Decisions of the Court of Appeal

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. (1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138. (1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a)       is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on summary conviction.

CITATION: R. v. J.F., 2011 ONCA 220

DATE: 20110406

DOCKET: C46571

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau and Epstein JJ.A. BETWEEN

Her Majesty The Queen

Respondent

And

J. F. (a young person)

Appellant In Writing

Keith E. Wright, for the appellant

Alexander Alvaro, for the respondent

On appeal from conviction entered by Justice Francine Van Melle of the Superior Court of Justice, sitting with a jury, dated December 7, 2006.

Rosenberg J.A.:

[1]              The appellant appeals in writing from his conviction and sentence for conspiracy to commit murder.  The appellant was tried as a youth by a court composed of Van Melle J. and a jury.  He was sentenced to an 18 month custody and supervision order.  The appellant raises numerous grounds of appeal from conviction concerning, among other things, the admissibility of evidence, the liability of a party to conspiracy, and the charge to the jury on conspiracy.  The appellant also submits that the sentence is illegal because conspiracy to commit murder is not a violent offence and that the trial judge made errors in principle in imposing the sentence.

[2]              For the following reasons, I would dismiss the appeal from conviction but grant leave to appeal sentence and reduce the sentence to 8 months custody and 4 months conditional supervision.

THE FACTS

[3]              At this point, I intend to merely give a brief overview of the facts.  I will further develop the facts as I deal with certain grounds of appeal.  In the fall of 2002, two sisters agreed to kill their mother.  While the older sister, R, first came up with the idea, the younger sister, T, joined in the agreement.  At different times, the sisters may have abandoned the plan, but it was clear that by January 2003, they had a settled intention to kill their mother.  The two sisters were ultimately convicted of first degree murder.  The motive for the murder was the deceased’s behaviour as a result of her alcoholism.  At the time the sisters were 16 and 15 years of age.  The appellant, then 15 years of age, was a close friend of T and they were dating prior to their arrests. 

[4]              R testified as a Crown witness.  Although, T was brought to the courthouse during the trial, neither the Crown nor defence called her as a witness. The appellant did not testify, but the Crown did introduce a statement he gave to the police following his arrest.

[5]              The deceased died on January 18, 2003 as a result of drowning while affected by acute alcohol intoxication.  The deceased also had codeine in her blood at 3.5 times the upper therapeutic level, a level consistent with the consumption of four to six Tylenol 3 tablets.  The evidence established that the sisters had plied the deceased with alcohol and Tylenol 3 until she was unconscious, placed her in the bathtub and then R held her head underwater until she drowned.  Afterwards, the sisters met up with the appellant and another friend, AS, at a local restaurant, Jack Astor’s, to attempt to establish an alibi.  The sisters then returned home to “discover” that their mother had drowned and to call 911.  The authorities originally believed that the deceased had drowned accidentally.  As a result of further investigation, the sisters were charged with first degree murder and the appellant with conspiracy to commit murder.

[6]              It was the theory of the Crown that the appellant joined in the sisters’ conspiracy and among other things, suggested the use of Tylenol 3 and provided the pills that were ultimately used to drug the deceased.  He also agreed to assist in the fabrication of the alibi by meeting the sisters at the restaurant after the murder.

[7]              While R testified for the Crown and gave some evidence implicating the appellant in the conspiracy, much of the evidence against the appellant was in the form of his own words, recorded in MSN chats between the appellant and the sisters, especially with T.  A binder containing the relevant chats was made an exhibit at the trial.  It would be open to the jury to find that those chats demonstrated that the appellant was aware of the plot to kill the deceased; that he supplied ideas to the sisters as to how the murder could be carried out and how they might cover up the killing; and first suggested the use of Tylenol 3.  His chat with T on January 13, 2003, less than a week before the killing, is particularly instructive:

Appellant: your mom gets Tylenol 3's, right?

T: probably

Appellant: seriously, you should include them in the game plan

T: why though? if theyre not necessary

T: u cant possibly make drowning into a suicide

T: but if she like ods in the process

T: lol

Appellant: I'm not talking 20 here

Appellant: I mean like 5

Appellant: they knock you right out

Appellant: well, what happens if she, say, wakes up to see you and [R] holding her underwater ... ?

T: were not just gonna be like .... hmm ... she looks drunk ... into the tub!

T: were gonna make sure she cant walk and cant possibly drink anymore

T: and doesnt react to water on her face

T: at ALL

T: and besides, head first, easier to hold down

T: and then just turn her over or sumthin

Appellant: not reacting to water on face and not reacting to lungs filling with water is very different

Appellant: drowning is the single most painful way to die after burning to death slowly ...

T: lol yea .... it would suck to drown

Appellant: you get water, instead of oxygen pumped through your body

T: either way shell be so shitfaced she wont be able to get up

Appellant: then the oxygen dissociates from the hydrogen, into the capillaries

T: so holding her down wont be a problem

T: so she moves a bit

T: she still dies

Appellant: at which point the hydrogen turns to acid, and the cappilaries burst

T: beautiful

T: (wipes tear away)

Appellant: that's just the beginning ... 

Appellant: lol

Appellant: it is not pretty …

T: and then soaking for a while

Appellant: my advice:

Appellant: if she wakes up part way through

Appellant: drag her out of the tub, and pretend that you were helping her

Appellant: even an inch of water in the bottom of your lungs and you'll die withing a few days

T: ahahahha its great how u think we didntthink this through

T: that was discussed:P

Appellant: I'm telling you things that I'm not sure if you KNOW them

T: it depends on how much she like fights back

Appellant: ie. an inch of water in the lungs will kill you in a few days

[8]              AS was a Crown witness and a close friend of R. She testified that she first found out about the plan to murder the deceased about a week before it happened.  A chat between AS and R on the day of the murder was particularly graphic in its description of the plan to murder the deceased.  The evidence of a conspiracy to commit murder involving at least R and T was overwhelming.  The only issue at trial was the appellant’s involvement in the conspiracy.  The theory of the defence, as revealed in the appellant’s statement to the police and cross-examination of the various Crown witnesses, was that the appellant was not serious in his chats with T and did not intend to join a conspiracy with her and R.

THE GROUNDS OF APPEAL

[9]              The appellant raises the following grounds of appeal against his conviction:

(1)       The trial judge erred in instructing the jury that the appellant could be liable as a party to conspiracy under s. 21(1) of the Criminal Code.

(2)       The trial judge erred in admitting certain hearsay evidence under the co-conspirators’ exception to the hearsay rule and misdirected the jury on the application of that exception.

(3)       The trial judge erred in admitting evidence of the appellant’s bad character.

(4)       The trial judge erred in admitting the appellant’s interview with the police or in failing to edit the interview.

(5)       The trial judge erred in failing to properly direct the jury as to the use of the appellant’s denials of guilt in the interview.

(6)       The trial judge erred in failing to adequately set out the position of the defence.

(7)       The trial judge erred in failing to give a Vetrovec warning with respect to R and AS.

[10]         The grounds of appeal against sentence are:

            (1)       The trial judge erred in finding that the appellant committed a violent offence within the meaning of s. 39(1)(a) of the Youth Criminal Justice Act.

            (2)       The trial judge erred in principle in identifying lack remorse as an aggravating factor.

ANALYSIS

The Conviction Appeal

1.         Party to Conspiracy

[11]         Although the Crown’s main position was that the appellant was a principal in the conspiracy to commit murder, Crown counsel asked the trial judge to leave liability on the basis that the appellant was a party to the conspiracy under s. 21(1) of the Criminal Code.  The trial judge agreed to do so, feeling that she was bound by decisions of this court.  The trial judge directed the jury as follows:

A person also commits an offence if he does anything for the purpose of helping another person to commit the offence.

Anyone who actively assists or encourages somebody else to commit an offence is as guilty of the offence as the person who actually commits it.  I remind you though that mere knowledge of, discussion, or passive acquiescence in a plan of criminal conduct is not of itself sufficient.

[12]         Later in the charge, the trial judge reviewed the position of the Crown, which set out the basis for its theory of party liability:

It is the position of the Crown that [the appellant] can be convicted of conspiracy as either a full partner like [T] and [R] or if he was a party to the conspiracy.  He is a party to the conspiracy by aiding, which means assisting, or abetting, which means encouraging [T] and [R] in their plan to murder—in the plan to murder [the deceased].

Some of you might think that [the appellant] was a main partner of the plan that he agreed to murder [the deceased].  Others might agree at the end of the day that he was only a party to the conspiracy in that he assisted or encouraged the girls in their murder plot.  The Crown’s position is that [the appellant] was involved in this conspiracy because he provided at least one of the following:

·        Advice about the drowning process and how to act when interacting with the police.

·        Help with details of the plan including combining alcohol and Tylenol 3’s and what to do if she woke up part way through.

·        An agreement to assist with the alibi and attended at Jack Astor’s the night of the murder.

·        Or Tylenol 3’s to facilitate her death.

[13]         The appellant raises a number of grounds of appeal concerning these directions:

(i)       There is no offence known to law of party to conspiracy.

(ii)      Alternatively, while a person may be a s. 21(1) party to conspiracy under subpara. (c) by encouraging the conspiracy, one cannot be a party under subpara. (b) by aiding the conspiracy.

(iii)     The trial judge did not adequately direct the jury on s. 21(1) party liability to conspiracy.

(i)        Offence known to law

[14]         Appellate courts in this and other provinces have held that s. 21(1) of the Criminal Code applies to conspiracy to commit a substantive offence, such as murder.  In Ontario, the seminal case is R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), a decision of a five-member court.  McNamara involved a complex conspiracy to defraud the Government of Canada by rigging bids for dredging contracts in eastern Canada.  The question of parties to a conspiracy arose in relation to a company, Sceptre Dredging, and two of its principals, Hamata and Gill.  Sceptre, although based in western Canada, was considering bidding on a dredging contract in eastern Canada known as Beauport Banks, because it had a dredge that was not being used.  When the leaders of the conspiracy learned of Sceptre’s intention, they caused one their companies, McNamara Corp., to enter into an agreement for the purchase of Sceptre’s unused dredger.  Gill negotiated the agreement on behalf of Sceptre.  The agreement provided for a $200,000 penalty, later reduced to $150,000, if the option to purchase was not taken up.  In the result, Sceptre’s dredge was no longer available and Sceptre did not tender on the contract.  One of the main conspirators, M.I.L., did obtain the Beauport Banks contract.  The option to purchase the dredger was never taken up and at a subsequent meeting attended by Hamata, Gill and the main conspirators, the vice-president of McNamara Corp. presented Hamata with a $100,000 cheque.  Sometime later McNamara Corp. paid the balance of the option penalty of $50,000.  While there was a great deal of other evidence, this outline will suffice to put the conspiracy argument into context. 

[15]         The theory of the Crown in McNamara was that the option agreement was a sham and simply a vehicle to pay Sceptre for not tendering on the Beauport Banks contract.  Crown counsel argued that Hamata and Gill were aware of the conspiracy to rig the Beauport Banks contract and entered into the conspiracy from the moment that Gill negotiated the option agreement.  Alternatively, even if they entered into the option agreement innocently, they could be guilty of conspiracy if they adhered to the object of the conspiracy at some later time, even after the bids for Beauport Banks had closed, but prior to the object of the conspiracy being attained, i.e. the awarding of the contract and payment by the government to M.I.L..  This court disagreed with this latter submission because the only part Sceptre was to play in the conspiracy was to refrain from bidding on Beauport Banks.  As the court said at p. 453:

If Sceptre's intended part in the conspiracy was innocently played, the mere receipt of the penalty of the option with knowledge of the existence of the conspiracy (if that was the case) was not, by itself, an adherence to the conspiracy, for the penalty had been honestly earned and its payment and receipt did not further the object of the conspiracy.

[16]         The court held, on the same page, that a person could, however, be convicted as a s. 21 party to a conspiracy:  “That is not to say that a person may not become a party to the criminal offence of conspiracy (as opposed to a participant in the conspiracy) by virtue of s. 21 of the Criminal Code.”  The court went on to consider whether Sceptre, Hamata and Gill might be convicted as parties to the conspiracy, and held, at p. 454, that in theory they could:

On the other hand, if, at any time before the object of the conspiracy had been attained, that is, the receipt of the contract money from the Crown, they abetted or encouraged any of the conspirators to pursue its object, they would become parties to the criminal offence of conspiracy by virtue of s. 21 of the Code. There was evidence from which the jury might have inferred that Hamata (and Gill as well) learned of the conspiracy before the contract money was paid, and that they encouraged the conspirators. [Emphasis added.]

[17]         The court did not further consider s. 21(1) because it was never put to the jury.  The court allowed the appeal by Sceptre, Hamata and Gill because, inter alia, the trial judge had put the Crown’s alternative but erroneous theory to the jury and for other reasons relating to evidence capable of corroborating the testimony of certain Crown witnesses.

[18]         In R. v. Vucetic (1998), 129 C.C.C. (3d) 178 (Ont. C.A.), this court again considered party liability for a conspiracy.  In that case, it was argued, as here, that a person could not be a s. 21(1) party to a conspiracy.  The court disagreed, holding as follows at para. 6:

Despite the able argument presented by counsel for the appellant, we are not persuaded that we should, or could, ignore the clear statement of the law in R. v. McNamara, albeit as obiter, that a person may become a party to the criminal offence of conspiracy (as opposed to a participant in the conspiracy) by virtue of s. 21 of the Code; R. v. McNamara, supra, at 453.

[19]         The appellant seeks to avoid the binding effect of McNamara and Vucetic by reference to the subsequent decision of the Supreme Court of Canada in R. v. Déry, [2006] 2 S.C.R. 669, where the court held that there was no offence known to law of attempted conspiracy.  In Déry, the Supreme Court of Canada agreed with this court’s decision in R. v. Dungey (1979), 51 C.C.C. (2d) 86 (Ont. C.A.), which had held to the same effect; that one cannot be convicted of attempt to conspire to commit a substantive offence.  Déry and Dungey turn on the issue of remoteness.  The crime of conspiracy is more preliminary than the crime of attempt and acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction.  At paras. 49 and 50 of Déry, Fish J. speaking for the court, explained the rationale for the crimes of conspiracy and attempt and why that rationale did not justify a crime of attempt to conspire:

49     By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical.

50     Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.  [Emphasis added.]

[20]         In my view, the holding in Déry does not warrant reconsideration of this court’s decisions in McNamara and Vucetic.  Party liability for conspiracy does not suffer from the problem of remoteness identified in Déry with respect to attempt to conspire.  A person can be liable as a s. 21(1) party to conspiracy only if the Crown proves an agreement by at least two other people to commit a substantive offence.  If no agreement materialized, the alleged party’s conduct would be at most an attempt to conspire and would fail on the holding in Déry.  If, however, the accused is a party to the conspiracy, for example, by either  encouraging someone to join the conspiracy or aiding or abetting the furtherance of its object (a matter I will explore below), the risk of commission of the criminal offence has sufficiently materialized to warrant criminal sanction.

            (ii)       Party liability based on aiding

[21]         The more difficult question, in my view, is the reach of party liability under s. 21.  This question involves two issues: (1) is party liability limited to s. 21(1)(c) abetting, and (2) is liability limited to aiding or abetting a person to become a member of the conspiracy or can it include aiding or abetting the furtherance of the object of the conspiracy.  In McNamara, the court expressed party liability only in terms of abetting.  The holding in Vucetic, however, was not so limited. The court referred, at para. 7, to aiding and abetting as a basis for liability:

However, in order to find him guilty as an aider and abettor, the jury would have to be instructed that the appellant knew the object of the conspiracy and that his assistance was intended to assist the conspirators in attaining their unlawful criminal object.

[22]         In the end, the court in Vucetic allowed the accused’s appeal not because liability was not available for aiding or abetting a conspiracy but because of deficiencies in the instructions to the jury.

[23]         I can see no principled basis for limiting party liability to abetting to the exclusion of aiding.  Aiding a conspiracy within the meaning of s. 21(b) is no less harmful than abetting. Liability for aiding a conspiracy would require proof that the accused did or omitted to do something for the specific purpose of aiding another to commit the offence of conspiracy.  That degree of mens rea imports a sufficient level of fault to warrant criminal liability.  As pointed out in McNamara, it would not be enough that the accused’s acts had the effect of aiding the conspiracy, the accused must also have the requisite mens rea.

[24]         The appellant submits, however, that even if a person can be liable as a party to conspiracy either for aiding or abetting, liability is limited to aiding or abetting the formation of the conspiracy or to aid or abet someone to join the conspiracy.  This is the position taken by the Alberta Court of Appeal in R. v. Trieu (2008), 429 A.R. 200 (C.A.).  In that case, the court noted that the essence of the conspiracy is the agreement and that the crime is carried out whether or not the unlawful object is achieved.  The court would therefore limit liability to acts for the purpose of aiding or abetting the actual formation of the agreement.  As it said at paras. 32 - 34:

32     To be a party to an offence, a person must aid the principal in the commission of that offence and must perform acts or omissions for the purpose of aiding the commission of that offence: R. v. Hibbert (L) [1995] 2 S.C.R. 973,... 99 C.C.C. (3d) 193 at paras. 26, 39. To be a party, a person must "have some knowledge of the essential nature of the offence to be committed": R. v. Adams (1989), 33 O.A.C. 148 at para. 31, 49 C.C.C. (3d) 100 (Ont. C.A.) at 110.

33     It follows from these principles that for Trieu to be a party to the offence of conspiracy to traffic in cocaine, the Crown had to prove that Trieu performed acts for the purpose of aiding the formation of an agreement to traffic in cocaine. Acts performed after the agreement was formed did not aid in the commission of the offence of conspiracy on the facts of this case. Therefore, Trieu could not be a party to the offence of conspiracy for facilitating the conspirators in attaining their object of trafficking in cocaine. Although acts performed after the agreement was reached could have aided in the commission of the offence of trafficking, Trieu was not charged with the offence of trafficking.

34    This conclusion does not ignore the possibility that conspiracy may be an ongoing crime. Members may leave the conspiracy and new members may join: Cotroni at 276 (S.C.R.). In an ongoing conspiracy of that nature, party liability can arise after the initial agreement is formed if, for example, a person aids another to join the agreement. However, no such allegation was advanced against Trieu. [Emphasis added.]

[25]         The Quebec Court of Appeal has similarly limited party liability for a conspiracy in R. v. Bérubé (1999), 139 C.C.C. (3d) 304 (Que. C.A.) at p. 312, leave to appeal to S.C.C. refused, [2000] 1 S.C.R. vii.  However, as the Alberta Court of Appeal noted in Trieu, this court has not so limited party liability.  In particular, liability in McNamara was not limited to abetting formation of the conspiracy or encouraging someone to join the conspiracy.  The conspiracy was fully formed when Sceptre Dredging became involved and potential liability did not centre on encouraging anyone else to join the conspiracy. Rather, the question was whether the acts of Hamata or Gill encouraged existing members to pursue the object of the conspiracy.  Vucetic is to a similar effect; as is a decision of the British Columbia Court of Appeal, albeit in the extradition context, in United States of America v. Cheema (2007), 222 C.C.C (3d) 16 (B.C.C.A.) at paras. 44 and 47, leave to appeal to S.C.C. refused, 267 B.C.A.C. 322 (S.C.C. Jan 17, 2008).

[26]         Again, I can see no basis in principle for refusing to follow McNamara and Vucetic on this issue.  I appreciate the point made in Trieu that the essence of a conspiracy is an agreement, but it is not an agreement in the abstract; it is an agreement to attain a common goal, a particular unlawful object.  In R. v. Cotroni, [1979] 2 S.C.R. 256 at p. 277, Dickson J. speaking for the majority adopted the following from R. v. Meyrick and Ribuffi (1929), 21 Cr. App. R. 94 (C.C.A.), at p. 102:

It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.

Dickson J. continued on the same page:  “There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal.” 

[27]         Admittedly, including party liability for aiding or abetting pursuit of the unlawful object blurs the line between the conspiracy and the substantive offence.  The distinction, however, is that party liability for conspiracy requires proof of an agreement, there is no requirement of proof that the unlawful object was attained.  Liability as a party to the substantive offence requires proof that the substantive offence was committed.  Thus, in this case, the appellant could be guilty of conspiracy if he aided or abetted the sisters within the meaning of s. 21(1) to pursue their unlawful object, even if they ultimately did not carry out the plan or the deceased had survived the attempt on her life. 

            (iii)     The Charge to the Jury

[28]         The appellant submits that the charge to the jury on party liability was inadequate in two respects.  First, the directions may have led the jury to believe that the appellant was liable as a party to the conspiracy if he aided or abetted commission of the murder, as opposed to the conspiracy.  Second, the charge did not make clear the requirement that the appellant’s acts were for the purpose of assisting the sisters to pursue their unlawful object.  I agree with the appellant that the directions were not clear and failed to specify the findings the jury would have to make to find the appellant guilty on the basis of party liability.

[29]         The directions that the trial judge gave with respect to the law of party liability were generic, divorced from the facts of the case, and failed to make clear that the jury had to find that the appellant knew the object of the conspiracy and that his assistance was intended to assist the sisters in pursuing the unlawful object of murdering their mother:  see Vucetic at para. 7.  While the later reference to the Crown’s theory was somewhat helpful, recitation of a party’s theory will often not be a sufficient substitute for instructions from the trial judge.  I will return to the impact of this non-direction after considering the other grounds of appeal.

2.         The Co-Conspirators’ Exception to the Hearsay Rule

[30]         The co-conspirators’ exception to the hearsay rule provides that the acts and declarations of a member of a criminal conspiracy, made in furtherance of that conspiracy, are admissible against all members of the conspiracy. The leading decision on the application of the co-conspirators’ exception to the hearsay rule was found in R. v. Carter, [1982] 1 S.C.R. 938.  Because Carter was a jury case, the exception is explained in terms of the directions to the jury and consists of three stages, at p. 947:

In charging the jury on this question, the trial judge should instruct them [1] to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not satisfied, then the accused charged with participation in the conspiracy must be acquitted. [2] If, however, they conclude that a conspiracy as alleged did exist, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. [3] If this conclusion is reached, they then become entitled to apply the hearsay exception and consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty.

[Numbering added.]

[31]         In her charge, the trial judge instructed the jury to first consider: “Was there a conspiracy between two or more persons?” and then “Was [the appellant] a member of the conspiracy?”  In describing the second inquiry, the trial judge divided it into two steps:

To decide this question involves two steps.  The first requires you to consider what [the appellant] said and did.  The second, which you only consider if you have been satisfied from [the appellant’s] own words and conduct that he was probably a member of the conspiracy, requires you to consider what the other members of the conspiracy said and did in furtherance of their agreement.

[32]         The appellant submits that the charge to the jury on the application of the co-conspirators’ exception to the hearsay rule was inadequate.   While the appellant raises a number of general complaints about the charge, the only real prejudice concerns the admissibility of the evidence of various witnesses who testified that (1) the appellant supplied Tylenol 3 to T for use in the murder and (2) that he agreed to help with the “alibi” by meeting the sisters after the murder at Jack Astor’s. 

(i)        Evidence with respect to Tylenol 3

[33]         Evidence that the appellant supplied Tylenol 3 to T, knowing it was to be used to drug the deceased as part of the murder plan, was important evidence showing that he had joined the conspiracy or was a party to it by aiding or abetting the sisters to pursue the murder plot.  Indeed, the autopsy established that the deceased had ingested a quantity of Tylenol 3 before her death.   The evidence about supplying the Tylenol 3 came from a number of sources: a chat on January 13 between the appellant and T; a chat on January 18 between R and AS; and the testimonies of R and AS.

[34]         It was the appellant who first raised the idea of using Tylenol 3 in his chat with T on January 13, less than a week before the murder.   In a chat between R and AS on January 18, the day of the murder, R identified the appellant as the source of the Tylenol 3.   At the trial, R testified that her sister had told her that the appellant had some Tylenol 3.   R testified that she did not remember when she obtained the Tylenol 3 pills, but that she received them from her sister within the last week leading up to the murder.  She testified that she knew T would be getting them on a certain day from the appellant, and that T gave her a clear sandwich bag containing five or six pills.   R also testified that on the day of the murder, she gave the deceased Tylenol 3 pills, two at a time, every half hour while the deceased was drinking alcohol.  According to AS, in a conversation involving AS, R, T and the appellant at Jack Astor’s following the murder, while they were waiting for the table, someone mentioned that the appellant had supplied the Tylenol 3.  AS could not recall who mentioned the Tylenol 3.  She believed that if T or R had said it and if it was not true, the appellant would have spoken up and denied it.

(ii)       Evidence concerning Jack Astor’s

[35]         Similarly, evidence that the appellant attended at Jack Astor’s for the purpose of assisting the sisters with an alibi was circumstantial evidence of his membership in the conspiracy to murder the deceased.  The idea of going to Jack Astor’s after the murder in an attempt to establish an alibi for the sisters appears to have originated in a chat between the appellant and T on January 13.  The appellant first suggested that he could purchase movie tickets for an hour “before it happens” to create “a paper trail”.  T says that would be a waste of money and, if asked, she could simply say that she was walking by Jack Astor’s “at 8:13pm”.  The appellant then says:  “wanna go to Jack’s afterwards? that’d be a nice celebration dinner.”  Later during this same chat there is extensive discussion about the murder plot; that the killing will take place that weekend, and how the sisters will drown the deceased after she gets drunk.  In the course of this chat the appellant says:  “like I said, I’m involved this much, I’m willing to help you with any of it [T]”.  Immediately after this part of the chat, the appellant raises the idea of using Tylenol 3 as set out in the chat at para. 6 above. 

[36]         Three days later, on January 16 in another chat with T, the appellant says:  “saturday's plan is still a go”.  In the chat with AS on January 18 immediately before the murder, R asks AS if she is coming to Jack Astor’s.  In the chat, after AS asks about the time of death, R says: “we have [the appellant’s] alibi plus we’re leaving right after for the mall and coming home late”. 

[37]         R testified that she and T had agreed to go to Jack Astor’s at Square One mall after the killing to establish an alibi.  The plan was to meet AS at a nearby bus stop, and travel to the restaurant where the appellant would join them.  They would remain at the restaurant for “some time” and then return home and call 911.  R testified that a few days before the killing, T told her that the appellant would accompany them to the restaurant.  The alibi unfolded as planned. R and AS both testified that the appellant did in fact come to Jack Astor’s.

(iii)     Admissibility of January 18 Chat between AS and R

[38]         The appellant submits that the trial judge erred in failing to distinguish between the evidence of so-called “ordinary witnesses” and the co-conspirators, T and R, for the purpose of the co-conspirators’ exception to the hearsay rule.  This submission focuses on the chat of January 18 between AS and R where R told AS that the appellant had supplied the Tylenol 3 and was part of the alibi.  The appellant submits that this chat was inadmissible because AS was not alleged to be a co-conspirator and the chat could not have been in furtherance of the conspiracy.  The appellant submits that there was no admissible evidence that the appellant supplied the Tylenol 3 that was used by R to kill her mother. For the following reasons, I reject these submissions.

[39]         The January 18 chat between R and AS was admissible for proving that the appellant was a member of the conspiracy in two ways. First, it was admissible under stage one of Carter, to prove, based on “all the evidence”, that there was a conspiracy between R, T, and the appellant.  It was not open to the jury to consider the January 18 chat as proof of the appellant’s probable membership in the conspiracy under stage two. However, once the jury decided that based on the direct evidence, the appellant was a probable member of the conspiracy, then the January 18 chat would be admissible under stage three of Carter to prove that he was a member of the conspiracy beyond a reasonable doubt, so long as the chat was made “in furtherance” of the conspiracy.

[40]         Taken in isolation, parts of the January 18 chat logs appear to be narrative or recounting of past events, which ordinarily would not be considered to be made in furtherance of the conspiracy. However, given the context in which this conversation took place, it is my view that this chat had the purpose of “advancing the objectives” of the conspiracy and is therefore distinct from mere narrative.

[41]         In R. v. White (1997), 114 C.C.C. (3d) 225 (Ont. C.A.), White, an engineer and businessman was convicted of fraud for making false claims for Scientific Research Tax Credits. This was alleged to have taken place in the context of a conspiracy involving White and four others. On appeal, White argued, among other issues, that the trial judge erred in his directions on the co-conspirators’ exception to the hearsay rule by failing to define the term “in furtherance” in the jury charge. White submitted that wiretap transcripts of a conversation between Richmond, an alleged co-conspirator, and an individual named Langdon, who was not charged as a co-conspirator, were not made in furtherance of the conspiracy. In particular, White argued that a statement made by Richmond to Langdon, that White believed he had one of the auditors in his pocket, was not admissible. The court disagreed on this point at p. 275:

We disagree with the appellant’s view of this evidence. We are of the view that this statement, as well as the other taped conversations between Richmond and Langdon, when taken in context, was made in furtherance of the conspiracy and was not merely narrative in nature.... Richmond was filling in Langdon on recent events involving White and one auditor. Richmond conveyed this information in furtherance of the conspiracy since Langdon had to deal with the auditor in question. This becomes evident when the evidence is considered in the context of Richmond’s testimony and of later calls. [Emphasis added.]

[42]         This is similar to the January 18 chat between R and AS. Although AS, like Langdon, was not charged or alleged to be a co-conspirator, the context of the conversation was such that R was filling in AS on the details of the murder because these were necessary discussions in planning the concealment of the murder, of which the alibi was integral.

[43]         AS was part of the alibi and was in the process of giving advice to R on how to cover up the crime in order to collect insurance money, in furtherance of the objectives of the conspiracy. AS gave advice to R including, among other things, to “use gloves” and to ensure that the killing does not look like a suicide. Further, there was discussion about planning the alibi: R confirmed that AS would be at Jack Astor’s.  AS asked R several questions in this conversation, including where she obtained the pills. R responded to that question, as she responded to all AS’s questions, in the context of this conversation, not in isolation. It can be inferred that AS wanted to know where R obtained the pills in order to give her advice about hiding the source. Presumably, AS felt that the appellant was a safe source, since she responded “thats cool”.

[44]         The concealment of the murder and its planning, part of which included the alibi, were integral parts of the conspiracy and therefore this chat was made in furtherance of the conspiracy. Accordingly, in my view, the January 18 chat was properly admitted against the appellant at stage three of Carter.

(iv)      Admissibility of AS’s testimony

[45]         The appellant submits that the trial judge erred in failing to conduct a voir dire to determine the admissibility of AS’s testimony that someone said at Jack Astor’s, in the appellant’s presence, that he had provided the Tylenol 3.  The appellant also submits that the trial judge erred in failing to direct the jury that the statement was only admissible against the appellant if he adopted the statement.  Counsel for the appellant at trial did not object to the admissibility of the statement.  Moreover, she established during cross-examination of AS that the four of them were “all standing within inches of each other” and “were all involved in a conversation together”.  AS also testified as follows in cross-examination:

I don’t remember who said what about the Tylenol 3’s, but he was certainly there participating in the conversation and if it was coming out of [T’s] mouth or [R’s] mouth, the exact words about the fact that he provided Tylenol 3’s, I’m pretty sure he would have objected to that fact if it wasn’t true.

[46]         There was sufficient evidence from which it can be inferred that the appellant adopted the statement about his supplying the Tylenol 3.  Silence alone is evidence that the person adopted the statement, if the circumstances are such that the person could reasonably have been expected to have replied to them:  R. v. Baron and Wertman (1976), 14 O.R. (2d) 173 (C.A.) at pp. 187-188.  Given AS’s evidence set out above, there was a foundation for finding that the appellant adopted the statement on the basis of silence.  But, there was more; it was AS’s evidence that they were all involved in the conversation about the Tylenol 3.  Given this record and the absence of objection, there was no reason for the trial judge to conduct a voir dire.  Evidence establishing on a balance of probabilities that he adopted the statement was sufficient to render it admissible against the appellant:  R. v. Evans, [1993] 3 S.C.R. 653 at p. 667 – 668.

[47]         It would have been preferable for the trial judge to direct the jury that it was for them to find whether the appellant adopted the statement as true:  R. v. Warner (1994), 21 O.R. (3d) 136 (C.A.) at p. 145.  However, in my view, the failure to direct the jury as to the test for adoptive admissions did not prejudice the appellant.  The only evidence on the issue was from AS and that uncontradicted evidence established that the appellant probably adopted the statement. 

 (v)      Admissibility of R’s testimony

[48]         The appellant submits that the trial judge erred in admitting evidence from R as to what T told her about her own acts and declarations and those of the appellant.  The appellant submits that even though those statements, for example that the appellant had access to a supply of Tylenol 3, were in furtherance of the conspiracy and thus presumptively admissible under the co-conspirators’ exception, they were not admissible at the appellant’s trial because they were not shown to be necessary and reliable in accordance with the principled approach to the reception of hearsay evidence.  The appellant relies upon this court’s decision in R. v. Simpson (2007), 230 C.C.C. (3d) 542 (Ont. C.A.), leave to appeal to S.C.C. refused, 255 O.A.C. 394 (S.C.C. Jun 19, 2008).

[49]         The appellant submits that Simpson stands for the proposition that in “‘rare cases’ where necessity and/or reliability are lacking” a trial judge may exclude hearsay statements that would otherwise fall within the co-conspirators’ exception:  Simpson at para. 24.  The appellant submits that necessity was not made out since T was a compellable witness and she was available; indeed she was brought to the courthouse daily while Crown counsel decided whether to call her as a witness.  The appellant also submits that T’s statements to R were not reliable because they depended upon the reliability of R.

[50]         I would not give effect to this ground of appeal.  Counsel for the appellant at trial took no objection to the admissibility of any of this evidence and never asked for a voir dire to test the necessity and reliability of the evidence.  In any event, the reliability of the statements was apparent from the circumstances.  T had no motive to lie to her sister and her information about what the appellant said was mostly confirmed by the appellant’s own words, especially in the January 13 chat with T. There was abundant other evidence such as the results of the autopsy and the subsequent meeting at Jack Astor’s that confirmed the reliability of T’s statements to R.  Such evidence was available to test the reliability of the statements:  R. v. Khelawon, [2006] 2 S.C.R. 787 at paras. 93-100.  Finally, R was available and did testify.  The appellant had ample opportunity to cross-examine R who, as an admitted conspirator and sister to the declarant, was ideally situated to provide evidence as to the reliability of the statements. 

[51]         Since no objection was taken to the admissibility of T’s declarations on the basis of necessity, the record on that issue was not fully developed.  What is known, however, is that T had not testified at her own trial and had refused to speak to Crown counsel.  In these circumstances, particularly in the absence of an objection at trial, in my view, it is not open to the appellant to raise the issue of necessity for the first time on appeal.

(vi)      Trial judge’s directions regarding the significance of the appellant’s         presence at Jack Astor’s

[52]         The appellant submits that the trial judge erred in instructing the jury that the appellant’s attendance at Jack Astor’s was directly admissible against him to prove he was probably a member of the conspiracy for the purpose of the co-conspirators’ exception, for two reasons. First, the appellant submits that attendance at Jack Astor’s, after the object of the conspiracy had been accomplished, was not capable of showing that the appellant was a member of the conspiracy. Second, the appellant submits that the trial judge erred in instructing the jury that the appellant’s presence was direct evidence of his probable membership in the conspiracy.

[53]         In my view Baron and Wertman, also a case of conspiracy to commit murder, is a complete answer to the first submission.  In that case, the court acknowledged that a conspiracy to avoid detection should not, as a matter of law, be engrafted on to every conspiracy.  To do so, could make acts and declarations by co-conspirators well after the object of the conspiracy had been accomplished, admissible under the hearsay exception.  However, the court made clear, at pp. 196 and 198, that the accused’s own acts and declarations after the conspiracy could be proof of membership in the conspiracy:

Unquestionably the acts and declarations of an accused after the deceased was killed (if relevant) are admissible against that accused; similarly, the joint declarations or acts of two or more accused are admissible against them.

…

While I consider that the direction by the learned trial Judge that the jury was entitled to find that the conspiracy was one to successfully murder Isaac Wertman and to escape detection and punishment, is questionable on the evidence in the case, I am of the view that, in all the circumstances of this case, it did not result in a substantial wrong or miscarriage of justice to either accused. The disposal of the body was certainly within the objectives of the conspiracy charged. The other acts of concealment and the falsehoods told by each of the accused (if the jury found them to be such) were admissible against that accused and, in addition, they were closely connected in time with the objective of the conspiracy alleged.  [Emphasis added.]

[54]         Like the disposal of the body in Baron and Wertman, the attendance at Jack Astor’s was within the object of the conspiracy and closely connected in time with it.  The meeting at Jack Astor’s was an integral part of the plan; the sisters wanted to be able to show that they had been away from the house when the deceased “accidentally drowned” and to explain how they “discovered” the body.  The appellant’s attendance at Jack Astor’s after the killing for the purpose of assisting the sisters in successfully carrying out the murder plan was evidence of his probable membership in the conspiracy.  In fact, when linked with his earlier chat with T about the alibi, it was very compelling evidence of his membership in the conspiracy.

[55]         With respect to the appellant’s second submission, in considering whether the appellant was a probable member of the conspiracy at stage two of Carter, the jury was entitled to consider all of the direct evidence of the appellant’s  “own words and acts”. This included, as the trial judge correctly identified, the MSN chats between the appellant and AS, the MSN chats between the appellant and the sisters, as well as his presence at Jack Astor’s.  There was no suggestion by the trial judge that the appellant’s presence at Jack Astor’s would alone be sufficient to find him a probable member of the conspiracy.  Attendance at the dinner was a piece of circumstantial evidence which, together with other evidence, could prove he was a probable member of the conspiracy. The trial judge did not err in this respect.

(vii)    Co-Conspirators’ exception as it applies to party liability

[56]         Lastly, the appellant submits that the trial judge erred in failing to direct the jury that the co-conspirators’ exception did not apply to prove that the appellant was a s. 21(1) party to the conspiracy.  There is no merit to this submission.  The instructions on the co-conspirators’ exception referred to use of that evidence only to prove membership in the conspiracy.  There was no reference to use of that evidence to prove that the appellant was a party to the conspiracy.

3.         Bad Character Evidence

[57]         The appellant submits that the trial judge erred in failing to exclude portions of the chats that showed the appellant to be of bad character.  This complaint relates to the binder of MSN chats that were entered as an exhibit.  Witnesses referred to only very few portions of the chats that related to the conspiracy.  The jury members did, however, have access to the entire binder which contained statements by the appellant about being “violently angry”, using drugs, drinking, quoting lyrics referring to murder and violence, and stealing a stop sign.  The binder of chats was entered into evidence and was allowed to go to the jury during their deliberations, without objection.  Counsel for the appellant did not seek a limiting instruction with respect to the alleged bad character evidence.

[58]         In my view, the failure to object or to seek a limiting instruction were tactical decisions.  The thrust of the defence was that the appellant’s discussions about killing the deceased were not intended to be serious.  This defence depended upon the jury seeing the chats upon which the Crown relied in context.  As counsel for the respondent points out, without that context, the appellant’s chats with the sisters would have appeared even more sinister.  The defence position is nicely captured in these excerpts from defence counsel’s closing address:

Now, you’ve heard in these chats, certainly that these young people are talking about a lot of stuff that some teenagers talk about, maybe some wild teenagers to some extent. They’re talking about drugs, they’re talking about alcohol and they’re talking about sex sometimes, they’re talking about gossip, and they’re talking about their dreams, about jokes and there’s a lot of black humour.

And even in those chats where the girls are – are talking about what they’re going to do, you can see that the bulk of those conversations relate to completely different things. [R], while she is supposedly planning this murder and talking about the plan, her focus is on this pregnancy hoax throughout and you – you can see that theme, and not only that, you can see her concern is also, for the most part, about getting stoned or high.

You have – my friend read to you the chat for [the appellant] and [T]. And I – I suppose if any of you have any experience with drama, you’re going to know that when you have a script, there’s two ways you can read it, right? You can read it in a very sinister way or you can read it as if it’s a joke. And I submit to you, it may not have been a joke for [T], but it clearly was a joke to [the appellant]. And if you read it carefully, I submit to you, you’re going to come to that conclusion.

…

And then my friend referred you and I believe he read this passage to you, he said – right after all this talk about the drinking and what they’re going to do, he says, “I have this all planned out.” Very sinister.  But look at what he’s talking about, the plan. That plan is not about the murder, if you read it. That plan is about bringing booze to school and when you read that, you’re going to see that. “We get drunk in the cafeteria. We get stoned tomorrow. We drink on” -- “on Tuesday.” All silly talk.

And then talking maybe about – about meth and you saw [the appellant’s] response when he was on – being interviewed. Meth? I’ve never taken meth, you. So this was all talk, all bravado, trying to impress this wild girl.

And then in quotations they’re talking about the “vial”. Look at [T’s] quotations again, “Aha, that’s the worse thing that could happen.” In quotations she says, ‘[Late] night, a body was found in the ditch.” Is she serious? Is she serious that someone’s body is going to be found in the ditch, that one of their bodies is going to be found in the ditch? No. She’s joking. And then there’s some talk about, “You mean that” – “Alcohol, which could kill your friend.” Are they serious that alcohol is going to kill their friend? More laughing, talking about drugs, talking about buying drugs. The same conversation. And then [T] throws in after all this talk about nonsense and drinking and all this stuff, throws another one in, throws a line in, “Well ... ill probably be able to mooch off at least a bit after she dies.” He hasn’t been talking about it, but she’s thrown it in. And then in quotations, another very serious line, very serious, you can picture her saying this to friends, “...my mom just died...[so] what [kind of drug] would you recommend [that I take]?” That’s in quotations. That is not serious. Nobody could take that as being serious, not a 15-year-old boy who – who has no idea what’s going on in that house.

…

Then there’s the conversation on the 16^th, two days before the murder. And there’s talk that [JA] is not coming and apparently – [the appellant] says, “so ... now the plan has to be totally re-formulated.” Well, which plan, ‘cause they got plans to go out. That’s a sinister plan, they’ve got plans to go out or – and the talk – is it Friday, is it Saturday? “Do you still want to get stoned and steal a stop sign?” Steal a stop sign and get stoned. That is a joke. It’s not serious. [The appellant] apparently says “ ... I don’t know what’s happening now, so I dunno” – “I dunno what’s going on.” Does he know about a plan? Is he talking about he knows what’s going on? He’s saying he doesn’t know what’s going on. I’ll see you tomorrow at school. She says I don’t know what’s going on either. There is no – two days before the murder, that’s what [the appellant] is saying, there’s no plan. He doesn’t even know whether they’re getting drunk or stoned or who’s coming.

…

But again he says, as far as I was concerned they were – I was talking shit with friends. And he says, if you were to go talk to any of my friends, if you were to get the chat logs, you would see how many ridiculous conversations we have and the – and the black humour he’s referring to, ‘cause there’s a lot of black humour and we see that in a lot of there TV shows unfortunately. [Emphasis added.]

[59]         In effect, the defence made a perfectly reasonable tactical decision to rely upon the bad character evidence to give context to the highly incriminating chats:  R. v. Szanyi, (2010), 254 C.C.C. (3d) 528 (Ont. C.A.) at para. 29.  I would not give effect to this ground of appeal.

4.         The Police Interview

[60]         The Crown introduced a lengthy interview of the appellant by a police officer.  The interview was edited to remove references to an earlier police interview that had been ruled inadmissible.  There was no other objection to the admissibility of the statement.  For the first time on appeal, the appellant argues that the trial judge should nevertheless have excluded the statement.  The appellant argues that the interview was not really a statement by the appellant, but a recitation by the interviewing officer of the MSN chats accompanied by the officer’s editorial comments.

[61]         In my view, the interview was a statement of the appellant, not merely a soliloquy by the police officer, as suggested by counsel for the appellant.  The appellant participates in the interview and identifies the parties to some of the chats. The identification of the participants in the chats was a live issue at the trial. Moreover, in the interview the appellant offered his own interpretation of some of the most inculpatory parts of the chats and puts forward his defence.  For example, when he was directed to the portion on the chats concerning Tylenol 3, he denied that he had access to Tylenol 3.  He explained to the police officer that he was just “talking shit with friends”, it was “just all hot air”, they were “joking around” and it “was never anything more than something stupid”.  These were all themes that were picked up by his trial counsel in her closing address.  Since the appellant did not testify, the police interview was a way for the appellant to put his defence to the jury.  The failure to object to the admission of the statement, in my view, was an obvious and reasonable tactical decision and it is not open to the appellant to raise this issue for the first time on appeal.  There is no suggestion that the appellant’s trial lawyer provided ineffective assistance.

[62]         Alternatively, the appellant submits that the trial judge should have edited out some prejudicial parts of the interview.  Again this is an objection that is raised for the first time on appeal.  The only editing that was requested at trial concerned reference to the earlier inadmissible statement.  The appellant’s objection is with respect to certain statements by the police officer, in particular, his comments on the appellant's credibility, his comment that  the appellant  is not being truthful in his answers, and his reference to some of the bad character evidence. 

[63]         There is no merit to these complaints.  Leaving aside the fact that there was no objection at trial, the passages complained of did not unfairly prejudice the appellant.  I have already dealt with the bad character issue.  As to the officer’s comments about the appellant’s credibility, in my view, they are harmless.  The comments were nothing more than the officer’s personal opinion about the appellant’s use of figures of speech such as:  “Well to be honest with you” and “I’m trying to tell the truth”.  The appellant responded to those comments and explained why he used those phrases.  In his response, he reiterated his position, which became the theory of the defence at trial:

What I have been sitting here saying the whole time.  I mean.  I, I don’t, I can’t attach to the validity of, or anything that happened or whether or not that is actually the plan that was implemented but I mean all I can say is my position that, I have never taken it seriously I mean.  As far as I was concerned I was just talking shit with friends.

[64]         It is not surprising that defence counsel did not object to the admissibility of the statement or that she did not seek further editing.  Finally, the appellant’s submissions with respect to the statement are totally inconsistent with the position taken in respect of other grounds of appeal dealt with below, concerning the theory of the defence where counsel submits that the statement was the “foundation of the defence”.  I would not give effect to this ground of appeal.

5.         The Appellant’s Denial of Guilt

[65]         As mentioned, somewhat incongruously, counsel for the appellant, having argued that the trial judge erred in not excluding the appellant’s statement, also submits that the trial judge erred in failing to direct the jury about the importance of that statement to the defence.  On appeal, the appellant submits that the trial judge was required to instruct the jury that the appellant’s denials of guilt in the statement were capable of raising a reasonable doubt.  As counsel for the respondent points out, there were in fact no outright denials of guilt in the statement.  Rather, the statement was the occasion that allowed the appellant to put forward what became the theory of the defence; that the statements in the chats were not to be taken seriously and that the appellant was just talking “hot air” and engaging in “stupid” adolescent conversation with friends.  That position was repeatedly, skilfully and forcefully put before the jury during trial counsel’s lengthy jury address and picked up in the charge to the jury in the passages set out below under the next heading.

6.         The Theory of the Defence

[66]         In a related submission, the appellant submits that the trial judge failed to adequately present the theory of the defence in two respects.  He submits that the trial judge failed to refer to the appellant’s denials of guilt in his statement, which according to the appellant was the foundation of the defence and could alone have led to an acquittal.  Second, the trial judge erred in failing to direct the jury that it was the defence position that the appellant did not supply the Tylenol 3.  I have already dealt with the first issue; the appellant’s comments during the police interview were a foundation for the defence position that his statements in the chats were not to be taken seriously. That issue was plainly put to the jury in the following portions of the charge:

It is the position of the defence that [the appellant] is not guilty of conspiracy to commit murder. He was not a member of the conspiracy to commit the murder of [the deceased].

The MSN chat logs entered into evidence by the Crown reveal immature and childish conversations. [The appellant] did not believe that [T] was serious about killing her mother. He was never privy to any of [R] or [T’s] chats with [AS] or [TF (another Crown witness)]. He took absolutely no steps to assist in the murder of [the deceased].

His attendance at Jack Astor’s did not assist with the murder. The murder was complete by the time the girls arrived at the restaurant. There is no evidence that [the appellant] ever presented himself as an alibi witness to police.

This was [R’s] plan, those privy to this plan were her sister and her closest friends. It is submitted that even [R’s] own friends did not believe she would follow through with the murder. There was never any discussion between [R] and [the appellant] about the murder.

There is no evidence from any witnesses in this trial that [the appellant] had discussed the plans for the murder either before or after.

[67]         The trial judge did not expressly tell the jury that it was the theory of the defence that the appellant did not supply the Tylenol 3 that were used to drug the deceased.  However, as set out above, she did remind the jury that it was the theory of the defence that the appellant “took absolutely no steps to assist in the murder”.  Given the prominence of the Tylenol 3 issue in the case, the jury could not have been in much doubt about what the appellant’s position was on that issue.

7.         The Vetrovec Warning

[68]         The appellant submits that the trial judge erred in failing to give a Vetrovec warning about the danger of convicting on the unconfirmed evidence of R and AS: R. v. Vetrovec, [1982] 1 S.C.R. 811.  Again this is an issue raised for the first time on appeal; defence counsel did not seek a Vetrovec warning in respect of either witness.  The appellant submits that this was probably an oversight on the part of defence counsel, the trial judge and Crown counsel, and was not a tactical decision.

[69]         It is not apparent to me that the failure to request a Vetrovec warning in respect of either witness was an oversight, since defence counsel may have wanted to avoid a recitation of the substantial confirmatory evidence.  In any event, I am satisfied that a Vetrovec warning was not required in respect of either witness.

[70]         A Vetrovec warning is normally required where the evidence of an unsavoury witness plays a central role in the proof of guilt so that the witness’s story must be approached with caution:  R. v. Khela, [2009] 1 S.C.R. 104 at paras. 35 and 36 and R. v. Brooks, [2000] 1 S.C.R. 237. Beginning with R, she did not play a central role in the proof of guilt.  Her evidence established beyond any doubt that there was a conspiracy between her and her sister to kill their mother.  But, the fact of the conspiracy between the sisters was not in any real doubt and was not the issue in the case.  The issue in the appellant’s trial was whether he was a member of, or party to, that conspiracy.  On this issue, R offered no evidence, other than the hearsay evidence that her sister had told her that the appellant had a supply of Tylenol 3 and was coming to Jack Astor’s after the killing.  The latter fact was not a contested issue in the case and was never in doubt.  The former fact was established through other circumstantial evidence.  In fact, R’s testimony was helpful to the defence because it established that her reference in the January 18 chat with AS to the appellant supplying the Tylenol 3 was based on hearsay from T and not her own knowledge.

[71]         As to AS, it was only her evidence about the conversation at Jack Astor’s that implicated the appellant as the source of the Tylenol 3.  Since the appellant’s role in respect of the Tylenol 3 was confirmed by other evidence, especially the appellants’ chat with T on January 13, AS’s evidence did not play a central role in the proof of guilt.  Otherwise, AS had no evidence to give against the appellant.  In fact, much of her evidence was helpful to the appellant since her position, like that of the appellant, was that she did not take the murder plot seriously. AS explained that she did not take it seriously because R had a habit of making up stories.

[72]         The fact of the matter is that the evidence of AS and R simply confirmed what had already been established through the appellant’s own words, especially the chat with T on January 13.  To summarize: there was no need for Vetrovec warnings with respect to R and AS; their evidence was confirmed in material respects by other evidence; and there is good reason to believe that trial counsel’s failure to seek the warnings was a tactical decision.  This ground of appeal fails.

8.         Conclusion of the Conviction Appeal

[73]         I have found one error of non-direction in the charge to the jury; the trial judge’s failure to clearly define the findings of fact that would be required to find that the appellant was a party to the conspiracy.  In my view, this is a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. 

[74]         The appellant’s defence was the same to both bases of liability, namely, that his comments in the chats were not to be taken seriously.  If the jury accepted this position or had a reasonable doubt then the appellant would be acquitted; the viability of that defence did not depend on whether the appellant was a principal in, or a party to the conspiracy.  Conversely, if the jury rejected that position beyond a reasonable doubt, a finding of guilt was inevitable.  In any event, the appellant’s chats, especially the chat of January 13 with T, are direct evidence, in his own words, of the appellant’s role in the conspiracy. His liability as a party or a member of the conspiracy was overwhelming.

[75]         For these reasons, I would dismiss the appeal from conviction.

The Sentence Appeal

[76]         The appellant raises two grounds of appeal against the sentence.  He submits that conspiracy to commit murder is not a violent offence within the meaning of s. 39(1)(a) of the Youth Criminal Justice Act.  The appellant submits that accordingly the trial judge imposed an illegal sentence.  Alternatively, the appellant submits that the trial judge erred in principle in taking into account the appellant’s lack of remorse as an aggravating circumstance.

1.         Whether the appellant committed a violent offence

[77]         Section 39(1) provides that a judge shall not commit a young offender to custody unless:

(a)  the young person has committed a violent offence; 

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[78]         At trial, Crown counsel argued that a custodial sentence could be imposed either under s. 39(1)(a), that the appellant had committed a violent offence, or s. 39(1)(d), that this was an exceptional case.  In imposing a sentence of 18 months (12 months custody and 6 months conditional supervision), the trial judge relied only on s. 39(1)(a), that the offence committed by the appellant was a violent offence.  The appellant submits that conspiracy to commit murder is not a violent offence.  The respondent submits that the trial judge properly held that the appellant committed a violent offence.  Alternatively, Crown counsel submits that this was an exceptional case and the trial judge could have imposed a custodial sentence under s. 39(1)(d). Since, in my view, the trial judge properly found that the appellant committed a violent offence, I need not consider the Crown’s alternative submission.

[79]         The leading decision on the meaning of “violent offence” is the decision of the Supreme Court of Canada in R. v. C.D., [2005] 3 S.C.R. 668.  The principal issue in C.D. was whether the definition should have a harm-based touchstone rather than a force-based one.  Bastarache J., speaking for the majority of the court, adopted the former theory and at paras. 17 and 70, defined a violent offence as “an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm”.  One of the most important rationales for adopting the harm-based approach was that certain offences that clearly ought to fall within the definition of violent offence might not be captured by the forced-based approach.  Bastarache J. at paras. 59 and 61 particularly identified murder, attempted murder and manslaughter as offences that ought to be identified as violent offences and offences deserving of a custodial sentence, even when committed by a young person:

The second fatal flaw associated with a force-based definition of "violent offence" is that such a definition will not capture all murders, attempted murders and manslaughters, because the commission of these offences will not always require the actual, attempted or threatened application of force. We know this because none of the provisions of the Criminal Code that set out the elements of murder, attempted murder and manslaughter - namely, ss. 222, 229, 234 and 239 - requires that an offender actually apply, attempt to apply or threaten to apply force to the victim before the offence is made out. Instead, the focus is on the harm (i.e. death) caused or attempted regardless of the means.

…

The fact that a force-based definition of "violent offence" will fail to capture all murders, attempted murders and manslaughters is a problem because these three offences are commonly understood to be violent offences, as that term is generally understood, and, as such, are typically thought to be deserving of a custodial sentence - even when committed by a young person. This view of murder, attempted murder and manslaughter as offences typically deserving of custody, even when committed by young persons, is also reflected in certain provisions of the YCJA.

[80]         Later at para. 67, Bastarche J. identified another reason for the harm-based approach: such definition better accords with the usual definition of violence “which tends to focus on its effects (i.e. harm) rather than on the means employed to produce the effects (i.e. force)”.  On the other hand, the fact that violence was merely reasonably foreseeable would not come within the harm-based definition; a distinction was to be drawn between a dangerous offence and a violent offence: paras. 77 – 80.

[81]         In concluding that the appellant committed a violent offence, the trial judge made the following findings of fact:  the appellant gave T the Tylenol 3 that was used to drug the deceased to make it easier to drown her; he offered to assist T with an alibi and to that end met with her at Jack Astor’s; and he encouraged T to commit the murder.  Given those factual findings, it was open to the trial judge to find that the appellant committed a violent offence.  Conspiracy to commit murder, like attempted murder, falls within what would ordinarily be considered a violent offence.  More importantly, in this case, the facts support a finding based on the harm-based approach.  The appellant committed several overt acts in pursuit of the agreement that caused harm to the victim, in particular, supplying the Tylenol 3 to drug the victim so that she could be drowned and encouraging T to assist in the drowning of the victim.

[82]         I recognize that not all cases of conspiracy to commit murder may necessarily fall within the harm-based approach, a matter I need not resolve in this case; but in my view the facts of this case fall within the definition in that the appellant caused or at the very least attempted to cause bodily harm to the deceased by supplying the Tylenol 3 and encouraging T to commit the murder.

2.         Whether the trial judge erred in principle

[83]         The appellant submits that the trial judge erred in principle in taking into account the appellant’s lack of remorse as an aggravating factor.  The trial judge began her list of aggravating factors with the following:

(1)       The lack of remorse and lack of understanding of his involvement in the offence.  [The appellant] shows little insight into the harm to which he contributed and the fact that his actions assisted in a murder.

[84]         It is well-established that the accused’s conduct of the defence cannot be considered an aggravating circumstance.  An accused has the right to make full answer and defence and cannot be punished for having done so by imposition of a harsher sentence:  R. v. Kozy (1990), 74 O.R. (2d) 545 (C.A.) at p. 550.  Similarly, it may be unwise to treat lack of remorse as an aggravating factor where the effect is to punish the accused for not having pleaded guilty or for having mounted a defence.  This court, however, has never held that lack of remorse cannot be a relevant factor in sentencing.  For example, in R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.) at  p. 205 :

Lack of remorse is not, ordinarily, an aggravating circumstance. It should only be considered aggravating in very unusual circumstances such as where the accused's attitude toward the crime demonstrates a substantial likelihood of future dangerousness. Even then the trial judge must be careful not to increase the sentence beyond what is proportionate having regard to the circumstances of the particular offence.

[85]         And the decision of this court in R. v. B.P. (2004), 190 O.A.C. 354 at para. 2, implies that lack of remorse can be taken into account in some circumstances:

The appellant argues that the trial judge erred in his consideration of the appellant's lack of remorse for the offences in question. We agree. This is not a case where the trial judge treated the appellant's lack of remorse as relevant to rehabilitation and specific deterrence on the basis that it indicated a failure by the appellant to accept responsibility for his actions; nor is this a case where the trial judge regarded the appellant's lack of remorse as disentitling him to mitigation consideration on sentencing. To the contrary, the reasons of the trial judge indicate that he accepted Crown counsel's submission at trial that the appellant's lack of remorse was an aggravating factor relevant to fashioning an appropriate sentence. This was an error in principle. [Emphasis added.]

[86]         I agree with the appellant that the trial judge erred in listing lack of remorse as an aggravating factor.  That said, there was permissible use of lack of remorse in this case in demonstrating, together with his “lack of understanding of his involvement in the offence”, that the appellant had not accepted responsibility for his actions.  Under s. 38(2)(e)(iii) of the Youth Criminal Justice Act, a sentence imposed on a young person “must … promote a sense of responsibility in the young person, and an acknowledgment of the harm done to victims and the community”.  There was a basis in the record from the observations of the probation officer who prepared the pre-sentence report that the sentence to be imposed on the appellant needed to recognize that he had not taken responsibility for the offence or understood the harm he had done:

He said, “I wish it had not happened.  There is not much I can do now to make it right.”  We also talked about how the charges have affected his life.  He said that his life was put on hold for two years since he has been charged.  As well, he had to live with restrictive bail conditions.

…

The Youth feels that he was in the wrong place at the wrong time.  He thinks he is a victim of misunderstanding.  As a result, he feels that his life is on hold awaiting the sentence.  He stated that he would like to deal with the consequences of the offence before he starts working on his plans for the future.  He stated that he is willing to do his best to comply with the order of the court.

[87]         Thus, while the trial judge erred in principle in considering lack of remorse as an aggravating factor, this error was of little consequence.  I am more concerned about the two other “aggravating factors” listed by the trial judge:

(2)       [The appellant] is by all accounts a very intelligent young man and as such should have been aware of the harm that his actions could bring about.

(3)       [The appellant] comes from a very supportive background.  There is nothing in his background to explain his involvement in this crime.

[88]         In my view, the appellant’s apparent intelligence and supportive family background are not properly considered aggravating factors.  Further, it is unclear to me how those factors would assist in imposing an appropriate youth sentence in accordance with the principles set out in s. 38, except possibly as part of the context for ensuring that the sentence represented meaningful consequences.  It would be a strange result that a 15 year old intelligent first-offender from a supportive background would receive a harsher sentence than someone else.  It seems to me that those factors or characteristics would suggest that the appellant was a prime candidate for a sentence promoting his rehabilitation and reintegration into society, which, pursuant to s. 38(1), is the purpose of a youth sentence.

[89]         Given these errors in principle, it falls to this court to impose an appropriate youth sentence.  This case in some respects resembles R. v. R.E.W. (2006), 79 O.R. (3d) 1 (C.A.), where this court dismissed the young person’s appeal from a sentence of six months secure custody (four months custody and two months community supervision) and 12 months probation on two counts of being an accessory after the fact to murder.  The facts of those offences, like the facts of this offence, were horrendous: the youth had committed the theft for which the principal offender blamed the two victims, he knew the principal offender intended to deal harshly with the victims, he then watched the principal offender cut up the bodies of the victims and he helped to dispose of the remains.  However, there were important mitigating factors, including that the youth was only 13 years of age at the time, was extremely vulnerable and had come under the influence of the principal offender, who he saw as a father-figure, but who was a child molester with a prior record for homicide.

[90]         I agree with the trial judge that a custodial sentence was required in this case primarily for the purposes identified in s. 38(2)(e)(iii):  to promote a sense of responsibility and acknowledgment of harm done to the victim and the community.  In my view, given the appellant's excellent prospects for rehabilitation and reintegration, the long time that he has been subject to very strict bail conditions, his age, and lack of record, a youth sentence closer to the sentence imposed in R.E.W. would be appropriate.

[91]         Accordingly, I would reduce the sentence to 12 months (8 months custody and 4 months conditional supervision).  Given the lengthy time that the appellant has been on bail, which included strict terms such as a curfew and restrictions on computer use, I see no need for a period of probation.

DISPOSITION

[92]         Accordingly, I would dismiss the appeal from conviction.  I would grant leave to appeal the sentence and reduce the sentence to 8 months custody and 4 months conditional supervision.

            Signed:           “M. Rosenberg J.A.”

                                    “I agree Paul Rouleau J.A.”

                                    “I agree Gloria Epstein J.A.

RELEASED:  “MR” APRIL 6, 2011