



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Woodcock, 2015 ONCA 535

DATE: 20150717

DOCKET:
C53297

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louis Raphael Woodcock

Appellant

James Lockyer and Mindy Caterina, for the appellant

Lucy Cecchetto, for the respondent

Heard: June 25, 2015

On appeal from the convictions entered on April 1, 2010
    by Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a
    jury.

MacPherson J.A.:

[1]

The appellant was charged with second degree murder in the tragic death
    of 15-year-old Jane Creba. Ms. Creba, who was shopping with her sister on
    Boxing Day in 2005, was hit by a stray bullet during a gunfight between two
    groups of young men on a very crowded Yonge Street in Toronto, just north of
    the Eaton Centre.

[2]

Following a jury trial over which Pardu J. (as she then was) presided, the
    appellant was convicted of manslaughter in relation to the death of Ms. Creba
    and four counts of aggravated assault in relation to four other individuals
    wounded by stray bullets. The appellant appeals his convictions.

[3]

Ms. Creba was killed by a .357 Magnum bullet fired northbound by
    Jeremiah Valentine. The Crowns theory of causation was that the appellant, Valentine,
    and others in their groups had decided, prior to any shots being fired, to
    engage in a gunfight on a public street. As a result, but for the appellants
    willingness to engage in a gunfight, Valentine would not have fired the bullet
    that killed Ms. Creba.

[4]

The Crowns theory of causation had already proven successful against one
    of the appellants associates, J.S.R., who was convicted of second degree
    murder in Ms. Crebas death: see
R. v. J.S.R.
, (2008), 237 C.C.C. (3d)
    305 (Ont. C.A.);
R. v. J.S.R.,
2012 ONCA 568, 112 O.R. (3d) 81, leave
    to appeal to S.C.C. refused, [2012] S.C.C.A. No. 456. J.S.R. and the appellant
    were part of a group of friends standing outside a Foot Locker store when
    Valentine opened fire. Almost immediately, J.S.R.  or, less likely, the
    appellant  fired a 9mm automatic handgun southbound.

[5]

The Crowns theory of the appellants role was that he owned and carried
    the 9mm handgun and passed it to J.S.R., possibly after firing shots himself.
    There was strong evidence connecting the appellant to the gun, including DNA
    and the testimony of some of his associates. However, the evidence connecting
    the appellant to the actual shooting of the gun was circumstantial. Many
    eyewitnesses to the brief events on Yonge Street testified, but none of them
    identified the appellant as a shooter or saw him passing a gun to J.S.R.

[6]

The appellant submits that the trial judge erred in three respects: (1) by
    admitting expert evidence about how people carry and conceal guns in public;
    (2) by failing to instruct the jury that, in order to establish causation
    against the appellant, the Crown had to prove the mutual gunfight theory; and
    (3) by declining to leave self-defence with the jury.

(1)

Expert evidence
[1]

[7]

The appellant can be seen in surveillance video from the Eaton Centre
    wearing a jacket that is done up, but with his right or left arm occasionally
    out of the sleeve of the jacket. The trial judge allowed Stephen Horwood, a
    32-year veteran of the Toronto Police Service and a current criminal
    investigator for the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives,
    to testify as an expert on the recognition of the characteristics of armed
    persons. His evidence was that criminals keep firearms hidden but readily
    accessible and that likely areas of concealment are the waist, pants pockets or
    jacket pockets. He stated that a fully loaded 9mm handgun weighs 2 to 2.5
    pounds and that, if such a gun were tucked in the pants waist, it would shift
    as the individual moved, requiring it occasionally to be readjusted.

[8]

The initial ruling that Horwoods testimony was admissible forbade the
    Crown from showing Horwood the Eaton Centre surveillance video and adducing
    from him that the appellant had characteristics consistent with that of an
    armed person. On cross-examination, defence counsel referred to Horwoods
    observations of the appellant in the surveillance video. The Crown then
    successfully applied to play the surveillance video for Horwood. In
    re-examination, Horwood testified that the appellant caught his attention in
    the video as someone who was possibly armed. Yet, Horwood saw no protrusions in
    the appellants waist or pockets that resembled a gun. He admitted that he
    could not tell from the video whether the appellant was armed or not.

[9]

The appellant makes two submissions on this issue.

[10]

First,
    the appellant contends that Horwoods evidence should not have been admitted
    because, even by his own testimony, it was mostly  common sense. It follows
    that the jury did not need the assistance of an expert in order to evaluate the
    evidence.

[11]

I
    do not accept this submission. In my view, a full and fair reading of Horwoods
    testimony leads to the conclusion that his expertise was based on a combination
    of experience, science and common sense.

[12]

Moreover,
    in her ruling,
[2]
the trial judge drew a careful balance in setting the boundaries for Horwoods
    testimony. She permitted Horwood to testify about the physical properties of
    guns and how people carry and conceal guns. At para. 18, she observed,
    correctly in my view:

I am satisfied that this evidence is necessary to give the jury
    the tools to appreciate the evidence. It would not be surprising if most or all
    of the jurors will have never handled a handgun, much less carried an illegal
    firearm. Such an object is not an ordinary household object with which most
    persons can be presumed to be familiar.

[13]

However,
    the trial judge did not permit Horwood to view the video in the presence of the
    jury and offer his opinion about what he saw, on the basis that the potential
    prejudice associated with this evidence could exceed its probative value: at
    para. 2.

[14]

In
    the end, I cannot say that the halfway house result the trial judge reached
    in her comprehensive and well-reasoned ruling is flawed.

[15]

The
    appellants second submission on the expert evidence issue arises because of a
    changed landscape during the trial. Defence counsel vigorously and successfully
    cross-examined Horwood. He established that, after viewing the video, Horwood
    could not tell which of the appellants hands was dominant and could not see
    any protrusion in the appellants body or clothing. The cross-examination
    concluded with this exchange:

Q.      And from viewing that video, the most you could ever
    say is that the person whose arms are in the coat showed some signs of somebody
    who might be armed, correct?

A.      Correct.

Q.      You certainly cannot say, even from your expert
    opinion, that that person is likely armed, can you?

A.      No.

Q.      You couldnt even give this jury, say, a percentage
    chance of the person being armed?

A.      No, sir.

Q.      You couldnt say whether its a 1 percent chance, a 2
    two percent chance, a 20 percent chance? You cant even assist at all in that
    respect, can you?

A.      In saying definitively whether or not that person had a
    gun, no, I couldnt.

[16]

Following
    this cross-examination, Crown counsel requested that, in his re-examination, he
    be permitted to play the video in court and ask Horwood questions about it. The
    trial judge allowed this; however, she first permitted defence counsel to
    re-open his cross-examination to play the video in court and ask Horwood
    questions about it.

[17]

The
    appellant contends that the trial judge erred by permitting the video to be
    shown during re-examination. He says that this, in effect, reversed the second
    component of the trial judges initial ruling.

[18]

I
    am not persuaded by this submission. In Horwoods examination-in-chief, the Crown
    did not ask any questions about the video. Indeed, the Crown did not even ask
    Horwood if he had viewed the video. Then defence counsel conducted a
    cross-examination, which the appellants counsel described during the appeal
    hearing as very effective. The cross-examination included many questions
    about Horwoods viewing and interpretation of the video. In light of these two
    trial episodes, it became reasonable, in my view, for the trial judge to permit
    both counsel to play the video in court and ask Horwood questions about it.
    Both counsel did so, first defence counsel in a re-opened cross-examination and
    then Crown counsel in re-examination.

[19]

In
    summary, I see no error in the trial judges initial admissibility ruling or in
    her treatment of the cross-examination/re-examination issue. Both were
    appropriately balanced. I would not give effect to this first ground of appeal.

(2)

Causation

[20]

In
    the first
J.S.R.
appeal in this court, in 2008, the court found that
    the mutual gunfight theory of causation required the northbound shooter and J.S.R.
    to have decided to engage in a gun battle on a public street before the shots
    were fired. It was not enough for J.S.R to be merely returning the fire
    initiated by the northbound shooter: at para. 26.

[21]

On
    this appeal, the appellant does not contest that the Crown was entitled to
    anchor its causation argument in the mutual decision by the two groups to
    engage in a gunfight on a public street. However, the appellant submits that
    the trial judge gave an inadequate charge on this aspect of the case. The
    appellant asserts that the trial judge did not explain that the Crown had to
    prove this mutual decision theory with respect to the appellant in order to
    find that his conduct was a significant contributing cause to Ms. Crebas death.
    This, the appellant says, amounted to non-direction on a key element of
    causation.

[22]

I
    do not accept this submission. The relevant parts of the trial judges
    instruction on this issue are:

For an act to cause someones death, it must be at least a
    contributing cause, one that is beyond something that is trifling or minor in
    nature
.

It is likely that the bullet that injured and killed Jane Creba
    came from a gun fired by Jeremiah Valentine, who has pleaded guilty to her
    murder.
In dealing with this question, you must determine whether the
    conduct of the accused also caused her death, in that it was a contributing
    cause, beyond something that is trifling or minor in nature
.

If the conduct of the accused played no role in the death
    of Jane Creba, or if you have a reasonable doubt as to whether it contributed
    in a significant way to her death, then you must acquit the accused
.

If the Crown satisfies you beyond a reasonable doubt that
    the actions of the accused were a contributing cause of the death of Jane
    Creba, as I have described, then you will go on to the last question
.



The next question is whether the Crown has proven that the
    actions of the accused were a significant contributing cause to the death of
    Jane Creba.

The Crown submits that this was, in effect, a mutual shootout,
    and that the issue of who fired the first shot is of no moment and only
    reflects who reacted the fastest. The Crown submits that Jane Creba died as a
    result of a decision by both the accused and Jeremiah Valentine to participate
    in a shootout on Yonge Street, and that the conduct of the accused in firing,
    or passing a gun so [J.S.R.] could fire it, was a contributing cause of the
    death. The Crown submits that this position is supported by the following
    evidence:

(a) Given the timing of the gunshots, the accused must have
    been carrying loaded firearms. This suggests they were ready for a gunfight.

(b) From the words expressed by Valentine as he came out of
    the Foot Locker store, one can infer that there was a conflict of some sort
    between the accused and Valentine, and that the accused accepted his challenge
    to engage in a gunfight.

(c) From the number of shots fired and the rapidity with
    which the shots were fired, one can infer that the accused were willing to
    participate in a gunfight.

The defence submit that the bullet fired by Valentine killed
    Jane Creba, and that she could have been killed by the first bullet fired in
    the incident. The defence submits that the conduct of the accused had no effect
    on Jane Creba and did not cause her death. Neither the 9 millimetre Ruger, nor
    the .25 caliber gun injured Jane Creba. They submit that there is no evidence
    of any agreement to participate in a mutual shootout. The accused were chatting
    with friends as they stood outside the Foot Locker, saying goodbye to the
    girls, and there is no basis to conclude that they were part of any agreement
    to engage in a gunfight.

It will be up to you to determine, based on all of the
    evidence you have heard and all of the exhibits and admissions, whether the
    Crown has proven a sufficient causal relationship between the actions of the
    accused and the death of Jane Creba, according to the legal requirements for
    causation as I have explained them to you
. [Emphasis added.]

[23]

In
    my view, these passages are an appropriate combination of instruction on the
    applicable legal principles (the emphasized passages) and setting out, in a
    clear and succinct fashion, the positions of the parties on those issues. They
    are not, as the appellant asserts, devoid of content on the former and entirely
    concerned with the latter. It is true that the trial judge did not convert her
    summary of the opposing positions of the parties into a precise question for
    the jury to answer about a mutual decision to engage in a gunfight. However, in
    my view, the combination of her simple and clear summary of the parties
    positions on the mutual shootout issue and the legal instruction she gave
    would have focussed the jurys attention appropriately to answer the question
    posed in the final paragraph of the above passage.

[24]

In
    that vein, it is important to note that experienced defence counsel did not
    object to this component of the jury charge. In my view, this is not surprising
    given that the appellants core position, advanced in his closing address, was
    that he was not involved at all in the gunfight: he did not have a gun on
    Boxing Day, he did not fire a gun and he did not do anything to assist anyone
    else in firing a gun.

(3)

Self-defence

[25]

At
    trial, the appellants counsel informed the trial judge that he would not be
    advancing self-defence in his closing address; however, he requested that the
    trial judge include an instruction on self-defence in her jury charge. She
    refused. In a brief initial ruling, the trial judge said:

I will not be putting self-defence or provocation to the jury
    on the ground that there is no air of reality to those defences based on the
    evidence before me because of the absence of evidence related to the subjective
    elements.

Several days later, the trial judge provided additional
    reasons explaining this ruling.

[26]

The
    appellant submits that the trial judge erred in making this ruling. He says
    that there was evidence that Valentine threatened the appellants group and
    then fired the first shots. If the jury accepted this evidence and found that
    there was no prior agreement by the appellant to engage in a gunfight, then it
    would have been a legitimate act of self-defence for the appellant to fire back
    or to aid J.S.R. in doing so. The appellant would then be guilty of unlawful
    possession of a handgun, but not of manslaughter.

[27]

I
    do not accept this submission. In
R. v. Gauthier
, 2013 SCC 32, [2013]
    2 S.C.R. 403, at para. 34, Wagner J., after reviewing the leading authorities,
    said:

In conclusion, there is no cardinal rule against putting to a
    jury an alternative defence that is at first glance incompatible with the
    primary defence. The issue is not whether such a defence is compatible or
    incompatible with the primary defence, but whether it meets the air of reality
    test. In any case, the trial judge must determine whether the alternative
    defence has a sufficient factual foundation, that is, whether a properly
    instructed jury acting reasonably could accept the defence if it believed the
    evidence to be true.

[28]

In
    my view, the trial judge engaged in precisely this analysis. The appellant
    testified, so she reviewed his evidence: he did not possess a gun on Boxing
    Day; he did not fire a gun; for an instant he saw Valentine point a gun only at
    J.S.R. and not at him; he then saw J.S.R. pull out a gun; he started to run
    away; and he then heard the gunfire. This review led her to conclude that there
    was nothing to ground the subjective elements of the components of the then s.
    34(2) of the
Criminal Code
, R.S.C.
    1985, c. C-46 concerning whether the appellant believed he was being assaulted
    and could not save himself from being killed except by firing a gun
.
    The trial judge said that, for the jury to find these subjective elements
    required under s. 34(2), they would have to disbelieve the appellants evidence
    that he did not have a gun, disbelieve his evidence about his own state of mind
    and draw inferences that he had a different state of mind. Accordingly, she
    concluded that there was no air of reality to the proposed defence.

[29]

I
    agree with the trial judges analysis. She was aware of the applicable test,
    reviewed the relevant evidence, and reached a sound conclusion. In
R. v.
    Pappas
, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 26, McLachlin C.J.
    said:

The fact remains that the trial judge exercises a gatekeeper
    role in keeping from the jury defences that have no evidential foundation.
    Defences supported only by bald assertions that cannot reasonably be borne out
    by the evidence, viewed in totality, should be kept from the jury.

[30]

That
    is what the trial judge did in this case. I can see no error in how the trial
    judge exercised her gatekeeper function with respect to self-defence.

Disposition

[31]

I
    would dismiss the appeal.

Released: July 17, 2015 (H.S.L.)

J.C.
    MacPherson J.A.

I agree.
    Janet Simmons J.A.

I agree.
H.S. LaForme J.A.





[1]
At the appeal hearing, the panel did not call on the respondent to address this
    issue.



[2]
The trial judges reasons are reported at 2010 ONSC 671.


