



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicholson, 2017 ONCA 3

DATE: 20170105

DOCKET: C55302

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Nicholson

Applicant/Appellant

Erin Dann and Janani Shanmuganathan, for the appellant

David Finley, for the respondent

Heard: November 23, 2016

On appeal from the conviction entered and the sentence
    imposed by Justice Guy P. Di Tomaso of the Superior Court of Justice, sitting
    with a jury, on June 2, 2010.

Pardu J.A.:

[1]

Two groups of young males, some fueled by alcohol, traded insults at an
    apartment building on Strabane Avenue in Barrie, Ontario. One group was on the
    front lawn of the apartment building; the other was inside an apartment.
    Tensions escalated between the two groups throughout the morning of June 16,
    2007.

[2]

The appellant, Joseph Nicholson, came to the apartment after he received
    a call from the occupants. He entered the apartment through the back door and soon
    stormed out of the building to confront the other group, followed by three
    others. Two members of the outside group, Jeremy Rodgers and Joseph Tanner, were
    stabbed in the altercation. Mr. Rodgers survived but Mr. Tanner died from his
    injuries.

[3]

After the stabbings, the appellant and his associates went back into the
    apartment and left the apartment building through the back door. Upon leaving
    the premises, the appellant dropped a knife in a sewer. The four young men eventually
    took a cab to the appellants apartment where they changed their clothing.

[4]

Relying on a statement he made to the police, the appellants position
    at trial was that he stabbed Rogers in self-defence and denied that he stabbed
    Tanner.

[5]

A jury convicted the appellant of attempted murder of Mr. Rodgers and
    first degree murder of Mr. Tanner.

A.

Issues

[6]

The appellant appeals from conviction on four grounds:

1)

The trial judge
    erred in his instructions on the appellants after-the-fact conduct, consisting
    of flight, disposal of evidence and change of clothing.

2)

The trial
    judges relation of evidence to the jury relevant to planning and deliberation
    was heavily weighted in favour of inculpatory evidence and made scant reference
    to evidence suggesting an absence of planning and deliberation. The trial
    judges charge to the jury also included evidence that was irrelevant to the issue
    of planning and deliberation, and was inconsistent with the trial judges
    earlier rulings refusing to leave party liability on the murder or manslaughter
    of Mr. Tanner to the jury.

3)

The trial
    judges jury instructions on the intent required for murder were insufficient.

4)

The trial judge
    erred in refusing to redact references to the appellant being bipolar from
    statements admitted at trial. The appellant submits that this stigmatized him
    in the eyes of the jury.

B.

Analysis

(1)

After-the-fact conduct

[7]

The after-the-fact conduct in issue in this case consisted of the
    appellants flight from the scene, disposal of evidence, and change of clothing.

[8]

The appellant acknowledges that after-the-fact conduct can be relevant
    to the assessment of an accuseds claim of self-defence:
R. v. Rodgerson
,
    2014 ONCA 366, [2014] O.J. No. 2232, at para. 53, affd 2015 SCC 38, [2015] 2
    S.C.R. 760, at para. 27;
R. v. Peavoy
(1997), 34 O.R. (3d) 620, at p.
    631-32 (C.A.).

[9]

Both trial counsel and the trial judge agreed that evidence of the
    appellants after-the-fact conduct was irrelevant to the murder charge, but
    could be left to the jury in assessing the claim of self-defence in relation to
    the attempted murder charge. The trial judge explicitly told the jury that this
    evidence relates only to Mr. Nicholsons claim of self-defence regarding
    Jeremy Rodgers and cannot be used in determining the criminal culpability of
    Mr. Nicholson regarding Joey Tanner.

[10]

However, as the trial judge proceeded to charge the jury on the issue of
    self-defence and the relevance of the after-the-fact conduct on the attempted
    murder charge, the trial judge continually referred to the 
offence
s
charged. For
    example, the trial judge charged the jury as follows:

On the other hand, if you find that Joseph Nicholson actually
    did or said what he is alleged to have done or said after the offences were
    committed, you must consider next whether this was because Joseph Nicholson was
    conscious of having committed the
offences
charged
    or for some other reason.



If you find that Joseph Nicholson
    actually did or said what he is alleged to have done or said after the
offences
were committed, you must be careful not to
    immediately conclude that he did or said so because he was conscious of having
    committed the
offences
charged.

[11]

The appellant submits that use of the plural offences undermined the
    trial judges express instructions that the evidence of the appellants
    after-the-fact conduct was relevant only to the attempted murder charge and
    invited the jury to consider the after-the-fact evidence in relation to both
    offences charged.

[12]

I disagree with that submission. In my view, the jury would not have
    disregarded the trial judges express instructions that the after-the-fact
    conduct could only be used in determining the appellants criminal culpability
    with respect to the attempted murder offence because the trial judge used the
    plural offences in the part of the charge dealing with the claim of
    self-defence on the attempted murder charge.

[13]

The trial judge instructed the jury on the included offence of
    aggravated assault for the attempted murder charge, although this was not an
    included offence on the language of the indictment. The use of the plural
    offences could reasonably refer to both the attempted murder and the
    aggravated assault which the trial judge treated as an included offence.

[14]

The appellant also argues that the after-the-fact conduct had no
    probative value in the particular circumstances of this case. In his statement
    to police, the appellant ultimately suggested that he might have gone too far
    in defending himself. Since he admitted to some moral culpability, the
    appellant argues that evidence of his conduct following the offence does not shed
    light on whether he acted in legitimate self-defence. He submits that the
    after-the-fact conduct does not make the claim of self-defence more or less
    credible.

[15]

I disagree. As indicated in
Rodgerson
, at para. 51:

Post-offence conduct need not point
    to only one reasonable inference to be relevant and admissible to prove a fact
    in issue. If the inference urged by the Crown is reasonably available, the
    post-offence conduct will be left with the jury, who, after considering any
    competing inferences available, will determine what effect, if any, should be
    given to the post-offence conduct evidence.

[16]

The inferences sought by the Crown from the flight, disposal of the
    knife, and change of clothing were reasonably available to the jury, although
    other inferences were possible. The trial judge did caution the jury that there
    might be other explanations for the after-the-fact conduct.

(2)

Jury charge on planning and deliberation

[17]

The trial judge provided legal instructions in relation to the planned
    and deliberate elements of the offence of first degree murder. He then related
    some of the evidence to planning and deliberation to the jury as follows:

PLANNING

·

The purpose of Mr. Nicholsons attendance at 67 Strabane Avenue
    was related to the presence of Chris Hutton and company. He had received calls
    from Massey and Deschamps to come to 67 Strabane to make sure nothing happened.
    There were problems at the apartment building. Mr. Nicholson said he would
    try to find a way to get there. According to Deschamps it was left open-ended.

·

Mr. Nicholson took a cab instead of waiting for the next city bus
    at the bus terminal to make his way to 67 Strabane.

·

Mr. Nicholson had the cab drop him off at the back of 67 Strabane
    concealing his arrival. He went into the back of the building through the back
    door and made his way directly to apartment #1.

·

Upon entering apartment #1, Mr. Nicholson put his bag down. There
    was little, if any, conversation. Mr. Nicholson said words to the effect
    lets go or lets go deal with this. Mr. Nicholson was first to go out the
    front door with Mr. Massey, Gibbs and Deschamps following behind.

·

Prior to reaching the front door, Nicholson removed his shirt.

·

Mr. Nicholson brought a knife to 67 Strabane on the morning of
    June 16, 2007. He was seen with this knife the night before.

·

Mr. Nicholson readied the knife in the open position prior to
    exiting the front door of 67 Strabane.

·

Mr. Nicholson forcefully opened the front door of 67 Strabane
    with Massey, Gibbs and Deschamps following behind.

·

With speed, Mr. Nicholson approached the group including Joey
    Tanner and Jeremy Rodgers.

·

Upon reaching the group, did Mr. Nicholson, without any advance
    warning, stab Jeremy Rodgers and Joey Tanner immediately after the other?

·

Did Mr. Nicholsons conduct involve a plan to take his victims by
    surprise? Was it a quick, simple and co-ordinated ambush?

·

Was Mr. Nicholsons plan demonstrated in his physical movements
    which were quick, focused and purposeful? You may recall the evidence of
    Kenneth Hale, Jeremy Rodgers, Margaret Smith-Kelly and Chris Hutton in this
    regard.

·

Did Mr. Nicholsons plan involve not only his own physical
    movements but also the synchronized physical movements of Massey, Gibbs and
    Deschamps?

·

After Mr. Nicholson opened the front door, did Mr.  Nicholson
    and Mr. Massey diverge in their direction of travel in order for them to
    confront the two closest males, Rodgers and Tanner?

·

Did Mr. Massey have his knife taken away by his brother Deschamps
    and was left to attack only with his fists?

·

Did Mr. Nicholson use the manhole knife to stab both Jeremy
    Rodgers and Joey Tanner in quick succession to disable them?

·

Was the manner in which Joey Tanner quickly stabbed and disabled,
    suggest an intent to kill?

·

Did Mr. Nicholson remove himself from 67 Strabane as quickly as
    he came there by immediately fleeing out the back way?

·

Mr. Nicholson made an utterance to Massey, Deschamps and Gibbs of
    the stabbing, to the effect, now I have a body under my belt.

DELIBERATION

·

Were Mr. Nicholsons actions considered actions and not
    impulsive? Did Mr. Nicholson have sufficient opportunity to deliberate?

·

Was there time before the phone calls between Nicholson, Massey
    and Deschamps and his attendance which provided Nicholson with not only time to
    plan out his conduct but to deliberate on it and consider if and how it would
    work?

·

Nicholson was aware of the beef between Hutton and Massey prior
    to his arrival after speaking with Massey and Deschamps. Did Nicholson have
    time to consider what approach, if any, he would take in dealing with Hutton
    and company?

·

Mr. Nicholson arrived at 67 Strabane with a knife in his pocket.
    Why did he bring the knife to 67 Strabane?

·

Nicholson removed his shirt before going outside. What was his
    purpose in removing his shirt?

·

Before exiting the front door of 67 Strabane, Nicholson readied
    his knife in the open position. It was available and ready for use.

·

Prior to exiting apartment #1, Nicholson had observed how many
    males were outside and where they were located when he arrived by cab. Did his
    awareness provide Nicholson with any tactical advantage in how he would
    approach them, where, and how he would escape 67 Strabane?

·

Did the manner in which Nicholson run out with others behind him
    demonstrate any thought process on the part of Nicholson to obtain an advantage
    in numbers?

·

Did Nicholsons brief time in the apartment and limited
    discussion suggest any prior development of a plan and knowledge of an
    intention to confront his victims along with Massey, Deschamps and Gibbs?

·

Did Nicholsons manner of escape suggest a predetermined thought
    process relating to escape?

[18]

Many of these elements are equally consistent with a plan to confront
    and assault the members of the other group, as opposed to a plan to commit
    murder. The facts identified by the trial judge and the manner in which the
    list was organized eclipsed this distinction. For example, the fact that the
    appellant removed his shirt before reaching the front door may be probative of
    a plan to fight rather than to murder.

[19]

Moreover, some of the evidence identified by the trial judge was irrelevant
    to the issues of planning and deliberation. For example: Was the manner in
    which Joey Tanner quickly stabbed and disabled, suggest an intent to kill
    [sic]. To get to the issues of planning and deliberation, the jury would have
    already concluded that the accused intended to kill the victim. This question
    blurs the distinction between the intent to kill, and planning and
    deliberation.

[20]

This list was also heavily weighted towards evidence supporting the Crowns
    case. Significant parts of the evidence supporting the defence were not
    included in the trial judges summary of the evidence on planning and
    deliberation, including, notably, the accuseds own statement to police given
    within 24 hours of the stabbing, which the Crown placed into evidence.

[21]

In his statement to police, the appellant told police that he did not
    know the members of the other group. He said he had no special relationship
    with the individuals in the house and that he only knew one of them. He brought
    beer to the house, and went there in part to visit. He also went there to help
    the individuals who were in the apartment deal with the group that was outside,
    kicking the window of the apartment. Members of the inside group had called the
    appellant that morning and asked for help.

[22]

The appellant also told the police that when he left the house to
    confront the other group, he ran out of the door, pumped, ready to fight. He
    may have said, lets go and take care of them, to get the other group away
    from the apartment.

[23]

He told police that he hit the guy who came after him. He said he was
    protecting himself but that maybe I did it a little bit too much. He said that
    he and the others who were in the house never had no big plans when they
    embarked on the fight with the other group of young men. He had been drinking. He
    agreed that he had a temper and that rage might have taken over before his
    brain kicked in. He said he was bipolar and had been trying to get medication
    for four years, and that as a result he snapped. He said the situation
    totally escalated way out of control and was pretty quick.

[24]

As well, these stabbings took place in broad daylight, on a residential
    street with many witnesses. The fact that the appellant carried a knife would
    not suggest planning and deliberation if it was his usual habit to carry one.

[25]

The trial judge did not relate any of the foregoing evidence, relevant to
    the issues of planning and deliberation, to the jury.

[26]

Defence counsel did not object to the charge, and the charge was the
    result of consultation with counsel. This is not determinative, however, where
    the charge is so one-sided that it amounts to unfairness.

[27]

The Crown acknowledges that this was a weak case of first degree murder,
    and asks that this court substitute a verdict of guilty of second degree murder
    if we accept the appellants arguments that the charge on planning and
    deliberation was flawed.

[28]

As I would give effect to this ground, I need not address the other
    arguments made in relation to first degree murder.

(3)

Instructions on intent to kill

[29]

In oral argument, the appellant did not pursue the position advanced in his
    factum that the instruction on the intent to commit murder was also unfair. Those
    instructions focused on the circumstances immediately surrounding the stabbings
    and the parts of the victims bodies that were stabbed  close to Mr. Rodgers heart
    and three times in Mr. Tanners back. I do not accept the argument that the aspect
    of the charge pertaining to the mental state required for murder was unfair in
    the same way as the trial judges instructions on planning and deliberation.

(4)

Refusal to remove references to the appellant being bipolar from
    statements tendered as evidence by the Crown

[30]

The appellants own statement to police and an out-of-court statement by
    a recanting witness, Mr. Gibbs, who was with the appellant in the house prior
    to the altercation, were placed in evidence before the jury. As indicated above,
    the appellant told police that he was bipolar, that he had been trying to get
    medication for four years, and that, as a result, he snapped during the
    confrontation. Mr. Gibbs told the police he was afraid of the appellant, who he
    characterized as messed up and bipolar.

[31]

The appellant submits that the trial judges refusal to remove his own
    and Mr. Gibbs references to his being bipolar could have prejudiced him in
    the eyes of the jury, and that this bad character evidence tended only to show
    that he was the type of person likely to have committed the offence.

[32]

The appellant referred to his own mental condition in explaining why he
    acted as he did in stabbing Mr. Rodgers. This was relevant to the appellants
    state of mind at the time of the offence and potentially supportive of his
    claim of self-defence. I am not persuaded that the prejudicial effect of this
    evidence necessarily outweighed its probative value. In any event, these two isolated
    references to the appellants being bipolar would not have had any impact on
    the outcome, given that the statements were made in the context of a jury trial
    that lasted approximately 13 weeks, the submissions by the Crown made no
    reference to this evidence, and the submissions by the defence and the charge
    to the jury were similarly silent in this respect. The jury would not have
    considered Mr. Gibbs to be a reliable diagnostician of the appellants mental
    health.

C.

Disposition

[33]

Accordingly, I would dismiss the appeal from conviction on all counts,
    but pursuant to s. 686(1)(b)(i) and (3) of the
Criminal Code
,
    substitute a conviction for second degree murder for the conviction for first
    degree murder. The matter is remitted back to the trial judge for sentencing
    pursuant to s. 686(3) of the
Criminal Code
.

Released: R.J.S. January 5, 2017

G. Pardu J.A.

I agree Robert Sharpe
    J.A.

I agree K. van
    Rensburg J.A.


