R. v. Hamilton (A.) et al.,

• Jurisdiction: Ontario
• Judge: Laskin, Moldaver and LaForme, JJ.A.
• Neutral Citation: 2011 ONCA 399
• Citation: (2011), 279 O.A.C. 199 (CA),2011 ONCA 399,271 CCC (3d) 208,[2011] OJ No 2306 (QL),279 OAC 199,(2011), 279 OAC 199 (CA),[2011] O.J. No 2306 (QL),279 O.A.C. 199
• Date: 24 May 2011
• Court: Court of Appeal (Ontario)

R. v. Hamilton (A.) (2011), 279 O.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MY.031

Her Majesty the Queen (respondent) v. Anthony Hamilton, Lennox Schloss, Michael Reid and Everald Davis (appellants)

(C43113; C44056; C44089; C44375; 2011 ONCA 399)

Indexed As: R. v. Hamilton (A.) et al.

Ontario Court of Appeal

Laskin, Moldaver and LaForme, JJ.A.

May 24, 2011.

Summary:

Four accused were convicted by a jury of attempted murder and two counts of first degree murder. All four appealed from the convictions and one applied for leave to introduce fresh evidence on the appeal.

The Ontario Court of Appeal dismissed the application and the appeals.

Courts - Topic 554

Judges - Powers - To control court proceedings - [See Criminal Law - Topic 4574 ].

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admission at trial of evidence taken at a preliminary inquiry - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Coward was a friend of Reid and Davis and an acquaintance of Hamilton and Schloss - Approximately one year after the offences occurred, Coward provided police with two "K.G.B." statements (made under oath and videotaped) in which he implicated Reid and Davis - Subsequently, Coward recanted from his statements and absconded - He was not available at trial - The trial judge admitted the two K.G.B. statements along with Coward's recantation statement and preliminary inquiry testimony (also disavowing his K.G.B. statements) for the truth of their contents for the jury to consider - All four accused were convicted on all counts - On their appeals, Reid and Davis asserted that the trial judge had erred in including Coward's preliminary inquiry evidence in the package of evidence presented to the jury - The Ontario Court of Appeal dismissed the appeal - After rejecting a number of Reid's and Davis' assertions as not having been raised at trial, the court stated that "the real reason why the defence did not want Coward's preliminary inquiry evidence left with the jury is because it exposed the incredulity of his reasons for recanting and the inanity of his explanations for providing the K.G.B. statements in the first place - all of which served to undermine, if not eviscerate, the veracity of his recantations" - While the defence was entitled to a level playing field, it was not entitled to a field that tilted unfairly and misleadingly in its favour - The jury was entitled to the full picture - Coward's evidence from the preliminary inquiry was properly placed before the jury - See paragraphs 161 to 182.

Criminal Law - Topic 4304.4

Procedure - Trial judge - Duties and functions of - Inappropriate comments - [See Criminal Law - Topic 4574 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Four accused were convicted by a jury of attempted murder and two counts of first degree murder - They appealed, asserting, inter alia, that, in his jury charge, the trial judge's comments while summarizing the evidence were unfair and prejudicial in that he used inflammatory language, advanced a theory of association not advanced by the Crown and made comments conveying his personal opinion of the evidence - The Ontario Court of Appeal dismissed the appeals - The trial judge's summary of the evidence relating to the theories of the Crown and of the accused was balanced and fair - See paragraphs 58 to 66.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Reid, Davis, Hamilton and Schloss were convicted of attempted murder and two counts of first degree murder - On their appeals, Schloss asserted that the trial judge had removed a critical factual issue from the jury's consideration by instructing them that there were four people involved in the offences even though the evidence was not decisive as to whether there was a fourth person, the driver of the getaway vehicle, or whether one of the shooters was also the driver - The Ontario Court of Appeal dismissed the appeals - The court declined to interfere with the trial judge's decision not to charge the jury on this factual issue - There was ample eyewitness evidence supporting the Crown theory of three shooters and a getaway driver - Defence counsel had not strenuously argued otherwise - The cogency of Schloss' defence did not turn on whether there were three or four participants in the offences - See paragraphs 224 to 229.

Criminal Law - Topic 4357.1

Procedure - Charge or directions - Jury or judge alone - Directions re theory of Crown - [See both Criminal Law - Topic 4357 ].

Criminal Law - Topic 4362

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence against several accused in a joint trial - [See Criminal Law - Topic 4482 ].

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions regarding alibi evidence or explanation by accused - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Each of the four accused had a cell phone - The cell phones of Hamilton, Schloss and Davis registered incoming or outgoing calls at a cell phone tower in the vicinity of the murder scene around the time of the offences - Identity was the central issue at trial - The Crown relied on the cell phone evidence to show that the accused were together near the scene of the murders minutes before and minutes after the offences took place - All four accused were convicted on all counts - A number of issues arose regarding the cell phone evidence on the accused's appeals - Hamilton submitted that the trial judge's instructions on the cell phone evidence had undermined his alibi defence - The Ontario Court of Appeal rejected Hamilton's assertions - The law required the trial judge to instruct the jury on the evidence in a way that they could fairly appreciate the issues and the defence presented - The court was satisfied that the judge did so here - The judge correctly stated the general rule that a cell phone registers at the nearest cell phone tower and that there were exceptions to that rule - Although he did not spell out the exceptions, the jury would have been well aware of them from the evidence - Further, the trial judge correctly stated that the cell phone evidence reflected probability, not certainty, and that the jury should also consider the other evidence implicating the accused - See paragraphs 285 to 308.

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - Reid, Davis, Hamilton and Schloss were convicted of attempted murder and two counts of first degree murder - On their appeals, Schloss asserted that the trial judge had erred in admitting, over the objection of defence counsel, a wiretap intercept containing a song that Schloss sang over the phone to an acquaintance - The song contained the lyric "From the day I see my friend die, That's the day I let my gun cry." - The Ontario Court of Appeal rejected Schloss' argument - The court accepted that the song was open to interpretation other than as a reference to Schloss' participation in the offences - The Crown had acknowledged that in closing - Further, the trial judge had instructed the jury to carefully assess the value of the song and to consider whether it reflected fact, "wishful thinking" or "imaginative concoction" - In light of that careful instruction, the song would not have been given undue weight by the jury - See paragraphs 219 to 223.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4574 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Coward was a friend of Reid and Davis and an acquaintance of Hamilton and Schloss - Approximately one year after the offences occurred, Coward provided police with two "K.G.B." statements (made under oath and videotaped) in which he implicated Reid and Davis - Subsequently, Coward recanted from his statements and absconded - The trial judge admitted the two K.G.B. statements along with Coward's recantation statement and preliminary inquiry testimony (also disavowing his K.G.B. statements) for the truth of their contents for the jury to consider - All four accused were convicted on all counts - On their appeals, Reid and Davis asserted that the trial judge had erred in failing to give the jury a Vetrovec warning regarding Coward's evidence - The Ontario Court of Appeal dismissed the appeal - Considering the charge as a whole, it was clear that the jury received the equivalent of a Vetrovec instruction - They would clearly have understood that they were to proceed with caution before convicting either Reid or Davis on Coward's evidence, without more, and of the reasons for this need for caution - See paragraphs 183 to 201.

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Reid sought an order severing his trial from that of the co-accused due to the prejudicial effect of intercepted communications among the co-accused which were inadmissible against him but which indicated that he had participated in the killings (the co-accused had discussed killing Reid because he was "telling people everything ...") - The trial judge dismissed the application - All four accused were convicted on all counts - On their appeals, Reid asserted that the trial judge had erred in dismissing his application for severance - The Ontario Court of Appeal rejected Reid's argument - Although the risk of inconsistent verdicts had been slight, any chance of a miscarriage of justice was eliminated by the trial judge's various instructions to the jury on the way that they could use the wiretap evidence - The jury was clearly instructed that the intercepts of Reid's co-accused about killing Reid and the inferences that could be taken from those comments were not admissible against Reid because he was not a party to the discussions to kill himself - The Crown also gave an additional warning - There was no reason to believe that the jury did not understand those instructions - See paragraphs 202 to 218.

Criminal Law - Topic 4574

Procedure - Conduct of trial - Interventions by trial judge - Four accused were convicted by a jury of attempted murder and two counts of first degree murder - They appealed, asserting, inter alia, that the trial judge's numerous interventions during the trial compromised trial fairness - The Ontario Court of Appeal dismissed the appeals - There were many proper reasons why a trial judge might intervene through comments, giving directions or asking questions during a trial - A trial judge might properly intervene to focus the evidence on matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way that a witness was answering did not unduly hamper the trial's progress - Although the trial judge here intervened on multiple occasions, the case was very large, long and complex - His interventions were for proper purposes - Aside from the trial judge's comment that a particular Crown witness had been exercising his "civic duty" in providing statements to the Crown, the accused had not rebutted the strong presumption that the trial judge had acted fairly and impartially - The "civic duty" comment was problematic - However, after rejecting defence counsel's request for a mistrial due to its prejudicial effect, the trial judge gave the jury a clear instruction to disregard the opinion of counsel or himself in assessing a witness' credibility - This eliminated any prejudice that might have been caused - See paragraphs 28 to 57.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Evidence - Topic 7000.3 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Each of the four accused had a cell phone - The cell phones of Hamilton, Schloss and Davis registered incoming or outgoing calls at a cell phone tower in the vicinity of the murder scene around the time of the offences - Identity was the central issue at trial - The Crown relied on the cell phone evidence to show that the accused were together near the scene of the murders minutes before and minutes after the offences took place - All four accused were convicted on all counts - All appealed - At the conclusion of oral argument on the appeals, Hamilton's counsel applied for leave to introduce fresh evidence based on the timing of a 911 call relating to the murders and an incoming call to Hamilton that would establish that he could not have been at the scene of the offences when they occurred - The Ontario Court of Appeal dismissed the application - The proposed fresh evidence was not sufficiently probative that, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result - The other cell phone evidence at trial was in line with the proposed fresh evidence - Further, the uncertainties regarding cell phone evidence made it unlikely that the time of the two critical calls alone would have dictated the jury's determination of Hamilton's guilt or innocence - The cell phone evidence was one item of circumstantial evidence placing Hamilton in the crime's vicinity - There was other strong evidence implicating Hamilton - The fresh evidence did not undermine the reliability of the jury's verdict - See paragraphs 309 to 351.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 4375 ].

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped statements) - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Coward was a friend of Reid and Davis and an acquaintance of Hamilton and Schloss - Approximately one year after the offences occurred, Coward provided police with two "K.G.B." statements (made under oath and videotaped) in which he implicated Reid and Davis - Subsequently, Coward recanted from his statements and absconded - He was not available at trial - The trial judge admitted the two K.G.B. statements along with Coward's videotaped recantation statement and preliminary inquiry testimony (also disavowing his K.G.B. statements) for the truth of their contents for the jury to consider - All four accused were convicted on all counts - On their appeals, Reid and Davis asserted that the trial judge had erred in admitting Coward's two K.G.B. statements - The Ontario Court of Appeal dismissed the appeal - The court rejected Reid's and Davis' argument that, because the police had made promises to Coward, the trial judge had erred in admitting the statements - K.G.B. did not lay down a hard and fast rule that all witness statements taken in contravention of the traditional confessions rule had to be rejected as evidence of the truth of their contents - In K.G.B., Lamer, C.J.C., had emphasized the trial judge's discretion - Just as the question of admission should not be treated as a mechanical exercise, neither should the question of exclusion - The "per se rule" suggested by Reid and Davis ran that risk and was rejected for that reason - Here, the trial judge had considered the promises and inducements offered to Coward and was clearly satisfied that there was no impact on voluntariness - There was no basis for interfering with that finding - See paragraphs 137 to 148.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped statements) - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Coward was a friend of Reid and Davis and an acquaintance of Hamilton and Schloss - Approximately one year after the offences occurred, Coward provided police with two "K.G.B." statements (made under oath and videotaped) in which he implicated Reid and Davis - Subsequently, Coward recanted from his statements and absconded - He was not available at trial - The trial judge admitted the two K.G.B. statements along with Coward's videotaped recantation statement and preliminary inquiry testimony (also disavowing his K.G.B. statements) for the truth of their contents for the jury to consider - All four accused were convicted on all counts - On their appeals, Reid and Davis asserted that the trial judge had erred in admitting Coward's two K.G.B. statements - The Ontario Court of Appeal dismissed the appeal - In admitting the statements, the trial judge addressed the pertinent issues and came to the correct conclusion - The trial judge did not have the benefit of the Khelawon (2006 S.C.C.) decision - Khelawon was significant because of its clear statement that the inquiry into threshold reliability need not be limited to the circumstances surrounding the making of the statement, but also included the broader picture, including any corroborative evidence - Post-Khelawon, the emphasis had shifted away from potential unreliability to be more focussed on actual reliability - In determining whether a witness statement should be admitted for its truth, the trial judge had to ask (1) whether the trier of fact was sufficiently able to test the truth and accuracy of the statement and, if the answer to (1) was "yes", (2) whether there were any overriding policy considerations that would prevent the statement's admission - Here, there was strong corroborative evidence which, in combination with the trial judge's determination that the statements were given voluntarily, was sufficient to warrant admission - This analysis, which was in line with Khelawon, was correct - See paragraphs 149 to 160.

Criminal Law - Topic 5420.1

Evidence and witnesses - Witnesses - Admissibility of evidence previously taken where witness unavailable or unable to testify - [See both Criminal Law - Topic 5420 ].

Criminal Law - Topic 5524

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Videotape evidence - [See Criminal Law - Topic 3587 and both Criminal Law - Topic 5420 ].

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - Reid, Davis, Hamilton and Schloss were charged with attempted murder and two counts of first degree murder - Each of the four accused had a cell phone - The cell phones of Hamilton, Schloss and Davis registered incoming or outgoing calls at a cell phone tower in the vicinity of the murder scene around the time of the offences - Identity was the central issue at trial - The Crown relied on the cell phone evidence to show that the accused were together near the scene of the murders minutes before and minutes after the offences took place - All four accused were convicted on all counts - At issue on their appeals was whether the trial judge had erred by admitting the evidence of three Crown witnesses concerning the location of cell phones without first conducting a voir dire on its admissibility - The Ontario Court of Appeal agreed with the Crown that the accused had tactically and deliberately chosen not to seriously contest the admissibility of the cell phone evidence at trial - Because they pursued this strategy at trial, the court was not inclined to allow them to object to the admissibility of the evidence on appeal - Further, the evidence given by the three Crown witnesses (employees of the three carrier companies) was not opinion evidence but factual evidence, which they were qualified to give because of their knowledge, observations and experience - Their evidence was reliable, probative and understandable - It was therefore properly admissible - No voir dire was necessary - See paragraphs 256 to 284.

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - [See Evidence - Topic 7000.3 ].

Cases Noticed:

R. v. K.G.B. (1993), 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257 (S.C.C.), consd. [para. 11].

Chippewas of Mnjikaning First Nation v. Ontario et al. (2010), 265 O.A.C. 247; 2010 ONCA 47, refd to. [para. 29].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), leave to appeal dismissed (1986), 67 N.R. 159; 15 O.A.C. 240 (S.C.C.), refd to. [para. 30].

R. v. Stucky (D.) (2009), 256 O.A.C. 4; 240 C.C.C.(3d) 141 (C.A.), refd to. [para. 30].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 68 O.R.(3d) 481 (C.A.), refd to. [para. 47].

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338; 215 C.C.C.(3d) 161 (S.C.C.), consd. [para. 137].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 151].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 153].

R. v. Rothman (1981), 35 N.R. 485; 59 C.C.C.(2d) 30 (S.C.C.), refd to. [para. 157].

R. v. Briscoe (M.E.) et al. (2010), 400 N.R. 200; 477 A.R. 70; 483 W.A.C. 70; 253 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 180].

R. v. Laboucan (J.W.) - see R. v. Briscoe (M.E.) et al.

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 82 C.C.C.(3d) 310, refd to. [para. 185].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321, refd to. [para. 186].

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334; 2009 SCC 45, refd to. [para. 206].

R. v. Savoury (T.) et al. (2005), 201 O.A.C. 40; 200 C.C.C.(3d) 94 (C.A.), refd to. [para. 207].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 208].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 44 O.R.(3d) 263 (C.A.), refd to. [para. 208].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), leave to appeal dismissed (2001), 270 N.R. 193; 150 O.A.C. 197 (S.C.C.), refd to. [para. 214].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 214],

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25, refd to. [para. 220].

R. v. Zwezdaryk, [2004] O.J. No. 6137 (Sup. Ct.), refd to. [para. 260].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 273].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 2009 ONCA 624, refd to. [para. 273].

R. v. Korski (C.T.) (2007), 218 Man.R.(2d) 56 (Q.B.), affd. (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 2009 MBCA 37, refd to. [para. 274].

R. v. McFarlane, [2006] O.J. No. 4858 (Sup. Ct.), refd to. [para. 274].

R. v. Spackman (K.), [2009] O.T.C. Uned. H44 (Sup. Ct.), refd to. [para. 274].

R. v. Tomlinson, [2008] O.J. No. 817 (Sup. Ct.), refd to. [para. 278].

[2009] O.T.C. Uned. H44, refd to. [para. 278].

R. v. Smith, [2009] O.J. No. 4544 (Sup. Ct.), refd to. [para. 278].

R. v. Ranger (J.), [2010] O.A.C. Uned. 644; 2010 ONCA 759, refd to. [para. 280].

R. v. W.J.D. (2007), 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 226 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 297].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 313].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 314].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 2007 ONCA 196, leave to appeal denied (2007), 378 N.R. 393; 245 O.A.C. 398 (S.C.C.), refd to. [para. 315].

R. v. Phillion (R.J.) (2009), 246 O.A.C. 317; 2009 ONCA 202, refd to. [para. 315].

R. v. Reeve (M.) (2008), 236 O.A.C. 92; 2008 ONCA 340, refd to. [para. 314].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 2009 ONCA 910, leave to appeal dismissed (2010), 410 N.R. 393; 275 O.A.C. 397 (S.C.C.), refd to. [para. 314].

Counsel:

James Lockyer, Brian Snell and Zachary Kerbel, for the appellant, Anthony Hamilton;

Gregory Lafontaine and Vincenzo Rondinelli, for the appellant, Lennox Schloss;

Timothy E. Breen and Diana M. Lumba, for the appellant, Michael Reid;

Joseph Di Luca, for the appellant, Everald Davis;

Michal Fairburn and Deborah Calderwood, for the respondent.

This application and these appeals were heard on April 12-14 and October 21 and 22, 2010, by Laskin, Moldaver and LaForme, JJ.A., of the Ontario Court of Appeal. On May 24, 2011, the court released the following judgment.