



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barnett, 2021 ONCA 9

DATE:  20210111

DOCKET: C64600

MacPherson, Tulloch and Lauwers
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dylon Barnett

Appellant

Amy Ohler, for the appellant

Frank Au and Vallery Bayly, for the
respondent

Heard: December 15, 2020 by video conference

On appeal from the conviction entered by
Justice Douglas J.A. Rutherford of the Superior Court of Justice, sitting with
a jury, on October 31, 2014.



MacPherson J.A.:



A.

introduction

[1]

The appellant, Dylon Barnett, appeals from his
conviction for second degree murder for his involvement in a home invasion and
robbery that resulted in the death of Michael Swan. Swan was shot by a co-accused
during the robbery.

[2]

The appellant advances three grounds of appeal.
Two relate to alleged deficiencies in the trial judges jury charge; the third
relates to an alleged failure by the trial judge to respond to a question by
the jury with respect to the
mens rea
for murder.

[3]

I would dismiss the appeal.

B.

facts

(1)

The parties and events

[4]

Michael Swan lived in a house he shared with two
roommates in a suburb of Ottawa. He was 19 years old and supported himself by
selling marijuana, a fact well-known to his family and friends. According to a
close friend who testified at trial, it was not unusual for Swan to store and
sell his product from his home.

[5]

On the evening of February 21, 2010, the
appellant and Kristopher McLellan and Kyle Mullen drove from Toronto to Ottawa.
They were headed to the home of Sam Tsega, a Toronto friend who had moved to an
Ottawa suburb. Tsega sold marijuana and sometimes purchased his product from
Swan. Tsega had been to Swans home.

[6]

Sometime before midnight on February 21, the
appellant, McLellan and Mullen arrived at Tsegas home. Shortly after their
arrival, they drove to Swans home; Tsega did not accompany them.

[7]

That night, Swan was hosting a party at his home
to watch Olympic hockey. By the end of the evening, only Swan, his girlfriend
Kaitlyn Scott, and a friend, Tyler Tanguay, remained. They were together in Swans
bedroom.

[8]

At about 12:30 a.m. on February 22, 2010, three
masked men burst into Swans bedroom. They were dressed in black and wore black
masks and gloves. Scott testified that all three carried small black handguns.
Tanguay testified that two men had guns. The main guy, as described by the
witnesses, was McLellan. McLellan ran into the room and stood near the corner
of the bed. Two shorter men, Mullen and the appellant, followed behind. All
three men shouted commands, telling Swan, Scott and Tanguay to get down on
their knees, put their phones in front of them, and put their hands up. They
complied and got down on the floor.

[9]

McLellan stood in front of Swan, called him the
drug dealer and asked where the stuff was. Swan replied that he did not
know and, according to Kaitlyn Scott, made a reaching motion. McLellan shot
Swan in the back of his right shoulder. Swan fell to the floor.

[10]

The bullet penetrated Swans shoulder, lung,
heart, liver and stomach. The pathologist who testified at trial said that
death would likely have occurred within a minute or two.

[11]

According to the two eyewitnesses, Scott and
Tanguay, none of the three robbers displayed any obvious reaction to the
shooting of Swan. The robbery continued. When the robbers learned that there were
two other men residing in the house, they rounded them up and brought them to
the door of Swans bedroom. Then the robbers took all four of the captives to
an empty bedroom and made them sit against the wall. The appellant and Mullen
took turns guarding that room. McLellan and either the appellant or Mullen
searched the house.

[12]

After the search was complete, McLellan took the
four captives to the basement. The three robbers left the premises. When the
police arrived, Scott told them that the robbers had taken her cellphone. The
police contacted Scotts cellphone service provider to ask that her cellphone
be tracked by GPS. The police learned that Scotts cellphone was travelling
westbound on Highway 401  i.e. toward Toronto.

[13]

The OPP initiated a traffic stop of a vehicle
carrying three male passengers and, apparently, Scotts cellphone. All three
men were arrested. On arrest, Mullen told police that he had a gun in his pants;
it was later determined that it was the gun used to shoot Swan. During a search
of the appellant at a police station, a .380 calibre semi-automatic handgun
loaded with two cartridges of ammunition fell out of his pants.

[14]

Due to the unavailability of the appellants
trial counsel, McLellan and Mullen stood trial before the appellant. They were
convicted of first and second degree murder respectively. McLellans appeal was
dismissed by this court; Mullens appeal was allowed on the basis of errors in
the trial judges instructions to the jury on his liability as a party to the
murder committed by McLellan:
R. v. McLellan
, 2018 ONCA 510.

(2)

The appellants trial

[15]

The appellant had his trial before Rutherford J.
of the Superior Court of Justice, sitting with a jury, in the autumn of 2014.
The jury found him not guilty of first degree murder but guilty of second
degree murder.

[16]

The appellant appeals his conviction.

C.

issues

[17]

The appellant appeals his conviction on three
grounds. He asserts:

1.

The trial judge failed to provide appropriate guidance to the jury
on the use they could make of the appellants post-offence conduct;

2.

The trial judge erred in failing to instruct the jury on the nature
of circumstantial evidence and the drawing of inferences; and

3.

The trial judge erred in failing to answer a question from the jury
with respect to the
mens rea
for murder.

D.

analysis

(1)

The post-offence conduct issue

[18]

The appellant submits that the trial judge did
not properly charge the jury about the use it could make of the appellants post-offence
conduct  i.e. what he did after McLellan shot Swan.

[19]

The appellant's post-offence conduct in this
case fit into two categories: (1) evidence of his immediate reaction, or lack
thereof, to the shooting; and (2) evidence of his ongoing participation in the
robbery as a willing and active participant or as a reluctant party following
the orders of the shooter McLellan.

[20]

On this issue, it is crucial to recall that McLellan
was a robber and the shooter. The appellant and Mullen were only robbers.
Therefore, their reactions to McLellans shooting of Swan and their role in the
robbery after Swan was shot were evidence central to a determination of whether
they could and should be convicted of murder.

[21]

The appellant does not assert that his role in
the robbery differed in any material respect from the role of Mullen, the other
non-shooter robber. Their reactions to the shooting and their roles in the post-shooting
continuation of the robbery in the Swan home were, according to the witnesses,
virtually identical.

[22]

In Mullen's conviction appeal (a joint appeal
with McLellan), he challenged the trial judge's charge on post-offence conduct.
This court rejected his argument on this issue:
McLellan
, at paras.
29-49. Speaking for the court, and after an extensive analysis of the relevant
facts, Rouleau J.A. concluded that the appellants post-offence conduct was evidence
probative of intent and that there was no error in the trial judge's
instruction on post-offence conduct.

[23]

I would reach an identical conclusion in this
appeal.

[24]

In
McLellan
, on the link between the
appellants post-offence conduct and proof of intent, Rouleau J.A. said, at
paras 39, 40 and 43:

Mullens position is that the post-offence
conduct was even less relevant to his intent given his peripheral role. The
evidence established that McLellan was the shooter and, by all appearances, was
the leader who took charge after the shot was fired and directed the other two
perpetrators. Mullen therefore submits that he should simply be seen as having
complied with the directions of the shooter. His purported lack of reaction
could support at least two other equally rational inferences: first, that Mullen
was in shock and merely continued to follow McLellans plan without thinking,
or second, that Mullen was scared and upset because at that point he realized
that he should have known that someone would get hurt.

I would reject this ground of appeal. In my
view the post-offence conduct was highly probative.



On the facts of the present case, the
inference that can be drawn is strengthened by the second element of the
post-offence conduct. Here, not only was there a lack of reaction or surprise,
but also the immediate continuance of demands as to the location of the drugs
and money.
This evidence of the robbery being pursued
without missing a beat
served to rebut McLellans claim that he was in
shock after Swan was shot. It also
suggested that Mullen
was not, as his counsel suggested, reluctantly continuing with a robbery gone
wrong. Rather, it showed both McLellan and Mullen as being unfazed by the
occurrence of a shooting during the execution of their planned robbery
.
[Emphasis added.]

[25]

In my view, every word of this passage, as it
relates to Mullen, applies with equal force to the appellant in this appeal.

[26]

In any event, I can see no error in the trial
judge's jury charge relating to the appellant's post-offence conduct. He told
the jury that the post-offence conduct evidence was concerned with the
appellant's state of mind: What did he know? Did he know murder was likely or
not? He reviewed the elements of post-offence conduct evidence on which the
Crown was relying. Crucially, he also highlighted evidence favouring the
defence position on this issue, including that McLellan clearly appeared to be
in charge and the appellant was quiet and appeared to follow McLellan's
directions after the shooting, and that no other witnesses had heard the appellant
uttering threats after the shooting, as one witness had testified. He also
instructed that the jury should not lose sight of the fact the appellant was
wearing a mask when assessing his reaction and demeanour following the
shooting.

[27]

For these reasons, I would dismiss this ground
of appeal.

(2)

The subjective foresight of death issue

[28]

On this issue, the appellant submits that it was
incumbent on the trial judge to pay special attention in his jury charge to how
the jury could use circumstantial evidence in its deliberations since the Crown
relied almost entirely on circumstantial evidence to establish the appellant's
subjective foresight of Swan's death. The appellant asserts that the trial
judge did not do this.

[29]

I am not persuaded by this submission. In
R.
v. Griffin
, 2009 SCC 28, Charron J. said, at para. 33:

We have long departed from any legal
requirement for a special instruction on circumstantial evidence, even where
the issue is one of identification:
R. v. Cooper
, [1978] 1 S.C.R. 860.
The essential component of an instruction on circumstantial evidence is to
instill in the jury that in order to convict, they must be satisfied beyond a
reasonable doubt that the only rational inference that can be drawn from the
circumstantial evidence is that the accused is guilty. Imparting the necessary
message to the jury may be achieved in different ways. [Citations omitted.]

[30]

In my view, the trial judge provided appropriate
guidance on circumstantial evidence. He explained the nature of circumstantial
evidence and the inference drawing process. He correctly stated that direct and
circumstantial evidence are of equal value and validity. He instructed the
jury that it was their task to decide what conclusions they would reach based
on the evidence as a whole, both direct and circumstantial, using common
sense and experience. He told the jury not to speculate, guess, or make
up theories. In short, I think that the trial judge's jury charge on the issue
of circumstantial evidence was accurate and fair to the appellant. I am
comforted in this conclusion by the fact that, at trial, defence counsel did
not ask the trial judge to say anything different or additional on this issue,
either in the pre-jury charge discussions or after the jury charge was
delivered.

(3)

The jury question issue

[31]

Late in the afternoon of the second day of
deliberations, the jury submitted a question:

Third element: Clarification definition

Pg. 18: Is Dylan B guilty of murder

Point 3

Probably means likely; more probable than not

Do the meanings of;

Subjectively,
probably and likely carry the same weight? Are they the same?

[32]

In his colloquy with counsel upon receiving the
jurys question, the trial judge took the position that there were at least two
possible interpretations: (1) whether probably, likely and subjectively
mean the same thing; or (2) whether knowing subjectively that something is
probable and knowing subjectively that something is likely is the same
thing. Defence counsel expressed concern that the jury might not understand the
term subjectively. The trial judge and counsel agreed that it was appropriate
to seek clarification from the jury before answering the question. At 4:44
p.m., the trial judge sent a note to the jury to the effect that he was not
sure what they were asking and requesting that they reword the question. Twenty-five
minutes later, the jury responded:

We have resolved the
question attached through discussions among the group.

Thank you

Juror 12



We are done for today

5:20 p.m.



We would like to begin
deliberations at 8:30 a.m. on Oct. 30

[33]

The trial judge concluded that he should not
attempt to answer the withdrawn question:

Well I am satisfied that a reading of the
instructions would lead anybody but a person who has never heard or thought of
the term subjective or objective before, the instructions couldn't be clearer.

But it does occur to me that as lawyers we
tend to talk about knowledge in the context of law; objective knowledge,
subjective knowledge, these are not terms that most people, in their average
life would think that way. It is a legal context.

But the way you people addressed that. And the
way it was addressed in the instructions, I can't but be confident that they have
resolved it if they had any differences of view on that, but they have resolved
it satisfactorily.

In any case, we can't insist on answering a
question that they said they have resolved. The cases tell trial judges to
answer the questions and do not go beyond that.

[34]

The appellant submits that the trial judge was
right to decide that he should request that the jury clarify what was, on its
face, an ambiguous or confusing question. However, the appellant argues that
the trial judge erred by accepting the jury's decision to withdraw its question
because it had resolved the question attached through discussions among the
group. The appellant says that the question from the jury was not clear and
signalled confusion related to an essential issue before the jury, namely, the
knowledge requirement for murder. Accordingly, the trial judge should have
recalled the jury and communicated with them to determine whether an answer to
their question or a recharge was warranted.

[35]

I do not accept this argument. The jury question
was ambiguous. The trial judge and both counsel agreed that the trial judge
should seek clarification from the jury. This led the jury to respond by saying
that they no longer needed assistance; they had resolved the question through
their own discussions. The trial judge opined that he was inclined to accept
their statement that they had resolved the issue and, therefore, there was no
need to clarify a question they were no longer posing. Defence counsel did not
object to the trial judge's proposal; in my view, this is an important
contextual factor:
R. v. Jones
, 2011 ONCA 584, at para. 55. In
addition, the jury had a copy of the charge, and the instruction on this issue
was clear and unobjectionable.

[36]

In
R. v. Sit
(1989), 47 C.C.C. (3d) 45
(Ont. C.A.), revd on other grounds [1991] 3 S.C.R. 124, the jury asked a
question. While the trial judge was hearing counsels submissions about a
response, the jury informed the judge: we no longer find it necessary for you
to answer our previous question. We have been able to reach a verdict: at p.
57. Cory J.A. said, at pp. 57-58:

In my view, the trial judge dealt with the
question in a most appropriate manner.  It was open to the jury to withdraw
their question. This might have been done for any number of reasons which were
not for the trial judge to question. I can find no error whatsoever in the
manner in which the trial judge handled this aspect of the trial.

[37]

In a similar vein, in
Jones
Laskin J.A.
said, at para. 57:

I agree with the following statement in para.
50 of Ms. Stephens Crown factum: It would not have been appropriate for the trial
judge to question why the jury no longer wanted its question answered or to
require the jury members to hear an answer when they had indicated it was not
needed.

[38]

For these reasons, I do not accept the
appellant's submissions on the third ground of appeal.

E.

disposition

[39]

I would dismiss the appeal.

Released: JCM JAN 11 2021



J.C.
MacPherson J.A.

I
agree. M. Tulloch J.A.

I
agree. P. Lauwers J.A.


