





CITATION:
R. v. Jones, 2011
          ONCA 584



DATE: 20110909



DOCKET: C51604



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and Armstrong JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Antonio Jones



Appellant



Faisal Mirza, for the appellant



Megan Stephens, for the respondent



Heard: February 18, 2011



On appeal of the conviction entered on September 19, 2008 by
          Justice Nancy Mossip of the Superior Court of Justice, sitting with a jury.



Laskin J.A.:



A.

INTRODUCTION

[1]

The appellant, Antonio Jones, was a drug dealer.  On September 18, 2004 Jones met up with Scott
    Laverriere, who was to pay him for an earlier drug debt and drive him to other customers
    in exchange for more drugs.  After the
    pair were seated in Laverrieres truck an altercation took place.   Jones
    took a metal bar and hit Laverriere in the head, causing irreversible brain
    damage.  Laverriere died after spending a
    year in the hospital on life support.

[2]

Jones was charged with second degree murder and tried
    before Mossip J. and a jury.  The Crown
    put forward a circumstantial case.  Jones
    testified and claimed that he acted in self-defence, striking Laverriere only after
    Laverriere viciously attacked him in the truck.  The jury found Jones not guilty of murder, but guilty of manslaughter.

[3]

Jones appeals his conviction.  His appeal turns on two photographs of the
    interior of the truck, which the Crown relied on to show that he did not act in
    self-defence.  Jones makes two
    submissions.

[4]

First, he says that the Crown, in his closing,
    misstated when the photographs were taken, that the trial judge inadvertently
    reinforced this misstatement in her charge, and that she later erred by failing
    to give the jury a correcting instruction.

[5]

Second, Jones says that after the jury asked a specific
    question about when the two photographs were taken, the trial judge erred by
    accepting the jurys verdict without insisting that it hear the answer to the
    question it had asked.  Jones submits
    that because of these two errors, he was deprived of a fair trial.  His conviction is therefore a miscarriage of
    justice.  He asks for a new trial.

B.

THE INCIDENT AND THE EVENTS
    LEADING UP TO IT

[6]

At the time of the incident, Jones was 37
    years old.  The incident itself occurred in
    the very early morning hours of September 18, 2004.

(a)
The
    preceding events

[7]

Sometime
    in the early morning on September 17th, Jones met his friend Donnell Newman at
    the East Mall in Etobicoke.  Newman and
    Jones had known each other for about 15 years.  They often got together to buy and sell drugs, especially crack cocaine.

[8]

When
    Newman saw him that morning, Jones was carrying a metal bar.  He told Newman that he had it for protection,
    as a few days earlier he had been kicked in the face and was in significant
    pain.

[9]

Jones
    and Newman spent the morning doing crack, and shuttling back and forth between the
    East Mall and the Willows Motel, as Jones dealt drugs.  On their second trip to the Willows they met
    up with Billy Chisholm, who often partied with Jones and who had a room at the motel.

[10]

After
    spending some time in Chisholms room, Newman and Jones left and went to a
    shelter where Jones picked up some of his belongings, including a
    knapsack.  He put the metal bar in his
    knapsack and took it with him.

[11]

Newman
    and Jones returned to Chisholms motel room, and the three of them did a toke
    of crack and drank beer.  Eventually
    Jones left and went to a bar.  He
    returned around 11:30 p.m.  Chisholm
    wanted more drugs.  Jones told him that
    he did not have anymore.  Chisholm would
    not take no for an answer and began arguing with Jones.

[12]

Around
    this time, Laverriere arrived at the Willows.  He had met Jones a few weeks before.  They had agreed at the time to meet at the motel on the night of the 17th.  Laverriere was to repay Jones a small drug
    debt he owed him and then drive him around while he dealt drugs.

[13]

Jones
    testified that he was anxious to get away from Chisholm, who continued to
    harass him for drugs.  He left the motel
    room with Newman and Chisholm following, and met Laverriere at his truck.  He was carrying his knapsack with the metal
    bar in it.

[14]

Laverriere
    got into the drivers seat of the truck and put his seatbelt on.  Jones got into the passenger seat.  Laverriere was a large man.  He was six feet two inches tall and weighed
    between 250 and 300 pounds.  Jones was
    slight.  He was five feet ten inches tall
    and weighed 155 pounds.

[15]

After
    some confusion, Laverriere found the money he owed Jones and gave it to
    him.  At this point Newman and Chisholm
    were still standing beside the truck; both wanted assurances that Jones would be
    returning with drugs.  Jones testified
    that he gave his knapsack with the metal bar in it to Newman as collateral so
    that Newman would know he would return.  Newman testified that he did not remember his friend giving him the
    knapsack.

(b)
The
    incident

[16]

The
    Crowns theory was that Laverriere tapped Jones on the head to get his
    attention, causing him unintended pain.  At the time Jones was already angry with Chisholm, who had been
    harassing him for more drugs, and with Laverriere, whom he believed had given
    him the runaround before repaying the drug debt.  According to the Crown, Jones reacted
    violently to the tap on his head, and whacked Laverriere in the face with the
    metal bar he had been carrying.

[17]

The
    Crown contended that Jones was guilty of second degree murder because when he
    hit Laverriere with the metal bar, he intended to cause him serious bodily
    harm, which he knew was likely to cause death, or he was reckless whether death
    ensued.

[18]

However,
    only Jones witnessed the incident, and he gave a very different account of what
    occurred.  He maintained that he hit
    Laverriere in self-defence as it was the only way he could get out of the
    truck.

[19]

Jones
    said that he sat crossways in the passenger seat. He was looking out the window
    watching Newman walk back to the motel when he felt a hit to the back of his
    head.  As he turned toward Laverriere,
    Laverriere slammed him in the side of the head with his fist.  Jones claimed that he started to blackout.  He then felt Laverriere grab his face,
    causing a sharp pain in his nose.  Jones
    started flailing around trying to move Laverrieres hand from his face.  When he was unable to do so, he began reaching
    around to find something to use to break Laverrieres hold.  He grabbed a hold of something metal and
    swung it as hard as he could.  He made
    contact and Laverriere let go.  Jones
    then turned around, opened the passenger door, and left.

(c)       The
    aftermath

[20]

After
    getting out of Laverrieres truck, Jones noticed that Newmans truck was still
    in the motel parking lot.  He found
    Newman and told him he fucking attacked me, grabbed me by the face and I hit
    him and then he  and ran away.  He then
    told Newman to pull out, pull out, pull out.  Newman began to drive and eventually dropped
    Jones off near the East Mall.

[21]

Jones
    claimed that he did not know what he did with the metal object he used to
    strike Laverriere.  He testified that he
    either dropped it in the parking lot or got rid of it.

[22]

Laverriere
    was very seriously injured, and although he was transported to the hospital
    within a few hours of the incident, his condition continued to
    deteriorate.  CT scans showed that
    Laverriere had suffered a penetrating traumatic injury to the head.  Though he was placed on life support, a year
    later he suffered a cardiac arrest.  He was
    then taken off life support, and died.

[23]

Doctor
    Chiasson, an expert in forensic pathology, testified that Despite the
    prolonged survival interval, death is nonetheless ultimately attributable to
    the head trauma which precipitated hospital admission. At trial, Jones argued
    that the cardiac arrest Laverriere suffered in the hospital caused his death.  However, Jones has not raised this argument
    on appeal.

C.

ANALYSIS

[24]

Jones'
    argument is twofold: (i) the two photographs were central to the jurys
    rejection of his claim of self-defence and therefore the trial judges failure
    to correct the misstatement about when they were taken was an error that
    prejudiced his defence; and (ii) the trial judge further prejudiced his defence
    by accepting the jurys verdict without requiring the jury to hear the answer
    to its question.

[25]

Before
    discussing these submissions, four things  on which both sides agree  should
    be said.  First, any misstatement, not
    only by the trial judge but also by Crown counsel, was entirely inadvertent.  Second, defence counsel did not object to
    Crown counsels closing or the trial judges charge on the photographs, and did
    not ask for a correcting instruction.  Third, the defence obtained no tactical advantage from its failure to
    object.  And fourth, defence counsel
    agreed with the way the trial judge dealt with the jurys question, including
    her decision to accept the jurys verdict without requiring the jury to hear
    the answer to its question.

I.

Did the trial judge err by
    failing to correct any misstatement about when the photographs were taken?

(a)

The evidence about the photographs

[26]

Constable
    Hulzebosch took the photographs in question.  He went to the crime scene around 11:30 in the morning on September 18,
    2004, about 11 hours after the incident had occurred.  He took many photographs of the interior of
    Laverrieres truck and its contents.  These photographs were entered as exhibits at trial.

[27]

Constable
    Hulzebosch testified that he began his examination on September 18, continued
    it for several days that month, and resumed it for several more days in October
    as well as for one day in November.  He
    did not testify when the photographs of the interior of the truck were
    taken.  However, it is evident from the
    photographs themselves that many photographs of the trucks contents were not
    taken at the crime scene, but at the Forensic Identification Services (FIS)
    examination bay.

[28]

The
    two most important photographs of the trucks interior were Exhibits 10(a) and
    24.  The jury specifically asked when
    these two photographs were taken.

[29]

Exhibit
    10(a) shows the front interior of the truck.  The ashtray is open and appears to be filled with cigarettes and
    ashes.  There do not appear to be any
    cigarettes or ashes on the front seat or in the rest of the interior visible in
    the photograph.

[30]

Exhibit
    24, together with several other photographs, shows a small pair of yellow scissors
    perched precariously on the console.

[31]

The
    importance of when these photographs were taken can be illustrated by considering
    two possible scenarios.  If these
    photographs were taken at the crime scene, this would lend support to the
    Crowns argument that no violent struggle occurred in the truck and therefore
    Jones did not act in self-defence.  The
    jury could infer that the scissors, and perhaps even the cigarettes, would not
    have remained in their position during a struggle.  The reliability of this inference is diluted,
    however, if the photographs were taken at the FIS examination bay.  The scissors may have moved during transit,
    and no one could say for certain what their position was when the incident
    occurred.

(b)

The Crowns closing

[32]

To
    refute Jones claim of self-defence, the Crown referred twice in his closing to
    the precarious position of the scissors inside the truck (as depicted in Exhibit
    24).  The first reference came early on
    when he reviewed the evidence of Constable Hulzebosch; the second, and briefer
    reference, came at approximately the halfway point of his address.

[33]

In
    his first reference, Crown counsel spoke about the scissors and the cigarettes
    in the ashtray.  He said:

Lets
    get back to PC Hulzebosch for a minute.  What else does he say about whats going on on the inside of that
    truck?  Well, we know that Jones hat is
    there.  I dont think thats really in
    much dispute.  The truck and the seat are
    messy but theyre relatively undisturbed.  The ashtray, there are photographs of it, helps you decide what happened
    and what didnt happen inside that truck.  If there was a struggle as Mr. Jones described to you, doesnt it make
    sense that the ashtray would have had some cigarettes knocked out of it or had
    been jostled and there would be ashes sprinkled about on the console area.  Remember the pair of yellow scissors that are
    hanging sort of precariously like this over the edge of the console?  Those are little tiny scissors, ladies and
    gentlemen.  They look like they came out
    of a sewing kit.  You might keep them in your
    kitchen drawer at home in the drawer that you have or have them in a tool
    box.  Theyre little tiny scissors.  If there was a violent struggle as Antonio
    Jones described, isnt there a pretty good chance that those scissors would
    have been dislodged from hanging halfway over the console and ended up
    somewhere on the floor?  There is no mess
    which is consistent with the description of what Antonio Jones says happened
    inside that truck.  You dont have
    cigarettes butts strewn all over the place.  This should tell you there was not a big struggle like Jones described
    in that truck.

It
    should also tell you what happened inside that truck happened relatively
    quickly.

[34]

In
    his second reference, he focused on the scissors:

Never
    once in his evidence did you hear Jones say he tried to move Scotts hand from
    his face by grabbing at it or swatting it or kicking him away.  Ladies and gentlemen, he made no attempt to
    fight back other than to reach for the bar.  But on Jones own evidence the actions of Scott were very violent, but
    the console isnt disturbed, the yellow scissors are still sitting precariously
    teetering over the edge.

[35]

Do
    these passages contain a misstatement about when the photographs showing the
    scissors and cigarettes were taken?  There is no overt misstatement.  Crown counsel did not say that the photographs were taken at the crime
    scene.  The most that can be said is that
    he implied the photographs showed the trucks interior immediately after the
    altercation between Jones and Laverriere.  For the purpose of my analysis, I will assume that a reasonable juror
    would have taken that implication from the Crowns comments.

(c)

The trial judges charge

[36]

In
    her review of the evidence of Constable Hulzebosch, the trial judge also
    referred to the photographs of the trucks interior:

A
    lot of the evidence of Constable Hulzebosch was given through photos that were
    taken by him and his colleagues when he attended at the scene on September 18th.  He detailed a series of photographs and went
    through them with us both at the scene and Mr. Laverrieres truck.  Numerous photographs taken of the truck both
    outside and inside were filed as exhibits, and these photographs will be with
    you in your jury room.

[37]

The
    trial judge discussed the photographs generally, and did not specifically refer
    to the two in question.  Nonetheless, she
    too, perhaps even more explicitly than Crown counsel, suggested that the
    officers took all the photographs at the crime scene the day after Laverriere
    was assaulted.  It could be said that she
    reinforced the misleading impression left by the Crowns closing.  The question on this ground of appeal is
    whether the trial judge erred by failing to correct this misstatement or
    misleading impression?

(d)       Did the trial judge err by failing to correct the misstatement
    about when the photographs were taken?

[38]

A
    trial judge does not have an inflexible obligation to correct every
    misstatement of the evidence by counsel.  Indeed, typically misstatements of the evidence are less serious than
    misstatements of the law because invariably counsel, and certainly the trial
    judge, will tell the jury that its recollection of the evidence counts, not the
    lawyers or the judges recollection.  Here, both Crown counsel and the trial judge emphasized this point to
    the jury.  The trial judge instructed the
    jury as follows:

It
    is my duty to review what I think are the important parts of the evidence and
    relate it to the issues that are yours to decide.  In doing that, I may overlook evidence you
    think important or mention evidence you think is insignificant.  I may make a mistake about what a witness
    said while testifying.  My references to
    the evidence are only to help you remember it and to show you how it relates to
    the issues in this case.  If my memory of
    the evidence is different from yours, its yours, not mine, that counts.  You find the facts and base your decision on
    your memory of the evidence, not mine nor that of counsel.

[39]

Moreover,
    I find it difficult to criticize the trial judge for failing to correct a
    misstatement that she did not appreciate had been made, and that no one alerted
    her to.  Still, this court must assess
    the impact of the misstatement or misleading impression.  If the impact is serious enough that it may
    have caused a miscarriage of justice, then this court must intervene and order
    a new trial.

[40]

Assuming
    that the jury was left with a misleading impression about when the photographs
    were taken, I cannot say it had no impact or was irrelevant.  The Crown did rely on the photographs, and
    implicitly when they were taken, to refute Jones claim of self-defence.  However, at its highest, the impact was quite
    modest, and did not legally require a correcting instruction.  I say that for the following four reasons.

[41]

First,
    as I have already noted, both Crown counsel and the trial judge told the jury
    that it was its recollection of the evidence that mattered.

[42]

Second,
    defence counsel did not object to Crown counsels closing or the trial judges
    charge on the photographs, and did not ask the trial judge to correct the
    misstatement.  A failure to object,
    especially when it is not for a tactical advantage, does not preclude this
    court from intervening on appeal to prevent an injustice.  There is good reason why this is so.  Any advocate, no matter how skilled or
    experienced, may on occasion overlook a material point during the course of a trial.  Still, a failure to object is at least some indication
    that the alleged error was not overly prejudicial or problematic.

[43]

Third,
    the photographs played a relatively minor role in the Crowns argument to the
    jury that Jones did not act in self-defence.  The Crown made far more compelling arguments, which included the
    following:

·

Jones
    admitted that he could have gotten out of the truck after Laverriere first hit
    him;

·

Jones
    admitted that Laverriere had no reason to attack him; and indeed, it made
    little sense for Laverriere to do so because Jones had already assured him that
    he had the drugs Laverriere wanted;

·

Although
    Jones claimed to have been in a violent fight, his friend Newman testified that
    Jones had no fresh injuries and did not complain of any new injuries when
    Newman saw him after the incident;

·

Newman
    also did not support Jones on key parts of Jones account.  For example, Jones claimed that Laverriere
    attacked him and that he was in a fight for his life.  Newman, however, never said Jones told him
    that he was in a fight for his life when Laverriere attacked him;

·

In
    addition, Newman lent no credence to Jones testimony about the knapsack with
    the metal bar in it.  Jones testified
    that he gave the knapsack to Newman but Newman did not remember that he did so;
    and

·

It
    was not reasonable to think that Laverriere could have mounted a violent attack
    on Jones while seated in the driver seat of his truck with his seatbelt on.

[44]

Fourth,
    the jury itself recognized the problem with the Crowns closing.  It asked a question about when the two
    photographs were taken.  It then
    delivered its verdict without waiting for its question to be answered.  As I will discuss, we can safely  assume that by delivering its verdict, the
    jury either figured out the answer to its question or decided that it no longer
    needed its question answered.

[45]

For
    these reasons, a correcting instruction was not required and its absence did
    not prejudice Jones defence.  I would
    not give effect to this ground of appeal.

II.

Did the trial judge err by
    accepting the jurys verdict without requiring it to hear the answer to its
    question?

[46]

To
    put this issue in context, a review of the chronology of what occurred is
    necessary.

[47]

The
    jury began deliberating just before 6 p.m. on September 18, 2008.  The next day, at 2:25 in the afternoon, the
    jury asked a single question: Could you please confirm that
    exhibits/photographs 10(a) and 24 were taken at the crime scene?  As I have said, these two photographs showed
    different views of the trucks console.  One  Exhibit 24  showed the scissors the Crown had referred to in
    closing.

[48]

Neither
    the trial judge nor counsel had an immediate answer to the question.  Sensibly, the trial judge called the jury
    back  at 2:45 p.m.  to tell it that getting an answer to its question might
    take some time.  She, along with counsel,
    would have to listen to Constable Hulzeboschs evidence.  She encouraged the jury to set this issue
    aside and move on to something else, and added, Please know that we are
    working on it as fast as we can.

[49]

During
    counsels submissions to the trial judge on how to answer the question,
    everyone came to appreciate that the two photographs were taken after the truck
    was towed away, and not at the crime scene.  Eventually, the trial judge formulated an answer to the jurys question:
    I cannot confirm that the photographs were taken at the crime scene.

[50]

The
    answer itself is not germane because it was never given.  At 4:15 p.m.  or 90 minutes after the trial
    judge told the jury they were working on an answer to its question  she was
    informed that the jury had reached a verdict.

[51]

Before
    accepting the verdict, the trial judge briefly recessed to give counsel an
    opportunity to consider whether she could accept the verdict before answering
    the jurys question.  She even drew their
    attention to Cory J.s reasons in
R. v.
    Sit
(1989), 47 C.C.C. (3d) 45 (Ont. C.A.), where he approved of a trial
    judges decision to accept a jury verdict without answering the jurys
    question.

[52]

After
    considering the matter, both Crown and defence agreed that the trial judge
    could accept the jurys verdict.  Both
    counsel also agreed with the trial judges proposal to give the jury an
    opportunity to have its question answered.  She said to the jury:

Okay.
    Thank you.  Have a seat.  Thank you, members of the jury.  We understand that you have reached a
    verdict.  By that we also understand that
    you no longer needed the answer to the question that you had sent us.  We were prepared with an answer just as we
    were getting your note.  If we are wrong
    in that assumption, you should advise us.  If you want some time to think about that, you
    may step outside and think about it.  If
    we are not wrong in that assumption that you no longer needed the answer to the
    question in order to reach your verdict, then the foreperson should give the
    verdict to the CSO.  Okay.  Poll the jury.  Okay.  The Registrar will poll you now.

[53]

The
    jury did not ask that its question be answered.  It delivered its verdict, finding the appellant guilty of manslaughter.

[54]

Now,
    on appeal, the appellant submits that the trial judge erred by accepting the
    verdict without first requiring the jury to hear the answer to its
    question.  This submission is, of course,
    contrary to the position of defence counsel at trial.

[55]

I
    do not agree with the appellants submission.  This court observed in
R. v.
    Pecoskie
(2002), 170 O.A.C. 396, at para. 13: As a general rule, it should
    be a very rare case indeed in which an appellate court would decide that a
    trial judge had committed a reversible error on a matter which was expressly
    considered and agreed to by both counsel and the trial judge.

[56]

This
    is not one of those very rare cases.  Indeed, I find it hard to see what the trial judge did wrong.  She gave counsel an opportunity to consider
    what to do.  She proceeded in the manner
    she did with their agreement.  She gave
    the jury an opportunity to have its question answered before delivering its
    verdict.  And, although the jury did not
    explicitly advise the trial judge it no longer needed its question answered 
    as the jury in
Sit
did  it did so
    implicitly by giving its verdict.

[57]

I
    agree with the following statement in para. 50 of Ms. Stephens Crown factum:
    It would not have been appropriate for the trial judge to question why the
    jury no longer wanted its question answered or to require the jury members to
    hear an answer when they had indicated it was not needed.

[58]

The
    jury may have had any number of reasons why it did not need an answer to its
    question.  Likely, the jury resolved the
    question from its own collective memory, or decided that the answer was no
    longer needed for its verdict.  I have no
    basis to second guess its decision to deliver its verdict.

[59]

The
    trial judge acted appropriately in accepting the jurys verdict.  I would not give effect to this ground of
    appeal.

D.

CONCLUSION

[60]

The
    trial judge did not err in failing to correct a misstatement in the Crowns
    closing submission.  Nor did she err in
    accepting the jurys verdict without requiring it to hear the answer to its
    question.

[61]

I
    would dismiss Mr. Jones appeal from his conviction for manslaughter.

RELEASED:  Sept. 9,
    2011

JL                                                                          John
    Laskin J.A.

I
    agree K. Feldman J.A.

I
    agree Robert P. Armstrong J.A.


