



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tomlinson, 2014 ONCA 158

DATE: 20140228

DOCKET: C50615 & C50948

Laskin, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bryan Tomlinson and Roberto Ceballo

Appellants

Brian Snell and Zachary Kerbel, for the appellant
    Tomlinson

Philip Campbell, for the appellant Ceballo

Gregory J. Tweney, for the respondent

Heard:  September 3 and 4, 2013

On appeal from the conviction entered on December 21,
    2008 by Justice Todd L. Archibald of the Superior Court of Justice, sitting
    with a jury.

Watt J.A.:

[1]

A
    masked gunman shot two men to death in a drug dealers apartment.  First, the
    drug dealer.  Then, a customer.

[2]

About
    a month after the killings, police arrested Bryan Tomlinson and Roberto Ceballo
    and charged them with two counts of first degree murder.

[3]

At
    their joint trial, both Tomlinson and Ceballo contended that they were
    someplace else when the killings occurred.  Tomlinson went further.  He
    suggested that the shooter was another person:  his brother Jonathan Cornwall.

[4]

At
    the end of the trial, 12 jurors were satisfied beyond a reasonable doubt that
    both Tomlinson and Ceballo were guilty of two counts of first degree murder. 
    Both appeal their convictions.  For the most part, their complaints are about what
    the trial judge said or failed to say in his charge to the jury.

[5]

These
    reasons explain why I would not give effect to any of the grounds of appeal
    advanced by either Tomlinson or Ceballo and would dismiss their appeals.

THE BACKGROUND FACTS

[6]

It
    is helpful to begin with a brief overview of the evidence adduced at trial,
    leaving further detail, to the extent that it is necessary, to the specific
    grounds of appeal advanced by the appellants.

The Principals and Places

[7]

Justin
    Hodges was a 20 year old drug dealer who lived and died in a third floor apartment
    at 180 Niagara Street in Toronto.  From time to time, Hodges sold drugs to
    purchasers who came to his apartment.

[8]

Damian
    Muirhead was 22 years old when he went to Justin Hodges apartment to buy some
    marihuana.  He went there with his friend, Bradley Jackman.  Damian Muirhead
    died in Justin Hodges apartment.  Bradley Jackman survived.

[9]

Keean
    Jones lived with his mother, Ann-Marie Ceballo-Jones, in a fourth floor
    apartment at 180 Niagara Street.  Jones was 24 years old and involved in a
    music venture with Bryan Tomlinson.  Jones was also a close friend of
    Tomlinsons brother, Jonathan Cornwall.

[10]

Early in 2005,
    Keean Jones was introduced to Justin Hodges in Hodges apartment.  While he was
    there, Jones noticed money and drugs in the apartment.

[11]

Roberto Ceballo
    was a cousin of Keean Jones.  The men did not get along.  Ceballo lived with
    his mother at 212 Westmoreland, but frequently stayed with Ann-Marie
    Ceballo-Jones, his aunt.  Ceballo was 18, about five foot eight inches tall and
    lighter skinned than Tomlinson.  His older sister, Latoya, lived with
    Tomlinson.

[12]

Roberto Ceballo
    was to receive $20,000 in settlement of an accident claim when he turned 18 on
    January 13, 2005.  He had not yet received the money when Hodges and Muirhead
    were shot to death on January 21, 2005.

[13]

Bryan Tomlinson
    was 24 years old, about five foot nine inches tall and darker skinned than
    Ceballo.  Tomlinson was a musician.  He, along with his brothers, was also a
    drug dealer.  He lived with his mother in Brampton and with Latoya Ceballo at
    212 Westmoreland.  He had a lucrative drug business and was also involved in
    the music business with Keean Jones and his brother, Jonathan Cornwall.

The Initial Robbery Idea

[14]

In January, 2005
    the music venture in which Tomlinson and Keean Jones were involved needed an
    infusion of cash.  Jones had an idea  steal some drugs, then sell them.  He
    discussed his plan with Tomlinson, as well as with Tomlinsons brothers Gregory
    and Jonathan Cornwall, but not with Ceballo.  Jones planned to steal a spare
    key to Hodges apartment from the building superintendents office, enter the
    apartment, steal Hodges drugs located there and sell them on the street.

[15]

The initial plan
    failed.  Jones was unable to pick the lock to gain entry to the
    superintendents office.

The New Plan

[16]

During the
    afternoon of January 21, 2005 Keean Jones was at his mothers apartment on the
    fourth floor at 180 Niagara Street.  As his mother was about to leave,
    Tomlinson and Ceballo arrived.  During a discussion, Tomlinson got Jones to
    call Hodges on the pretext that Jones wanted to make a drug purchase from
    Hodges. Tomlinson gave Jones $100 for the purchase.  Jones was to call the
    appellants from inside Hodges apartment.

[17]

The intruders
    waited in the stairwell on the third floor at 180 Niagara while Jones approached
    the door to Hodges apartment.  Both men wore dark clothes including bandanas.
    There was no mention at this time about a gun being used in the robbery.

The Entry by Jones

[18]

Justin Hodges
    let Keean Jones into his apartment.  Jackman and Muirhead were in the apartment
    when Jones entered.  A third man, another customer, Eric Davey, arrived a short
    time later.  Jones stayed in the apartment for a long time, hoping that the intruders
    would abandon their robbery plan.  Jones arranged for a purchase of some drugs
    but told Hodges that he had to go to an ATM to get the money for his purchase. 
    Hodges walked to the door of the apartment to let Jones out so that he could go
    to the ATM.

The Appellants Entry

[19]

When Hodges
    opened the apartment door, the intruders rushed inside, pushing Jones into a
    closet.  One of the men had a gun.  Jones ran to the balcony.  Jackman and
    Davey were already there.

The Altercation and Shooting

[20]

Hodges and
    Muirhead were alone in the apartment with the two intruders.  Jackman, Davey
    and Keean Jones were on the balcony but were able to see some of the events
    that followed.

[21]

Hodges came into
    the living room brandishing a hammer with which he confronted one of the men
    who had a gun pointed at Hodges.  The other intruder remained out of sight in
    the kitchen.  He seemed to be armed with a knife.

[22]

Keean Jones
    identified the appellants as the intruders.  Jackman and Davey described the
    assailants as black-skinned.  The gunman was taller and darker than the other
    man.  Both wore baggy clothing and two bandanas covering their head and the
    area below their eyes.  Only their eyes and hands were exposed.

[23]

Hodges and the
    gunman argued.  Hodges asked the gunman why he was doing this.  The gunman
    replied because we are on bad times and also warned Hodges that he had shot
    people for less.  The gunman told the other intruder to put a knife up to
    Muirheads neck, then to stab him.

[24]

The gunman fired
    two shots before the intruders left the apartment.

The Cause of Death

[25]

Both deceased
    had injuries to their hands and faces consistent with involvement in a fight. 
    Hodges suffered a single gunshot wound to the chest.  Muirhead had been shot
    once in the back.  The bullet exited through his jugular vein.  He had been
    shot while lying face down on the kitchen floor.

[26]

Police found two
    9 mm projectiles and casings on the floor of Hodges apartment.  Both had been
    fired from the same semi-automatic handgun.  Police did not recover the gun.

The Forensic Evidence

[27]

In a laneway
    behind the apartment building at 180 Niagara, police found a knife, two
    bandanas and a broken watch.  The knife was similar to others found in Hodges
    apartment.  Both bandanas contained Ceballos DNA.  A winding pin for the broken
    watch was found in the front hall of Hodges apartment.

[28]

The first 911
    call was received at 9:13 p.m. on January 21, 2005.  From 9:14 to 9:16 p.m.,
    three calls from Ceballos cell phone were received by Tomlinsons cell phone. 
    Each call registered on a cell tower that serviced the area of King and
    Bathurst including 180 Niagara.  During a 35 minute period after 9:13 p.m., six
    calls were made from Ceballos cell phone to Tomlinsons cell phone, the only
    time during January 2005 when calls were made between the phones.

The Defence Case at Trial

[29]

Tomlinson did
    not testify.  He relied on the testimony of Latoya Ceballo and Ann-Marie
    Ceballo-Jones to advance a defence of alibi.  He also contended that the
    evidence adduced at trial tended to show that a third party, his brother
    Jonathan Cornwall, was the person who shot and killed the deceased. Cornwall
    did not testify.

[30]

Latoya Ceballo
    testified that Tomlinson left the apartment at 212 Westmoreland only once
    during the evening of January 21, 2005.  He was gone for about 30 or 40 minutes
    because he had to go somewhere to pick up a hard drive.  Once he returned,
    Tomlinson remained in the apartment for the rest of the night.

[31]

Ann-Marie
    Ceballo-Jones gave evidence that she saw Tomlinson at 180 Niagara around 6 or 7
    p.m. on January 21, 2005.  He was walking towards the south stairwell of the
    building as she was leaving to visit her mother.

[32]

Ceballo
    testified on his own behalf.  He explained that he went to Ann-Marie
    Ceballo-Jones apartment to retrieve a charger for his cell phone that he had
    left at the apartment and to meet up with his cousin Jarod.  Tomlinson went
    with him to the apartment.  Ceballo repeatedly testified that he had no idea
    about the time of various events but estimated they arrived at the apartment between
    6 and 7 p.m. on January 21, 2005.  After a brief visit, Ceballo went to
    Kensington Market where he spent time at Cyber Share Café and at the nearby
    apartment of his friend, Jessica, where he ultimately spent the night.  He did
    not know Jessicas last name.

[33]

Neither Jarod
    Jones nor Jessica testified at trial.

THE GROUNDS OF APPEAL

[34]

Each appellant
    raises separate grounds of appeal.  Most relate to alleged deficiencies in the
    trial judges charge to the jury.

[35]

Tomlinson raises
    three grounds of appeal which I would paraphrase as claims that the trial judge
    erred in his instructions about:

i.

the defence of alibi;

ii.

the third party suspect issue; and

iii.

the closing address of defence counsel.

[36]

For his part,
    Ceballo contends that the trial judge erred in law:

i.

in his instructions to the jury about the effect of the failure to give
    notice to the Crown about Jessica in connection with the defence of alibi; and

ii.

in leaving murder and first degree murder for the consideration of the
    jury and in the substance of the instructions provided on each of those issues.

Ceballo also argues that the verdicts finding him
    guilty of first degree murder are unreasonable.

[37]

I will consider
    first the grounds of appeal advanced on behalf of Tomlinson.

THE TOMLINSON APPEAL

Ground #1:  The Alibi Instructions

[38]

To determine
    whether effect should be given to this ground of appeal, it is helpful to
    recall some additional features about the evidence adduced at trial.

The Additional Background

[39]

The alibi
    advanced on Tomlinsons behalf at trial, but not supported by his own
    testimony, depended upon:

i.

Latoya Ceballos evidence that Tomlinson left 212 Westmoreland Avenue
    only once during the evening of January 21, 2005;

ii.

Latoya Ceballos evidence that Tomlinson was absent from the apartment
    for less than an hour; and

iii.

Ann-Marie Ceballo-Jones evidence that Tomlinson was outside her
    apartment between 6 p.m. and 7 p.m. on January 21, 2005.

In combination, these pieces of evidence would have
    made it impossible for Tomlinson to kill the deceased at 180 Niagara between 9
    p.m. and 9:15 p.m. that evening.

[40]

Patricia Antoine
    also lived on the third floor at 180 Niagara.  She left her apartment around
    8:45 p.m. on January 21, 2005 to play her lottery tickets at a nearby
    convenience store.  She saw and spoke briefly to Keean Jones as she was leaving
    her apartment.  Another young man with dark black skin, dressed in a dark
    winter coat with a hooded sweatshirt, avoided her glance as he walked down the
    hall close to the wall.  This man seemed to be with Keean Jones.  On her way
    out of the building, Ms. Antoine saw the shadow of another person walking up
    the stairs to the fourth floor.  About five minutes later, when she returned to
    the building around 9 p.m., Ann-Marie Ceballo-Jones held the door open for Ms.
    Antoine.

[41]

In her original
    police statement on January 21, 2005 Ms. Antoine said nothing about seeing
    either Keean Jones or his mother that evening.  She first mentioned seeing Ms.
    Ceballo-Jones in a meeting with the trial Crowns on September 3, 2008.

[42]

Crown counsel
    also relied on the cell phone records of several incoming calls from Ceballos
    cell phone to that of Tomlinson.  All the calls went unanswered. Between 9:14
    and 9:16 p.m. on January 21, 2005 three calls registered at a tower at King and
    Bathurst that provided coverage to the area of 180 Niagara.  At 9:22 p.m., a call
    registered at a tower near Dufferin and Queen.  Calls from Ceballos phone at
    9:30 and 9:48 p.m. registered at towers located at the intersections of College
    and Ossington and Dupont and Christie.

[43]

Crown counsel
    relied on these records to show that Tomlinson was moving from the area of 212
    Westmoreland Avenue to the area of 180 Niagara Street, then back to
    Westmoreland around the time of the killings of Hodges and Muirhead.

The Jury Instructions

[44]

Trial counsel
    for the appellant (not Mr. Snell) sought an alibi instruction in connection
    with the evidence of Latoya Ceballo and Ann-Marie Ceballo-Jones.  Counsel for
    the Crown at trial (not Mr. Tweney) objected to an alibi instruction on the
    basis that, in combination, the evidence of the two witnesses did not amount to
    an alibi because it did not make it impossible for Tomlinson to have committed
    the offence.

[45]

The trial judge
    did not use the term alibi in connection with this evidence.  He instructed
    the jury in these terms:

Members of the jury, in this case you heard the evidence of
    Latoya Ceballo.  Although she could not state the time at which Mr. Tomlinson
    left, or the time at which he returned, Ms. Ceballo testified that on the night
    of Janaury 21, 2005, Mr. Tomlinson left her home for less than one hour.  She
    testified that it seemed he was gone for 30 to 40 minutes.

Also consider the evidence from Ms. Ceballo Jones, who saw and
    recognized Mr. Tomlinson at the front door of her apartment at 180 Niagara
    Street on the night of January 21, 2005, and the timing of her observations. 
    In weighing this evidence, consider the geographical location of 212
    Westmoreland Avenue (near Bloor Street and Dovercourt Avenue) as it relates to
    how far that house is away from 180 Niagara Street (near King Street and
    Bathurst Street).

If you believe the evidence of Ms. Latoya Ceballo that Mr.
    Tomlinson was gone for less than an hour, you must consider whether or not Mr.
    Tomlinson had a sufficient amount of time to commit the murders of Mr. Hodge
    and Mr. Muirhead.  Even if you do not believe this evidence, if this evidence
    leaves you with a reasonable doubt about Mr. Tomlinsons guilt, you must find
    him not guilty.

Even if this evidence does not leave you with a reasonable
    doubt of his guilt, you may convict him only if the rest of the evidence that
    you do accept proves his guilt beyond a reasonable doubt.

The Arguments on Appeal

[46]

For the
    appellant, Mr. Snell says that the evidence warranted a traditional alibi
    instruction.  Reduced to its essence, he contends, the evidence was that
    Tomlinson was away from his home for one hour and not at 180 Niagara when the
    killings occurred.  To leave the issue as one of inadequate opportunity was to
    mischaracterize the fundamental nature of the defence in a way that was prejudicial
    to the appellant.

[47]

For the
    respondent, Mr. Tweney sees it differently.  He says that the evidence about
    the timing of the appellants movements and his whereabouts at the material
    time was amorphous and not sufficiently categorical or conclusive to warrant
    its treatment as an alibi.  The trial judges characterization of the evidence as
    evidence of a limited opportunity to commit the offence was correct.  In any
    event, Mr. Tweney submits, the instruction provided to the jury was the
    functional equivalent of an alibi instruction and fairly left the issue to the
    jury for their decision.

The Governing Principles

[48]

The principles
    that govern the defence of alibi are uncontroversial.  A brief reference to
    some of their features is sufficient for our purposes.

[49]

First, the Latin
    word alibi means elsewhere.  When used in the context of criminal
    prosecution, an alibi is a claim that a person, usually a person charged with a
    crime, was elsewhere when the allegedly criminal conduct took place and thus it
    was
impossible
for him or her to have committed it:
R. v. Hill
(1995), 102 C.C.C. (3d) 469 (Ont. C.A.), at p. 478; and
R. v. Wright
,
    2009 ONCA 623, 98 O.R. (3d) 665, at para. 19.

[50]

Second, to
    constitute an alibi the supportive evidence must be
dispositive
of the
    final issue of guilt or innocence of the accused:
Hill
, at pp.
    478-479;
R. v. Sgambelluri and Sgambelluri Ltd.
(1978), 43 C.C.C. (2d)
    496 (Ont. C.A.), at p. 500; and
R. v. R.(M.)
(2005), 195 C.C.C. (3d)
    26 (Ont. C.A.), at para. 31.

[51]

Third, alibi, as
    with any defence, justification or excuse advanced at trial, is subject to the
    air of reality test or standard described in
R. v. Cinous
, [2002] 2
    S.C.R. 3:  there must be some evidence upon which a properly instructed jury,
    acting reasonably, could acquit, if the jury believe the evidence to be true.

[52]

Fourth, a trial
    judge is under no obligation to use the term alibi in jury instructions on
    the defence, provided that, when read as a whole, the instructions apprise the
    jury of the legal effect of the supportive evidence.

[53]

Finally,
    instructions on alibi must relate reasonable doubt to the evidence adduced in
    support of the alibi.  The instructions on alibi should make it clear:

i.

that there is no onus on the accused to prove an alibi;

ii.

that if the jury believes the alibi evidence, they must find the accused
    not guilty;

iii.

that even if the jury does not believe the alibi evidence, if they are
    left in a reasonable doubt by it, they must find the accused not guilty; and

iv.

that even if the alibi evidence does not raise a reasonable doubt about
    an accuseds guilt, the jury must determine, on the basis of all the evidence,
    whether Crown counsel has proven the guilt of the accused beyond a reasonable
    doubt.

See,
R. v. Parrington
(1985), 20 C.C.C. (3d)
    184 (Ont. C.A.), at p. 187; and
R. v. OConnor
(2002), 170 C.C.C. (3d)
    365 (Ont. C.A.), at para. 34.

The Principles Applied

[54]

For three
    reasons, I would not give effect to this ground of appeal.

[55]

First, the
    evidence relied upon in support of the defence lacked the precision required of
    an alibi.  It was, as the trial judge aptly characterized it, more like
    evidence of a limited opportunity to commit the offence.

[56]

Second, the time
    estimates provided are not dispositive of the issue of guilt or innocence as required
    of a true alibi.

[57]

Third, the
    instruction given by the trial judge about the evidence of Latoya Ceballo and
    Ann-Marie Ceballo-Jones was the functional equivalent of the traditional alibi
    instruction recommended in
Parrington
.  The jurors were instructed:

i.

if they believed the evidence, they must acquit;

ii.

if they did not believe the evidence but it raised a reasonable doubt,
    they must acquit; and

iii.

even if the evidence did not raise a reasonable doubt, they could only
    convict Tomlinson if the rest of the evidence they did accept prove his guilt
    beyond a reasonable doubt.

[58]

It is also
    worthy of observation that the appellant did not support his alibi with his own
    testimony.  The appellants evidence could have provided a more precise account
    of his whereabouts at the material time, as well as some explanation as to how
    it was that the cell phone evidence tended to link him to the vicinity of 180
    Niagara around the time the victims were shot to death.

Ground #2:  The Third Party Suspect Instruction

[59]

Tomlinson did
    not rely exclusively on alibi to challenge the adequacy of the Crowns case
    that he was the shooter.  He also contended that it was another person  his
    brother Jonathan Cornwall  not he who shot the deceased to death.

[60]

The appellants
    principal complaint on this issue is with the trial judges instructions to the
    jury.  It is helpful to begin with a brief reference to the evidence said to
    give an air of reality to this claim before turning to the instructions given
    by the trial judge and testing their adequacy.

The Evidentiary Background

[61]

In support of
    his claim that Jonathan Cornwall was the shooter, the appellant Tomlinson
    relies on several items of circumstantial evidence:

i.

physical similarity: Cornwall and Tomlinson both had dark black skin;

ii.

Cornwall was 5 foot 8 inches to 5 foot 10 inches in height, consistent
    with the height descriptions provided by the witnesses who saw the events in
    the apartment from the balcony;

iii.

Cornwall had a financial motive to commit robbery  impecuniosity;

iv.

Cornwall was closely associated with Keean Jones  they were close
    friends and their girlfriends were sisters;

v.

disposition: at the time of trial, Cornwall was facing charges relating
    to a masked robbery of a convenience store in November, 2007 in which he was
    the driver of a getaway car; and

vi.

opportunity: Cornwall was at the Ceballo-Jones apartment on Janaury 21,
    2005.

[62]

Jonathan
    Cornwall did not testify at trial.

[63]

Allison Soares,
    Jonathan Cornwalls girlfriend, testified that she and Cornwall spent the night
    of January 20, 2005 at the Ceballo-Jones apartment.  They left the apartment
    between 4 and 5 p.m. on January 21, 2005, travelled directly to Brampton, and
    signed into a shelter at 9:30 p.m.  The records of the shelter confirmed that a
    person, Adrian Tomlinson, signed into the shelter between 4 p.m. and
    midnight.  Jonathan Cornwall had used the name Adrian Tomlinson during
    previous interactions with the police.

The Trial Judges Instructions

[64]

In his final
    instructions to the jury, the trial judge referred to the evidence about
    Jonathan Cornwall when inviting the jury to consider whether they were
    satisfied beyond a reasonable doubt that Tomlinson was the shooter.  The trial
    judge said:

Consider the evidence that you have heard regarding the
    presence of Mr. Jonathan Cornwall at 180 Niagara Street on January 21, 2005,
    his whereabouts at the time of the shootings, and his physical description as a
    factor in deciding whether the Crown has proved the identity of Mr. Tomlinson
    as the gunman beyond a reasonable doubt.  I remind you that your determination
    regarding someone else as the true perpetrator must be based on evidence
    properly before you, not speculation, or conjecture.

The Arguments on Appeal

[65]

For the
    appellant, Mr. Snell says that the trial judges instructions on this issue
    were legally wrong and prejudicial.  Potential third party involvement in an
    offence is not a factor to be considered in assessing the adequacy of the
    Crowns proof of an accuseds participation.  It is, Mr. Snell submits, an
    affirmative defence, much like an alibi, and warrants an equivalent
    instruction.  There was in this case an air of reality to the defence that
    required its proper submission to the jury.

[66]

Mr. Snell
    contends that a proper instruction on the third party suspect issue should mirror
    the familiar
W.(D.)
formula.  What the trial judge said here did not
    do so, in terms or by functional equivalence.  In the end, the instruction
    reversed the burden of proof and omitted any reference to Cornwalls financial
    motive to commit robbery.

[67]

For the
    respondent, Mr. Tweney points out that the trial judge acknowledged the
    propriety of trial counsels raising of the third party suspect issue.  The
    trial judge considered that here, unlike in many cases, the third party suspect
    issue was supplementary or an adjunct to the primary defence of alibi.  Thus,
    he included his reference to the third party suspect issue in his instructions
    on the issue of identity or participation.  This was an exercise of judicial
    discretion on which the trial judge is owed substantial deference on appeal.

[68]

Mr. Tweney says
    that the third party suspect claim here was, at best, extremely tenuous.  No
    evidence connected Jonathan Cornwall to Hodges apartment at or about the time
    the killings occurred.  The evidence of a financial motive is speculative and
    does not serve to connect Cornwall to Hodges.  That Cornwall was, at the time
    of trial, charged with a robbery that occurred nearly three years later is not
    probative of any propensity or disposition to violence.  The similarity in
    physical appearance is so general as to be valueless.

[69]

Mr. Tweney
    contends further that, in any event, the trial judges instructions linking the
    third party suspect issue and evidence to the adequacy of the Crowns proof of
    the appellants participation as the shooter were correct.  The instructions
    explain the relevance of the evidence and its relationship to the burden and
    standard of proof.  The jury was left with no misunderstanding about the
    obligation of the Crown to prove identity beyond a reasonable doubt and the
    consequences of a reasonable doubt on that issue.

The Governing Principles

[70]

Several
    principles relating to what has become known as the third party suspect defence
    are pertinent to the discussion of this ground of appeal.  Some have to do with
    the evidentiary foundation necessary to put the defence in play.  Others relate
    to the legal instructions required when the defence is in play.

[71]

First, to begin
    with the uncontroversial.  It is self-evident that if a person, A, is charged
    with the murder of X, then A is entitled, by way of defence, to adduce evidence
    to prove that B, not A, murdered X:
R. v. McMillan
(1975), 7 O.R.
    (2d) 750 (C.A.), at p. 757, affirmed [1977] 2 S.C.R. 824; and
R. v.
    Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46.

[72]

Second, evidence
    marshalled in support of a third party suspect defence, as with other evidence
    adduced in a criminal trial, must be compliant with the rules of
    admissibility.  Said in a somewhat different way, the evidence proposed for
    reception must be relevant, material and admissible.  The proponent does not
    get a free ride through the admissibility thicket upon mere announcement of
    third party suspect:
R. v. Williams
(1985), 18 C.C.C. (3d) 356
    (Ont. C.A.), at p. 366, leave to appeal refused, (1985) 18 C.C.C. (3d) 356n.

[73]

Third, as with
    proof of any fact, the evidence on which an accused relies to demonstrate
    third party involvement must be relevant to and admissible on the material
    issue of identity:
McMillan
, at p. 757;
Grandinetti
, at
    para. 46.

[74]

Fourth, to
    satisfy the relevance requirement, there must be a sufficient connection
    between the third party and the crime.  Absent this link, the third party
    evidence is neither relevant nor material:
Grandinetti
, at para. 47;
R.
    v. Spackman
, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121.  The
    evidence may be direct or circumstantial but any essential inferences must be
    reasonable, grounded in the evidence, and not conjectural or speculative:
Grandinetti
,
    at para. 47.

[75]

Fifth, we often
    use the term opportunity or evidence of opportunity to describe the nature
    of the connection between the third party and the conduct charged that is
    essential to provide an air of reality to the third party suspect defence. 
    Absent this evidence, circumstantial evidence of an alleged third partys
    disposition and motive, for example, would be excluded as immaterial:
Grandinetti
,
    at para. 48.

[76]

Further, when
    disposition evidence is proffered for reception in support of a third party
    suspect defence, the manner in which the disposition is established varies. 
    Sometimes, as in
McMillan
, the relevant disposition is established by
    the opinion evidence of experts.  On other occasions, the third party may have
    accumulated one or several prior convictions that demonstrate a relevant
    disposition or propensity:  See,
R. v. Arcangioli
, [1994] 1 S.C.R.
    129, at p. 141;
R. v. Dorfer
, 2011 SCC 50, [2011] 3 S.C.R. 366, at
    para. 1.

[77]

On the other
    hand, the fact that a person is charged with an offence, of which she or he is
    presumed innocent, says nothing about her or his character or disposition.  As
    a general rule, the fact that a
witness
is charged with an offence has
    no bearing on the witness credibility and she or he cannot be cross-examined
    on that fact.
[1]
If the fact of an outstanding charge has no bearing on a witness
credibility
,
    it seems illogical to conclude that the fact of a charge can be of service in
    establishing a third partys
disposition
when that disposition is
    offered as circumstantial evidence of conduct.

[78]

Finally, where a
    third party suspect defence is advanced at trial, the question for the trier of
    fact is whether, on the evidence as a whole, the possible involvement of the
    third party raises a reasonable doubt about the guilt of a person charged:
R.
    v. Khan
, 2011 BCCA 382, 282 C.C.C. (3d) 396, at para. 91.

The Principles Applied

[79]

As I will
    explain, I would reject this ground of appeal.

[80]

First, it is
    very doubtful that the evidence adduced at trial met the opportunity threshold,
    a condition precedent to the advancement of this defence and the admissibility
    of other evidence.

[81]

Jonathan
    Cornwall, the third party suspect, did not testify.  The evidence of his girlfriend,
    Allison Soares, was that she and Cornwall left the Ceballo-Jones apartment
    between 4 and 5 p.m. on January 21, 2005.  They went to Brampton where they
    checked into a shelter.  No other evidence linked Cornwall to 180 Niagara
    within four hours of the killing.  Evidence of opportunity may be
    circumstantial, but the inferences must be reasonable, not conjectural or
    speculative:
Grandinetti
, at paras. 47-48.

[82]

Second, evidence
    that Cornwall was charged with a robbery cannot constitute evidence of a
    propensity or disposition for violence.  The robbery, in which Cornwall appears
    to have been the driver of the getaway car, occurred nearly three years
after
the offences charged. The fact that Cornwall later faced an outstanding
    charge of robbery, as a matter of logic and common sense, cannot support an
    inference that he had a disposition or propensity for violence almost three
    years earlier.

[83]

Third, the
    evidence of motive  impecuniosity  is of such a general and amorphous nature as
    to be almost valueless on the third party suspect issue.

[84]

Fourth, the
    trial judges instructions to the jury on the third party suspect issue do not
    reflect error.  No prescribed formula exists for such an instruction.  What was
    said here did not shift the onus or dilute the standard of proof imposed upon
    the Crown.  The third party suspect evidence was linked to the adequacy of the
    Crowns proof of Tomlinsons participation in the killings as the shooter. 
    That is where it belonged.  The jury was clearly instructed that a reasonable
    doubt on this issue meant that Tomlinson should be found not guilty.


Ground #3:  Correcting the Address of Counsel

[85]

The final ground
    of appeal advanced by Tomlinson alleges error in some instructions the trial
    judge gave to the jury to correct what he considered were improper comments in
    the closing address of the appellants trial counsel.  A brief reference to the
    relevant passages in counsels address followed by the judicial corrections
    provides sufficient context for the discussion that follows.

The failure to testify Explanation

[86]

The appellant
    Tomlinson did not give evidence at trial in support of his defence of alibi. 
    In his closing address to the jury, counsel for the appellant said:

In this case, perhaps you would have liked to hear Mr.
    Tomlinson testify.  Are you truly surprised that he didnt?  Remember who, in
    my submission, shot Justin Hodge and Damian Muirhead; it was Mr. Tomlinsons
    own brother.  What would be involved in taking the witness-box if you were Mr.
    Tomlinson?  His own brother.

[87]

In his charge to
    the jury, the trial judge identified several features of the addresses of
    counsel about which he had something to say.  On the comments of trial counsel
    for the appellant about the appellants failure to testify, the trial judge
    said:

[Defence counsels] submissions concerning why his client did
    not testify should be disregarded by you.  You are required to base your
    verdict on the evidence called.


The wrongful conviction Issue

[88]

Early in his
    closing address, trial counsel for the appellant pointed out that the
    considerable resources of the state had been marshalled against the appellant
    and even the fittings of the courtroom  the prisoners box and the descriptive
    the accused  seemed to belie the presumption of innocence and send a
    subliminal message of guilt to the jury.  Counsel then focused on the
    prospect of a miscarriage of justice through a wrongful conviction:

In combination with this scenery, the imagery of this courtroom
    and this trial, combined with your desire to see justice done for the
    community, for Damian and for Justin and for their families, despite the
    presumption of innocence, these things are a recipe for a potential miscarriage
    of justice, a wrongful convictiona recipe for a wrongful conviction.

I would like to spend just a couple of minutes making a
    respectful submission to you about how a miscarriage of justice, how a wrongful
    conviction, and the wrongful conviction of Bryan Tomlinson, can and must be
    avoided in this case.  There is only one way, members of the jury, for that to
    be done; that is to transcend the scenery, the imagery, the subliminal
    nuances.  Rise beyond the temptation to believe that the police must have
    arrested the right men, or say to yourself, come, for goodness sake, the Crown
    is prosecuting this chap with great confidence.  They make their pitch in a
    stentorian tone; why would they be doing that if Tomlinson was an innocent
    man?  That strains the bounds of logic.  Look how much money has been spent on
    this case.  You must rise beyond the temptation to think those thoughts if you
    are to perform your task as jurors in this case, as I believe and know that you
    will.

Consider the evidence only, not the rhetoric of the lawyers;
    that includes me, Mr. Gorham, Ms. Richards, Ms. Spencer.  Ask yourself whether
    the evidence, and the evidence only, satisfies you of Mr. Tomlinsons guilt or
    his innocence.

[89]

Crown counsel
    objected to the references to wrongful convictions and miscarriages of
    justice.  The following day, before trial counsel for Ceballo began his address
    to the jury, the trial judge gave the jury the following instruction:

Let me comment on the miscarriage of justice issue that arose
    in [defence counsels] closing address yesterday.  As you all know, you are
    required by your oath of office to consider the evidence in this case, the
    submissions of counsel and my instructions to you.  If, after diligently doing
    so, you are satisfied beyond a reasonable doubt of the guilt of an accused, you
    must return a verdict of guilty against him.  To decline to return a verdict of
    guilty, if you are satisfied beyond a reasonable doubt of the guilt of an
    accused because of the miscarriages of justice in other cases would be an
    improper step on your part, ladies and gentlemen.

The Arguments on Appeal

[90]

For the
    appellant, Mr. Kerbel submits that the submissions of trial counsel, which
    provided an explanation for the appellants failure to testify, were proper. 
    Absent an explanation, jurors were likely to draw an adverse inference against
    the appellant for having failed to testify in support of his alibi.  The
    explanation advanced arose logically from the evidence since the defence
    contended that it was the appellants brother, not the appellant, who was the
    shooter.  The trial judges instruction made matters worse because it amounted
    to a prohibited comment on the appellants failure to testify.

[91]

Mr. Kerbel
    argues that neither the miscarriages of justice nor the wrongful conviction
    references were improper.  Their purpose was to remind the jury of the gravity
    of their duty in deciding the case.  The issue was not overstated.  No mention
    was made of the names of any persons who had been wrongly convicted or who had
    been the victims of miscarriages of justice.  Once again, the trial judges
    curative instructions made matters worse by undercutting the credibility of
    defence counsel and, consequently, the position of the appellant before the
    jury.

[92]

For the
    respondent, Mr. Tweney says that the instruction by the trial judge was neither
    improper nor prejudicial to the appellant.

[93]

Mr. Tweney says
    that the explanation advanced by trial counsel for the failure of the appellant
    to testify in support of his own alibi was unsupported by any evidence adduced
    at trial.  It follows, Mr. Tweney contends, that the submission of trial
    counsel was improper because it amounted to counsel giving evidence, rather
    than making submissions based on evidence heard by the jury at trial.  The modest
    curative instruction, one of several relating to the closing submissions of all
    counsel, was not improper and did not amount to an impermissible comment on the
    appellants failure to testify.

[94]

The references
    to wrongful convictions and miscarriages of justice, Mr. Tweney submits,
    were properly characterized and appropriately corrected by the trial judge. 
    Despite a reminder the day before his closing address about the limits on such
    comments, trial counsel stepped over the line.  The trial judge was concerned
    not only about what counsel said, but also about how he said it.  Once again,
    the trial judges corrective action was tailored carefully to the circumstances
    and did not compromise the integrity or credibility of trial counsel or the
    fairness of the appellants trial.

The Governing Principles

[95]

The parties
    divide not so much on the principles that govern determination of this ground of
    appeal as on the result that should follow from their application.   A brief
    reference to several controlling features of those principles will suffice.

[96]

First, counsel, whether
    prosecuting or defending, are not permitted to
give
evidence in their
    closing submissions:
R. v. Smith
(1997), 120 C.C.C. (3d) 500 (Ont.
    C.A.), at para. 26.  This prohibition includes providing an explanation, not
    otherwise in evidence, for the failure of an accused to testify.

[97]

Second, it is
    permissible for a trial judge in final instructions to a jury to affirm the
    right of an accused to remain silent.  A reminder of this right does
not
amount
    to a comment on the failure of an accused to testify:
R. v. Prokofiew
,
    2012 SCC 49, [2012] 2 S.C.R. 639, at para. 3.

[98]

Third, any
    reference to an accuseds silence at trial or failure to testify must not,
    expressly or by necessary implication, leave the impression that silence
    constitutes evidence and can be used to infer or help to establish guilt:
Prokofiew
,
    at paras. 20-21.

[99]

Fourth, a
    passing reference to the potential of wrongful conviction is not beyond the
    bounds of legitimate argument in a jury address in a criminal trial:
R. v.
    Horan
, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 69.  Repeated
    references to wrongful convictions and miscarriages of justice, however, can
    amount to a form of intimidation that invites acquittal despite proof of
    guilt:
Horan
, at para. 67.

[100]

Finally, a judge presiding in a
    criminal trial has not only the right but also the duty to correct the missteps
    of counsel in their closing addresses:
R. v. Rose,
[1998] 3 S.C.R.
    262, at para. 63 and 126-127; and
R. v. Archer
(2005), 202 C.C.C. (3d)
    60 (Ont. C.A.), at para. 96.

The Principles Applied

[101]

I would not give effect to this
    ground of appeal.

[102]

Trial counsel offered an
    explanation for the failure of the appellant to testify. The explanation was
    entirely devoid of evidentiary support. It was also fundamentally at odds with
    the injunction against speculation that is routinely the subject of jury
    instructions and was the case here.

[103]

This aspect of the closing address
    of defence counsel was an appropriate subject for correction by the trial
    judge.  The trial judges response was measured and did not reflect on the
    integrity or competence of trial counsel.  What was said was not a comment on
    the failure of the appellant to testify.  It did not expressly or by necessary
    implication, invite jurors to use the appellants silence to shore up the case
    for the Crown.

[104]

The trial judge considered the
    references to wrongful convictions and miscarriages of justice to be in
    violation of the principles announced in
Horan
, a decision of this
    court drawn to counsels attention the day before closing addresses began.  The
    references were beyond passing, their tone, according to the trial judge,
    unacceptable.  Once again, the corrective instruction did not exceed what the
    circumstances warranted.

THE CEBALLO APPEAL

[105]

The grounds of appeal advanced by
    Ceballo assert errors in the trial judges instructions to the jury that also
    contest the reasonableness of the jurys verdict.

Ground #1:  The Alibi Notice

[106]

Roberto Ceballo denied any
    involvement in the killing of the deceased.  He testified at trial and said he
    was someplace else when the shootings occurred, somewhere around the area of
    Kensington Market.

[107]

The Crown relied on several items
    of evidence to contradict Ceballos alibi and to establish his presence at the
    scene, and participation in the events that led to the deaths of Hodges and
    Muirhead.  Keean Jones gave evidence about Ceballos involvement in the planned
    robbery of Hodges.  Jones identified Ceballo as one of the two men who burst
    into the apartment and participated in the confinement and killing of the
    deceased.  Police found two bandanas in a laneway behind 180 Niagara. 
    Ceballos DNA was found on each bandana.  Cell phone traffic showed several
    calls from Ceballos cell phone to a cell phone connected to Tomlinson.  The
    calls registered on a tower that served 180 Niagara and occurred around the
    time the deceased were killed.

[108]

The first ground of appeal relates
    to one aspect of the trial judges instructions on Ceballos alibi.  A brief
    reference to the evidence will situate the claim of error in its proper
    context.

The Visits with Jessica

[109]

Roberto Ceballo gave evidence that
    he left the Ceballo-Jones apartment before 7 p.m. on January 21, 2005.  He had
    been there briefly with Tomlinson.  Ceballo said he never returned to that
    apartment that evening.

[110]

It was Ceballos evidence that he
    spent the balance of the evening in and around Kensington Market.  He met some
    friends there at the Cyber Share Café and visited his friend Jessicas place
    nearby.  He did not know Jessicas last name or her precise address.

[111]

Ceballo was imprecise about when and
    how long he was in various places.  His cross-examination was littered with
    responses that reflected an inability or unwillingness to be specific about
    when and how long he visited with Jessica before returning to the Cyber Share
    Café.  At one point, he said he arrived at Jessicas place at 7:15 p.m. and
    stayed for an hour and a half.  Later, he said he left her place at 8:15 p.m.
    shortly after he called his friend Corbett.  Ceballo never did say expressly
    that he was at Jessicas place at the time Hodges and Muirhead were killed.

[112]

It was undisputed that Ceballos
    attendance at Jessicas home when he called his friend Corbett at 8:03 p.m. on
    January 21, 2005 was not disclosed to the Crown or police until Ceballo
    testified to that effect at his trial nearly four years later.  It was admitted
    at trial that the lack of disclosure about Jessica deprived the police of the
    opportunity to locate and interview her.

The Ruling of the Trial Judge

[113]

Trial counsel asked the trial
    judge to determine whether Jessica was an alibi witness. If so, failure to make
    timely disclosure about her could attract an instruction that late disclosure
    was a factor for the jury to consider in assessing the weight to assign to the
    alibi evidence.

[114]

The trial judge considered that in
    light of the amorphous nature of Ceballos testimony about times, and his claim
    that he was in the Kensington Market area for the entire evening of January 21,
    2005, the contact with Jessica was an inextricable part of his alibi.  Lack of
    timely disclosure about Jessica would warrant a jury instruction about its
    impact on the weight to be assigned to the alibi.

The Jury Instruction

[115]

The trial judges instruction to
    the jury on Ceballos alibi and the effect of late disclosure about Jessica on
    the weight to be assigned to that evidence includes the following passage:

Please remember that Mr. Ceballos alibi concerning Jessica,
    whose last name is not known, and his visits to her apartment on two separate
    occasions on January 21, 2005, was not disclosed at a sufficiently early time
    to permit its investigation by the police.

The lack of the early disclosure of this portion of the alibi
    is a factor to be considered by you in assessing the weight to be assigned to
    this evidence.

In considering this evidence, please remember that there is no
    burden or obligation on Mr. Ceballo to prove that he was elsewhere at the time
    the crimes were committed.  Rather, it is the Crowns burden to disprove Mr.
    Ceballos alibi by proving that he was present at the scene of the crime beyond
    a reasonable doubt.


The Arguments on Appeal

[116]

For the appellant, Mr. Campbell
    submits that the trial judge erred in finding that Jessica was an alibi
    witness.  An alibi must be determinative of the final issue of guilt or
    innocence of an accused.  But that is not the effect of any evidence Jessica could
    have given here.  The appellant could have been with Jessica at the times he
    described and still have been at 180 Niagara when the deceased were killed. 
    The evidence of the appellant negated Jessicas status as an alibi witness.

[117]

Mr. Campbell adds that even if
    Jessica could be considered an alibi witness, an adverse inference instruction
    is discretionary, not mandatory.  The instruction in this case compromised the
    appellants right to silence and worked an unfair prejudice on the appellant
    since the failure to provide notice was a considered decision made by trial
    counsel based on counsels understanding of the governing legal principles.

[118]

For the respondent, Mr. Tweney
    characterizes Jessica as an essential part of Ceballos alibi.  The testimony
    of Ceballo was amorphous, notorious for its imprecision.  Jessica was essential
    to confirm Ceballos presence in the area of Kensington Market at the time of
    the shootings.  The failure to disclose Jessica until giving evidence at trial
    deprived police of the ability to investigate the veracity of the claim.  The
    adverse inference instruction was fully justified.

[119]

Mr. Tweney submits further that
    the alibi instruction given by the trial judge was correct in law.  The trial
    judge properly linked the evidence about the appellants whereabouts to the
    issues of his presence at 180 Niagara and his participation in the events that
    culminated in the deaths of the deceased.  The tenuous nature of the alibi, Mr.
    Tweney continues, was overwhelmed by   the incontrovertible physical evidence
    found at the scene.  Scientists identified the appellants DNA on two bandanas
    found in the laneway behind 180 Niagara.  A broken watch part found by the
    bandanas matched another part found inside the deceaseds apartment.  Cell phone
    traffic between telephones of the appellants registered on a tower with
    coverage of 180 Niagara at about the time of the killings.

The Governing Principles

[120]

Several basic principles governing
    the defence of alibi were canvassed earlier in connection with grounds of
    appeal urged by the appellant Tomlinson.  No useful purpose would be served by
    their repetition here.  Three brief points should be made, however, in
    connection with the specific complaint advanced here.

[121]

First, proper disclosure of an
    alibi has two components.  The first is adequacy, which relates to the
    sufficiency of details provided.  The second is timeliness.  Disclosure should
    be sufficiently particular to enable the authorities to meaningfully
    investigate. Disclosure in a timely way allows the authorities sufficient time
    to investigate:
R. v. Cleghorn
, [1995] 3 S.C.R. 175, at para. 3;
R.
    v. Letourneau
(1994), 87 C.C.C. (3d) 481 (BCCA), at p. 532; and
R. v.
    Nelson
(2001), 147 O.A.C. 358, at para. 8.

[122]

Second, failure to provide timely
    and sufficient notice of alibi does
not
vitiate the defence.  The
    trier of fact may draw an adverse inference when weighing an alibi that has not
    been disclosed in a sufficient and timely way.  In a jury trial, the presiding
    judge should instruct the jury that failure to make timely and sufficient
    disclosure of the alibi is a factor the jury
may
consider in assessing
    the weight to be assigned to the alibi:
Cleghorn
, at para. 4;
Russell
    v. The King
(1936), 67 C.C.C. 28 (SCC), at p. 32; and
Nelson
, at
    para. 8.

[123]

Third, the adverse inference
    instruction is limited to the defence of alibi.  Adverse inference instructions
    on other issues may compromise an accuseds pre-trial right to silence:
R.
    v. Gottschall
(1983), N.S.R. (2d) 86 (C.A.), at p. 91.

The Principles Applied

[124]

For reasons that I will develop, I
    would reject this ground of appeal.

[125]

First, the appellant denied that
    he was at 180 Niagara and participated in the killings of Hodges and Muirhead. 
    He said he was someplace else, around the Kensington Market area.  His evidence
    about precisely
where
he was, and
when
he arrived at or left
    various places, was at best imprecise and inconsistent.  He mentioned two
    places in Kensington:  the Cyber Share Café and Jessicas apartment.

[126]

In his evidence-in-chief, the appellant
    testified that he was at Jessicas place for one and a half hours before he
    returned to the Cyber Share Café.  The time he spent at Jessicas could have
    precluded his presence at 180 Niagara.  At the very least, her evidence could
    have contributed to some temporal clarity about the appellants activities that
    was sorely lacking in his own testimony.  Seen in this light, the disclosure
    failure fell within the scope of an adverse inference instruction.

[127]

Second, at the very least, the
    imprecise nature of the appellants alibi and his unwavering refusal to provide
    any specificity about time justified judicial comments about the weight to be
    attributed to it.  What was said here assigns a place, but not a place of
    prominence or undue influence, to lack of timely disclosure in the assessment
    of the alibi evidence.  Neither the instruction nor the manner in which the
    failure of timely disclosure was revealed to this jury caused the appellant any
    prejudice.

[128]

Third, at its core, the alibi
    depended on the evidence of the appellant.  It was unsupported by any other
    evidence adduced at trial and contradicted by physical evidence (the bandanas
    and watch) and expert opinion testimony that linked him to Hodges apartment.  The
    jury received clear, legally correct instructions on the defence of alibi,
    including directions about the onus of disproof that was imposed on the Crown. 
    There was no reasonable prospect that the jury would have misplaced the burden
    of proof or failed to appreciate the standard of proof, in connection with this
    defence.

Ground #2:  Errors in Instructions on Murder and First Degree
    Murder

[129]

The second ground of appeal has
    two components.  The first alleges error in leaving murder and first degree
    murder to the jury in connection with Ceballo, who was not alleged to be the
    shooter.  The second, an alternative submission, challenges the adequacy of the
    instructions on the same issues.

The Positions at Trial

[130]

At trial, Crown counsel took the
    position that Ceballo was an aider or abettor in an unlawful killing that was
    murder under s. 229(a) of the
Criminal Code,
R.S.C. 1985, c. C-46

and
    first degree murder under s. 231(5)(e) since the murder was committed while
    both victims were being unlawfully confined.  Crown counsel did not rely on the
    accessorial liability provisions of s. 21(2) or advance s. 229(c) as a basis
    upon which to establish that the unlawful killings were murder.


The Directed Verdict Application

[131]

Trial counsel for Ceballo asked
    the trial judge to direct a verdict of acquittal removing both murder and first
    degree murder from the jurys consideration and leaving them to deliberate only
    on the appellants liability for manslaughter.

[132]

Trial counsel for Ceballo
    contended that no evidence had been adduced at trial upon which a reasonable
    jury acting judicially could find that the appellant:

i.

knew that Tomlinson would intentionally kill anyone in the apartment;

ii.

intended to help or encourage Tomlinson to murder anyone;

iii.

participated in an unlawful confinement of the occupants of the
    apartment; and

iv.

actively participated in causing the deaths of the deceased.

[133]

The trial judge rejected the
    applications and left both murder and first degree murder to the jury.

The Arguments on Appeal

[134]

For the appellant, Mr. Campbell
    reinvigorates the argument advanced at trial.  In his submission, the trial
    record is barren of any evidence that Ceballo knew or even suspected that
    Tomlinson had a gun when they entered Hodges apartment.  From this evidentiary
    deficit, according to Mr. Campbell, it follows that there was no evidence that
    Ceballo knew that Tomlinson would intentionally kill Hodges or any other
    occupant of the premises.  It also follows, he says, that there was no evidence
    that could permit a finding that Ceballo helped or encouraged Tomlinson to
    commit murder.

[135]

Mr. Campbell further submits that
    in the absence of evidence to permit the jury to find that Ceballo was an aider
    or abettor of Tomlinson in his murder of the deceased, the trial judge was not
    entitled to leave first degree murder to the jury.  In addition, even if there
    were evidence to leave murder to the jury in relation to Ceballo, Mr. Campbell
    says there was no evidence to permit a jury to find that Ceballo was an active
    participant in a murder committed while the victims were unlawfully confined. 
    It follows, Mr. Campbell says, that the trial judge erred in failing to direct
    an acquittal on murder and first degree murder.

[136]

As an alternative submission, Mr.
    Campbell says that the trial judge erred by failing to instruct the jury
    adequately on the essential elements of accessorial liability for murder and
    first degree murder.  In addition, the trial judge failed to review any
    exculpatory features of the evidence and to relate those features to the
    essential elements of murder and of first degree murder.

[137]

For the respondent, Mr. Tweney
    begins by pointing out that the argument advanced about the absence of evidence
    to support the submission of murder and first degree murder to the jury for
    their decision is the repetition of an argument that was rejected previously by
    a judge of the Superior Court of Justice on a motion to quash the committal for
    trial, by a panel of this court on an appeal from the refusal to quash the
    committal and by the trial judge on a motion for a directed verdict.  The
    unanimity is telling.  The same result should follow.

[138]

Mr. Tweney acknowledges that
    liability for murder as an aider requires proof of knowledge of the principals
    intention to kill and the intention of the aider to help the principal to
    accomplish his intention.  But the Crown need not prove that the aider shared
    the principals intention.  The aider may be an active participant in causing
    the death of a person provided the assistance rendered was sufficiently
    immediate, direct and substantial.  The immobilization of Muirhead was
    sufficient, in the circumstances of this case, to satisfy this requirement.

[139]

Mr. Tweney says that the trial
    judges instructions on the essential elements of murder and first degree
    murder correctly explained what Crown counsel had to prove to establish
    Ceballos liability as an abettor.  The trial judge provided copies of his proposed
    instructions to counsel and gave them plenty of opportunity to make submissions
    about their adequacy.  Apart from reiterating his submission that first degree murder
    should not have been left to the jury at all, trial counsel for Ceballo offered
    no meaningful objection to the proposed instructions.  The extent of
    evidentiary references in a charge to the jury is a matter for the trial
    judges discretion.  No complaint was made at trial.  None should prevail
    here.

The Governing Principles

[140]

Several principles apply to a
    determination of this ground of appeal.  Some describe the essential elements
    that the Crown must prove to establish a persons liability as an aider in a
    constructive first degree murder.  Others define the standard a trial judge is
    to apply in deciding whether to leave an offence to the jury for its
    determination or to remove it from the jurys consideration by entering a
    verdict of acquittal at the conclusion of the Crowns case.  Still others
    explain the extent of a trial judges obligation to review the evidence in
    final instructions to the jury.

The
    Participation Requirement in Constructive First Degree Murder

[141]

Among the essential elements of
    constructive first degree murder is a requirement that the Crown prove beyond a
    reasonable doubt that an accused participated in the murder of the deceased in
    such a manner that she or he was a substantial cause of the death of the
    victim:
R. v. Harbottle
, [1993] 3 S.C.R. 306, at pp. 323-324.  To
    satisfy this requirement, the Crown must prove that an accused committed an act
    or series of acts that are of such a nature that they must be regarded as a
    substantial and integral cause of the deceaseds death. An accused must play a
    very active role  usually a physical role  in the killing:
Harbottle
,
    at p. 324.

[142]

The decision in
Harbottle
underscores the need for proof of an enhanced or increased degree of
    participation in the killing before an accused may be convicted of first degree
    murder under s. 231(5):
R. v. Nette
, [2001] S.C.J. No. 75, [2001] 3
    S.C.R. 488, at para. 61.

Participation
    as an Aider

[143]

The
Criminal Code
does
    not distinguish between the principal offender and secondary participants in
    determining criminal liability:
R. v. Briscoe
, 2010 SCC 13, [2010] 1
    S.C.R. 411, at para. 13.  One method of secondary participation is aiding
    another to commit an offence.

[144]

The
actus reus
and
mens
    rea
for aiding is distinct from the
actus reus
and
mens rea
of the principal offence:
Briscoe
, at para. 13.  The
actus reus
of aiding is doing something
[2]
that assists the perpetrator to commit the offence:
Briscoe
, at para.
    14.  The
mens rea
of aiding, reflected in the word purpose in s. 21(1)(b),
    includes both intent and knowledge.  The
intent
component is essentially
    synonymous with intention.  The Crown must prove that the aider intended to
    assist the principal in the commission of the offence, but need not prove that
    the aider desired that the offence be successfully committed:
Briscoe
,
    at para. 16.  The
knowledge
component requires proof that the aider
    knew that the perpetrator intended to commit the crime although the aider need
    not know precisely how the crime was to be committed:
Briscoe
, at
    para. 17.  The knowledge component may also be established through the doctrine
    of wilful blindness:
Briscoe
, at paras. 21, 23-24.

Aiding
    Constructive First Degree Murder

[145]

The enhanced participation
    requirement imposed in constructive first degree murder in
Harbottle
does not bar conviction of secondary parties:
R. v. Ferrari
, 2012
    ONCA 399, 287 C.C.C. (3d) 503, at para. 68.  A secondary party, such as an
    aider, may be convicted of constructive first degree murder provided his or her
    conduct satisfies the enhanced participation standard imposed by
Harbottle
:
Ferrari
, at para. 85;
Harbottle
, at p. 316.

Reviewing and
    Relating the Evidence

[146]

It is well established that,
    except in cases where it would be unnecessary to do so, a trial judge is
    required to review the substantial parts of the evidence and relate it to the
    issues that the jury is or may be required to decide so that the jury
    appreciate the nature and effect of the evidence and its relationship to the
    defence advanced:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at pp.
    497-498;
R. v. Cooper
, [1993] 1 S.C.R. 146, at p. 163; and
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para. 14.

[147]

Frequently, a trial judge relates
    the evidence relevant to the positions of the parties on controversial issues
    by reviewing the substance of the evidence that bears on each issue and
    indicating to the jury which parts of the evidence support each partys position:
R. v. S.(J.)
, 2012 ONCA 684, 292 C.C.C. (3d) 202, at para. 38; and
R.
    v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.), at paras. 29-30.

[148]

A trial judge is under no
    obligation to review all the evidence:
MacKinnon
, at paras. 29-30;
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 55-56; and
R. v.
    B.(P.J.)
, 2012 ONCA 730, 97 C.R. (6
th
) 195, at para. 45.  A
    trial judge has considerable latitude in connection with the volume of evidence
    she or he reviews and relates to the issues the jury will or may be required to
    decide:
Daley
, at para. 57;
R. v. Royz
, 2009 SCC 13, [2009]
    1 S.C.R. 423, at para. 3; and
B.(P.J.)
, at para. 46.  A trial judges
    failure to review specific or individual items of evidence will not be fatal
    unless what is left out amounts to the sole evidentiary foundation for a
    defence:
B.(P.J.)
, at para. 46; and
R. v. Demeter
(1975), 25
    C.C.C. (2
nd
) 417 (Ont. C.A.), at p. 436, affirmed on other grounds
    [1978] 1 S.C.R. 538.

[149]

A serial review of the evidence
    adduced at trial is unhelpful to a jury and does not sit well with the
    obligation to
relate
the evidence to the issues the jury is or may be
    required to decide.

[150]

We test the adequacy of jury
    instructions against their ability to fulfill the purpose for which those
    instructions are provided.  We do not test them to determine the extent to
    which they adhere to or depart from some particular approach or specific
    formula:
Jacquard
, at paras. 32 and 41;
MacKinnon
, at para.
    27.  A jury must be properly instructed but need not be perfectly instructed.

The Standard
    for Directed Verdicts of Acquittal

[151]

When counsel for an accused
    applies for a directed verdict of acquittal at the end of the Crowns case, the
    trial judge must decide whether there is any evidence on the basis of which a
    reasonable jury, properly instructed, could return a verdict of guilty of the
    offence on which the directed verdict of acquittal is sought:
R. v. Charemski
,
    [1998] 1 S.C.R. 679, at para. 2; and
R. v. Monteleone
, [1987] 2 S.C.R.
    154, at p. 160.  Crown counsel must adduce some evidence of culpability for
    every essential element of the offence for which the Crown has the evidential
    burden:
Charemski
, at para. 3.

[152]

The duty imposed on a judge asked
    to direct a verdict of acquittal at the end of the Crowns case at trial is the
    same as that which governs a justice assigned the responsibility to determine
    whether an accused should be ordered to stand trial at the conclusion of a
    preliminary inquiry under s. 548(1) of the
Criminal Code
:
United
    States of America v. Sheppard
, [1977] 2 S.C.R. 1067, at p. 1080;
R. v.
    Arcuri
, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21.

[153]

Where the Crowns case is based on
    direct evidence, the task of the trial judge on an application for a directed
    verdict, like the duty of a justice at the preliminary inquiry in similar
    circumstances, is straightforward.  Where there is direct evidence of each
    essential element, the application for a directed verdict fails:
Arcuri
,
    at para. 22.  Where the evidence upon which the Crown relies is circumstantial,
    however, the test remains the same, but the judge must engage in a limited
    weighing of the evidence since there is an inferential gap between the evidence
    and the essential elements to be established. In cases involving circumstantial
    evidence, the limited weighing in which a trial judge is permitted to engage on
    an application for a directed verdict, does
not
permit the trial judge
    to draw factual inferences, to assess credibility or to consider the inherent
    reliability of the evidence adduced:
Arcuri
, at paras. 23 and 30.

[154]

The trial judge must then
    determine whether the circumstantial evidence is reasonably capable of
    supporting the inferences the Crown seeks to have the jury draw.  The test is
    whether the evidence, if believed, could reasonably support an inference of
    guilt:
Arcuri
, at para. 23.

[155]

Where the offence charged includes
    one or more other offences, an accused may seek a directed verdict of acquittal
    on the principal offence, as well as on some but not all included offences:
Titus,
at p. 264. The trial judges decision whether to grant a motion for directed
    verdict is to be reviewed on a standard of correctness:

R v. Barros,
2011
    SCC 51, [2011] 3 S.C.R. 368.

The Principles Applied

[156]

For reasons that I will develop, I
    would reject both aspects of this ground of appeal.

[157]

I turn first to the submission
    that neither murder nor first degree murder should have been left to the jury
    in respect of Ceballo.

[158]

The case for the Crown at trial
    was that Keean Jones and the appellants planned to rob Hodges of the drugs and
    money he kept in his apartment at 180 Niagara.  Jones knew Hodges and had been
    in Hodges apartment on a prior occasion.  When he was there, he had seen drugs
    and money.  Jones was to go to Hodges apartment on the pretext of a drug
    purchase.  Once there, he was to call the appellants who would gain entry and
    carry out the robbery.

[159]

Under the pretext of arranging a
    drug purchase, Jones went to Hodges apartment.  Rather than telephone the
    appellants, however, Jones told Hodges that he needed to go to an ATM to get
    the money to complete the purchase.  As Hodges accompanied Jones to the door to
    let him out to get the money for the drug buy, the appellants, dressed in dark
    clothing and wearing two bandanas each to conceal their facial features, burst
    into the apartment.  Tomlinson was armed with a 9 mm semi-automatic handgun.

[160]

In the apartment, Tomlinson
    pointed the handgun at Hodges who had armed himself with a hammer.  The second
    intruder, whom the jury could conclude was Ceballo, remained in the kitchen
    area with Muirhead who was not permitted to leave the kitchen to help Hodges. 
    The jury could reasonably infer that Ceballo had a knife that he used to ensure
    Muirheads confinement.  Within minutes Tomlinson shot Hodges at close range,
    then shot Muirhead as he lay face down on the kitchen floor.

[161]

In connection with the shooter,
    there was evidence adduced at trial reasonably capable of sustaining the
    inferences necessary to establish that each killing was unlawful, intentional
    and thus murder, and committed while both victims were unlawfully confined,
    thus classifying the murders as first degree murder under s. 231(5)(e) of the
Criminal
    Code
.

[162]

The Crown relied on s. 21(1)(b) of
    the
Criminal Code
to establish Ceballos liability for murder and
    first degree murder.  As we have already seen, aiding includes both a conduct requirement
    and fault element that consists of both intent and knowledge.  To establish the
    liability of an aider of a perpetrators murder of another, the Crown was not
    required to prove that Ceballo desired or approved of the death of the deceased
    or shared the perpetrators intention:
Briscoe
, at paras. 14-16.

[163]

To warrant jury consideration of
    Ceballos liability as an aider in Tomlinsons intentional killing of the
    deceased, the evidence adduced in the Crowns case, taken as a whole, must be
    reasonably capable of supporting the inference that Ceballo did something with
    the intention of helping Tomlinson whom he knew intended to kill the deceased.

[164]

The evidence is reasonably capable
    of supporting the inference that Ceballo, armed with a knife, kept Muirhead
    confined in the kitchen.  It was open to the jury to conclude that Ceballo knew
    that Tomlinson was armed with a handgun, as early as the scuffle at the
    apartment door or, as trial counsel conceded, at least when he saw the gun
    pointed at Hodges in the living room.  The gunmans utterances disclosed a
    willingness to use the gun and his orders to Ceballo about holding the knife to
    Muirheads throat and stabbing him suggested a willingness to kill by any
    available means.  The firing of the first gunshot supported a reasonable
    inference that Muirhead would be killed next.  From this evidence, taken as a
    whole, the jury could reasonably infer that Ceballo knew the gunman intended to
    kill the deceased and that Ceballo intended to help him do so by keeping
    Muirhead confined at knifepoint in the kitchen.

[165]

The complaint about leaving first
    degree murder to the jury in relation to Ceballo focuses on the enhanced
    participation requirement of
Harbottle
.  The Crown must establish that
    an accused committed an act or a series of acts of such a nature that they can
    be regarded as a substantial and integral cause of the death of the deceased:
Harbottle
,
    at p. 324.  An accused must play an active role  usually a physical role  in
    the killing:
Harbottle
, at p. 324.

[166]

It seems clear from
Harbottle
that a person who facilitates a killing during an unlawful confinement by
    eliminating or overcoming potential resistance by the victim may be convicted
    of constructive first degree murder.  Harbottles role was to hold the
    deceaseds leg so that she could not resist Ross attempts to strangle her.  It
    was open to the jury in this case to conclude that by confining Muirhead at knifepoint
    in the kitchen, thus eliminating any assistance he could provide to Hodges who
    was confined at gunpoint in the living room, Ceballos conduct satisfied the
    enhanced participation requirement of
Harbottle
.

[167]

Further, as discussed above in
    para. 137, it is doubtful whether the argument advanced here  that neither
    murder nor first degree murder should have been left to the jury for Ceballo 
    remains open to the appellant.  As this court ultimately concluded:

We agree with the Crowns submission that there was evidence
    from which a reasonable trier of fact could conclude that the appellant aided
    and abetted in the two murders committed by his co-accused in the course of the
    robbery and forcible confinement.  We also agree with the Crown that there was an
    evidentiary basis upon which a reasonable trier of fact could conclude that the
    actions of the appellant pass the causation threshold described in the leading
    case of
R. v. Harbottle
, [1993] 3 S.C.R. 306.

[168]

Turning next to the appellants
    complaint about the adequacy of the trial judges instructions to the jury on
    the essential elements of murder and first degree murder.  For reasons that I
    will explain, I would not give effect to this ground of appeal.

[169]

The appellants principal
    complaint is that the trial judge failed to adequately review the evidence that
    related to his liability for murder and first degree murder.  The omissions
    meant that the defence was not put fairly to the jury who were left
    inadequately equipped to make a just determination of these issues.  For
    several reasons, this complaint falls on barren ground.

[170]

First, recall the obligations of a
    trial judge in reviewing the evidence adduced at trial and final instructions
    to the jury.  A trial judge is under no obligation to review
all
the
    evidence adduced at trial in final instructions.  The obligation is to review
    the substantial parts of the evidence and to relate those parts to the issues
    that the jury are or may be required to decide, thus to ensure that the jury
    appreciates the value and effect of the evidence:
Azoulay
, at pp.
    497-498.  The failure to refer to a specific item of evidence will not be fatal
    unless what is omitted amounts to the only evidentiary foundation for a
    defence:
B.(P.J.)
, at para. 46;
Demeter
, at p. 436.

[171]

Second, the appellant was entitled
    to a properly instructed jury, not one that was perfectly instructed.  A jury
    charge is proper if, taken as a whole, the charge leaves the jury with a
    sufficient understanding of the facts as they relate to the issues the jury must
    or may have to decide:
Jacquard
, at para. 14;
MacKinnon
, at
    paras. 25-26, and 30.  This charge satisfied that standard.

[172]

Third, the final instructions in
    this case fully explained the essential elements of murder and of constructive
    first degree murder.  The trial judge accurately set out the constituent
    elements of aiding and related those elements to murder and to constructive
    first degree murder.  In respect of each issue, the trial judge:

i.

identified the issue;

ii.

explained the legal requirements of proof;

iii.

summarized the essential features of the evidence that were relevant for
    the jury to consider in deciding the issue;

iv.

reiterated the Crowns burden of proof on the issue; and

v.

described the consequences of the available findings on the issue for
    further deliberations and for the verdict.

Taken as a whole, these instructions left the jury with
    a sufficient understanding of the relevant issues and the evidence that was
    relevant to their decision on those issues.

[173]

Fourth, experienced trial counsel
    made no objection to the charge on the basis now said to constitute error.  The
    trial judge provided counsel with a written copy of his proposed instructions ten
    days before the charge began.  Counsel made lengthy submissions five days
    before the charge was delivered, but took no issue with the content of the
    legal instructions or the evidentiary references.  While not fatal, the failure
    of objection affords some indication that counsel did not consider the
    instruction incomplete, unbalanced or legally incorrect.


Ground #3:  Unreasonable Verdict

[174]

The final ground of appeal
    advanced by Mr. Campbell for Ceballo is that the jurys verdict finding him
    guilty of two counts of first degree murder was unreasonable.  The argument
    differs little from the complaint rejected earlier that the trial judge erred
    in leaving murder and first degree murder to the jury, rather than entering a
    verdict of acquittal on both at the end of the case for the Crown.  It is
    unnecessary to repeat those submissions here.

The Governing Principles

[175]

Whether a verdict is unreasonable
    depends on whether the verdict is one that a properly instructed jury acting
    judicially could reasonably have rendered:
R. v. Biniaris
, 2000 SCC
    15, [2000] 1 S.C.R. 381, at para. 36;
R. v. Yebes
, [1987] 2 S.C.R.
    168, at p. 185; and
R. v. Corbett
, [1975] 2 S.C.R. 275, at p. 282.  An
    appellate court is required to determine what verdict a reasonable jury,
    properly instructed, could reasonably have rendered, and, in doing so, to
    review, analyze and, within the limits of appellate disadvantage, to weigh the
    evidence:
Biniaris
, at para. 36.  The phrase acting judicially
    means not only acting dispassionately, applying the law and deciding on the
    basis of the evidentiary record and nothing else, but also arriving at a
    conclusion that does not conflict with the bulk of judicial experience:
Biniaris
,
    at para. 40.


The Principles Applied

[176]

I would not accede to this
    argument for three brief reasons.

[177]

First, this argument differs
    little substantively from the submission rejected earlier that neither murder
    nor first degree murder should have been left for the jurys consideration.

[178]

Second, the principal focus on the
    submission is on the inadequacy of the evidence to establish the enhanced
    participation requirement articulated in
Harbottle
.  That argument was
    rejected earlier for reasons that are equally controlling here.  A person may
    be found guilty as an aider of a constructive first degree murder provided,
    among other things, his or her participation satisfies the enhanced standard of
Harbottle
.  As in
Harbottle
, overcoming resistance to permit
    the perpetrator to carry out an intentional killing may satisfy this
    requirement.  It is of no moment that the resistance overcome is not that of
    the person killed:
R. v. Russell
, [2001] 2 S.C.R. 804.

[179]

Third, the sufficiency of the
    evidence to satisfy the standard for committal for trial and submission of both
    murder and first degree murder to the jury leaves little, if any, foundation
    for an argument about unreasonable verdict.  I would not give effect to such an
    argument here.


CONCLUSION

[180]

For these reasons, I would dismiss
    the appeals of both appellants and affirm their convictions of two counts of
    first degree murder.

Released: (JL)  February 28, 2014

David Watt J.A.

I agree  John Laskin J.A.

I agree  J.C. MacPherson J.A.





[1]
This is subject to the exception recognized in
R. v. Titus
, [1983] 1
    S.C.R. 259.



[2]
A person may also aid by failing to do something that it is his or her
    statutory or common law duty to do.  Aiding by omission is not an issue in this
    appeal.


