



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Newton, 2017 ONCA 496

DATE: 20170615

DOCKET: C60220 and C60429

Laskin, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Newton

Appellant

and

Shaquille Collins

Appellant

Delmar Doucette and Lauren Wilhelm, for the appellant
    Christopher Newton

Christopher Hicks, for the appellant Shaquille Collins

Nadia Thomas and Frank Au, for the respondent

Heard: April 11, 2017

On appeal from the convictions entered by Justice Jane A.
    Milanetti of the Superior Court of Justice, sitting with a jury, on June 12,
    2014.

Laskin J.A.:

A.

overview

[1]

In 2012, in the middle of the day on Monday of the Victoria Day long
    weekend, in a residential neighbourhood in Hamilton, the appellant Shaquille
    Collins ran into Justin Beals, who was with his girlfriend Amber Thorogood.
    Collins was 19 years old and Beals was 34. Collins was angry at Beals because
    seven months earlier when both were inmates at the Hamilton-Wentworth Detention
    Centre, Beals and a few others had assaulted Collins. Collins tried to goad
    Beals into a fight. Beals turned away until Collins took a swing at Thorogood. Then,
    Beals and Collins started fighting. The fight took place over several city
    blocks. Finally Collins ran away. Beals and Thorogood went to her cousin
    Brandon Hacketts apartment at 16 Milton Avenue.

[2]

But the fight was not over. Collins called his friends Shamar Tynes and
    the appellant Christopher Newton for help. Newton called a taxi. He and Tynes
    got in the taxi and picked up Collins. The three young men then headed for 16
    Milton. The taxi stopped 50 metres away. All three got out. Collins took a Colt.45
    semi-automatic handgun from Tynes, racked it, and started running toward 16
    Milton. Newton briefly followed. When Collins arrived at 16 Milton, he went
    down an alley beside the building and fired five shots. One shot struck Beals; although
    he was badly wounded he survived. Another shot struck the buildings landlord
    James Bajkor, an innocent bystander, who was roofing his shed. Bajkor was
    killed; he was only 21 years old.

[3]

Collins and Newton were jointly charged with a planned and deliberate
    first degree murder. The Crown alleged Collins intended to murder Beals and
    murdered Bajkor by mistake. Newton aided or abetted the murders. In other
    words, he assisted or encouraged Collins to commit murder

[1]
.

[4]

After a five week trial before a judge and jury, Collins was found
    guilty of first degree murder and attempted murder. On his murder conviction he
    was sentenced to mandatory life imprisonment without eligibility for parole for
    25 years; on his attempted murder conviction he was sentenced to 20 years in
    custody (less time for pre-trial detention) to be served concurrently. Newton
    was acquitted of first degree murder but found guilty of second degree murder
    and attempted murder. On his murder conviction he was sentenced to mandatory
    life imprisonment and the trial judge fixed the period of parole ineligibility
    at 15 years; on his attempted murder conviction Newton was sentenced to 12
    years in custody to be served concurrently.

[5]

Both Collins and Newton appeal their convictions and their sentences. On
    their conviction appeals each has raised several grounds of appeal, mainly
    alleging errors in the trial judges charge to the jury.

[6]

Because of my view of these appeals I will address only two issues:

1.

Did the trial
    judge err by failing to relate the evidence to the issues the jury had to
    decide?

2.

Are the verdicts
    of second degree murder and attempted murder against Newton unreasonable, thus
    entitling him to acquittals?

[7]

For the reasons that follow, I would answer yes on the first issue,
    and no on the second issue. I would therefore allow both appeals, set aside
    the convictions against Collins and Newton and order a new trial.

B.

the Issues

(1)

Did the trial judge err by failing to relate the evidence to the issues
    the jury had to decide?

[8]

Over the course of the five week trial, 20 witnesses testified,
    including several expert witnesses. In her charge to the jury the trial judge
    reviewed the evidence of most of the witnesses. She did so by reading her notes
    of their testimony, roughly in the order each witness gave evidence.

[9]

Collins and Newton submit that by reviewing the evidence this way 
    witness by witness  the trial judge failed in her duty to relate the important
    evidence to the issues the jury had to resolve. Consequently, the jury would
    not have had a sufficient understanding of how any of the evidence had a bearing
    on the many issues they had to decide. The Crown acknowledges that the trial
    judges approach to her review of the evidence was unorthodox. But the Crown
    contends that the trial judges charge was adequate, especially in the light of
    her telling the jury in detail the defences position and defence counsels
    failure to object to her approach. I agree with Collins and Newtons submission.

[10]

A trial judges obligation when charging a jury and the standard for
    appellate review of the charge are well established, the product of many
    judgments in the Supreme Court of Canada and provincial appellate courts across
    the country. In this court three of my colleagues in particular have
    extensively reviewed a trial judges obligation and the standard of appellate review:
    Doherty J.A. in
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.); Watt
    J.A. in
R. v. B.(P.J.)
,

2012 ONCA 730, 298 O.A.C. 267; and Strathy J.A. in
R. v. Minor
,
2013 ONCA 557, 303 C.C.C. (3d) 382. It
    is unnecessary here to repeat their extensive review.

[11]

In brief, trial judges have a broad discretion in how to charge a jury.
    Their decision about how much evidence to review, what structure to use and how
    to organize the charge falls within that discretion. But, ideally, the charge
    should contain some basic components. In addition to general instructions on
    the presumption of innocence, the burden of proof, how to assess the
    credibility and reliability of witnesses testimony and the like, the charge on
    the particular case should contain the following five components:


i.

the legal framework, typically the elements of the offence or offences
    with which the accused is charged;


ii.

the factual issues arising out of the legal framework that the jury must
    resolve;


iii.

the material evidence relevant to these issues;


iv.

the position of the Crown and defence on these issues; and


v.

the evidence supporting each of their positions on these issues.

[12]

A charge containing these five components best enables the jury to
    appreciate the value and effect of that evidence, and how the law is to be
    applied to the facts as
they
find them (emphasis in original).
See
    Azoulay v. The Queen
, [1952] 2 S.C.R.
    495,
at p. 498.

[13]

On appeal, the standard of review is adequacy, not perfection. An
    appellate courts approach is functional. It assesses the adequacy of the
    charge in the light of its purpose. Even if a trial judge strays from the
    ideal, the fundamental question an appellate court must ask is: has the jury
    been left with a sufficient understanding of the facts as they relate to the
    relevant issues. See
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14.
    Or, are we satisfied that the jurors would adequately understand the issues
    involved, the law relating to the charge the accused is facing, and the
    evidence they should consider in resolving the issues. See
R. v. Cooper
,
[1993] 1 S.C.R. 146, at p. 163. If the
    answer to either question is yes, then the charge will be upheld on appeal,
    despite any imperfections. If the answer is no, then the accused will have
    been denied a fair trial and any convictions must be set aside.

[14]

In this case I would answer no to the question posed in
Jacquard
and
Cooper
. The trial judges charge did contain most of the
    components of an ideal charge  the charge adequately included components one,
    two, four and five. But her charge failed adequately to address the important third
    component. She failed to charge the jury on the material evidence they should
    consider on each of the issues they had to resolve. Instead, she simply recited
    the evidence from her notes, witness by witness. A summary outline of the
    structure of her charge will illustrate how she reviewed the evidence. Her
    charge took approximately 200 transcript pages. It went as follows:

·

pp. 1507-1539: review of general duties of juries and rules of
    evidence

·

pp. 1566-1580: elements of each offence, what the Crown had to
    prove, decision tree

·

pp. 1579-1580: did Collins have the state of mind for murder

·

pp. 1581-1597: detailed review of evidence of Amber Thorogood,
    Beals girlfriend

·

pp. 1597-1598: evidence of Michelle Bayards, an eyewitness

·

pp. 1598-1601: evidence of Iris Buckingham, a resident on Barton
    Street and another eyewitness

·

pp. 1601-1611: evidence of John Hanrahan, a tenant at 16 Milton
    and another eyewitness

·

pp. 1611-1613: evidence of John Bennett, who lived at 18 Milton
    Avenue

·

pp. 1615-1630: evidence of Brandon Hackett, another tenant at 16
    Milton and Thorogoods cousin

·

pp. 1630-1655: evidence of Justin Beals

·

pp. 1655-1660: evidence of several police officers

·

pp. 1660-1663: evidence of Michael Plaxton on the video analysis of
    the surveillance tapes

·

pp. 1663-1664: questions jury had to answer on the liability of
    Collins  did Collins have the state of mind for murder and did Collins have the
    intent to murder Beals but killed Bajkor by mistake

·

pp. 1665-1667: was the murder planned and deliberate

·

pp. 1667-1673: evidence of Benjamin Sampson, a firearms expert
    from the Centre for Forensic Sciences

·

p. 1673: trial judge tells the jury [y]ou might consider any of
    the other evidence that I have already reviewed for you in connection with this
    element of planning and deliberation as well

·

pp. 1674-1678: liability of Newton as an aider or abettor

·

pp. 1679-1681: evidence of Thorogood on the liability of Newton

·

pp. 1681-1683: evidence of Brandon Hackett

·

pp. 1683-1685: evidence of Beals

·

pp. 1685-1686: evidence of Plaxton

·

pp. 1687-1688: evidence of Benoit Thibodeau, a police officer,
    regarding the cellphone searches

·

pp. 1688-1692: evidence of Kristi Tayles and analysis of the
    cellphone records

·

pp. 1692-1717: objections to the charge

·

pp. 1718-1719: Beals statement to the police

·

pp. 1720-1724: elements of attempted murder of Beals

·

pp. 1724-1728: evidence of Frank Baillie, a surgeon and an expert
    in trauma

·

pp. 1728-1732: what the Crown had to prove on each charge against
    each accused

·

pp. 1732-1734: theory of the Crown

·

pp. 1734-1738: theory of the defence

[15]

A witness by witness recitation of the evidence is almost always
    ineffective. It is ineffective for at least two reasons. First the recitation
    tends to be unnecessarily detailed, as was the trial judges recitation. When a
    trial judge simply recites all the evidence of each witness, instead of trying to
    distill it for the jury, the jurors will naturally have difficulty processing
    what evidence is important and what evidence is not.

[16]

The second and most important reason a witness by witness recitation is
    ineffective is that the summary of the evidence bears no relationship
    whatsoever to the issues in dispute. We are not court reporters. The evidence
    at trial has to be organized for the jury according to its relevance to the
    issues. Otherwise the jury will not appreciate its significance.

[17]

In
R. v. Jack
(1993), 88 Man. R. (2d) 93 (C.A.), affd [1994] 2
    S.C.R. 310, Chief Justice Scott of the Manitoba Court of Appeal warned against
    a witness by witness recitation of the evidence at para. 39:

This review of the authorities makes it clear that it is not
    the function of a trial judge to simply review at length all of the evidence
    (in reality the judges notes of the evidence) that the jury has heard. Rather,
    the task of the trial judge is to explain the critical evidence and the law and
    relate them to the essential issues in plain, understandable language. Even in long
    complex trials such as this temptation to simply summarize all of the evidence
    should be avoided, thereby facilitating the task of the jury and reducing the
    necessity for the jury to ask repeatedly for clarification on issues of
    evidence and law as occurred in this case.

[18]

And, in
R. v. B.(P.J.)
Watt J.A. emphasised the importance of
    relating the evidence to the issues at para. 44:

The responsibility of the trial judge to relate the evidence to
    the issues raised by the defence involves two components. The first is a
review
of the evidence. The second is a
relation
of the evidence to the
position
of the defence. Except in rare
    cases, where it would be unnecessary to do so, a trial judge must review the
    substantial parts of the evidence and give the jury the position of the defence
    so that the jury appreciates the value and effect of that evidence:
Azoulay
    v. The Queen
, [1952] 2 S.C.R. 495, at
    pp. 497-498.
Typically, trial judges review the evidence in the
    context of the various issues and indicate what parts of the evidence support
    the positions of the respective parties on those issues:
MacKinnon
, at
    para. 29. Judicial
review
of the evidence refreshes the jurors memory
    of the evidence given. Judicial
relation
of the evidence to the issues
    improves jurors understanding of the particular aspects of the evidence that
    bear on their decision on each essential issue in the case. [Emphasis in
    original.]

[19]

As Watt J.A. pointed out, there may be a rare case where an appellate
    court will deem a witness by witness recitation adequate: a simple case, a short
    trial, only a few witnesses.

[20]

Unquestionably, this was not one of those rare cases. It was not a
    simple case; it was not a short trial; and many witnesses testified. The issues
    were numerous and some were difficult. Collins main defence was that he did
    not plan and deliberate on the killing so he should not be found guilty of
    first degree murder. A considerable amount of evidence was relevant to the
    issue of planning and deliberation. The jury needed help to assess this
    evidence. Unfortunately, the trial judge did not help it to do so. Collins
    secondary position was that he lacked the
mens rea
or mental state for
    murder  he was just stupidly firing bullets to scare Beals. Again the trial
    judge did not discuss the evidence bearing on that issue.

[21]

The charges against Newton also raised difficult issues. The Crown
    claimed that he either aided or abetted the murder and attempted murder. But
    the trial judge failed to discuss the evidence that either supported or gave
    rise to reasonable doubt whether Newton aided or abetted Collins, knowing that
    Collins intended to kill Beals, and intending to assist or encourage Collins to
    do so.

[22]

Not only was the trial judges charge unhelpful, it was confusing. For
    example, the trial judge summarized the evidence of the firearms expert Sampson
    right after she spent three pages discussing the elements of planning and
    deliberation, which the Crown had to prove to obtain a first degree murder conviction
    against Collins. Yet Sampsons evidence was irrelevant to the issues of
    planning and deliberation. It was, however, highly relevant to whether Collins
    had the intent for murder. But the trial judge did not relate Sampsons
    evidence to the issue of intent. Instead, most of the evidence she did recite,
    following her outline of the elements of an intentional killing, had nothing to
    do with whether Collins had the necessary intent for murder.

[23]

I accept, as the Crown points out, that the trial judge ended her charge
    with a summary of the defence position given to her by counsel for Collins and
    counsel for Newton. That summary included the facts and inferences from the
    facts the defence relied on. But a summary from a partisan advocate is not a
    substitute for a review by an independent and neutral arbiter.

[24]

I also accept that defence counsel did not object to the trial judges
    approach to the review of the evidence. A failure to object to a trial judges charge
    is a relevant consideration for an appellate court. But I would hold that the
    failure to object is not determinative in this case, where convictions for first
    degree murder were at stake, and the trial judges error undermined the
    fairness of the appellants trial. I adopt what Doherty J.A. said in
R. v.
    Maciel
(2007), 219 C.C.C. (3d) 516, leave to appeal refused [2007] 3
    S.C.R. xi (note), at para. 97:

There was no objection by counsel for the appellant at trial.
    The failure to object can inform this court's assessment of the adequacy of a
    trial judge's instruction, especially where the appellant relies on
    non-direction. However, as I am satisfied that it was essential to a fair trial
    that the trial judge relate the evidence to the issue of planning and
    deliberation, counsel's failure to object is no answer to this ground of
    appeal.

See also
R. v. Pintar
(1996), 30 O.R. (3d) 483,
    at p. 519 (C.A.).

[25]

I would hold that the trial judge erred in her charge by failing to
    relate the evidence to the issues the jury had to decide. Her failure deprived
    both Collins and Newton of a fair trial. On this ground alone I would set aside
    Collins and Newtons convictions and order a new trial.

(2)

Are the verdicts of second degree murder and attempted murder against
    Newton unreasonable?

[26]

On my view of the first issue, Newton is entitled to a new trial. But he
    asks this court to go further and enter acquittals on the ground the verdicts
    against him are unreasonable. When an appellant seeks an acquittal on the basis
    of an unreasonable verdict, an appellate court asks: is the verdict one that a properly
    instructed jury could reasonably have rendered? See
R. v. Biniaris
,
    [2000] 1 S.C.R. 381, at para. 36. If the answer is no, the verdict is
    unreasonable.

[27]

At trial, the Crown contended that Newton was a party to Collins murder
    of Bajkor and attempted murder of Beals. Newton either aided or abetted Collins;
    that is he either assisted or encouraged Collins to commit murder by
    accompanying him to 16 Milton and acting as an enforcer or muscle in case
    something went wrong. To prove Newtons guilt as a party, the Crown had to
    prove that Newton assisted or encouraged Collins to commit murder, knowing that
    Collins intended to commit murder, and intending to assist or encourage Collins
    to do so.

[28]

Newton submits that he did not engage in an act of aiding or abetting,
    and that he had no intent to assist Collins to commit murder. On either basis
    the verdicts against him are unreasonable. Newtons submission proceeds in two
    stages: the first stage takes place when Newton ordered a taxi and relies on
    the jurys acquittal of Newton on the charge of first degree murder. The second
    stage takes place at the scene of the murder and relies on the uncontradicted
    surveillance evidence.

[29]

Before he arrived at the scene of the murder, Newton called a taxi and
    picked up Collins en route to 16 Milton. He contends that if he knew Collins
    intended to kill Beals, he would have known Collins planned and deliberated on
    the murder. But the jury found Newton not guilty of aiding or abetting a
    planned and deliberate murder. So, the jury must have based its verdict of
    guilt for second degree murder on what happened at the scene.

[30]

Once the taxi driver arrived at the scene, he parked in front of a
    Siemens factory about 50 metres away from 16 Milton. Surveillance footage from
    the factory showed that Newton got out of the taxi, took a few steps towards 16
    Milton, and then backtracked, all the while apparently sending text messages to
    a person unconnected to the crime. Newton says the evidence showed that he
    never went with Collins to 16 Milton and his presence near there was not enough
    to show that he assisted or encouraged Collins to commit murder while knowing
    that Collins intended to murder Beals, and intending to assist or encourage
    Collins to do so.

[31]

Further, the circumstantial evidence suggests that Newton did not have
    the requisite knowledge and intent to aid or abet Collins because Newtons mind
    was otherwise occupied. He was exchanging text messages and then, after getting
    out of the taxi, was standing apart from Collins and Tynes. Thus, Newton
    submits the verdicts against him are unreasonable.

[32]

I do not accept Newtons submission. In my opinion the verdicts against
    him are ones that a properly instructed jury could reasonably have rendered. As
    a starting point, I agree with the Crowns submission that the reasonableness
    of the verdicts against Newton must be considered by looking at all the
    evidence against him and not just what he did at the scene of the murder.
    Separating Newtons conduct before and after his arrival at 16 Milton is
    artificial.

[33]

Before his arrival at the scene, Newton called a taxi for Collins and
    then accompanied Collins to 16 Milton. Those acts were very relevant to
    Newtons conviction for second degree murder. And his acquittal for first
    degree murder did not make them irrelevant. His acquittal simply meant the jury
    had a reasonable doubt that Newton knew Collins intent to murder Beals was a
    planned and deliberate murder.

[34]

A planned and deliberate murder is a carefully thought out murder. The
    perpetrator weighs the advantages and disadvantages of committing the act. Yet
    only a minute elapsed from the time Collins called Tynes for help and Newton
    called a taxi. This short timeframe suggests the jury could well have had a
    reasonable doubt whether Newton knew Collins had planned and deliberated on Beals
    murder. In other words, when Newton called a taxi, he could have known about
    Collins intent to kill or inflict grievous bodily harm on Beals without
    knowing the extent to which Collins deliberated on his intended act.

[35]

Then Newton went with Collins to 16 Milton. The jurors would undoubtedly
    have asked themselves, why did Newton go there, he must have gone there for a
    reason. The obvious answer was to support Collins, knowing that Collins
    intended to kill Beals. It would have been immaterial to the jury that Newton
    never reached 16 Milton. He took several steps towards 16 Milton after Collins
    had taken the handgun from Tynes and racked it. By then Collins intent to kill
    Beals was readily apparent. Newton knew what Collins intended to do and he
    followed behind as Collins ran towards Beals.

[36]

It seems to me that Newtons decision to follow Collins once the gun was
    out in the open and Collins had racked it and then run towards Beals is a
    highly significant piece of evidence. From this evidence the jury could
    reasonably infer that Newton knew all along, from the time he phoned for a taxi,
    that Collins intended to kill Beals and that Newton intended to assist or
    encourage Collins by accompanying him to the scene of the murder.

[37]

Equally significant, on the evidence the jury was entitled to find that
    Newton did not retreat until the shooting was over. And from this evidence the
    jury could also reasonably infer that Newton was not surprised; he knew from
    the outset that Collins intended to kill Beals and he was determined to assist
    or encourage Collins to do so.

[38]

The verdicts against Newton are thus ones that a properly instructed
    jury could reasonably have rendered. I would therefore not give effect to
    Newtons submission that the verdicts against him are unreasonable.

C.

conclusion

[39]

The verdicts against Newton are not unreasonable. However, the trial
    judge erred in her charge to the jury by failing to relate the evidence to the
    issues the jury had to resolve. Her error deprived Collins and Newton of a fair
    trial. I would allow their appeals, set aside their convictions, and order a
    new trial.

Released: J.L. June 15, 2017

John
    Laskin J.A.

I
    agree. David Watt J.A.

I
    agree. C.W. Hourigan J.A.





[1]
Separately Tynes w
as allowed to plead guilty to manslaughter.


