R. v. Hayles-Wilson, 2022 ONCA 790

WHAT YOU NEED TO KNOW

- It is impermissible for Crown to submit that an accused tailored their evidence to accord with disclosure or the evidence at trial. This includes video surveillance evidence adduced at trial.

- Where Crown does make this type of prohibited submission, the trial judge must eradicate it by providing a correcting instruction.

- It is also impermissible for Crown to submit that the accused, by reason of being accused of a crime, has a motive to lie to avoid conviction.

- It is an error for trial judges to instruct juries to adopt a two-step approach (or to suggest the jury adopt any particular deliberative approach): i.e. to determine the facts first before proceeding to the law on the essential elements.

BACKGROUND

On November 24, 2013, the appellant, Mr. Hayles-Wilson, attended a local community centre to watch his cousin, Mr. Dunkley, play in a basketball tournament. The appellant encountered the victim, Neeko Mitchell, in the lobby after the game. They met again a few minutes later outside the community centre. At the end of that encounter, the appellate shot Neeko Mitchell multiple times.

He was charged with first-degree murder. The Crown’s theory was that Mr. Dunkley orchestrated the shooting, and directed the appellant to shoot Mr. Mitchell, to avenge Mr. Dunkley’s brother’s death who had been shot a few months prior. Mr. Dunkley believed that Mr. Mitchell was involved in his brother’s death.

The appellant admitted to the shooting but submitted it was neither motivated by revenge, nor planned and deliberate. Rather, he had been provoked by Mr. Mitchell. The appellant’s version of events was that he owed Mr. Mitchell a drug debt. Mr. Mitchell had threatened him over the same. When he ran into Mr. Mitchell at the basketball tournament, he panicked. He tried to pool money together from his friends and settle the matter with Mr. Mitchell. According to the appellant, Mr. Mitchell swore at him and told him he’d end up dead like Mr. Dunkley’s brother. Terrified by the threat, the appellant lost control, drew his gun and opened fire. He admitted guilt to manslaughter but on the basis of provocation.

The evidence at trial was largely based on surveillance video that captured the interactions between the parties leading up to the shooting and the shooting itself.

TAILORING OF EVIDENCE

On appeal, the appellant submits that the Crown improperly submitted throughout her closing submissions that the appellant had tailored his version of events to fit the video footage.

Generally speaking, it is improper for Crown counsel to suggest that an accused person’s evidence has been tailored to fit disclosure or the evidence at trial: see R. v. Chacon-Perez, 2022 ONCA 3.

This is largely because an accused is constitutionally entitled to receive disclosure from the Crown, to know the case to meet, to be present at trial, and to make full answer and defence to the allegations made against them. It would therefore be problematic to use an accused’s constitutional right against them to claim their evidence was tailored.

In this case, the appellant’s trial counsel asked for a correcting instruction. The trial judge declined to do so finding that “there was no suggestion that he tailored his evidence to disclosure”. The court of appeal disagreed. The Crown made 2-3 comments doing exactly that.

It is also important to note that the prohibition against suggestions of tailoring is not limited to disclosure. It applies equally to the evidence at trial: see R. v. G.V., 2020 ONCA 291. The video surveillance in this case was evidence; the Crown should not have been permitted to suggest the appellant tailored his evidence to the video evidence. The trial judge erred by failing to provide a correcting instruction.

TWO-STEP JURY DELIBERATION INSTRUCTION

The appellant also submits on appeal that the trial judge erred in instruction the jury to first decide the facts or “what had actually happened” before considering the law as it relates to the essential elements of the offences.

The trial judge made repeated references throughout his lengthy jury instruction for the jury to “decide the facts” first and then proceed to the law. Again, defence counsel objected to this instruction; the trial judge sharply rejected the objection.

The risks inherent in suggesting this “two-step” approach to the jury is well established and has routinely been rejected by the courts: R. v. Morin, [1988] 2 S.C.R. 345 at pp. 360-361 and R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.). The trial judge erred by instructing the jury in this fashion. Trial judges just not instruct the jury to adopt a particular deliberative approach.

MOTIVE TO LIE

The appellant also submits on appeal that the Crown improperly submitted that the appellant had a motive to lie to avoid a conviction for first-degree murder in her closing submissions.

The appellant’s trial counsel objected to this submission and requested a corrective instruction. The trial judge once again denied this request this time on the basis that it would be improper to instruct the jury on the permissible types of reasoning.

The Court of Appeal disagreed with the trial judge’s rational:

“Trial judges routinely instruct jurors on the permissible and impermissible use of various pieces of evidence. They also specifically instruct juries on proper and improper routes of reasoning. Indeed, the trial judge did precisely that in this case in a different context. The rationale offered by the trial judge is inconsistent with one of the central goals of jury instructions which is to ensure that jurors do not engage in assumptions or forms of reasoning that do not respect fundamental principles such as the presumption of innocence.”

The trial judge ought to have given a correcting instruction as requested by the defence. It is improper for the Crown to suggest that an accused has a motive to lie by virtue of their obvious interest in securing an acquittal. This type of submission flies in the face of the presumption of innocence: see R. v. Laboucan, 2010 SCC 12 at para. 12 and R. v. Chacon-Perez at para. 117.

The trial judge erred by failing to provide a correcting instruction.

IMPACT OF THE ERRORS FOUND

Despite concluding that the trial judge committed these three errors, the Court of Appeal was of the view that a new trial was not required. The Court concluded that the errors, individually or collectively, were not so significant as to undermine the safety of the verdict.

Disposition – Appeal dismissed.

Read the full case here.