



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Campbell, 2021 ONCA 739

DATE: 20211019

DOCKET: M52783 (C68693)

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

Andrew Campbell

Applicant

Aidan Seymour-Butler, for the applicant

Stephanie A. Lewis, for the responding party

Heard: October 12, 2021 by video conference

ENDORSEMENT

I.        OVERVIEW


[1]

The applicant, Andrew Campbell, applies for bail
    pending appeal.

[2]

Almost three years ago, on November 2, 2018, Mr.
    Campbell was convicted by a jury of kidnapping, pointing a firearm, and assault
    causing bodily harm.

[3]

Briefly, the facts as set out in the reasons for
    sentence are as follows. A confrontation occurred between Mr. Campbell and the
    victim, Jamal Karshe, in the early morning hours one Saturday in 2015 at the
    apartment of Heather Lafleur. In the result, Mr. Campbell left the apartment
    and then returned with a handgun, which he pointed at Mr. Karshe. Mr. Campbell
    directed Ms. Lafleur to tie up the victim and then pour heated oil on the
    victims thigh and around his ears. Mr. Campbell and Ms. Lafleur then put
    the victim in a truck, which Mr. Campbell drove to a wooded area. He put Mr.
    Karshe on the ground and choked him to the point of unconsciousness.

[4]

On May 22, 2019, the sentencing judge imposed a
    global sentence of seven years imprisonment which, after appropriate credits,
    resulted in a sentence to be served of 73 months, or six years and one month.
    The time remaining on his sentence is now three years, eight months, and two
    weeks.

[5]

Mr. Campbell filed an inmate notice of appeal
    dated June 6, 2019 against conviction and sentence. By order dated September
    18, 2020, Hourigan J.A. granted Mr. Campbell a s. 684 order. A solicitors
    notice of appeal was filed on October 8, 2020.

[6]

By notice of application dated August 16, 2021,
    Mr. Campbell seeks bail pending appeal.

[7]

The Crown opposes the application. The Crown
    takes the position that while Mr. Campbells appeal is not frivolous and he
    will surrender into custody in accordance with the terms of a release order, he
    has not demonstrated that his detention is not necessary in the public
    interest:
Criminal Code
,
R.S.C. 1985, c. C-46,
s. 679(3)(c).

II.       RESIDUAL PUBLIC SAFETY CONCERNS

[8]

The Crown submits that there are residual public
    safety concerns inherent in Mr. Campbells release plan as it proposes that for
    the first two weeks following his release, the appellant live alone at his
    mothers home, not in the presence of any of his sureties. The appellants
    mother proposed this arrangement in order to minimize the risk that she might
    contract COVID-19 from him upon his release.

[9]

At the hearing, the appellant abandoned this
    part of his release plan in light of the Crowns opposition. Under his amended
    plan, Mr. Campbell would reside in his mothers presence from the time of his
    release.

[10]

As a result of this amended plan, I am satisfied
    that there are not any residual public safety concerns with the proposed
    release plan. As well, Mr. Campbell complied with the terms of his
    presentence interim release.

[11]

I next consider the reviewability and
    enforceability interests that make up the public confidence component of
Criminal
    Code
s. 679(3)(c).

III.      REVIEWABILITY INTEREST

A.

Introduction

[12]

The strength of the grounds of appeal play a
    central role in assessing the reviewability interest. In conducting a more
    pointed assessment of the strength of an appeal beyond the not frivolous
    requirement, a court must examine the grounds identified in the notice of
    appeal with an eye to their general legal plausibility and their foundation in
    the record:
R. v. Oland
,
2017
    SCC 17, [2017] 1 S.C.R. 250
, at para. 44. The courts
    task is to ascertain if the grounds of appeal clearly surpass the minimal
    standard required to meet the not frivolous criterion:
Oland
, at
    para. 44.

[13]

On this application, Mr. Campbell focuses on
    three grounds of appeal: (i) the trial judge failed to properly instruct the
    jury on the need for cultural competence and context when assessing the
    evidence of the appellants post-offence conduct; (ii) the trial judge failed
    to properly instruct the jury on reasonable doubt; and (iii) the verdict was
    unreasonable.

[14]

In his reasons granting the s. 684 order,
    Hourigan J.A. considered the merits of the appeal, concluding that he would not
    categorize any of the grounds of appeal as strong. However,
he was not prepared to conclude that none of the grounds
    are arguable:
R. v. Campbell
,
    2020 ONCA 573, at para. 10.

B.

Grounds of appeal concerning the charge to the
    jury

[15]

Two of the grounds concern the trial judges instructions
    to the jury.

Post-offence conduct

[16]

The first concerns the charge regarding how the
    jury could use the evidence of Mr. Campbells conduct at the time of his
    arrest.

[17]

After Mr. Karshe was left unconscious on the
    ground, he awoke and walked to a gas station, where help was summoned. The
    police were called.
Three plain clothes officers went to Ms. Lafleurs
    apartment building where they set up surveillance of her apartment door in the
    stairwell. When Mr. Campbell and another male left the apartment, the plain
    clothes officers exited the stairwell. At least one officer had his gun drawn.
    Mr. Campbell ran. The officer who testified at trial was confident that he said
    something to the effect of stop, police, but he was not confident about
    whether he did so before or after Mr. Campbell started to run. Mr. Campbell
    fled to the stairwell on the opposite side of the hall. The arresting officers
    pursued him downstairs and into the hallway of the tenth floor. There, Mr. Campbell
    stopped running, faced the approaching officers, and put his hands in the air.
    He was tackled to the ground, handcuffed, and told he was under arrest for
    attempted murder.

[18]

In his charge, the trial judge gave detailed
    instructions on the use the jury could make of the evidence about what Mr.
    Campbell did or said during the events surrounding his arrest. In the course of
    his instructions, the trial judge reviewed Mr. Campbells evidence about those
    events:

[94] Mr. Campbell testified that he ran
    because three men were chasing him with firearms drawn. He did not realize they
    were police officers until he was handcuffed.

[95] Mr. Campbell testified that the previous
    evening, some guy was calling Ms. La[f]leur repeatedly and to his knowledge,
    she did not take any of the calls. In his police statement there is evidence
    that Mr. Campbell was concerned about this guy and that he may send some men
    over. He did not know the guy and had never met him. When asked why he would be
    concerned, he said he was paranoid.

[19]

The trial judge also reviewed some of the
    evidence given by Officer Wilson about those events:

[103] When cross-examined, Officer Wilson agreed that it would
    be reasonable to run if three unknown men with guns were chasing you, or
    something to that effect. However, it was also the officer's evidence that he
    and the other officers repeatedly yelled "Stop police" or something
    to that effect and Mr. Campbell stopped running on the 10th floor.

[20]

In the portion of the charge setting out the
    position of the defence, the trial judge stated:

Defence counsel suggests that the, or submits rather, that the after-the-fact
    conduct alleged by the Crown, that is Campbell running from police in civilian
    clothing is of no assistance in determining the legal issues in this case. Mr.
    Campbell had a perfectly reasonable explanation for why he ran. In fact,
    defence counsel asks us to recall Officer Wilson's testimony that he, too,
    would have done the same, that is run away from strange men with guns.

[21]

The appellant does not dispute that the charge
    on post-offence conduct contains the required elements for a standard charge on
    such evidence. The appellants complaint is that the charge was legally
    deficient because it was insufficient on the issue of the issue of
    race/cultural context of the appellants evidence  specifically, the
    perspective of the appellant, a Black man, when faced with plain clothes
    officers with their guns drawn.

[22]

During the pre-charge conference, defence
    counsel advised that she did not have major issues with the post-offence
    conduct section of the charge. While defence counsel requested certain wordsmithing
    changes to the narrative of events, no request was made to add language of a
    racial/cultural context nature.

Reasonable doubt

[23]

The appellant submits that the trial judge erred when,
    following questions from the jury, he failed to provide further instructions on
    the issue of credibility or recharge on
R. v.
W.(D.)
, [1991] 1 S.C.R. 742.

[24]

After retiring, the jury sent the judge a
    question: 
We would like to hear a playback of Jamal Karshe's
    cross-examination.
A discussion ensued amongst the trial
    judge and counsel whether the entirety of the cross-examination should be
    played back or whether the jury should be asked if there were specific portions
    of the cross-examination they wished to listen to. It was agreed to bring the
    jury back and ask if they could be more definitive about what evidence they
    wanted to hear. The trial judge then asked the jury to retire and provide a
    written answer to the following question:

The only question we had and I'm going to put the question to
    you and then you're going to have to go out and put your response in writing,
    but is there a certain area you're looking at or do you want to hear the whole
    thing generally?

[25]

Further discussion ensued once the jury retired.
    Defence counsel stated that since the jury seemed to be discussing the
    credibility and reliability of Mr. Karshes evidence, it might be best to
    playback the entire cross-examination.

[26]

The jury returned with a two-part written
    request regarding Mr. Karshes evidence:

Did  in anywhere during Mr. Karshe's testimony, was he asked
    if he knew or had knowledge of a gun, I think in Heather's apartment prior to
    seeing it in Mr. Campbell's hands?

Would like to hear the defence attorney's suggestion at the end
    of Mr. Karshe's testimony and his responses.

[27]

Further discussion ensued amongst the trial
    judge and counsel.

[28]

Defence counsel initially submitted that the
    whole cross-examination should be played to the jury. Ultimately, the trial
    judge and counsel agreed that the jurys inquiries could be addressed by
    playing back a specific part of Mr. Karshes cross-examination. The jury
    returned; the portion was played back; at the end of which the trial judge
    inquired:

All right, members of the jury. You've heard
    that exchange. Were you able to hear it? And did it answer the questions or the
    inquiries or do you need to hear further evidence? Everyone seems okay. All
    right. Then I'll ask you to step out again and continue your discussions for a
    little while anyways. Thank you.

[29]

No request was made by defence counsel that the
    trial judge provide further instructions on the issues of credibility and
    reasonable doubt.

C.

Unreasonable verdict

[30]

The appellant submits that the jurys verdict
    was unreasonable for two reasons: (i) the only direct evidence led by the Crown
    about the events came from the complainant, Mr. Karshe; and, (ii) although a
    gun was found in the stairwell near the place of Mr. Campbells arrest, his DNA
    was not found on that gun.

[31]

The Crown counters that the mere fact that Mr.
    Campbells DNA was not found on the firearm did not make the pointing a firearm
    conviction unreasonable because:

There was ample evidence to support the jurys verdict on this
    count: the victim testified that the [appellant] threatened him with a handgun
    wrapped in green cloth; the arresting officer testified that the [appellant]
    looked like he was running with a weapon; and a handgun wrapped in green cloth
    was recovered from the stairwell the [appellant] ran through.

D.

Potential grounds of appeal

[32]

The appellants notice of application hints at
    possible other grounds of appeal that are under investigation by appellate
    counsel: the propriety of the Crowns cross-examination of the appellant and
    trial counsels concession of the voluntariness of the appellants statement to
    the police. Given that these potential grounds of appeal are under
    investigation, undeveloped, and do not form part of the notice of appeal, I am
    not prepared to consider them as part of this application:
Oland
, at
    para. 45.

E.

Assessment

[33]

I have considered the three grounds of appeal in
    light of the trial judges charge to the jury, the discussion between the trial
    judge and defence counsel during the pre-charge conference and following the
    question from the jury, and the evidence regarding the handgun and the
    circumstances of Mr. Campbells arrest. While the absence of an objection from
    defence counsel is not determinative of the two issues regarding the
    instructions to the jury, it does inform the consideration of whether the trial
    judge adequately tied the legal instructions to the specific circumstances of
    the case.

[34]

I agree with the assessment made by Hourigan
    J.A. in his s. 684 reasons  that is to say, I cannot conclude that none of the
    grounds are arguable. At the same time, I do not view them, to use the language
    of
Oland
, as clearly surpassing the minimal standard required to meet
    the not frivolous criterion.

IV.      ENFORCEABILITY INTEREST

[35]

Mr. Campbell has been convicted of very serious
    offences. The circumstances of the offences, as described in para. 3 above,
    were violent and caused Mr. Karshe significant harm. The global sentence
    imposed of seven years imprisonment underscores the seriousness of the
    offences.

V.       BALANCING THE INTERESTS

[36]

Balancing the reviewability and enforceability
    interests that make up the public confidence component of
Criminal Code
s. 679(3)(c) requires a qualitative and contextual assessment, measured through
    the eyes of a reasonable member of the public:
Oland
, at paras. 47 and
    49.

[37]

I conclude that in the present case the
    enforceability interest significantly outweighs the reviewability interest. The
    grounds of appeal, although arguable, do not clearly surpass the minimal
    standard of the not frivolous criterion. The offences were very serious, understandably
    attracting a lengthy prison sentence.

[38]

This is not a case where the anticipated delay
    in hearing the appeal relative to the length of the sentence tips the balance
    in favour of reviewability:
Oland
, at para. 48. The appellant delayed
    for a considerable period of time before bringing this application for release:
    he waited over two and one-half years following his conviction and one year
    since the appointment of counsel following the s. 684 application.

[39]

As well, the appellant has not indicated a willingness
    to move his appeal along with dispatch. While the appellant proposes as a
    condition of release the standard term of pursuing his appeal with all due
    diligence, he objects to the Crowns request that any release order require
    him to perfect his appeal by the end of this year. I pressed applicants
    counsel on this point during the hearing, but it is obvious that he lacked
    instructions to commit to any specific perfection date, let alone a reasonably
    prompt perfection date. Such an unwillingness raises concerns on my part that
    if release were to be granted, the appellant would not pursue his appeal with
    all due diligence, contrary to the general obligation that all appellant
    offenders proceed with their appeals in a timely fashion.

[40]

Accordingly, on the record before me, I am not
    satisfied that the appellant has demonstrated that his detention is not
    necessary in the public interest.

DISPOSITION

[41]

For these reasons, the application for bail pending
    appeal is dismissed.

David Brown J.A.


