminal history; and
    failed to provide an adequate
Vetrovec
instruction with respect to L.S.

Campbell

[28]

Campbell submits the trial judge erred in
    instructing the jury to assess Campbell

s liability as a principal in the homicide.

DISCUSSION

First-degree murder

[29]

We begin with the appellants

primary submission: the verdict of first-degree
    murder
was unreasonable.

[30]

The appellants submit that the verdict of first-degree
    murder was unreasonable because there was no evidence that could support a
    finding of planning and deliberation.

[31]

A verdict is unreasonable if a properly
    instructed jury, acting judicially, could not have come to that verdict:
R.
    v. Biniaris
,
2000 SCC 15
, [2000] 1
    S.C.R. 381, at paras.
36-42
.

[32]

In
R. v. Robinson
,

2017 ONCA 645, 352 C.C.C. (3d) 503, this
    court confirmed at para. 31, that, when considering a claim that a jury verdict
    is unreasonable, the court:

must engage in a limited weighing of the
    evidence. Cromwell J. described the boundaries of that exercise in
R.
    v. W.H.
,
2013 SCC 22
, [2013] 2 S.C.R. 180, at paras.
27-28
:

On one hand, the reviewing court must give
    due weight to the advantages of the jury as the trier of fact who was present
    throughout the trial and saw and heard the evidence as it unfolded. The
    reviewing court must not act as a 13th juror or simply give effect to vague
    unease or lurking doubt based on its own review of the written record or find
    that a verdict is unreasonable simply because the reviewing court has a
    reasonable doubt based on its review of the record.

On the other
    hand, however, the review cannot be limited to assessing the sufficiency of the
    evidence. A positive answer to the question of whether there is some evidence
    which, if believed, supports the conviction does not exhaust the role of the
    reviewing court. Rather, the court is required to review, analyse and, within
    the limits of appellate disadvantage, weigh the evidence  and consider
    through the lens of judicial experience, whether judicial fact-finding
precludes
the
    conclusion reached by the jury. Thus, in deciding whether the verdict is one
    which a properly instructed jury acting judicially could reasonably have rendered,
    the reviewing court must ask not only whether there is evidence in the record
    to support the verdict, but also whether the jurys conclusion conflicts with
    the bulk of judicial experience. [Citations omitted; emphasis in original.]

[33]

A murder is planned if it is the product of

a calculated scheme or design which has
    been carefully thought out, and the nature and consequences of which have been
    considered and weighed
.
A
    murder is

deliberate

if it is

considered,

not impulsive

,

slow in deciding,



cautious,

implying that the accused must take time to weigh the advantages
    and disadvantages of his intended action:

R. v. Nygaard
, [1989] 2 S.C.R. 1074, at
    p. 1084.

[34]

The Crown here was required to prove beyond a
    reasonable doubt that each of Campbell and David had carefully thought out and
    calculated a scheme, considered the nature and consequences, and weighed the
    pros and cons of the murder. We conclude that the evidence does not establish
    that a reasonable jury could have been satisfied beyond a reasonable doubt that
    these conditions were met.

[35]

The Crown

s position with respect to the evidence that could ground the jury

s finding of planning and deliberation
    shifted significantly between trial and appeal.

[36]

At trial the Crown relied on the text message
    that Campbell sent to Strong threatening Vincent. Recall, it was on May 13,
    2012  about five weeks earlier  that Campbell told Strong:

tell ur lil bf when I see him he better
    have it

.

[37]

With respect to David, the Crown relied on his
    desire to defend Campbell from the insults from Vincent. The following excerpt
    represents the bulk of the Crown

s closing:

Then the issue becomes, is this planned and deliberate?  Because
    if its planned and deliberate, its first degree murder. Now, a plan can be simple
    and senseless. It doesnt have to be the
work
of an evil
    genius or anything like that.
It
doesnt have to be complicated.
    It doesnt have to be like in the movies. And
certainly,
take
    the gun, slide up on him and shoot him until
hes
dead is
    a simple but deadly
plan.

And then the issue is deliberate. Planned and deliberate. You require
    both elements for it to
be
first degree murder. If its
    not planned and deliberate, its second degree murder



This is something that had been
threatened.
This
    was something that was long
standing.
This is something
    where people have had lots of time, in
particular
Mr.
Campbell,
to
think
about whether he wants
    to do it, and this is, in my respectful view, on behalf of
both gentlemen,
planned and
deliberate.

Again, with respect to David,
deliberations dont
have to be

they
dont
have to be,
again,
like
intellectual
exercises where
everything
makes
    a lot of sense. It could be
relatively
simple.
It
can be, you know what, this guy is dissing my friend, and yes,
    this is in
broad
daylight but no one here is going to say
    anything because the code is in place, and dead
men dont
    talk, and Im going to be out of here in two seconds, and you know what, I am
    going to do a solid for my buddy, Im going to take that gun and Im going to
    shoot him because he deserves it. That could be deliberation. Again, it doesnt
    mean a work of genius.

[38]

In other words, the Crown at trial relied on the
    animus between Campbell and Vincent  dating back five weeks  to suggest that
    Campbell had developed and carefully thought out a scheme to kill Vincent. As
    for David, the Crown appeared to say that his planning and deliberation took
    place when he was handed the gun
.

[39]

On appeal, Crown counsel

s written submissions amplified the rather amorphous jury closing by
    the Crown. The Crown put forward the following evidence from which the jury
    could find planning and deliberation:

(i)

Animus and motive:
    Campbells anger about Strong.

(ii)

Threats: the text
    messages sent to Strong on May 10 and 13, 2012.

(iii)

Friendship between
    Campbell and David.

(iv)

Presence of a gun on
    June 22, 2012.

(v)

No appearance of shock
    after the shooting.

(vi)

Intimidation of Vincent:
    L.S.s evidence depicted a sequence of evidence during which Campbell and David
    (and others) followed and tried to intimidate Vincent. L.S. testified how
    Campbell, David, Campbells cousin and one or two others swarmed Vincent in a
    half circle around him. Campbell was in Ricardos face and circling him and
    holding his waist. The group followed Vincent to his car, tailing him, and
    Campbells cousin blocked Vincents way. L.S. testified that at one point,
    Campbell had a revolver in his hand and said to Vincent, I told you bro, Im
    locked and loaded. When Vincent was moving to his car, he was followed by the
    group.

(vii)

The exchange of the firearm.

(viii)

The gap in time after
    the firearm exchange and the shooting.

(ix)

No evidence that
    Campbell or David remained at the scene or rendered assistance to Vincent.

[40]

During oral submissions, the Crowns position
    changed significantly. It was submitted that the planning and deliberation took
    place  not in the weeks leading up to the murder  but in the nine minutes
    that the appellants were at 6 Glamorgan. More particularly, it was the exchange
    between the two at the back of Vincent

s car where the planning and deliberation took place
.

[41]

The Crown submits that, by accepting scenario
    one, the jury effectively concluded that the murder was planned and deliberate.
    The reasoning goes like this
.
Campbell
    handed the gun to David and told him to shoot. By taking the gun and shooting,
    David agreed. It was analogous to a contract killing, which satisfies the
    requirements for planning and deliberation
.
Simply put, inherent in the instruction to shoot is planning and
    deliberation.

[42]

We do not accept that the evidence of the
    Campbell and David meeting behind Vincents car could possibly establish
    planning and deliberation. L.S.

s evidence was that he saw them. He did not hear what was said. The
    exchange was after Campbell had arrived, walked to the splash pad area and
    walked back. It was thus nearer to the end of the nine minutes. There was no
    time at the back of the car for a carefully thought-out scheme with a weighing
    of the advantages and disadvantages. Nor was there evidence to support the
    planning and deliberation.

[43]

Further, the evidence relied on is equally
    consistent with an impulsive act: Campbell was angry with Vincent and
    impulsively told David to shoot. The evidence of planning and deliberation with
    respect to David is even flimsier: he took the gun from his friend and shot.

[44]

Putting the Crown

s position at its highest, when the appellants were behind Vincents
    car, Campbell passed the gun to David and told him to shoot. David took the gun
    and slid alongside the cars and shot. These facts  even when viewed in the
    context of the animus between Campbell and Vincent  do not constitute planning
    and deliberation. There is no evidence from which the jury could infer a
    carefully thought-out scheme with time to weigh the advantages and
    disadvantages of the intended action; Campbell, David and L.S. all testified
    that the shooting happened rapidly.

[45]

The evidence before the jury that a gun was
    brought to 6 Glamorgan, that Campbell had threatened Vincent through Strong and
    told Vincent that he was always locked and loaded could not, absent
    impermissible speculation, have satisfied the jury beyond a reasonable doubt
    that Campbell and David had planned and deliberated about the murder before the
    shooting. The appellants did not go to 6 Glamorgan looking for Vincent. They
    met there by chance. The threats were made through Strong five weeks earlier
    and there was evidence that Campbell was in another relationship. The fact that
    the appellants left the scene is equally consistent with an impulsive act as it
    is with planning and deliberation.

[46]

The evidence before the jury was sufficient for
    the jury to find motive and intent. The risk is that this could lead the jury to
    a determination of planning and deliberation. The danger was referred to in
Robinson
,
at para. 37:

A lay jury,
    unaccustomed to the sometimes subtle distinctions drawn in the criminal law
    among various culpable mental states, might move quickly from a finding that
    the appellant decided to inflict bodily harm that he knew would probably cause
    death, to a finding that the appellant had planned to inflict harm that he knew
    was likely to cause death. Looking at the evidence through the lens of
    judicial experience, an appeal court must have regard to the real risk that
    evidence demonstrating the intention to commit murder  could be improperly
    treated by a jury as equally cogent evidence of planning, if not deliberation.

[47]

We conclude that the verdict of first-degree
    murder cannot stand. We turn to consider whether a new trial is required on
    second-degree murder.

Is a new trial required?

[48]

The appellants have submitted that a new trial
    is necessary because of errors in the jury charge. They say that the jury
    charge was in error with respect to post-offence conduct, the
Vetrovec
warning, the pathology evidence and the use of the criminal record of the
    deceased. Campbell also submits that the jury charge was in error with respect
    to party participation. Below, we examine each of these submissions in turn.

(a)

Post-offence conduct

[49]

The trial judge referred to the fact that
    neither appellant remained at the scene. The jury was told this could be
    considered in relation to planning and deliberation.

[50]

The appellants submits that, without a limiting
    instruction, this fact could have tainted their decision on intent for murder.
    Therefore, a new trial is necessary on second-degree murder.

[51]

We do not agree.

[52]

The evidence was mentioned only in the context
    of planning and deliberation for first-degree murder. The jury would only have
    reached consideration of whether the shooting was planned and deliberate after
    concluding that the appellants caused Vincents death and had the requisite
    intent for murder. Accordingly, the jury must have accepted scenario one, that
    Campbell instructed David to shoot. While it would have been preferable for the
    jury instructions to include the prohibited use of the post-offence conduct,
    under the circumstances it was of no moment. The jury clearly decided  in
    accordance with scenario one  that Campbell told David to shoot when they were
    at the back of the car. Intent for murder was unrelated and could not be
    informed by the fact that they left the scene.

[53]

Further,
no one
stayed at the scene when
    the shots were fired
.
The
    evidence was uncontradicted that everyone fled
. There
    was nothing specific to the conduct of the appellants in this regard and
no risk of misuse of the evidence by the jury.

(b)

The
Vetrovec
warning

[54]

The appellants submit that the trial judge

s warning regarding the testimony of L.S.
    was inadequate. L.S.  they say  was an unsavoury (or 
Vetrovec
)

witness
    and there should have been a stronger warning.

[55]

In the wake of the shooting, L.S. spoke on the
    phone with a police officer and promised he would help with the investigation.
    However, he did not follow through due to a code that prevented him from
    speaking to police. On March 9, 2013, police executed a search warrant at his
    apartment and found a sawed-off shotgun. He was arrested that day and he provided
    his first statement about the shooting, which was given under oath and
    videotaped. L.S. was subpoenaed to attend the appellants preliminary inquiry
    on April 17, 2014, but instead drove to Vancouver to sign a management deal for
    his rap-artist career. He was eventually pulled over by the OPP near Thunder
    Bay. He was arrested and flown to Toronto. L.S. ultimately testified at both
    the preliminary inquiry and the trial.

[56]

The trial judge instructed the jury to approach L.S.s
    evidence as follows:

While Im on the subject of witnesses in this
    case, let me deal with [L.S.], who you know gave evidence as a witness for the
    Crown. [L.S.] is currently facing charges relating to weapons offences. [L.S.]s
    trial on those charges has not yet been held. A prosecution witness who is
    awaiting trial himself on charges may have an interest in giving evidence favourably
    for the prosecution in this trial. Favourable evidence here may help the
    witness out with his own case later, or the witness may believe that it will do
    so. In this case you will remember that while [L.S.] said he thought of that
    possibility, he was told very clearly by the homicide investigators, when he
    agreed to give a statement, that there would be no special treatment for him on
    his charges, arising from giving a statement to the police.

You have also
    heard that [L.S.] lied while under oath at the preliminary hearing. [L.S.] admits
    that he did so and he told you why he did not tell the whole truth at that
    time. Experience and common sense tells you that in light of these
    circumstances there is good reason to look at [L.S.]s evidence with care and
    caution. You are entitled to rely on [L.S.]s evidence of course, but given
    these circumstances you may wish to look for some confirmation of [L.S.]s
    evidence from somebody or something other than [L.S.] before you rely upon [L.S.]s
    evidence in deciding whether Crown counsel has proven the case against Orville
    Campbell and Stanton David beyond a reasonable doubt.

[57]

The appellants submit that this warning did not
    impart the appropriate level of caution for the jury, particularly when L.S.
    was the primary Crown witness. The appellants submit that a clear caution was
    necessary to tell the jury that it was dangerous to convict on the unconfirmed
    testimony of L.S.

[58]

In the circumstances of this case and this
    witness, the
Vetrovec
instruction was appropriate and sufficient. The
    precise language used in a
Vetrovec
instruction is at the discretion
    of the trial judge. While L.S. had unrelated outstanding charges, he knew that
    the police and Crown would give him no consideration for his testimony at this
    trial. He also had no criminal record, was employed and had no
animus
towards Campbell and David. On the spectrum of unsavory witnesses, L.S. was on
    the lower end.

[59]

When an instruction is warranted, trial judges
    have the discretion to tailor it according to the circumstances of each case
    and the witness. In
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at
    para. 37, the Supreme Court approved of the following general framework as
    guidance for trial judges on the content of a
Vetrovec
instruction.
    The trial judge should:

a.

draw the attention of
    the jury to the evidence requiring special scrutiny.

b.

explain why the
    evidence is subject to special scrutiny.

c.

caution the jury that
    it is dangerous to convict on unconfirmed evidence of this sort, though they
    are entitled to do so if satisfied that the evidence is true.

d.

explain that the jury,
    in determining the veracity of the suspect evidence, should look for evidence
    from another source tending to show that the untrustworthy witness is telling
    the truth as to the guilt of the accused.

[60]

These guidelines are not to be applied in a
    rigid or formulaic way (
Khela,
at para. 38).

[61]

The
Vetrovec
instruction given by the
    trial judge accomplished each of the four objectives set out in
Khela.
The
    instruction: told the jury that the evidence requiring special scrutiny was the
    testimony of L.S.; explained why L.S.s evidence ought to be approached with
    care and caution; cautioned the jury that it would be dangerous to convict on
    the unconfirmed evidence of L.S.; while not using the word dangerous the
    trial judge warned the jury (there is good reason to look at [L.S.]s evidence
    with care and caution); explained to the jury that when determining the
    veracity of L.S.s evidence, they could look for independent confirmatory
    evidence from another source tending to show that he was telling the truth as
    to the guilt of the accused; and gave examples of such evidence. There is no
    special language that is required:
R. v.
Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 86
.

(c)

Pathology evidence

[62]

The appellants submit that the trial judge erred
    by not correcting the Crowns closing with respect to the pathology evidence.
    The background follows.

[63]

The
    evidence was that five shots were fired. Davids claim of self-defence rested
    on his testimony that the first two were fired by Vincent. Vincent had five
    gunshot wounds. No gun or bullet cases were found at the scene. The jury needed
    to decide whether the five wounds were caused by five shots, or fewer.

[64]

Dr. Hunt, the forensic pathologist who conducted
    the autopsy, could not determine the order of the shots or the distance from
    which they were fired. Dr. Hunt was asked whether he could determine the number
    of shots fired to cause the wounds. His opinion was that there were five
    separate gunshot wounds. However, in his autopsy report, he had concluded that
    the entry wound to the deceaseds chest may have been a re-entry wound from a bullet
    that had first entered then exited his left forearm. Defence counsel asked him
    to consider a scenario in which the deceased had his left arm diagonally across
    his chest to imply he was holding a gun. Dr. Hunt agreed that in such a
    scenario, it was certainly a possibility that the bullet which entered the
    back and exited the chest then also entered the forearm.

[65]

In
    his closing, the Crown told the jury:

Now, theres an explanation from the pathologist how three
    gunshots could have caused four injuries to Mr. Vincent ... The problem is from
    three shots to five injuries.

Now there was a lot of cross-examination about that. The
    suggestion was put to the pathologist, well, what if the arm is in front? And what
    if the bullet hits the arm and then continues into the chest? Then couldnt you
    have three shots causing five injuries? And he says, no, I considered that.



So if I am Mr. Vincent holding a gun like David would have you
    believe it was held, unless that bullet travels around and comes through like
    this, that shot is not going through the arm and doing the type of damage where
    youd have three shots causing five wounds.



Theres no injury to Mr. Vincent through the back of his
    forearm. There is no way that Mr. Vincent took two shots. If he took two shots,
    that means that man only took three. Three shots does not cause five gunshot
    wounds. Not in this scenario, not with an injury to the back. It never
    happened. It never happened.



So if Mr. Vincent wasnt firing the
    two shots, and we know he wasnt, it offends common sense, it offends
    pathology, it offends what we know about bullets travelling in a straight line,
    why do they say this?

[66]

The
    appellants argue that, by claiming that Dr. Hunt had considered and rejected the
    three-gunshot scenario and by suggesting that it offended pathology and common
    sense, the Crown misstated Dr. Hunts testimony. While expressing some doubt
    that the wound to the deceaseds right chest was an entry wound, he unequivocally
    agreed that it was possible that the deceased had been shot only three or four
    times.

[67]

We do not agree that the Crowns closing required a
    corrective instruction. In the entire context of Dr. Hunts evidence, the Crown
    did not misrepresent it. Dr. Hunts opinion was that there
were
    five separate gunshot wounds. While he considered the possibility that one of
    the forearm wounds might have entered the right chest, he indicated that it was
    low in terms of probability. He said: I know its a possibility, but taking
    into consideration the wound appearance, it seems like its a separate wound.
    While Dr. Hunt did not rule out the possibility that the forearm wound and
    chest wound were inflicted from the same bullet, he explained his opinion as to
    why this was not likely.

[68]

The trial judge did bring this to the jurys
    attention:

As I earlier
    mentioned, Dr. Hunt said there were five bullet wounds on Mr. Vincents body.
    You know that [L.S.], Mr. Campbell and various people who called 911 reported
    hearing approximately five gunshots.
At the same time
    though, Dr. Hunt did say that it was possible that the five entry wounds on Mr.
    Vincents body were not necessarily caused by five separate bullets.
We do know that no one else was struck by any bullets, and we also
    know that the police did not find any other bullet holes, for example in any of
    the vehicles that were parked in the area.

(d)

Vincents criminal record

[69]

Vincent
    had prior convictions related to two ex-girlfriends that included aggression
    towards their new boyfriends. The appellants submit that the trial judge erred
    when he instructed the jury that the record was only relevant to self-defence. They
    say that this was circumstantial evidence that supported the claim that Vincent
    was the aggressor on earlier occasions and therefore also on the day of the
    shooting. They submit that this was relevant to the appellants credibility,
    motive and animus.

[70]

We
    do not agree. The prior convictions were only relevant to Davids claim of self-defence.
    No further instruction was appropriate or necessary.

(e)

Party participation

[71]

Campbell
    submits that the trial judge erred by not including an instruction on party
    participation. There was no evidence, he says, that Campbell actually committed
    the offence. Further, there should have been an instruction of potential
    liability under ss. 21(1)(b) and (c) of the
Criminal Code
, R.S.C. 1985,
    c. C-46.

[72]

We
    disagree. The Crown relied on Campbells role as principal to the murder. A
    direct physical contribution to the death is not required to prove causation. It
    was open to the jury to find that his actions in giving David the gun and
    instructing David to shoot were a significant contributing cause of Vincents
    death (see:
R. v. Woodcock
, 2015 ONCA 535, 336
    O.A.C. 322;
R. v. J.S.R.,
2012 ONCA 568, 112
    O.R. (3d) 81)

[73]

In
    our view, it inured to the benefit of Campbell
not
to
    have party participation put to the jury for that would have imported more paths
    to conviction. As trial counsel for Campbell said in his closing address: the
    only available basis on which you can say that Mr. Campbell caused Mr. Vincents
    death is through Mr. Campbell directing or instructing Mr. David to shoot him.
    This, trial counsel said, was the key question.

[74]

A
    charge on party participation was not necessary and it would have imported
    unnecessary confusion.

CONCLUSION

[75]

The
    appeal is dismissed pursuant to s. 686(1)(b)(i) of the
Criminal Code
but
    a verdict of second-degree murder is substituted for first-degree murder
    pursuant to s. 686(3). The matter is remitted to the Superior Court for
    sentencing.

Released: March 17, 2020

MLB

M.L. Benotto J.A.

Grant Huscroft J.A.

M. Jamal J.A.


