



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2017 ONCA 947

DATE: 20171206

DOCKET: C60730

Strathy C.J.O., Doherty and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Melville Moore

Appellant

Christopher Hicks and Jessica Zita, for the appellant

Karen Papadopoulos, for the respondent

Heard: October 6, 2017

CRIMINAL LAW 
Vetrovec
warning 
W.(D).
instruction  Instruction on common purpose  Proper scope of
    re-examination  Parole ineligibility.

On appeal from the conviction entered by Justice Gary W.
    Tranmer of the Superior Court of Justice, sitting with a jury, on June 12, 2013,
    and from the sentence imposed on September 10, 2013.

Trotter J.A.
:

A.

introduction

[1]

The appellant appeals his conviction for second degree murder. The
    offence occurred during a home invasion robbery of a drug dealer, James (Jay)
    Richards. Richards was slashed across the face with a knife and stabbed in the
    neck, severing an artery and causing him to bleed to death. The trial judge
    imposed the mandatory life sentence, with no eligibility for parole for 22 years.

[2]

Before trial, the appellants accomplice, Nathan Thomas (Thomas),
    pleaded guilty to manslaughter and received a ten-year sentence. He testified
    against the appellant. The central issues at trial were whether the appellant
    was one of the two men involved in the robbery and, if so, whether he was the
    killer.

[3]

The appellant appeals his convictions on four grounds, largely focused
    on the trial judges final instructions to the jury, to which no objection was
    made at the time. In two instances, the appellants counsel asked that the
    trial judge not give the instruction that he now says was required. The appellant
    also appeals sentence, contending that the parole ineligibility period should
    be reduced.

[4]

For the reasons that follow, I would dismiss both appeals.

B.

factual background

[5]

The Crown advanced a strong case against the appellant, relying heavily
    on the evidence of Thomas. Other evidence (testimonial and forensic) confirmed
    Thomas evidence that the two men planned the robbery and the appellant stabbed
    Richards to death.

[6]

The evidence showed that, armed with knives, and wearing dark clothes
    and hats, the appellant and Thomas obtained access to Richards apartment with
    the assistance of Brad Scott (Scott), a customer of Richards. Scott let the
    two men into the apartment building through the rear door. Telephone records
    revealed three telephone calls between the appellant and Scott on the night
    before the killing, and one immediately before entry into the building.

[7]

Independent witnesses saw two men in dark clothes standing at the back
    of the building and then entering through the rear door.

[8]

Once inside the apartment, the appellant and Thomas confronted Richards
    and his wife, Melissa Guyea (Guyea). A struggle ensued during which the
    victim was slashed and stabbed. He rapidly bled to death.

[9]

The appellant and Thomas fled the apartment, taking a coffee cup containing
    $150 with them. They left the building through the rear door. The same two
    independent witnesses saw them leave the building and crawl under a fence. One
    observed that one of the men was no longer wearing a hat. A baseball hat, with
    the appellants DNA on the inside, was found in Richards apartment. Richards
    blood was also found on the hat.

[10]

The
    appellant and Thomas went to the nearby house of Alison Badour (Badour), a
    friend of Thomas. Richards blood was found on the back door of Badours house.

[11]

One
    of the people present in Badours house, Michael Burdett (Burdett), testified
    that the appellant had confessed to killing someone, cutting his throat and
    stabbing him. Burdett said that the appellant threatened to kill him if he said
    anything. The appellant instructed Burdett to get rid of their clothes and
    knives.

[12]

Phone
    records revealed four calls between Badour and the appellants girlfriend, Jen
    Jonassen (Jonassen), after the killing. Jonassen came to Badours house with
    a change of clothes for the appellant.

[13]

The
    defence called no evidence.

C.

anaylsis

(1)

Introduction

[14]

Virtually
    every ground of appeal advanced by counsel for the appellant begins with an
    outright repudiation of the considered position taken by defence counsel at
    trial. There is no suggestion that the appellant did not receive effective
    representation at trial. However, appellate counsel suggests that we should
    ignore counsels tactical decisions because they were, according to them, wrong
    in law.

[15]

In
    my view, none of the grounds advanced by the appellant can succeed. All attract
    the very cautious approach required when appellate counsel seeks to challenge
    rulings or decisions made by the trial judge that were predicated in large
    measure on the positions taken by defence counsel at trial: see
R
. v.
    Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.), at para. 14; and
R.
    v. Kostyk
, 2014 ONCA 447, 312 C.C.C. (3d) 101, at para. 42. As Doherty
    J.A. said in
R. v. Kimberley
(2001), 56 O.R. (3d) 18 (C.A.), at para.
    56:

While appellate counsel are not locked into positions taken on
    behalf of their clients at trial, appeals cannot be conducted without any
    regard to the conduct of the trial. To permit counsel to advance a position
    which was not only not put forward at trial, but which is a direct contradiction
    of the position advanced at trial, would be to make a mockery of the process.

In this case, there was a rational basis for the
    positions taken by defence counsel at trial.

(2)

The Failure to Give a
Vetrovec
Warning

[16]

The
    witness Thomas, an accomplice, was an unsavoury witness by any definition.
    Burdett, a self-described drunk and druggie, perhaps an accessory after the
    fact, was also an unsavoury witness. Both men had previous criminal records,
    and both had lied to the police during the investigation of this case.

[17]

The
    trial judge did not give a
Vetrovec
warning with respect to either
    witness: see
R. v. Vetrovec
, [1982] 1 S.C.R. 811. He planned to. He
    included the standard instruction in his draft charge, provided to trial
    counsel during the pre-charge conference. However, the trial judge removed it
    at the specific request of defence counsel.

[18]

During
    an exchange with the trial judge, it is apparent that defence counsel was aware
    that, along with a
Vetrovec
caution, came a requirement that the trial
    judge outline at least some of the evidence that potentially confirmed the testimony
    of Thomas
and
Burdett: see
R. v. Khela
, 2009 SCC 4, [2009] 1
    S.C.R. 104, at para. 46. As the trial judge said: If I do the
Vetrovec
,
    I might end up having to do it twice  which you might not want, right?
    Defence counsel responded, Yeah. No. Im definitely not seeking a
Vetrovec

warning when it comes to Mr. Thomas. Shortly afterwards, she came to the
    same conclusion about Burdett.

[19]

There
    was a pile of confirmatory evidence in this case, including DNA evidence, telephone
    records, evidence of persons who saw two men going to and coming from the
    apartment, and the evidence of Jonassen. Moreover, the evidence of Thomas and
    Burdett was capable of confirming the evidence of each other: see
R. v.
    Roks
, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 67.

[20]

Whether
    the evidence of a Crown witness should be the subject of a
Vetrovec
caution is in the discretion of the trial judge: see
R. v. Carroll
,
    2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 60, leave to appeal refused, [2014]
    S.C.C.A. No. 193. The trial judge is best positioned to balance the need for a
    caution, having regard to the evidence, the manner in which it has unfolded in
    the course of the trial, and the ability of the jury to assess the credibility
    of the witnesses and the reliability of their evidence. For this reason, Watt
    J.A. observed in
Carroll
, at para. 67: [A]s a general rule, a trial
    judges discretion whether to include a
Vetrovec
caution in final instructions
    is to be accorded wide latitude and substantial deference on appellate review.

[21]

In
    considering whether a
Vetrovec
caution is required, the absence of an
    objection to the charge that does not contain one leads to an inference that
    the approach employed by the trial judge was appropriate from the perspective
    of the accused. In
R. v. Boone
, 2016 ONCA 227, 347 O.A.C. 250, leave
    to appeal refused, [2016] S.C.C.A. 238, Sharpe J.A. said the following, at
    para. 53:

In his charge, the trial judge canvassed with
    the jury the basis for the attack on the credibility of the complainants.
The
    trial judge held a pre-charge conference to afford counsel the opportunity to
    comment on his proposed charge.
The appellant's trial counsel did not
    object to the manner in which the trial judge proposed to deal with the
    evidence of the complainants
nor did he request a
Vetrovec
warning.
Although not fatal on its own, the absence of any objection leads to an
    inference that the language employed by the trial judge was appropriate from
    the perspective of the accused. [Citations omitted; emphasis added.]

[22]

This principle must apply with at least equal vigour
    when defence counsel requests, ahead of time, that a
Vetrovec
caution not be given for tactical reasons  namely, to prevent the
    recitation of evidence that confirms the evidence of the
Vetrovec
witness: see
R
. v. Moffit
,
    2015 ONCA 412, 338 O.A.C. 144, leave to appeal refused, [2015] S.C.C.A. No.
    465, at para. 78; and
R. v. Brooks
, 2000 SCC
    11, [2000] 1 S.C.R. 237, at para. 17.

[23]

Both Crown and defence counsel have an important
    obligation to assist the trial judge in the preparation of jury instructions:
    see
Khela
, at paras. 49 and 50. In this
    province, the accepted practice is to address contentious matters ahead of
    time, during a pre-charge conference. This often results in the trial judge
    producing draft instructions for review by counsel, thereby reducing the need
    for after-the-fact correction, clarification, or elaboration.

[24]

This is what happened in this case. The trial
    judge produced draft instructions for counsel. Defence counsel had an opportunity
    to review them and make considered choices about what would best serve the
    interests of her client. She wanted the
Vetrovec
instruction removed. The trial judge obliged, and the jury was
    instructed accordingly.

[25]

This case is indistinguishable from
R. v. Rafferty
, 2016
    ONCA 816, 33 C.R. (7th) 39, at paras. 25-32, in which experienced defence
    counsel asked the trial judge to remove a
Vetrovec
caution from his
    charge for the same reason defence counsel did in this case. This court
    dismissed this ground of appeal, confirming the deferential approach that is
    required in these circumstances. See also
Brooks
, at paras. 2 and 18;
    and
R. v. A.W.B.
, 2015 ONCA 185,
322 C.C.C. (3d) 130,
    at paras. 40-44.

[26]

Clearly,
    a
Vetrovec
warning could have been given in this case. However, the
    decision whether to give one is discretionary. Although there will be cases in
    which this discretion can only be properly exercised in favour of giving such
    an instruction, those cases do not turn the issue into a question of law.
    Hence, it cannot be said that defence counsel at trial was wrong, as
    appellate counsel asserts.

[27]

The
    jury was repeatedly alerted to the many problems with the credibility of Thomas
    and Burdett. The defence position  that these witnesses could not be believed
     was emphatically stated in counsels closing address. The trial judge
    thoroughly outlined the shortcomings in their evidence in his final
    instructions. And while there was no clear and explicit caution (see
R.
    v. Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 210) about the
    dangers inherent in relying on this evidence, nor was there any formal review
    of the confirmatory evidence.

[28]

I
    would dismiss this ground of appeal.

(3)

The Failure to Give a
W.(D.)
Instruction

[29]

Once
    again, appellate counsel argues for reversible non-direction because the trial
    judge did not give an instruction that defence counsel at trial expressly asked
    the trial judge not to give  the
W.(D.)
instruction:
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742. Defence counsel expressed the concern that a
W.(D.)

instruction would highlight for the jury that the defence called no
    evidence.

[30]

There
    is no legal obligation on a trial judge to recite the language in
W.(D.)
:
    see
R. v. Dayes
, 2013 ONCA 614, 301 C.C.C. (3d) 337, at para. 54; and
R.
    v. McCracken
, 2016 ONCA 228, 348 O.A.C. 267, at paras. 90-91. There is,
    however, a legal obligation to properly instruct the jury on reasonable doubt.
    In many situations, a proper instruction on reasonable doubt must include a description
    of the middle ground described in
W.(D.)
, that is, the possibility of
    a doubt based on exculpatory evidence where that evidence, while not believed,
    is not rejected. The exculpatory evidence may arise from the testimony of the
    accused, other defence-led evidence, or evidence favourable to the defence led
    as part of the Crowns case: see
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C.
    (3d) 197, at paras. 105 and 114.

[31]

In
    this case, the jury was properly and repeatedly instructed on the burden of
    proof and the Crowns obligation to prove its case beyond a reasonable doubt.
    The burden was effectively related to specific issues and the essential
    elements of the offence.

[32]

The
    rationale for giving a
W.(D.)
instruction was absent in this case. There
    were no conflicting issues of credibility that the jury needed to resolve.
    Indeed, there was no evidentiary feature of this case that would attract the
    need for such an instruction.

[33]

This
    is not a case like
R. v. Bucik
, 2011 ONCA 546, 274 C.C.C. (3d) 421,
    relied upon by the appellant, in which there was exculpatory identification
    evidence  identification evidence that was inconsistent with the Crowns claim
    that the accused committed the offence. In
Bucik
, it was important for
    the jury to appreciate that the exculpatory identification evidence could leave
    the jury with a doubt, even if the jury did not necessarily accept that
    evidence.

[34]

In
    this case, the only piece of exculpatory evidence that the appellant points
    to relates to eyeglasses seized from him upon arrest. Forensic examination
    revealed no traces of blood on the glasses. At trial, defence counsel suggested
    this was significant because the pathologist testified that there would have
    been arterial spurts from Richards stab wound to his throat. The implication
    was that, had the appellant been the attacker, there would have been blood on
    his glasses. However, none of the Crown eyewitnesses testified to seeing a man
    with glasses.

[35]

Furthermore,
    the appellant did not testify or call any other evidence at trial.
    Consequently, there was no evidence that the appellant habitually wore his
    glasses, or that he wore them on the afternoon of the murder. Defence counsel
    was alive to the problems that this created for its theory about the glasses. In
    this context, she said: I had a difficult time foreseeing how it [the
W.(D.
)
instruction] could be drafted, such that it would do Mr. Moore benefit, without
    highlighting the fact that we didn't call any evidence. So, Im not asking for
    that.

[36]

Defence
    counsel provided a reasoned basis for requesting that the trial judge remove
    this instruction from his final charge. Defence counsels position was not wrong,
    as the appellant suggests. The trial judges decision to omit this instruction
    does not reflect any error.

[37]

I
    would dismiss this ground of appeal.

(4)

The Instruction on Common Purpose (s. 21(2))

[38]

The
    Crowns primary theory at trial was that the appellant had stabbed the victim. Towards
    the end of the trial, after it was suggested during the cross-examination of
    Thomas that he stabbed Richards, the Crown requested that the trial judge
    instruct the jury on s. 21(2) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, based on this alternative theory. The matter was discussed at length
    between counsel and the trial judge. At no point did defence counsel object to
    this instruction. To the contrary, in her closing address, defence counsel
    leveraged the Crowns alternative approach to liability by suggesting that the
    Crown had no faith in its main witness, Thomas, who had pointed the finger at
    the appellant.

[39]

The
    appellant argues that the trial judge erred by instructing the jury on s. 21(2)
    because: (1) there was no evidentiary basis for this instruction; and (2) the Crowns
    alternative theory called into question the veracity of its own witness. The
    appellant also argues that the trial judges instructions contained legal
    errors.

[40]

There
    was an evidentiary basis for liability predicated on s. 21(2). The evidence
    showed that the appellant and Thomas planned to rob Richards. They went to his
    apartment, both armed with knives. Expert evidence established that Richards
    wounds could have been caused by two separate knives. The appellant and Thomas
    immediately fled from the scene, taking Richards money with them. They were
    seen together afterwards.

[41]

Importantly,
    there was an evidentiary foundation for the alternative theory in the testimony
    of Richards wife, Guyea. While she did not see who stabbed Richards, according
    to her testimony, the person in the most likely position to have stabbed him was
    Thomas. Guyeas evidence provided the evidentiary basis upon which the jury
    could find that Thomas, and not the appellant, inflicted one or both of the knife
    wounds. As defence counsel said in her closing address: I urge you to believe
    Miss Guyea over Nathan Thomas. I urge you to find that Nathan Thomas was the
    one by the door who wielded a knife and slashed and fatally stabbed James
    Richards.

[42]

This is not a case like
R. v. Walker
(1994), 90 C.C.C.
    (3d) 144 (Ont. C.A.), in which
Crown counsel not only
    repudiated its own witness, but also invited the jury to accept, as factual,
    the converse of what the witness had said. In this case, if the jury rejected
    Thomas claim that the appellant was the killer, that rejection, standing alone,
    could not establish that Thomas was the killer. But that is not what the Crown
    invited the jury to do. Here, there was other evidence from Guyea, from which
    the jury could infer that Thomas was the killer. Because of this evidentiary
    foundation, the Crown was entitled to repudiate Thomas evidence on this
    critical issue, at least as an alternative theory.

[43]

This case is remarkably similar to the situation
    presented in
R. v. Portillo
(2003), 176 C.C.C. (3d) 467 (Ont.
    C.A.), a case where the evidence established that two brothers acted together
    in furthering a common unlawful purpose. Doherty J.A. said, at para. 69:

In this case, there was evidence from which
    the jury could infer that both appellants were present in the deceased's
    relatively small apartment during an argument that culminated in his death by a
    means which required some preparation. The jury could also infer that the
    appellants fled the apartment together. Finally, the jury could infer that the
    appellants were party to a theft which occurred in the course of the same
    transaction as the homicide, and that the theft was a motive for the homicide.
On
    this record, there was a basis upon which to leave liability under s. 21(1)(b),
    s. 21(1)(c) and s. 21(2).
[Emphasis added.]

In this case too, there was a basis
    to instruct the jury on the appellants liability as an aider (s. 21(1)(b)) and/or
    abettor (s. 21(1)(c)). However, the Crown did not request this instruction,
    preferring to press its alternative theory under s. 21(2) alone.

[44]

The
    appellants submission that the trial judges instructions on s. 21(2) were
    legally inaccurate and/or difficult to follow must also be rejected. This
    portion of the charge was developed in considerable detail over several days of
    dialogue between the Crown and defence and presented to the trial judge as a
    package, which he accepted. The instructions were thorough, error-free, and in
    accordance with previous decisions of this court: see
Portillo
, at
    paras. 72-73;
R. v. Cadeddu
, 2013 ONCA 729, 304 C.C.C. (3d) 96, at
    paras. 63-64; and
R
. v. Simon
, 2010 ONCA 754, 263 C.C.C. (3d)
    59, at paras. 39-43, leave to appeal refused, [2010] S.C.C.A. No. 459.

[45]

I
    would reject this ground of appeal.

(5)

Improper Re-examination by the Crown

[46]

The
    appellant contends that the Crown exceeded the proper scope of re-examination
    in its questioning of Thomas and Burdett. I disagree.

(a)

Thomas

[47]

Thomas
    and the appellant were jointly charged with killing the victim. They had a
    joint preliminary inquiry, which took place in November of 2011. During the
    preliminary inquiry, Thomas entered into a plea arrangement whereby he would
    plead guilty to manslaughter and receive a sentence of 10 years imprisonment.

[48]

At
    trial, Thomas was vigorously cross-examined on his version of events. It was
    suggested that he had fabricated his evidence against the appellant after
    having had the benefit of hearing all of the evidence at the preliminary
    inquiry.

[49]

The
    Crown re-examined Thomas on two prior statements, both made approximately 10
    months before the plea agreement. In his January 31, 2011 statement, Thomas
    told the police that the other person involved in the killing lost his hat
    during the incident. On February 1, 2011, he told the police that the appellant
    was involved in the murder.

[50]

Despite
    an initial objection to this line of questioning, defence counsel accepted that
    the prior statements were admissible to rebut an allegation of recent
    fabrication. Once again, counsel on appeal seeks to second-guess defence
    counsel at trial, arguing that the cross-examination was a wholesale attack
    on Thomas evidence and not an allegation of recent fabrication.

[51]

I
    disagree with this narrow interpretation. Although the attack on Thomas
    evidence was broad, an important theme pursued during the cross-examination was
    that Thomas fabricated incriminatory evidence against the appellant because of
    what he heard at the preliminary inquiry. The two statements that were shown to
    him in re-examination demonstrated that he implicated the appellant much
    earlier in the proceedings. Consequently, the re-examination, and the use of
    the prior statements, was proper: see
R. v. Ellard
, 2009 SCC 27,
    [2009] 2 S.C.R. 19, at paras. 31-33; and
R. v. Stirling
, 2008 SCC 10,
    [2008] 1 S.C.R. 272, at para. 5.

[52]

In
    his final instructions, the trial judge properly limited the use of this
    testimony to rebutting the allegation of recent fabrication. Defence counsel did
    not object to this aspect of the charge.

(b)

Burdett

[53]

Burdett
    was also the subject of vigorous cross-examination, especially as it related to
    his evidence that the appellant confessed to him, and then threatened to kill
    him if he ever told anyone. Burdett was challenged on inconsistencies between
    his trial testimony, his statements to the police, and his preliminary inquiry
    testimony. This led to the following exchange in re-examination:

Crown:         Your recollection about Mr. Moore in the                           living
    room, and what he said to you, is that            the truth?

Burdett:       Yes.

[54]

The
    appellant argues that this re-examination amounted to improper oath helping
    that caused him prejudice. I disagree. While this single question was
    unnecessary, unhelpful, and probably should not have been asked, it did not
    occasion any prejudice. Defence counsel at trial made no objection at the time.

[55]

I
    would also dismiss this ground of appeal.

(6)

The Appeal Against Sentence

[56]

The
    appellant was sentenced to life imprisonment without parole eligibility for 22
    years. At trial, his counsel suggested a range of 15 to 20 years. The Crown
    suggested 22 to 25 years. Four members of the jury made no recommendation as to
    parole; one recommended 15 years; and seven recommended 25 years.

[57]

In
    my view, the sentence was fit, and the appellant has demonstrated no error in
    principle.

[58]

As discussed above, the jury was left with two routes to the
    appellants liability  as the perpetrator (s. 21(1)(a)), or as a party (s.
    21(2)). Given that the jurys verdict did not clarify this issue, the trial
    judge made his own determination as to what happened: see
R. v. Ferguson
,
    2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18;
R. v. Roncaioli
, 2011
    ONCA 378,
271 C.C.C. (3d) 385, at para. 59;
and
Criminal
    Code
, s. 724(2)(b). He was satisfied beyond a reasonable doubt that the
    appellant was the mastermind behind the entire operation and that he inflicted
    the knife wounds that killed Richards.

[59]

The
    appellant was 35 years old when he was sentenced. Since the age of 15, he has
    spent most of his life in custody. The appellants lengthy criminal record
    includes convictions for: (a) attempted murder (as a youth) by stabbing the
    victim nine times; (b) assault causing bodily harm in connection with a home
    invasion in which the victim was beaten with a baseball bat; and (c)
    manslaughter (by shooting an unarmed victim), for which he was sentenced to 10
    years imprisonment. The appellant was held in custody on the manslaughter
    sentence until his warrant expiry date, at which time he was made subject to an
    order under s. 810.2 of the
Criminal Code
. It was only 81 days later
    that he murdered Richards.

[60]

In
    addition to his disturbing criminal record, the appellant has a long history of
    institutional misconduct, committing dozens upon dozens of infractions. This
    behaviour continued during his trial. Moreover, psychiatric evidence
    demonstrated that the appellant is an extremely dangerous individual, at high risk
    to re-offend in a violent manner.

[61]

As
    the trial judge observed, there were no mitigating factors in this case, not
    even a genuine expression of remorse. This is illustrated by the appellants
    statement made prior to being sentenced, under s. 726 of the
Criminal Code
.
    In a presentation characterized by the trial judge as angry, defiant,
    belligerent and aggressive, the appellant attacked Richards character. He
    ended his remarks by saying:

Some are going around saying that I should rot in hell, and
    maybe that is so, but when I get there, Ill have my dick out, pissin. That's
    all Ive got to say.

[62]

As
    severe as the imposed sentence is, it was amply justified in this case: see
R.
    v. Lane
, 2008 ONCA 841, 94 O.R. (3d) 177, leave to appeal refused, [2009]
    S.C.C.A. No. 278, at paras. 90-94. The trial judge did not err in his consideration
    of the appellants personal circumstances.

[63]

I
    would dismiss the appeal against sentence.

D.

Conclusion

[64]

I
    would dismiss the appeals from conviction and sentence.

Released: GS December 6, 2017

G.T. Trotter J.A.

I agree. G.R. Strathy C.J.O.

I agree. Doherty J.A.-


