R. v. J.S.R., 2012 ONCA 568

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.S.R., 2012 ONCA 568

DATE: 20120904

DOCKET: C49793 & C50576

Feldman and Armstrong JJ.A., and Himel J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent/

Appellant

and

J.S.R. (a young person)

Appellant/

Respondent

Lucy A. Cecchetto, Rochelle S. Direnfeld and Ryan Wilson, for the Crown

P. Andras Schreck, Candice Suter and Lucy Saunders, for J.S.R.

Heard: December 6, 2011

On appeal from the conviction entered on December 7, 2008 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on May 15, 2009 by Justice Ian V.B. Nordheimer, with reasons reported at 2009 CanLII 18884.

Feldman J.A.:

INTRODUCTION

[1] On December 26, 2005, Yonge Street in downtown Toronto was crowded with thousands of Boxing Day shoppers. At approximately 5:00 p.m., a gun battle erupted between two gangs of young people on the busy sidewalk outside the Foot Locker store, which is on the west side of Yonge Street just north of Dundas Street. The appellant, J.S.R., a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1, was part of one of the gangs of young people involved in the shootout.

[2] When the shooting stopped, six people had been shot and wounded: three innocent bystanders and three individuals who were alleged to have been involved in the gun battle. Tragically, fifteen-year-old Jane Creba, who had been on Yonge Street shopping with her sister, was struck and killed by a stray bullet.

[3] On December 7, 2008, after a trial before Nordheimer J. and a jury, J.S.R. was convicted of second degree murder in relation to the death of Jane Creba. The jury also convicted J.S.R. of two counts of aggravated assault, possession of a firearm without a licence, possession of a loaded restricted firearm, possession of a firearm without a licence or certificate, possession of a weapon dangerous to the public peace and pointing a firearm without lawful excuse.

[4] On May 15, 2008, J.S.R., who was 17-years-old when the shooting occurred, was sentenced as an adult to life imprisonment without eligibility for parole for seven years for second degree murder, one year concurrent on each count of aggravated assault, and time served on the four firearms charges. The conviction for possession of a firearm without a licence was stayed.

[5] J.S.R. appeals all convictions, except for the firearms possession charges.

[6] J.S.R. also applies for leave to appeal the order that he be sentenced as an adult.

[7] The Crown appeals the directed verdict of acquittal on the count of attempted murder relating to Milan Mijatovic. If J.S.R.’s appeal is allowed, the Crown asks that a re-trial include a charge of attempted murder.

FACTS

Overview

[8] On December 26, 2005, in the hours leading up to the shootout on Yonge Street, J.S.R. was at the Eaton Centre with nine other young men: Andrew Smith, Dorian Wallace, Louis Woodcock, G.C., Tyshaun Barnett, Andre Thompson, Shaun Thompson, Vincent Davis and Jevoy Johnson (“the J.S.R. group”).

[9] After leaving the Eaton Centre, the J.S.R. group entered the Foot Locker store on Yonge Street. It was not clear whether the whole group went in. Two other young men, Jeremiah Valentine and Milan Mijatovic, were also in the store, although Mijatovic denied that he was there with Valentine. There was no interaction between the groups in the store.

[10] The J.S.R. group left the store first, and stood in an arc formation by the window north of the store doors. J.S.R. and his group were facing south. A short time later, Valentine exited the store with Mijatovic, and turned northward, toward the J.S.R. group. Valentine had a shopping bag in one hand and his other hand up his sleeve. He approached the J.S.R. group, and one of the group gave him daps (a knocking of the fists). Valentine then announced to the J.S.R. group that he had a gun, saying: “Are these your boys, ‘cuz these are my boys… I got a 357”. His voice was not raised but he spoke with attitude. He pulled up his sleeve to reveal the tip of a gun in his hand. J.S.R. and his group did not retreat. They stood their ground and a rapid exchange of gunfire erupted. The scene on Yonge Street turned to chaos as innocent bystanders desperately sought cover.

[11] Witnesses testified that after the first shot, there was an almost instantaneous return of gunfire. Only a second or two elapsed. One witness described the gunfire after the first shot as continuous, like popcorn popping. Over the course of several seconds, three shooters exchanged multiple shots.

[12] It was established through forensic evidence, and the parties agreed at trial, that there were three weapons fired: a .357 revolver, a .25 calibre gun and a 9mm gun. There was no dispute that the .357 was fired by Valentine, the northbound shooter. He fired the .357 northward toward the J.S.R. group at least three times. It was one of those shots that struck and killed Ms. Creba. There was no way of knowing whether Ms. Creba was struck by the first shot fired by Valentine, or one of the subsequent shots.

[13] The 9mm and .25 calibre guns were fired by two southbound shooters who were part of the J.S.R. group. At J.S.R.’s trial, they were referred to as Shooter A and Shooter B.

[14] The parties disagree as to which shooter had the 9mm gun and which had the .25 gun. As will be set out in more detail below, the Crown’s position was that Shooter A had the 9mm and Shooter B had the .25, and that J.S.R. was Shooter A. The defence position was that Shooter A had the .25 and Shooter B had the 9mm, and that J.S.R. was neither Shooter A nor B.

[15] It was admitted at trial that Louis Woodcock, part of the J.S.R. group, carried the 9mm gun while at the Eaton Centre and had it at least until the time the shooting began. No witness observed anybody passing a gun to anybody else; however, the 9mm did come into J.S.R.’s possession. When J.S.R. was arrested by the police at Castle Frank subway station a half hour after the shooting, an empty 9mm gun was found in his jacket pocket. The 9mm was silver in colour with a black handle. Subsequent ballistic examinations confirmed that the 9mm gun had been fired in the shootout.

[16] Nordheimer J. charged the jury that the only reasonable inference flowing from the fact that J.S.R. had the 9mm gun in his jacket pocket after the shooting was that if J.S.R. had fired either of the southbound guns, he must have fired the 9mm gun. “The question then is whether the evidence satisfies you beyond a reasonable doubt that J.S.R. fired that gun.”

Eyewitness descriptions of the two southbound shooters and their guns

[17] At trial, the parties agreed that witnesses David Tarnowski and Artem Verechtchaguine saw Shooter A, and that witnesses David Audette, Carl Turner, and Jessica Fung saw Shooter B.

Shooter A

[18] David Tarnowski was driving south on Yonge Street when the shooting began. At an area parallel to the Foot Locker, he stopped his car because several people came off the sidewalk onto the road. His attention was drawn to the sidewalk because he heard voices in what he believed was an argument. When he looked over he heard the sound of a gun and saw a man running in a zigzag as though trying to avoid being hit by something from behind. He then saw Shooter A reach behind him and bring forward a gun.

[19] Tarnowski claimed to have had an unobstructed view of Shooter A and said he observed the shooter for “maybe five, six seconds maximum”. He was in the driver’s seat of the car. Between Tarnowski and the shooter was Artem Verechtchaguine, who was in the passenger seat. Tarnowski testified that Verechtchaguine was leaning back and therefore he could see past him. He said that neither the roll bar nor the window divider obstructed his view.

[20] Tarnowski was very familiar with guns. He grew up with guns in his household in Poland, as his grandfather was a police officer there. Tarnowski testified that he saw Shooter A’s whole gun from the side. He testified that the gun was approximately 10 inches long and that it was silver. Specifically, he said that the barrel of the gun was silver and the handle was black, or was covered by black gloves.

[21] Tarnowski only saw Shooter A in profile. From the side, he saw a white hat that appeared to be a baseball cap. When asked in cross-examination whether the hat was all white, he said “from what I could see it appeared to be an all white hat”. Below the white of the hat, in an arc between the ear and hat, he saw black hair which appeared to be in one or two lines similar to cornrows. At the back, just past the hat, he saw something that looked, not like a ponytail, but like hair in a short little bunch. Tarnowski saw white on the shooter’s upper body, covering his chest area. He was unable to see Shooter A’s skin colour because his arm was covering his face. He did not see the facial features of Shooter A. He described Shooter A as of average size, not fat or big, and of average height. He said he was definitely taller than five feet but less than six feet. He saw something shiny around the ear area.

[22] Tarnowski saw Shooter A reach to his back, either to his pocket or maybe his waist, with his right hand, and bring a gun forward. Tarnowski did not see anyone pass Shooter A the gun. On this point Tarnowski said (at the preliminary inquiry of G.C.):

Question: And is it fair to say that you can’t be a hundred percent sure exactly where he was getting that gun from at that point, right?

Answer: That’s right.

Question: He could just as easily be getting it from his pocket or inside his pants as he may be reaching over and grabbing it from somewhere or somebody?

Answer: Well, I don’t recall anybody passing him anything, anybody was that close to him.

Question: But you said they were all in a circle.

Answer: Yeah, they were all in a circle, right. And then when I saw him, he put his hand back and I don’t, I would see if, you know, a gun is not a pack of smokes, you know. You see when somebody is passing a gun. You definitely see a gun being passed you know. So I knew it was from him. But whether it was in his pocket or back side or where ever, I don’t know where it came from, what he took it from, but I know that nobody, from what I recall, nobody gave him that gun.

[23] At J.S.R.’s trial, Tarnowski testified that at no point did the man that he saw turn to face anybody else before the gun came out. His body did not turn and his head did not look back.

[24] Tarnowski said that Shooter A raised the gun to a 60 degree angle, fired a shot and brought his hand down to eye level. He saw him twist his gun sideways, knuckles to the sky and proceed to fire southward while moving backwards. The reaction at the scene was like an explosion, everybody moved in all directions. Tarnowski saw two shots, and then ducked down and heard approximately three more shots from the same area. In total, he heard four to five shots fired.

[25] Tarnowski testified that he noticed another male with a white hat turned to the side leaning against a wall with his left leg raised when the firing started. This male was not a shooter. He testified that he was certain about seeing two white hats, the shooter and this other male. In the compilation video, G.C. is seen wearing his white hat to the side.

[26] Tarnowski testified that as he crawled out of the car after the shooting had stopped, he looked over his shoulder and saw Shooter A holding the gun at his side, running and making a left onto Elm Street with a group of males. He saw something white on Shooter A’s back and the white hat. Officer Callanan (who was working “pay duty” at Sam the Record Man across the street from the Foot Locker) said that Tarnowski came out of his car and across Yonge Street to where Officer Callanan was standing and described Shooter A. This happened within a minute of the shooting. Officer Callanan did not write down what Tarnowski said verbatim, but recalls him saying “white guy, in a white ball cap, white jacket and he’s gone down Elm Street westbound.” Tarnowski says he does not recall saying anything to the officer about a white male. Both Tarnowski and Officer Callanan agreed this was a jumbled quick exchange. In none of his interviews or subsequent testimony did Tarnowski describe Shooter A as white. In some interviews Tarnowski said Shooter A was black, and in others he said he did not see Shooter A’s skin colour.

[27] Verechtchaguine was a passenger in Tarnowski’s car. He did not provide much assistance at trial, as he ducked for cover in Tarnowski’s car. However, he did testify to seeing two shooters, the first, with a gun that he couldn’t see because it was up the gunman’s sleeve, and the second, who was shooting a silver gun. The first shooter was facing north, towards the Foot Locker. The northbound shooter started running almost immediately after he raised his right hand above his head and fired a shot into the air. Within one or two seconds, Verechtchaguine heard one or two shots, to his right. He turned his head to the right to see a second man, holding a silver gun, pointing it south. This shooter was about three to four feet away from him. He could only see two to three inches of the barrel, but estimated it was approximately 7 inches long and was certain it was silver. He said he could not really see this shooter from where he sat in the car. He could not, for example, tell his skin colour. As Verechtchaguine ducked for cover, he heard about two to three more shots from the same area as this shooter. He testified that the shooter was holding the gun sideways, knuckles facing upward, thumb parallel to the ground, and was running backwards firing southward. He did not appear to be aiming, just firing.

Shooter B

[28] David Audette, Jessica Fung, and Carl Turner provided a description of Shooter B. Mr. Audette was a vacationing police officer with 19 years’ experience. Mr. Audette was standing against the wall just east of the Foot Locker windows. Shooter B was just south of him when the shooter pulled out his gun and fired in the direction of Valentine. Ms. Fung and Mr. Turner were standing across the street.

[29] All three witnesses saw a southbound shooter wielding a gun pointed downward at a 45 degree angle, and all three described the gun as black or dark. Audette said it was black or possibly very dark gun-metal grey. Fung thought it was black, and in cross-examination testified that it was definitely not silver. Turner described it as a dark gun. None of the witnesses saw anyone pass Shooter B the gun.

[30] Audette described Shooter B as a black male whose complexion was darker than J.S.R.’s. He said he was 5’11”-6 feet tall, with a messy afro type haircut. He could not say if he was wearing anything on his head. He suggested that he could have been wearing a do-rag or a bandana, but that it would have to have been a dark colour. He explained that based on his experience as a police officer, a bandana or do-rag could almost look like hair.

[31] Fung described Shooter B as a black male with a darker complexion, taller than average, of average build, and definitely not fat. She did not see any white on Shooter B’s clothing and said he was wearing a dark toque and a dark, baggy jacket.

[32] Turner described Shooter B as black, about 5’9” tall, of average build, wearing a dark blue baggy parka and something grey on his head. He did not see any white t-shirt or trim hanging below his jacket.

[33] All three testified that the gunman was travelling northbound as part of a trio.

[34] Audette saw Shooter B fire a minimum of eight shots. He said some of the shell casings struck him as the shooter went by. Fung testified that Shooter B fired five times and Turner testified that he fired at least three times.

Where the shooters went after the shooting

[35] Everybody scattered after the shootout. Some went north on Yonge Street, and some went west on Elm Street. Immediately after the shooting, J.S.R. fled westbound on Elm Street to Bay Street and from there to Edward Street where he entered a taxi at Edward and Bay. He picked up Andre Thompson and directed the taxi driver to take them to the nearest subway station. A camera inside the taxi photographed J.S.R., showing his sweatshirt done up, with a small section of his white t-shirt visible at the base of his neck. The driver overheard J.S.R.’s phone conversation in which he said he would meet somebody at Castle Frank subway station. After dropping them at St. Patrick subway station, the driver reported them, and their destination, to the police.

[36] A half hour after the shootings, police arrested J.S.R. and Thompson at Castle Frank subway station. They seized a 9mm gun in J.S.R.’s coat pocket.

[37] Ruben Avila, an army medic, was heading south on Yonge Street towards the Eaton Centre at the time of the shootout. He was a few blocks away when he heard about five or six gunshots. While heading south to offer assistance, he saw three men pushing through the crowd heading north on Yonge Street. He saw one of these men put a gray or silver coloured gun in his pants. This man was slim, approximately 5’9” tall and wearing a silky multicoloured shirt. He saw a white male with a shaved blond head and blue eyes, whom he later identified as G.C., as part of this trio.

[38] Avila continued south towards the scene of the shooting in order to offer assistance.

[39] Dorian Wallace, who had been shot in the right chest area above the sternum, also travelled north on Yonge Street. He collapsed just south of Gerrard, and was aided by Avila. Wallace refused treatment, got up and staggered north on Yonge Street. He was assisted by Andrew Smith, who stood out because of his tan suit.

Description of the men in the J.S.R. group

[40] The following descriptions of the young men in J.S.R.’s group were put forward in an Admission of Fact at J.S.R.’s trial.

[41] J.S.R. is black with a medium to light complexion, approximately 5’9” and 145 pounds. He was wearing a dark jacket, with a black zip-up hooded sweatshirt underneath. An oversized white t-shirt hung below his sweatshirt and jacket. From the Eaton Centre video evidence, it could be seen that J.S.R. had his sweatshirt zipped up prior to the shooting. J.S.R. also appeared to have his jacket zipped up when he was in the cab shortly after the shooting. He had on a white, black, and blue “Sixers” baseball hat. The hat was white on the front, blue at the side and black at the back. It had a “Sixers” logo on the front. Under his hat he wore a black and white bandana, tied at the back in a knot that hung down below his hat. The Crown suggested at trial that the folds of the bandana might possibly be confused for cornrows on a quick glance. He wore dark blue jeans and black running shoes.

[42] Louis Woodcock had the 9mm gun at the start of the shootout. He is black, about 5’9” tall, and has a large build. He was known as “Big Guy” because of his size. He had no white on him except for his shoes. He was wearing a dark jacket with a hood and a dark shirt, light blue jeans and white shoes with dark soles and black tongue. He wore a dark baseball hat.

[43] Dorian Wallace is black and of average build. He wore a black leather jacket and a white shirt, grey sweatpants and tan boots. On his head he wore a black baseball cap, with a white do-rag or bandana underneath, with a white tail extending down his back. Wallace had a diamond stud earring in each ear.

[44] G.C. was the only white male in J.S.R.’s group. He was wearing a white baseball hat, turned to the side, a black jacket, a white shirt, and dark blue sweatpants with stripes down the sides.

[45] The other members of J.S.R.’s group were wearing either all dark clothing (Jevoy Johnson, Vincent Davis, Shaun Thompson, Andre Thompson, and Tyshaun Barnett) or were dressed in all tan-coloured clothing (Andrew Smith).

Description of the guns

[46] The 9mm gun found on J.S.R. after the shooting was silver with a black handle. The .25 calibre gun was never found.

Number of shots fired and number of casings found

[47] Tarnowski saw Shooter A fire two shots, and then ducked down and heard approximately three more shots from the same area. In total, he heard four to five shots fired. Verechtchaguine heard Shooter A fire between three and five shots.

[48] Audette saw Shooter B fire a minimum of eight shots. He said some of the shell casings struck him as the shooter went by. Fung testified that Shooter B fired five times and Turner testified that he fired at least three times.

[49] Semi-automatic firearms like the .25 calibre and the 9mm eject spent casings from a port on the side of the firearm. The .357 revolver fired by Valentine did not eject casings.

[50] The police found seven 9mm shell casings and one .25 calibre casing. Two bullets from a .357 revolver were also found. In addition to the eight casings and two bullets, forensic officers identified two projectiles and forty-one projectile fragments at the scene.

[51] The forensic evidence was clear that it was possible that all three guns were fired more times than the number of casings and bullets indicated, given the reality that not every bullet shell will be found. The ballistics expert, Garry Lawrence, testified that shell casings, being round, are notorious for rolling. The scene of the shooting was chaotic, with people running, seeking cover, and dispersing in different directions. There were also grates on the pavement. Moreover, all the gunmen were on the move. And, as noted by the trial judge in his charge to the jury, casings could also have been trapped in the sleeves of the shooters, as their sleeves covered their hands.

The injuries

[52] Six people were struck with bullets and injured. Dorian Wallace and Jevoy Johnson (who were in the J.S.R. group), Milan Mijatovic (who was with Valentine), and Jeyie Su, Helen Yiu and David Audette (innocent bystanders).

[53] Mr. Wallace and Mr. Mijatovic were hit with 9mm projectiles that came from the gun found on J.S.R.

[54] Mr. Johnson was hit with a projectile that could have come from the 9mm or the .357, but could not have come from the .25.

[55] Ms. Su was hit by a 9mm projectile, although it could not be conclusively proven to come from the gun found on J.S.R.

[56] It is not known what type of projectile hit Ms. Yiu, however she was standing right next to Ms. Su when she was hit and was likely hit by the same type of projectile.

[57] The type of projectile that struck Mr. Audette was unknown.

Forensic Evidence – gunshot residue and DNA

[58] Gunshot residue was found on J.S.R.’s hands, Andre Thompson’s left hand, Dorian Wallace’s jacket and Jevoy Johnson’s jacket. The gunshot residue expert at trial explained that the presence of gunshot residue indicates that a person (a) fired a gun, (b) was near someone who fired a gun, or (c) touched a surface that had gunshot residue on it, such as the surface of a gun after it has been fired. Since the gun was in J.S.R.’s pocket, it would be reasonable to infer that he touched the gun. The expert said that the presence of gunshot residue does not assist in deciding which of the possible reasons is the one that would explain why gunshot residue was found on J.S.R.

[59] J.S.R.’s DNA was not found on the 9mm gun. The DNA expert did find the DNA of two other people, Louis Woodcock and Cory Benoit, on the gun. The expert testified that a person might not leave their DNA on a gun if they had only touched the gun for a short time. She did not specify what she meant by a short period of time.

Crown theory

[60] At trial the parties agreed that there was one northbound shooter (Valentine) firing the .357 and two southbound shooters. One of the southbound shooters fired a 9mm and the other fired a .25 calibre. The Crown’s position was that Shooter A fired the 9mm and that Shooter A was J.S.R.

[61] The Crown relied on the following to support its theory that J.S.R. was Shooter A, firing the 9mm:

The 9mm gun was found on J.S.R. within a half hour of the shootout

· Louis Woodcock, part of the J.S.R. group, had the 9mm at the time the shootout began. J.S.R had the 9mm in his jacket pocket when he was arrested a short time after the shootout. The gun transferred from Woodcock to J.S.R. at some point.

· J.S.R. had the gun when he got into the taxi on Edward Street. While nobody saw the transfer of the gun, the evidence reasonably supports the conclusion that the transfer was made when Shooter A reached behind him and brought his hand back forward with a gun.

· While Tarnowski did not see anyone pass a gun, he did see Shooter A reach behind him and pull his hand forward with a gun.

Shooter A had a silver gun. The 9mm found on J.S.R. was silver.

· There were only two guns in the hands of J.S.R.’s group. One was seen by Mr. Audette, Mr. Turner, and Ms. Fung. This gun was described as “black”, “gunmetal gray”, “dark”, “definitely not silver”. The other gun, seen by Mr. Tarnowski and Mr. Verechtchaguine was described as “silver”.

· The Crown submitted that if one gun is black or dark and the other silver, and the silver one is the 9mm retrieved from J.S.R. when he was arrested, then the silver gun is the 9mm gun and the dark gun must be the .25 calibre gun.

· Tarnowski and Verechtchaguine saw Shooter A firing the silver 9mm gun.

The eyewitness descriptions of Shooter A exclude the other men in the J.S.R. group

· Shooter A, seen by Tarnowski and Verechtchaguine, does not fit the description of Woodcock, who is a large man wearing dark clothing. Rather, the description of Shooter A (white hat, white on chest, medium build) fits the appearance of J.S.R. as seen from Tarnowski’s perspective in his car.

· Tarnowski’s observations were detailed given the circumstances. Much of his evidence (white hat, white front) was supported by other evidence which demonstrates the accuracy of his observations and tends to enhance the reliability of his identification evidence. J.S.R. was wearing an oversized white t-shirt, and a hat with a white front. He was wearing a black and white bandana, which was tied at the back in a knot that hung down below the hat.

· There were only three people in the J.S.R. group who had any white on their heads and fronts: J.S.R., G.C. and Dorian Wallace. Dorian Wallace and G.C. can be excluded as Shooter A because Dorian Wallace was shot in the right chest area by the 9mm found in J.S.R.’s possession. He would have had to have shot himself in the chest. G.C. was the only white male in the group. Although he had a white baseball hat and a white shirt, he was the man by the wall with his hat turned to the side. G.C. did not run west, as Shooter A was seen to, but rather was seen by Avila running north. All of the other members of the J.S.R. group had dark hats and dark coats. Woodcock has a large build and was wearing dark clothing (except for his white shoes).

Defence Theory

[62] The defence theory was that Louis Woodcock was Shooter B, that Woodcock fired the 9mm gun after having carried it around the Eaton Centre that afternoon, and that Woodcock passed the 9mm gun to J.S.R. after the shooting ended. The defence relied on the following to support its theory that J.S.R. did not fire the 9mm gun:

Shooter A had the .25 and Shooter B had the 9mm

· The defence argued that Shooter A, seen by Tarnowski, fired the .25.

· The defence said that when one considers the number of shots each group of witnesses saw being fired, the fact that only one shell casing from the .25 gun was found on Yonge Street, the fact that no one appears to have been hit by the .25 gun, and the locations of the shooters and victims, the only reasonable conclusion is that Audette, Fung and Turner saw the male who fired the 9mm and Tarnowski and Verechtchaguine saw the male who fired the .25 calibre.

· Audette saw Shooter B fire a minimum of eight shots. Fung said five and Turner said he saw him fire three or four shots before ducking down behind the taxi. By contrast, Tarnowski saw Shooter A fire one or two shots. Verechtchaguine also saw only one or two shots. Both testified they heard more shots afterwards, which they assumed were coming from the same man.

· Seven 9mm casing were found and several people were injured by 9mm projectiles.

· Only one .25 casing was found. Nobody was hit by .25 projectiles.

Louis Woodcock was Shooter B – he fired the 9mm

· The defence position was that Woodcock was Shooter B, and that he fired the 9mm gun, not J.S.R.

· The defence said it would be inconceivable that Woodcock, who had been carrying the loaded firearm all afternoon, would pass the gun to someone else instead of firing it himself after the northbound shooter opened fire. Woodcock’s DNA was on the 9mm.

· Audette never saw the gun passed. Shooter B pulled it out from somewhere on his person. He fired continuously and did not pass the gun during the shootout.

· The 9mm gun was only passed to J.S.R. after the shootout in an effort by Woodcock to get rid of the evidence.

· Shooter B’s description was wholly inconsistent with J.S.R.’s appearance. Audette described Shooter B as older than J.S.R., with a darker complexion. The description of Shooter B’s clothing did not resemble J.S.R.’s.

Even if Shooter A, seen by Tarnowski, did have the 9mm, Shooter A was not J.S.R.

· Tarnowski did not see a gun being passed. He saw Shooter A pull his gun from somewhere on his body, either his waist or back pocket.

· The defence said that to find that Tarnowski actually saw a gun being passed to Shooter A would require one to reach the illogical conclusion that the gun miraculously appeared in J.S.R.’s hand in the proper position and ready to fire without J.S.R. looking toward Woodcock and without words being spoken.

· The defence contended that Tarnowski’s description of Shooter A is so dissimilar to J.S.R.’s appearance that the person he saw could not have been J.S.R. The defence pointed to the fact that Tarnowski described the shooter as having cornrows, an earring and an all white hat. None of these match J.S.R. Tarnowski also saw a white shirt on the shooter. While J.S.R. was wearing a white t-shirt, it was not visible on his chest area because his black jacket and black sweater were done up.

· At most, the Crown’s case was that some of the clothing that J.S.R. wore resembled some of the clothing Tarnowski saw on Shooter A.

· The defence pointed to Dorian Wallace, who was present at the scene of the shooting and was wearing a white t-shirt under a jacket that was likely open at the time of the shooting. Wallace had a white do-rag on his head, had cornrows and wore diamond earrings. Moreover, Wallace conducted himself in a manner consistent with a “guilty conscience” by initially refusing medical treatment despite his gunshot wound.

Issues

[63] The appellant raises five issues on the appeal: 1) whether the conclusion that the appellant fired a gun was unreasonable; 2) whether the conclusion that the appellant caused the death of the victim was unreasonable; 3) whether the trial judge erred by failing to overrule the decision of the Deputy Attorney General under s. 67(6) of the Youth Criminal Justice Act requiring the appellant to be tried by a jury rather than by a judge alone; 4) whether s. 229(c) of the Criminal Code is unconstitutional; 5) whether leave to appeal the sentence should be granted and if so, whether the trial judge erred by ordering that the appellant be sentenced as an adult.

Analysis

Issue 1: Were the verdicts that identified the appellant as the shooter of the 9mm firearm unreasonable?

[64] The appellant’s position is that the evidence, taken at its highest, is not sufficient to conclude beyond a reasonable doubt that he was the shooter of the 9mm gun. He was found about one half hour after the shooting with the 9mm, but he did not have it before the shooting. The witness Tarnowski saw a shooter with some generic features that matched the appellant but with several that did not. He specifically did not see another person, whom the Crown says was Woodcock, pass the gun to the appellant during the shooting, which was the Crown’s theory of how the event transpired. Part of the appellant’s position is that the jury acted emotionally because of their horror at the death of an innocent young girl.

[65] The appellant asks the court to examine the evidence “through the lens of judicial experience”, after which it should conclude that the verdict was unreasonable. In particular, the appellant submits that this was an identification case, where the evidence of the eyewitness, Tarnowski, was both not specific enough for a trier of fact to be able to safely conclude that it was the appellant whom he saw, and as well, contained specific features that excluded the appellant, those being the observation of hair in cornrows and of something shiny around the ear.

[66] The issue of the sufficiency of the evidence in this case was the subject of two previous judicial tests. One was on an appeal by the Crown and by the appellant to this court from the decision of the motion judge that the appellant could be committed for trial on a charge of manslaughter but not murder. The appellant’s appeal failed and the Crown’s appeal succeeded: R. v. J.S.R. 2008 ONCA 544, 237 C.C.C. (3d) 305. Based on the evidence adduced at the preliminary hearing, this court determined that there was sufficient evidence to commit the appellant for trial on the charge of second degree murder contrary to s. 229(c) of the Code, including sufficient evidence that he caused the death of the victim. This court restored the order committing J.S.R. for trial on the murder charge.

[67] The second test came before the case was given to the jury, when the trial judge, Nordheimer J., was asked to consider whether to order a directed verdict of acquittal on the basis that there was no evidence upon which a jury, properly instructed and acting reasonably, could convict.

[68] The trial judge did not direct a verdict of acquittal: R. v. J.S.R., [2008] O.J. No. 4957 (S.C.). He reviewed in detail the evidence of the witnesses Verechtchaguine and Tarnowski, noting both its consistencies and inconsistencies with the appellant being the shooter of the 9mm gun. He concluded that even though no one saw the gun being passed, there was a view of the evidence that the jury could accept, depending on their findings of credibility, that Tarnowski’s description of the southbound shooter could be the appellant, and coupled with the fact that he was found with the 9mm gun when he was arrested at Castle Frank subway station, that it was the appellant who was the shooter of that gun. In making his finding, the trial judge observed that the threshold for the prosecution to overcome in resisting a directed verdict application is a very low one, and that it was the combination of the evidence of Tarnowski together with the appellant having the gun following the shooting, that could sustain a finding of guilt on the charge of second degree murder.

[69] The test an appellate court must apply when considering whether the verdict reached by the jury was unreasonable is different than the one a trial judge must apply on a directed verdict application. The authority of a court of appeal is found in s. 686(1)(a)(i) of the Criminal Code which states:

686. (1) On the hearing of an appeal against a conviction…the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

[70] In R. v. Yebes, [1987] 2 S.C.R. 168, the Supreme Court explained that in order for the court of appeal to determine whether there has been an unreasonable verdict, it must decide whether a properly instructed jury, acting judicially, could reasonably have rendered the verdict. While the appellate court must not merely substitute its view for that of the jury, in order to apply the test the court must re-examine the evidence and to some extent re-weigh it and consider its effect.

[71] The process for the appeal court to apply was explained again in R. v. Biniaris, [2000] 1 S.C.R. 381. In that case, the Supreme Court set out the Yebes test and said, at para. 36:

The formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjective exercise … .

[72] The appeal court goes through the same process as the jury does, but does it “through the lens of judicial experience” (Biniaris at para.40). In some cases, “the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced” (Biniaris at para. 39). The Supreme Court explained as follows, also at para. 39:

When a jury which was admittedly properly instructed returns what the appeal court perceives to be an unreasonable conviction, the only rational inference, if the test in Yebes is followed, is that the jury, in arriving at that guilty verdict, was not acting judicially.

The court of appeal must articulate the grounds for its intervention, or for its decision not to intervene – in other words, it must explain the use and effect of the application of the judicial lens (Biniaris, at para. 42).

[73] On this appeal, the parties acknowledged that the jury was properly instructed by the trial judge. There was no error on the law or on the proper approach to the fact-finding function. In my view, the jury charge was well-organized, thorough but at the same time succinctly presented, and most importantly, extremely fair.

[74] On the issue of how to approach identification, the trial judge cautioned the jury regarding the frailties of eyewitness identification evidence. He then reviewed in detail the physical circumstances and short time period in which the witnesses made their observations, the descriptions and the discrepancies within those descriptions of the shooters and of the guns involved, the circumstances when and where the witnesses gave those descriptions to authorities and the discrepancies that arose in the numerous tellings of the observations. He concluded that part of his charge with the onus on the Crown to prove beyond a reasonable doubt that it was the appellant who was the shooter. He explained that the witnesses need not be certain about their identification, but the jury must be certain beyond a reasonable doubt, based on the whole of the evidence.

[75] The trial judge described the four elements of the offence of second degree murder under s. 229(c) of the Criminal Code, then reviewed the logic and the supporting and conflicting evidence in respect of each element. The key first element was, did the appellant do something, which the trial judge identified as whether the appellant fired a gun numerous times. The trial judge then discussed the evidence with respect to the guns that were fired, including the .357 magnum revolver shot by Valentine that hit Jane Creba, the .25 calibre and the 9mm, and suggested to the jury that because the appellant had the empty 9mm when he was arrested shortly after the shooting, the only reasonable inference was that if he shot any gun, it must have been the 9mm. He instructed the jury that the question was “whether the evidence satisfies you beyond a reasonable doubt that [the appellant] fired that gun.”

[76] The trial judge then suggested a method of approach that involved the jury first determining which gun each of the two sets of witnesses saw being fired. The first set of witnesses was Mr. Audette, Mr. Turner and Ms. Fung, and the second set was Mr. Verechtchaguine and Mr. Tarnowski. If the jury concluded that the first three witnesses saw the shooter of the 9mm, then, since those witnesses’ descriptions were not consistent with the appearance of the appellant, the jury could conclude that the appellant was not the shooter of the 9mm. The trial judge then detailed the evidence of all five witnesses, pointing out the consistencies and inconsistencies both internally, among witnesses, and with the appellant and other people known to be at the scene.

[77] The trial judge concluded this section of the charge by advising the jury that if, based on this approach, they accepted that the second set of witnesses, Verechtchaguine and Tarnowski, observed the shooter of the 9mm, that conclusion by itself did not mean that that shooter was the appellant. The trial judge instructed the jury that there were three other pieces of evidence to consider. The first was that the appellant was found with the 9mm in his pocket, empty and with the slide locked back. The trial judge then said:

I suggest that that fact is somewhat neutral on the issue of who fired the gun since it is a fact that would be consistent with [the appellant] having fired the gun but it would be equally consistent with [the appellant] having been handed the gun after the shooting occurred.

[78] The second piece of evidence was that the appellant had gunshot residue on his hands, but that the expert had testified that having residue can be consistent with firing the gun as well as being near someone who fired the gun, or touching the gun after it had been fired. Further, others also had gunshot residue on their hands. The third piece of evidence was that the appellant’s DNA was not on the gun, while Mr. Woodcock’s and Mr. Benoit’s was. Again, the expert testified that a person might not leave their DNA on a gun that they only touched for a short period of time, although the expert was not asked to explain that any further.

[79] Finally on that point, the trial judge referred to the admission that Mr. Woodcock had the 9mm at the time the shooting began and no one saw him or anyone pass it to the appellant at any time. Therefore, it could have been passed after the shooting, when the appellant and others ran around the corner on Elm Street, or it could have been that the witnesses just did not see the gun being passed.[1]

[80] After the trial judge dealt with the rest of the issues (some of which I will refer to later in these reasons), he reminded the jury that although it was natural to be troubled and saddened by the tragic death of Jane Creba, their job was to objectively and dispassionately determine the facts and apply the law as explained in order to determine whether the Crown had proved the guilt of the appellant beyond a reasonable doubt.

[81] The jury was properly instructed. The trial judge was satisfied that there was a route to conviction on the evidence, depending on which evidence the jury accepted. The jury was satisfied of the appellant’s guilt of second degree murder beyond a reasonable doubt.

[82] This court’s role now is to re-examine the evidence “through the lens of judicial experience” in order to decide whether, in reaching the verdict of guilt beyond a reasonable doubt, the jury was acting judicially. The focus of the court’s attention is on the discrepancies in the witnesses’ observations and descriptions of the shooter as compared to the actual appearance of the appellant on the day of the shooting, together with the failure of any witness to see the gun passed to the appellant. Looking at the evidence through the lens of judicial experience, was it reasonable for the jury to conclude that the appellant was the shooter of the 9mm?

[83] As Tarnowski was the only witness who was able to see and give some description of the second southbound shooter, referred to as Shooter A, the appellant points to several problems with his identification as precluding a trier of fact from coming to a firm conclusion based on his evidence.

[84] Tarnowski said the shooter had an all-white cap and when shown the one the appellant was wearing, which was only white at the front, Tarnowski did not believe it was the one he saw. Tarnowski thought the shooter’s hair was in cornrows, perhaps one or two lines, in an arc above the shooter’s ear. In fact, the appellant’s hair was not in cornrows. The appellant was wearing a bandana that was black with white markings on it wrapped around his head under his cap. Tarnowski initially saw white on the shooter’s chest, then later on his back. The appellant was wearing a long white t-shirt under his jacket, but in pictures of him before the shooting at the Eaton Centre and after the shooting in the taxi, the appellant’s jacket was zipped up, so that only a small section of his white t-shirt was visible above the zipper. However, the white t-shirt was visible hanging down below the appellant’s waist. Finally Tarnowski thought he saw something shiny around the shooter’s ear, but the appellant was not wearing an earring.

[85] Tarnowski also had a limited time to view the scene, his view may have been obstructed by his passenger, Verechtchaguine, it all happened very quickly, he gave a number of inconsistent descriptions of the shooter and identified someone other than the appellant in a photo line-up.

[86] These aspects of Tarnowski’s evidence must be weighed in the context of the rest of his evidence and the evidence as a whole. First, although there were aspects of his descriptions that matched features of both Dorian Wallace and G.C., two young men who were with the appellant, it is clear that the shooter of the 9mm was not Wallace because Wallace was hit by a bullet from that gun, and it was not G.C. because G.C. was separately identified as the person standing against the wall with his white hat turned to the side, and was identified as running north on Yonge Street, not west on Elm Street, after the shooting.

[87] Clearly the most critical piece of evidence to be considered along with Tarnowski’s description of the shooter was the fact that the appellant had the empty 9mm gun when he was arrested. I also note that Tarnowski saw the shooter with the gun as he ran north on Yonge Street and turned west onto Elm Street. Louis Woodcock had possession of the 9mm gun prior to the shooting. However, the person Tarnowski saw did not match Woodcock (who was dressed in dark clothing and was a larger person than the appellant) in any way. The appellant had to have received the gun from Woodcock sometime between the beginning of the shooting and when the appellant got into the taxi right after the shooting. No one saw the appellant receive the gun, but we know it happened.

[88] Although Tarnowski did not believe he saw anyone pass the gun to the shooter, he did see the shooter reach behind his back to retrieve the gun and begin to shoot. It would not have been unreasonable for the jury to infer that that was when the appellant obtained the 9mm, even though Tarnowski did not see it happen.

[89] The defence theory is that Louis Woodcock was the shooter, and that he passed the gun to the appellant afterward in order to dispose of the evidence. Although it is possible that a young person in a gang might accept a “hot” gun in the heat of the moment, it would not have been unreasonable for the jury to conclude that it was unlikely that the appellant would have accepted and retained a gun that had just been fired by someone else into a crowded street, hitting and injuring a number of people.

[90] The appellant also says that it was unreasonable for the jury to conclude that Shooter A had the 9mm gun rather than the .25 calibre gun, and puts forward the suggestion that it was Shooter B who had the 9mm. In my view there was more than sufficient evidence to conclude that Shooter B had another gun. Most compelling is that all three witnesses who observed Shooter B said the gun was not silver but black or dark grey. They also saw Shooter B head north on Yonge Street after the shooting, not turn west onto Elm Street.

[91] Turning back to Tarnowski’s evidence, I must consider the application of Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474, where the court held that where an identifying witness observes a specific dissimilar feature, there is no identification but a mere resemblance. The appellant submits that since Tarnowski said the shooter had cornrows in his hair and something shiny around his ear, that shooter could not have been the appellant.

[92] Subsequent case law from this court has made it clear that it is only where there is no other inculpatory evidence that an observed dissimilarity means there is no identification: R. v. Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58; R. v. Boucher (2000), 146 C.C.C. (3d) 52 (Ont. C.A.); R. v. Dimitrov (2003), 181 C.C.C. (3d) 554 at 565 (Ont. C.A.) leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 59; R. v. Savoury (2005), 200 C.C.C. (3d) 94 (Ont. C.A.); R. v. Blackman (2006), 215 C.C.C. (3d) 524 (Ont. C.A.).

[93] In any event, looking at Tarnowski’s evidence as a whole, it was not unreasonable for the jury to find him credible, but given the chaotic circumstances, possibly mistaken in some of his observations. He was also somewhat unsure of certain details, which is consistent with the circumstances in which he witnessed the events. His description of the shooter can be viewed as resembling the appellant in a number of ways with discrepancies explained by those chaotic events.

[94] Dealing briefly with each one, the appellant was wearing a white t-shirt under his dark jacket. The jacket was open earlier in the day where a camera recorded the appellant at Warden subway station. The jacket could have been open again during the shooting. It is also plausible that Tarnowski saw the white t-shirt hanging out below the appellant’s waist and believed he saw white higher up, or that he saw a patch of white t-shirt above a partially zipped up jacket. Tarnowski thought the shooter was wearing an all-white hat, but he only saw the shooter in profile and therefore may not have been able to see the dark parts. No other participant was wearing an all-white hat except G.C., who was standing against the wall and was not shooting.

[95] The appellant was wearing a bandana that arguably could have been mistaken for cornrows. This suggestion was made by Crown counsel in her closing to the jury, asking the jury to draw that inference based on their observations of the bandana. This was not an error in law (see R v. D.E., 2011 ONCA 117, at para. 12), nor an unreasonable inference for the jury to draw. The observation of something shiny around the shooter’s ear may have been a mistake by the witness.

[96] Tarnowski could not see the shooter’s face and did not know his skin colour. His description of the size and build of the shooter, although generic, was consistent with the appellant.

[97] The next aspect of the evidence to be considered in a review for reasonableness is whether there was anyone else who also fit the description of Shooter A sufficiently to make it unreasonable to conclude beyond a reasonable doubt that the appellant was Shooter A. In my view, it was a reasonable conclusion that none of the other people in J.S.R.’s group could have been Shooter A, either because they did not meet the description of this shooter or because they were excluded for another reason. Woodcock was too large and he was not wearing white. Wallace was wearing a white t-shirt and had a white bandana or do-rag on his head under his black hat, however, he can be excluded because he was shot in the chest with the 9mm. G.C. had a white hat, however, he was identified as the man standing against the wall, and was also seen running north on Yonge Street, not west on Elm Street. All of the other members of the appellant’s group were dressed in dark hats and coats, with the exception of Andrew Smith, who wore tan-coloured clothing.

[98] In my view, when the evidence is examined as a whole and through the lens of judicial experience, it cannot be said that the verdict of guilty on the charge of second degree murder was unreasonable. I would not give effect to the first ground of appeal.

Issue 2: Was the murder verdict unreasonable because the conclusion that the appellant caused the death of the victim was unreasonable?

[99] Valentine shot Jane Creba with his .357 magnum revolver. That shot directly caused her death. It is not known whether his first shot hit her or whether it was a subsequent shot.

[100] The trial judge instructed the jury that if they found that the appellant was the shooter of the 9mm handgun, that act by him could only have caused the victims’ death if it was a contributing cause, beyond something trifling or minor in nature. The issue therefore was whether Valentine would have shot Ms. Creba whether or not the appellant shot his 9mm. Put another way for the jury, if the fatal shot would not have been fired “but for” the appellant participating in the gun-fight, then the appellant’s participation would be a contributing cause of the victim’s death.

[101] The appellant submits that, on the record, there was no way to determine whether the fatal shot was fired before or after the appellant began to shoot. Second, because there was a third shooter, Shooter B with the .25 calibre handgun, it is not possible to conclude that it was because of the appellant’s participation in the gun-fight that Valentine shot the victim.

[102] The causation issue was also addressed by this court on the Crown’s appeal of the decision to commit the appellant for trial on the charge of manslaughter and not second degree murder (2008 ONCA 544, 237 C.C.C. (3d) 305). There, this court was operating on the record from the preliminary inquiry. Based on the evidence from that proceeding, this court concluded that the evidence could support a finding that the two groups of young men, the Valentine group and the appellant’s group, had made a mutual decision to engage in a gun fight on Yonge Street that afternoon. The court applied the law from cases involving car racing, where both drivers agree to a race and one of the drivers hits a bystander causing injury or death. In such cases, both drivers may be held to have caused the injury or death. See R. v. Rotundo (1993), 47 M.V.R. (2d) 90 (Ont. C.A.), at para. 2. The court then quoted the description of causal responsibility from Hill J. in R. v. Menzes (2002), 23 M.V.R. (4th) 185 (S.C.J.) at para. 105:

Those at risk from the unreasonable and unjustified danger of an escapade of competitive driving, whether a spontaneous or planned event, include the occupants of other vehicles, cyclists, pedestrians, passengers in the racers’ autos, and the co-participants themselves. There is one danger. Each driver bears equal responsibility for its continued life span subject to withdrawal or [an] intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created. [Emphasis added by the quoting court.]

[103] This court concluded its analysis as follows, at para. 30:

Borrowing the words of Hill J. and applying them to this case, a reasonable jury could find that each shooter induced the other to engage in a gun fight on a crowded street. “But for” the decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms. Creba would not have been killed.

[104] The appellant accepts this test, but submits that many of the factual circumstances that allowed this court to conclude that there was sufficient evidence of a mutual gun fight occurred at the Eaton Centre just before the two groups went to the Foot Locker. These facts were excluded from the evidence at the appellant’s trial. The appellant argues that without that additional evidence, it would be unreasonable to draw the mutual gun fight conclusion.

[105] The Crown’s position on the appeal is that evidence of what occurred earlier at the Eaton Centre should not have been excluded at trial. The Crown has appealed that ruling as part of its conditional appeal in respect of the charge of aggravated assault regarding Milan Mijatovic. The Crown also takes the position that even without that evidence, there was still sufficient evidence from which it was reasonable for the jury to conclude that the men had reached and communicated that agreement.

[106] The Eaton Centre evidence showed that the two groups had some violent interaction before they got to the Foot Locker store, and that the appellant’s group was inclined to violence. It therefore added background colour to the evidence of what occurred inside and outside the Foot Locker store, but in my view, it did not form the critical components for the inference of a mutual agreement to have a gun fight on the street. Those came from the parts of the evidence identified from the preliminary inquiry by this court in its earlier ruling, and that also came out at the trial:

· J.S.R. and his group were in the Foot Locker at the same time as the northbound shooter;

· J.S.R. and his gang left the Foot Locker before the northbound shooter and congregated on the sidewalk close to the door of the Foot Locker arranged in an arc.

· The northbound shooter made certain comments to J.S.R.’s group immediately after he exited the Foot Locker. The northbound shooter also displayed his .357 Magnum when he made these comments;

· A reasonable jury could conclude, based on the northern shooter’s conduct, that the northbound shooter expected J.S.R.’s group to be outside the store and was issuing or accepting a challenge to engage in a gun battle right then and there;

· J.S.R. and others in his gang did not run when the northbound shooter flashed his gun; rather, they stood their ground and quickly opened fire.

[107] I also agree with the Crown that the car racing cases mentioned above apply. Therefore, it does not matter who shot first or that there was a third shooter - the appellant contributed sufficiently significantly to the death of the victim to meet the causation requirement for murder.

[108] I conclude that looking at the evidence through the lens of judicial experience, and applying the law, it was not unreasonable for the jury to find that the appellant caused the death of the victim. I would not give effect to this ground of appeal.

Issue 3: Is Section 229(c) of the Criminal Code inconsistent with ss. 7 and 11(d) of the Charter and therefore unconstitutional?

[109] The appellant raised this issue at trial, but since then, this court has ruled in R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 270, that the section is constitutional.

Issue 4: Did the trial judge err by failing to overrule as unconstitutional the decision of the Deputy Attorney General under s. 67(6) of the Youth Criminal Justice Act requiring the appellant to be tried by a court composed of a judge and jury?

Introduction

[110] At the time of the offence, J.S.R. was a young person as defined under the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”). He elected under s. 67(1) of the YCJA to be tried before a judge of the Superior Court, sitting without a jury.

[111] In response to that election, the Crown prosecutor, relying on s. 67(6) of the YCJA, required that J.S.R.’s trial proceed as a jury trial. Section 67(6) reads:

The Attorney General may, even if a young person elects under subsection (1) or (3) to be tried by a youth justice court judge without a jury or a judge without a jury, require the young person to be tried by a court composed of a judge and jury.

[112] The Crown prosecutor took the position that any Crown counsel could require a jury trial for a young person under s. 67(6) of the YCJA and that the decision did not have to be made by the Attorney General personally.

[113] J.S.R. brought an application at the outset of his trial for an order declaring s. 67(6) unconstitutional on the basis that it violates ss. 7 and/or 15 of the Canadian Charter of Rights and Freedoms (“the Charter”). J.S.R. also presented an alternative argument that having his trial proceed as a jury trial would violate his right to a fair trial as guaranteed under s. 11(d) of the Charter. On this basis, he sought an order under s. 24(1) of the Charter directing a judge alone trial. Nordheimer J. heard the application from September 8 to September 10, 2008.

[114] In his decision dated September 15, 2008, Nordheimer J. concluded that s. 67(6) of the YCJA violates ss. 7 and 15 of the Charter to the extent that it delegates the authority to impose a jury trial on accused young persons to all Crown counsel: R. v. J.S.R. (2008), 236 C.C.C. (3d) 505 (Ont. S.C.). Nordheimer J. ruled that s. 67(6) should be read down so that the reference to the Attorney General included only the Attorney General personally or the Deputy Attorney General. He declined to rule at that time on the alternative argument that requiring J.S.R. to have a jury trial violated his s. 11(d) rights.

[115] Following Nordheimer J.’s ruling, acting under s. 67(6) of the YCJA, the Deputy Attorney General required that J.S.R. be tried by a court composed of a judge and jury. Before that decision was made, through his counsel, J.S.R. provided written submissions to the Deputy Attorney General as to why the section should not be invoked. The Deputy Attorney General did not provide reasons for his decision.

[116] The second part of J.S.R.’s application, namely whether the decision of the Deputy Attorney General directing a jury trial violated J.S.R.’s rights under s. 11(d) of the Charter, then fell to be determined. On October 7, 2008, Nordheimer J. dismissed this second part of J.S.R.’s application: R. v. J.S.R., [2008] O.J. No. 4164 (S.C.). Nordheimer J. considered whether J.S.R. had demonstrated that a fair trial before a jury would be impossible. He found that J.S.R. had not demonstrated that other procedures designed to ensure an impartial jury would be insufficient. Nordheimer J. concluded, at para. 15:

I am not satisfied, on the record before me, that the degree of pre-trial publicity in this case has risen to the level that it impairs the applicant’s ability to have a fair trial in light of the statutory and common law procedures designed to preserve and protect fair trial rights. I am therefore unable to conclude that the applicant’s rights under s. 11(d) of the Charter have been infringed. The application also fails on this alternative basis.

[117] J.S.R. submits that Nordheimer J. erred in dismissing the s. 11(d) portion of his application by limiting his inquiry to determining whether J.S.R. could demonstrate that a fair jury trial was impossible. J.S.R. relies on the enhanced procedural protections for young persons set out in the YCJA and submits that the following conclusion of Molloy J. in R. v. G.C., 2010 ONSC 115, 258 C.C.C. (3d) 550 at paras. 63-64 should have been drawn in the case at bar:

It is difficult to fathom why the Crown is so insistent on a jury trial in this case. The accused’s election was made at a very early stage, when there could be no issue of “judge shopping.” Given the nature of the anticipated evidence in the trial, the obvious danger of its being misused by a jury and the Crown’s own stated concerns about trial fairness in light of the extensive media coverage of the events, a reasonable person might expect that a Crown interested only in a fair trial for the young person accused would be relieved to learn that the young person had elected trial by judge alone. Clearly that would expedite the trial, simplify many of the issues, and remove many, if not all, of the concerns about trial fairness. The question then is why the Crown’s reaction is so diametrically opposed to this seemingly sensible and fair proposal that the extreme step was taken of requesting the Attorney General to override the election and require a jury trial. Further, when that decision was challenged and the Crown and the Deputy Attorney General were asked to explain the basis for the request and decision, they refused, the only reason given for the refusal is that they are not required to justify their position.

In these circumstances, I come to the same conclusion as was reached by Charron J. (as she then was) in McGregor, namely, that an informed person viewing the matter realistically and practically would conclude that the Crown was seeking a favourable jury, not an impartial one. I am further of the view that Charter considerations are engaged. I come to that conclusion not because I believe G.C. could not obtain a fair trial before a jury, but rather because the manner in which this decision was made breached his rights under the YCJA, breached principles of procedural fairness, natural justice and fundamental justice and therefore engaged Charter values. In my opinion, the actions of the Crown and of the Deputy Attorney General were oppressive and an abuse of process.

Analysis

[118] The scope of the court’s ability to review a decision made by the Crown in a criminal case has been the subject of a number of decisions at all levels of court, including the Supreme Court of Canada in its decisions in Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 and R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566.

[119] In those cases, the Supreme Court explained that in approaching this issue, the first question to be determined is whether the Crown decision at issue is part of the “core prosecutorial discretion” of the Attorney General. Such decisions are not subject to court review except for abuse of process amounting to “flagrant impropriety” or malicious prosecution. The limits of core prosecutorial discretion were described as follows by the court in Krieger, at paras. 43 and 46-47:

“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

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Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether; R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis in original.]

[120] The Supreme Court confirmed this definition of core prosecutorial discretion at para. 21 in Nixon.

[121] Other “non-core” decisions made by the Crown in the course of a prosecution are matters of “tactics or conduct before the court” and are governed by the inherent jurisdiction of the court to control its own process. However, such decisions by the Crown can also only be challenged as an abuse of process. The difference is that the standard is somewhat less deferential to the Crown and does not require demonstrating flagrant impropriety in order to seek and obtain a remedy.

[122] The application of these principles to a decision by the Crown under s. 568 of the Criminal Code to require an adult accused to be tried by a court composed of judge and jury was recently discussed by M. F. Brown J. in R. v. De Zen, 2010 ONSC 974.

[123] In De Zen, Brown J. first found that the decision by the Crown under s. 568 of the Criminal Code is not a “core” element of prosecutorial discretion and therefore is not subject to the very stringent deferential standard when considering whether there was an abuse of process in making the decision. I quote from paras. 26 and 27 of his reasons:

The distinction drawn by the Supreme Court in Krieger between core prosecutorial discretion, on the one hand, and tactical Crown decisions, on the other, is of direct relevance to this case. The Crown’s decision to require a jury trial does not, in my view, fall within the core elements of prosecutorial discretion. It is not, to use the Supreme Court’s words and emphasis, in Krieger an “ultimate decision” about “whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for”. In this sense, the decision to invoke s. 568 of the Criminal Code is completely distinguishable from a decision to prefer a direct indictment. The latter is manifestly a decision to lay a charge, and therefore has been accorded significant deference: R. v. Stucky, [2005] O.J. No. 5120 (S.C.J.), at paras. 44-45.

A decision to invoke s. 568 of the Criminal Code relates to the mode of trial in respect of a charge that has already been laid. It does not “go to the nature and extent of the prosecution” (i.e., what the prosecution is about). It does not relate to the subject matter of the charges. It relates instead to “a Crown prosecutor’s tactics or conduct before the court”. In my view, it is the very sort of decision that falls outside the definition of “prosecutorial discretion” set out in Krieger and is governed by this Court’s inherent jurisdiction to control its own process without deferential treatment.

[124] Brown J. then discussed the two types of abuse of process under s. 7 of the Charter: 1) conduct affecting the fairness of the trial and 2) conduct that is procedurally unfair and thereby undermines the integrity of the justice system, and concluded at para. 34 that the decision made under s. 568 of the Criminal Code was reviewable for abuse of process on the more relaxed standard:

In my view, the decision of the D.P.P. in this case to require a jury trial pursuant to s. 568 of the Criminal Code is open to review on the more relaxed standard of fairness and objectivity rather than flagrant impropriety. The broad s. 7 Charter principles of fairness apply in these circumstances and the prosecutorial conduct in question is governed by the inherent jurisdiction of the court to control its own process.

[125] He then found that in that case, the Crown’s decision to require a jury trial constituted an abuse of process because it was not made in a fair and objective way and it therefore undermined the integrity of the judicial process. Brown J. based this conclusion on the cumulative effect of a number of factors and circumstances: effectively, the Crown had been participating with the defence in extensive pre-trial arrangements to facilitate a complicated fraud trial before an Ontario Court judge, but when a judge was assigned to hear the trial, the Crown without notice or any explanation advised the defence that it required the case be tried by a judge and jury.

[126] In De Zen, Brown J. drew the inference from these circumstances that the Crown’s decision, made only after a judge was named and without giving any reasons, was based on “partisan considerations”. While accepting as a matter of law that as a general rule the Crown is not obliged to explain its decisions, its failure to do so in the circumstances “seriously undermines the perception of impartiality and fairness and tarnishes the reputation of the justice system” (para. 42).

[127] I agree with Brown J. that the Crown’s decision under s. 568 of the Criminal Code to require a jury trial even where the accused has elected to be tried by a judge alone is not a core aspect of prosecutorial discretion. It is not a decision as to whether the prosecution will proceed or on what charge. Similarly, in my view, a decision by the Deputy Attorney General under s. 67(6) of the YCJA to override a young person’s decision to be tried by a judge alone and to require the trial to be by judge and jury is also not a core exercise of prosecutorial discretion. As a result, it is the type of decision by the Crown that is subject to judicial review for abuse of process on a less deferential standard. Specifically, it does not require flagrant impropriety to be found in order to justify a remedy under s. 24(1) of the Charter.

[128] In his decision of October 7, 2008, Nordheimer J. concluded that the pre-trial publicity surrounding the appellant’s case, though extensive, would not impair the ability of the appellant to have a fair trial, given the statutory and common law procedures that are in place to protect fair trial rights. He found there was no breach of s. 11(d) of the Charter.

[129] The appellant submits that what was not specifically addressed was the question of whether it was an abuse of process for the Crown to make the decision under s. 67(6) without according the appellant procedural fairness by disclosing to him the case he had to meet and/or providing reasons for the Crown’s decision. He argues that the principles of the YCJA as set out in s. 3.(1)(b)(iii) and (d)(i) entitle a youth to enhanced procedural protections. Those sections state:

3. (1) (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

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(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

…

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms.

[130] R. v. G.C., 2010 ONSC 115, 258 C.C.C. (3d) 550 involved another young person charged in connection with the Boxing Day shootings. In that case, Molloy J. found that young persons are entitled to enhanced procedural protections under the YCJA and that the Crown’s refusal to provide information regarding the reasons for its decision under s. 67(6) to require that G.C. be tried before a judge and a jury constituted a contravention of the YCJA and a breach of fundamental justice.

[131] I agree with Molloy J. that s. 67(6) of the YCJA must be read in the context of s. 3 to ensure that young people are treated fairly, and their right to participate in the trial process is respected. However in my view, the Act does not require the court to read in full administrative law procedural rights in order to achieve fair treatment in the context of s. 67(6), or to avoid a finding of abuse of process based on procedural unfairness. Such an interpretation of the YCJA would be inconsistent with the broad scope traditionally afforded to prosecutorial discretion: see Krieger at paras. 32 and 48, and Nixon at para. 20. Nor is it necessary to ensure trial fairness.

[132] In the case at hand, I have concluded that the appellant’s rights to be treated fairly and to participate in the trial process were not breached. In this case, unlike in De Zen, the decision by the Deputy Attorney General to require a jury trial was not made without notice and the appellant was given the opportunity to make submissions to the Deputy Attorney General and did so before the decision under s. 67(6) was made.

[133] Also, unlike in De Zen, the decision was not made at the last minute after a judge was named and in circumstances that aroused the suspicion and concern of the court. To the contrary, one can infer that because of the notoriety of the Boxing Day events, the Deputy Attorney General would consider it to be in the public interest for the public to participate in the trials of the accused persons. This was not a situation, as in R. v. McGregor (1999), 43 O.R. (3d) 455 (C.A.), where the reviewing court would be concerned that the Crown was seeking a favourable jury.

[134] In my view the decision of the Deputy Attorney General in this case not to provide reasons for the decision under s. 67(6) did not amount to an abuse of process by procedural unfairness or a breach of s. 7 of the Charter. However, if the circumstances of such a decision were to raise the concern of the court and suggest abuse, then the failure to provide reasons could be a factor in the reviewing court’s decision whether an abuse of process had occurred, requiring a Charter remedy.

[135] I would not give effect to this ground of appeal.

Issue 5: Did the trial judge err by deciding to sentence the appellant as an adult?

[136] Following J.S.R.’s convictions, in April, 2009 the Crown applied to have J.S.R. sentenced as an adult. J.S.R. submits that Nordheimer J.’s reasons for granting the application disclose two errors in principle:

(1) He concluded that he was obliged to credit J.S.R. for pre-sentence custody;

(2) He in effect considered the principle of denunciation.

[137] J.S.R. argues that as a result of these errors, no deference is owed to the trial judge’s conclusions and that the decision to sentence J.S.R. as an adult should be set aside.

[138] I would not give effect to either of these submissions. Nordheimer J. gave comprehensive, clear and thoughtful reasons in his consideration of the issue of whether to impose an adult sentence under s. 72(1) of the YCJA. He repeated several times in his reasons the principle issue, which was “whether the duration of any youth sentence that might be imposed for these offences would have sufficient length to hold [the appellant] accountable for his offending behaviour…in accordance with the factors set out in s. 72(1).”

[139] The context of the analysis was the maximum penalty allowed for second degree murder under the YCJA, which is seven years, with a maximum of four years in custody and three years under community supervision, as compared with an adult sentence of life in prison with parole eligibility at seven years for a 17 year-old offender (s. 745.1(c) of the Criminal Code).

[140] Section 72(1) provides:

In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

[141] The trial judge first addressed the seriousness of the offence and for that purpose he made findings of fact based on the jury verdict and the evidence. Those findings included that the appellant shot a gun more than once in a gun fight on a crowded main street on Boxing Day in Toronto. He hit two people and by participating in the gun fight, he caused the death of Jane Creba. Under s. 229(c), to be found guilty he had to have known that causing someone’s death was the likely result of his actions.

[142] The trial judge then reviewed in detail the pre-sentence report regarding the appellant as well as a psychological assessment. Without repeating here the contents of these reports, for the purpose of these reasons, the appellant had made some progress but was considered a high risk to re-offend. He also had a record that included assaults, and was on release on the day of the offence under conditions that prohibited him from possessing a gun and from being on Yonge Street.

[143] The trial judge next reviewed case law that discussed the meaning of accountability under the YCJA, and specifically the fact that the adult sentencing factor of deterrence is not part of sentencing under the YCJA and that no time can be added to the sentence to reflect that factor. He also referred to Justice Department materials which state that an adult sentence should only be imposed sparingly and where it is clear that it is needed.

[144] The trial judge then discussed the issue of pre-sentence custody and how that should figure into his assessment of whether an adult sentence should be imposed. At that time the appellant had served three years and four months in pre-sentence custody. The appellant asked the court to give no credit for that time served in deciding whether the maximum youth sentence of seven years was sufficient under the Act.

[145] Nordheimer J. concluded that to ignore that amount of time served in order to justify sentencing the appellant as a youth to the seven years maximum constituted a strained interpretation of the sentencing provisions of the YCJA. He then concluded on that point:

It seems to me that the need to engage in that exercise may only serve as a signal that the sentence mandated by the Act is not the appropriate sentence.

Whether that is, in fact, the ultimate conclusion that should be reached in this case is the issue to which I now return. I begin with the three categories of factors under s. 72.

[146] The appellant argues on the appeal that the trial judge erred on this issue based on this court’s subsequent decision in R. v. Logan, 2009 ONCA 402, 97 O.R. (3d) 270 (C.A.), where the court observed that it is a matter of discretion for the trial judge whether to subtract pre-sentence custody from the maximum sentence in the YCJA. I see no error for two reasons. First, because it is a matter of discretion, Nordheimer J. was not required to give no credit for pre-sentence custody. Second, it is clear from his conclusion on this issue, just quoted, that he dealt with that issue because it was raised by the appellant in argument, but his decision on whether to impose an adult sentence was based on the three factors in s. 72(1) and not on the pre-sentence custody submission one way or the other.

[147] When the trial judge got to the third factor under s. 72(1), “other factors that the court considers relevant”, he referred to the interests of society. In doing so, he made it clear that he understood that he was not to take denunciation into account and that he was not doing that. Rather, the sentence should ensure that the youth criminal justice system commands the respect of society. He then stated:

In making this latter observation, I am mindful of the possibility that some will say that I am indirectly invoking the principle of denunciation that the Supreme Court of Canada has said has no application under the YCJA. I do not believe that this is the case. I am not attempting to arrive at a sentence the object of which is to show society’s censure of the conduct involved. That would be tantamount to expressing denunciation. Rather I am attempting to recognize, as the YCJA itself does, that there is a legitimate public interest in the sentencing process involving young persons. Respect for the justice system commands a sentence that not only is, but is seen to be reflective of the acts underlying the offence and the offender’s role in those acts. We have the right to expect an appropriate degree of accountability and responsibility from all of our citizens, even our youngest citizens.

[148] Following this paragraph, the trial judge came to the conclusion, based on all of the factors, that an adult sentence was necessary in this case.

[149] I am satisfied, based on the reasons read as a whole, that the trial judge did not include denunciation as a factor in his decision and that his decision should be accorded the deference of this court.

Conclusion

[150] The Crown also filed a Notice of Appeal in this case. Its appeal was contingent on the success of the appellant’s appeal. Had the appellant been successful and had a new trial been ordered, the Crown would have asked that the new trial include the charge of attempted murder of Milan Mijatovic, and would have argued that the trial judge erred in law by directing a verdict of acquittal of this charge and by excluding certain evidence in relation to it.

[151] As I would dismiss the appellant’s appeal, there is no need to address the Crown appeal.

[152] I would therefore dismiss the appellant’s appeal against conviction. I would grant leave to appeal sentence but dismiss the appeal. I would also dismiss the contingent appeal by the Crown.

“K. Feldman J.A.”

“I agree Robert P. Armstrong J.A.”

RELEASED:“K.F.” September 4, 2012 “I agree S. Himel J. (ad hoc)”

[1] Note that Mr. Tarnowski testified that he saw the person he witnessed shooting the gun run west onto Elm Street.