R. v. Chenier, 2006 CanLII 3560 (ON CA)

DATE: 20060210

DOCKET: C38180 and C38099

COURT OF APPEAL FOR ONTARIO

WEILER, BLAIR and MACFARLAND JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Clayton C. Ruby, for the appellant Chenier

Respondent

Diane Magas, for the appellant Farley

• and -

PETER CHENIER and GEORGE FARLEY

Susan Ficek, Jennifer Woolcombe, and Nadia Thomas, for the respondent Crown

Appellants

Heard: October 3, 4 and 5, 2005

On appeal from convictions for first-degree murder, conspiracy to murder, and possession of explosives with the intent to cause death or bodily harm, entered by the Honourable Mr. Justice Douglas Rutherford of the Superior Court of Justice, sitting with a jury, on December 20, 2001.

R.A. BLAIR J.A.:

OVERVIEW

On May 21, 1997, Earl Joe was shot and killed in his home. The Crown alleges it was a contract killing. After a lengthy trial ending on December 20, 2001, George Farley and Peter Chenier were convicted of first-degree murder, conspiracy to commit murder and possession of explosives with the intent to cause death or bodily harm. They appeal from those convictions.

Earl Joe was killed five days before he was scheduled to testify against Chenier in relation to a previous criminal charge for aggravated assault. The charge stemmed from an incident in 1994 in which Joe was stabbed and suffered serious injury. The Crown’s theory of the murder was that Chenier planned and orchestrated the killing of Joe in order to eliminate him as the central witness in the pending aggravated assault case.

The Crown called numerous witnesses, but its case rested primarily on the testimony of André Boisclair – one of the co-conspirators, a career criminal and a friend of Chenier – and, to a lesser extent, on that of another criminal, Danny Moore. Boisclair gave details in his testimony about several aborted plans to kill Joe in addition to testifying about the murder itself. With respect to the murder, he testified that Chenier had instructed and arranged for him and Farley to kill Joe. His evidence was that Farley shot Joe with a gun provided by Chenier and that he (Boisclair) drove the get-away car.

Boisclair clearly had a motive to testify in favour of the Crown. Although on his own evidence he was party to the offence of first-degree murder, he had been permitted to plead guilty to manslaughter in relation to the death of Joe, and to certain other offences, in exchange for his testimony at the Chenier/Farley trial. He was sentenced to ten years in prison for these offences.

Neither Chenier nor Farley testified at trial. The defence position was that it was Boisclair who solely committed the murder, that he fabricated the evidence to implicate the appellants, and that his testimony was totally unreliable. The defence did call several other witnesses, including Boisclair’s father, André Gagnon, a past president of the Outlaw motorcycle gang. He was called by the defence to support the suggestion that it was Boisclair who may have killed Joe because he was indebted to Joe.

The appellants assert altogether nineteen grounds of appeal, which may be organized conveniently and summarized as follows:

A. Alleged Defects in the Charge to the Jury

1. The constitutionality of s. 22(2) of the Criminal Code and the error in leaving it with the jury;

2. The Vetrovec Issues;

3. Conspiracy;

4. Bad Character Evidence;

5. Boisclair as Sole Murderer

6. Causation for First-degree Murder;

7. Planning and Deliberation;

8. Post-Offence Conduct;

9. Inadequacy of Police Investigation;

10. Reasonable Doubt;

11. Fairness of the Charge.

B. Errors in the Admissibility of Evidence

1. Bad Character Evidence;

2. Hearsay

• The Trial Judge’s Explanation to the Jury as to Why he had Ruled certain Hearsay Admissbile;

• “The Big Guy (Farley) Did the Job for Us”;

3. Post-Offence Conduct.

C. Other Errors in Law

1. The Failure to Leave Second Degree Murder to the Jury;

2. The Failure to Remove Count #3 from the Jury;

3. Quashing a Subpoena Directed at a Crown Attorney;

4. The Failure to Grant a Mistrial;

5. The Verdict was Unreasonable.

I would allow the appeal and order a new trial based upon (i) the trial judge’s failure to give a correct and adequate Vetrovec warning in relation to the witnesses Boisclair and Moore, (ii) the trial judge’s error in giving a Vetrovec warning in relation to the defence witness, André Gagnon, and (iii) the trial judge’s failure to instruct the jury that they could not consider the hearsay statement “The big guy did his job” as evidence against the appellant Farley. I would not give effect to the other grounds of appeal, and I will deal with them only to the extent their disposition may bear on the new trial to be ordered.

FACTS

Background

Peter Chenier was upset with Earl Joe because he believed Joe was having an affair with his wife. Joe began socializing and going out occasionally with Chenier’s wife in the late 1980’s and early 1990’s. In September 1994, Chenier was charged with aggravated assault as a result of an incident in which he allegedly stabbed Joe in retaliation for the affair. His trial on this charge was scheduled to begin in May 1997. A number of witnesses testified at the murder trial that they heard Chenier say he wanted to kill Joe in order to prevent him from testifying against him.

Boisclair was Chenier’s friend. Only twenty-five years of age at the time of trial, he nonetheless had a very lengthy criminal record involving violence and dishonesty – including convictions for theft, break and enter, assault, several drug-related offences, and numerous armed robberies. He admitted to having lied to the police and to having manipulated the system for his own purposes. Danny Moore, another important Crown witness, was Boisclair’s partner in many of the robberies. After his release from jail in May 1996, Boisclair began to hang out with his friend, Chenier, and to do drugs with Chenier on a regular basis. He testified that he was introduced to the appellant, Farley, by his (Boisclair’s) cousin, Marco Clément, around December 1996.

The Plots to Kill Earl Joe

Boisclair and others testified to three different attempts to murder Earl Joe, all of which were said to have been instigated by the appellant, Chenier.

First, in February 1997, Farley and Clément agreed to murder Joe using explosives that Farley had obtained. There was evidence surrounding the arrangements made by Farley to buy and sell explosives, including police surveillance evidence of him selling explosives a few months earlier. Boisclair said that Chenier offered Clément and Farley $5,000 each to kill Joe, and in addition offered to clear their drug debts with him. This initial plan was aborted, however, when Farley was arrested on an unrelated matter and Clément backed out.

According to the witnesses at trial, Chenier was not deterred by this setback. Boisclair and Moore testified that in April 1997, Chenier made a second set of arrangements to kill Joe. This time Boisclair and Moore were to do the deed. Boisclair said that he was willing to kill Joe as a favour to his friend, and Moore testified that he did not like the idea of someone testifying against his friend. This plan involved either the use of a bomb to kill Joe or the use of a gun to shoot him. It disintegrated as well when Moore was arrested on a parole violation.

Boisclair testified that shortly thereafter a third plan was developed. This plan succeeded. Farley was back in the picture and Chenier asked Boisclair and Farley to carry out the killing. They abandoned the idea of explosives in favour of the use of a gun, which Boisclair said was provided by Chenier. According to Boisclair, Farley was to be the shooter and Boisclair was to be the driver of the get-away car.

The Shooting

May 21, 1997, was the day of the shooting. The direct evidence as to what happened came primarily from Boisclair.

According to Boisclair, he and Farley stole a Mazda vehicle the day before from a Walmart in Gatineau, Quebec, to use in the crime. He picked Farley up in the Mazda on the 21^st. Each had gloves, an extra set of clothes and a disguise (hats, sunglasses). They went to Chenier’s to pick up a second car, a New Yorker. Chenier had the gun ready and gave it to Farley. The initial plan was to shoot Joe outside a bar near his workplace. When this proved unworkable because of the number of people around, the plan was revised. Boisclair and Farley went to Joe’s house. They dropped the New Yorker up the street and spent some time driving around the neighbourhood planning the hit. Ultimately, Boisclair says, he waited in the car while Farley went into the house. Boisclair heard two to four shots and Farley returned to the car. Boisclair testified they drove away in the Mazda, with him driving and Farley in the back seat. They drove up the street, left the Mazda running, got into the New Yorker, executed a U-turn, and drove off.

Earl Joe was found in his backyard with three shots in his chest. There was no physical evidence linking either of the appellants to the crime scene, although the Mazda was recovered, still running, and Boisclair’s Rayban sunglasses were found in the back seat. A neighbour of Earl Joe – the defence witness, Karen Cloudsdale – testified that after she heard shots she saw a male running away from Joe’s house. Her physical description of this person did not match that of Farley but could arguably have fit that of Boisclair. Witnesses confirmed seeing a car speeding away from the scene with at least two people in it, but there was some inconsistency in the testimony regarding the description of the car that made the U-turn.

After-the-Killing Events

No arrests were made in connection with the killing for several months.

In early August 1997, however, Boisclair and Moore were arrested for a beer store robbery. Moore gave a statement to the police in which he discussed the Joe murder (the statement was not admitted at trial). Through a series of contacts and wiretapped conversations with Chenier and Farley, Boisclair became concerned that Moore had talked. He testified that when Moore was released on bail in October, he knew from his experience in the criminal system that Moore was cooperating with the police. He had also heard that he was going to be charged with first-degree murder and began to think seriously about the trouble he was now finding himself in.

On October 30, 1997 Farley was arrested for the murder. On the same day the police advised Boisclair that he would be charged with first-degree murder along with a number of other charges. After obtaining some assurances from the police that they would do their best to ensure his safety and that of his family and a vague understanding that he would receive a sentence that was lighter than life imprisonment, Boisclair decided to talk to the police. He gave a statement the following day implicating himself and Chenier and Farley in the murder, explaining how Farley killed Joe, and outlining the various earlier plots described above. He identified pictures of himself, Chenier, Moore and Farley in three photo-lineups and showed the police where the murder weapon was buried. He also confessed to some twenty-one unsolved armed robberies. As indicated earlier, Boisclair ultimately pled guilty to manslaughter in relation to the Joe killing, and to the beer store robbery. He received concurrent sentences of ten years imprisonment. He did not face charges with respect to the other armed robberies.

At the time of his arrest, Farley gave a statement denying knowing anything about explosives or having any involvement in the Joe killing and denying that he knew Chenier. He also denied selling explosives or knowing anything about them.

The police could not find Chenier in October 1997. He had fled to Winnipeg, where he was arrested for the Joe murder a year later. Upon his arrest he gave a false name (“Jasper James”), but later acknowledged his true name and told the police “it was only a matter of time”. He attempted to minimize his connection with Boisclair and Farley.

Moore testified in chief that Boisclair told him “the big guy did his job” or words to that effect. There was no doubt this reference was to the appellant Farley, who is 6’5” and weighs 350 pounds. Moore also testified that Chenier told him he was happy it was all taken care of. The trial judge did not tell the jury that the statement attributed to Boisclair to the effect that “the big guy did his job” could not be used for the truth of its contents against Farley. The Crown relied upon the statement in closing argument.

ANALYSIS

At the conclusion of the appellants’ arguments we did not find it necessary to call upon the Crown with respect to the following grounds of appeal: (i) the alleged unreasonableness of the verdict, (ii) the failure to remove count #3 (possession of explosives) from the jury, (iii) the mistrial issue, (iv) the admissibility of bad character evidence (although we heard argument on how the bad character evidence was dealt with in the charge), (v) whether a stay should be granted on Charter breach grounds, as a result of alleged police failures in preserving evidence, (vi) the refusal to quash the subpoena against the Crown Attorney, and (vii) the refusal of the trial judge to leave second degree murder to the jury.

Of the grounds that remain, three give rise to problems that require the direction of a new trial, in my opinion. They are (i) the inadequacy of the Vetrovec warning in general; (ii) the Vetrovic-like warning that was given with respect to the defence witness, André Gagnon; and, (iii) the failure of the trial judge to direct the jury they were not to consider the hearsay statement “The big guy did the job for us” for the truth of its contents. I would not give effect to the other grounds of appeal, and I will deal with them only to the extent that they are important in themselves or potentially in the context of a new trial.

THE SUCCESSFUL GROUNDS

(1) The Vetrovec Issues

This case turns on the Vetrovec issues raised by the appellants. Was the Vetrovec warning adequate in the circumstances? Should the trial judge have pointed out more specifically to the jury the extraordinary benefit that Boisclair received in exchange for his testimony against the appellants at trial? Did the trial judge err in his instructions concerning the evidence that could confirm Boisclair’s account of what happened? Finally, did the trial judge err in giving a Vetrovec warning in relation to the defence witness, André Gagnon, and if so was that error saved by the R v. W.(D.)-like instruction that accompanied the defence warning?

(a) The Vetrovec Warning

In Vetrovec v. The Queen (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 at 17, the Supreme Court of Canada called for the giving of “a clear and sharp warning” to juries with respect to the testimony of disreputable or unsavoury witnesses in order “to attract the attention of the jurors to the risks of adopting, without more, the evidence of the witness”. The four components of an appropriate Vetrovec warning were synthesized by this Court in R v. Sauvé and Trudel (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.) at para. 82; leave to appeal dismissed, [2004] S.C.C.A. No. 246, and in R. v. Pollock and Morrison (2004), 2004 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.) at para. 157. They are that:

a) the evidence of certain witnesses is identified as requiring special scrutiny;

b) the characteristics of the witness that bring his or her evidence into serious question are identified;

c) the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and,

d) the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.

See also: R. v. Archer 2005 36444 (ON CA), [2005] O.J. No. 4348.

Various authorities have clarified that there is no particular language or formula that must be employed to provide the type of “clear and sharp warning” called for in Vetrovec, and that the exact language is within the discretion of the trial judge, depending on the circumstances of the case: see, for example, R v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321. However, there are rare instances in which the jury must be told either specifically, or in language that is its equivalent, that it would be dangerous to convict on the unconfirmed testimony of the witness in question. Sauvé and Trudel, for instance, was one such case. As the Court noted, at paras. 87 and 89:

87Thus, it is not the particular phrase used by the trial judge, but whether the language he used conveyed the need for the level of caution required by the circumstances of this case. The issue then is whether the trial judge’s decision to structure the Vetrovec warning in the way that he did went “outside the acceptable limits of his discretion”. . .

89. . . This case demanded the strongest possible warning about acting on the evidence of the three central witnesses. It was not sufficient to simply instruct the jury that it may be prudent, where they considered it advisable, to look for supporting evidence. The warning in this case was mandatory. The jury, of course, had the option to act on the evidence of the three suspect witnesses, but treating their evidence with the utmost care was not optional. This case required a direction that it was “dangerous” to act on the unconfirmed evidence of the three principal witnesses. Despite the broad discretion that a trial judge has in structuring the Vetrovec warning, and the deference that this court must accord that decision, this is one of those few cases where the trial judge’s exercise of discretion was unreasonable.

[emphasis added]

In my view, this too is such a case.

The trial judge was alert to the need for a Vetrovec warning. He spent some time on it and in many ways the charge as a whole highlighted the frailties of the evidence of Boisclair and Moore, in particular, and of certain other unsavoury witnesses to a lesser extent. But the warning was simply not adequate for a number of reasons. First, while the trial judge instructed the jurors to be “very careful” about accepting the evidence of Boisclair and Moore without other confirmatory evidence, he did not make it clear – expressly or by implication – that it was “dangerous” to convict on the basis of their evidence alone in the circumstances of this case. Secondly, the trial judge failed to properly explain the concept of confirmatory evidence in the context of a Vetrovec warning. Finally, the trial judge’s instruction that Boisclair’s plea of guilty to manslaughter was “of no evidential value”– although correct in the narrow context in which it was given – may well have misled the jury into giving less weight to the extent of the benefit that Boisclair and Moore received through their plea bargain than should have been the case.

The substance of the trial judge’s Vetrovec warning is found in the following passage from his charge:

. . . you cannot help but consider in this case that André Boisclair and Daniel Moore and to a lesser extent, Melissa Gervais, are not ordinary witnesses.

They all have dysfunctional backgrounds and have lived lives demonstrating persistent and serious antisocial and immoral lifestyles.

Their criminal conduct, particularly that of Boisclair and Moore and their disregard for the normal rules of civil life which enables us to survive as a society may be quite troubling to you.

Indeed, I suspect that, in the course of this trial, you may have had an insight into the way some people in our own very community live which was surprising to you.

Boisclair and Moore have been persistent criminals for many of their relatively young years and they have spent a considerable amount of time in prison.

They have shown a shocking disregard for the needs and rights of others and they obviously learned to some degree how to manipulate people and circumstances and it is probably obvious to you that their decision to tell the police what they say happened and to testify here at this trial is motivated by what they perceive to be in their best interests.

You will have to give their serious criminal backgrounds consideration in your assessment of their evidence and consider to what degree their bad character makes it a matter of common sense to be very careful before you rely on their evidence or any part of it.

Now, I do not want to be understood to say that a person of unsavoury criminal and antisocial background can never be found to tell the truth. That, too, would go against all your common sense.

When one inquires upon such things as murder or planning to murder, one cannot always expect to have unimpeachable witnesses of high moral character to be the ones to be able to tell you what went on.

In weighing what André Boisclair and Daniel Moore in particular have said as to the participation of Peter Chenier and George Farley in the planning to and shooting of Earl Joe, I suggest that you look for whatever you feel tends to confirm the reliability and truth of their accounts before deciding what of their evidence to accept.

Look at the larger picture. Look at the things you are able to rely upon. Look to what evidence may support or confirm what they have said to be true and apply your common sense to what they say in that regard.

There is some evidence to support some of what Boisclair and Moore have said. [The trial judge proceeded to list five examples of evidence he thought could be confirmatory, then continued:]

These are the kinds of things that you should consider before you determine with any finality how much weight you are prepared to put on the critical evidence of Danny Moore and particularly of André Boisclair.

The Crown and the defence have referred to many particular parts of the evidence that they consider to be supportive and to be unsupportive respectively of the credibility of those two witnesses.

It is ultimately a matter for you as judges of the facts to determine whether and to what extent you accept their evidence or any part of it.

[emphasis added]

Thus, while the warning instructed the jurors to be cautious about accepting the evidence of Boisclair and Moore without other confirmatory evidence, it did not tell them that it would be dangerous to do so without more. Nor does the language of the warning, viewed as a whole, otherwise “[convey] the need for the level of caution required by the circumstances of this case”¹ – even when read in conjunction with other portions of the charge in which the difficulties with the evidence of Boisclair and Moore are discussed.

At most, the trial judge told the jury in his charge to be “very careful”, and in his recharge to have “great caution”, before relying on their evidence. Respectfully, this was not enough. Given the disquieting criminal antecedents of Boisclair and Moore, the absolutely pivotal role that Boisclair’s testimony played in the Crown’s case as the only direct evidence about the actual killing, and the personally advantageous arrangements they had both made in exchange for their testimony – the “sweet deal”, as the appellants call it – a clear and sharp warning that it would be dangerous to convict on the unconfirmed evidence of Boisclair, in particular, and Moore to a lesser extent, or a warning that was the linguistic equivalent to dangerousness, was required in the circumstances, in my opinion.

In addition, the appellants argue that the trial judge erred in law in his explanation of the nature of confirmatory evidence for Vetrovec purposes and that he compounded this error by leaving the jury with examples that were not capable in law of confirming the testimony of Boisclair and Moore. With one exception, I do not accept the appellants’ latter submission but I agree that the trial judge’s description of the nature of confirmatory evidence did not go far enough.

To constitute “confirmatory evidence” in the Vetrovec context the evidence need not directly implicate the accused or confirm the Crown witness’ evidence in every respect. But it must touch a relevant or material aspect of the witness’ account, and it must be independent of the impugned witness’ testimony: see R v. Kehler (2003), 2003 ABCA 104, 178 C.C.C. (3d) 83 (Alta. C.A.), affirmed (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at paras. 12, 15 and 19; R v. Pollock and Morrisson, supra, at para. 157. It was not enough simply to “suggest” that the jurors “look for whatever [they] feel tends to confirm the reliability and truth” of the evidence of Boisclair and Moore. The jury had to understand that the confirmatory evidence must do so in a material or relevant aspect and that it must be independent of the evidence given by the impugned witness. Respectfully, the jury in this case would not necessarily have been left with that understanding.

The trial judge gave five examples of possibly confirmatory evidence: (i) Farley’s involvement with explosives prior to his involvement with Boisclair and Moore; (ii) Chenier’s motive; (iii) drug use that could have led to indebtedness; (iv) knowledge of Earl Joe’s whereabouts; and (v) evidence of at least two people speeding away in a car. With the exception of (iii), these particular examples meet the “material aspect” and “independence” criteria for confirmatory evidence, in my opinion. Thus, subject to the one exception, I do not agree with the appellants’ submission that the examples were incapable of being confirmatory. Since the jurors may not have appreciated that they must look for those criteria when considering confirmatory evidence, however, they may well have considered other evidence that did not do so in arriving at their verdicts. The fact that they were provided with an inappropriate example – (iii) above – only enhances this concern.

Finally, the trial judge’s instruction that Boisclair’s plea of guilty to manslaughter was “of no evidential value”– may well have undermined the impact of the Vetrovec warning that he did give. He said:

Now, André Boisclair has pleaded guilty to manslaughter.

Manslaughter is unlawful killing. It is a form of homicide but it can occur and manslaughter is a lesser degree of culpable homicide because you do not necessarily have to have intent to kill. You just have to have done an unlawful act which results in or causes somebody’s death to be guilty of manslaughter but he pleaded guilty.

Manslaughter is a very serious offence. It is a form of culpable homicide. He pleaded guilty to that in the killing of Earl Joe.

The fact that he pleaded guilty is of no evidentiary value. He decided to plead guilty. Facts were put before a court that accepted that plea but that is not part of the proceedings.

The fact that he has pleaded guilty is not of evidentiary value in terms of whether either of the men before the court here are culpable in that same death in which he has entered that guilty plea.

[emphasis added]

The instruction was correct in the narrow context in which it was given (the fact that Boisclair pleaded guilty to manslaughter does not mean that Chenier and Farley are guilty of murder). However, the blunt direction that the manslaughter plea was of no evidentiary value could only serve to undermine the weight that the jury was to give to the significance of that plea in the Vetrovec exercise. The appellants’ argument that the jury should have been given more specific direction as to the extent of the “sweet deal” made by Boisclair in exchange for his testimony has considerable force in this context. It was not simply that Boisclair was motivated by what he perceived to be his best interests to implicate Farley and Chenier. He not only had a motive for falsely implicating others, to avoid liability for first-degree murder, but being closely associated with the killing, he had the means to provide a convincing story. The deal with the prosecution, including the manslaughter plea, was central to the concerns regarding his credibility. He had parlayed a potential conviction for first-degree murder – and the accompanying life sentence with no parole before twenty-five years – into a plea and a sentence of ten years with the possibility of parole after less than four years. The manslaughter plea was certainly of “evidentiary value” in weighing the reliability of Boisclair’s testimony without which, it is conceded, there was no direct evidence of Chenier and Farley’s involvement in the killing of Earl Joe.

In the result, I am simply not persuaded that the instructions given to the jury adequately equipped them to deal with the crucial Vetrovec considerations that faced them in this case.

(b) The Vetrovec Warning Respecting André Gagnon

The appellants argue that the trial judge made a fundamental error when he gave a Vetrovec-like warning with respect to the defence witness, André Gagnon. Indeed, they say, the error was made even more serious by the explicit suggestion that Gagnon had an interest in the outcome of the trial.

Immediately following the passage cited above, the trial judge turned to the evidence of Mr. Gagnon. He said:

I would give you the same caution about Andy Gagon who took the stand near the end of the trial, Boisclair’s father.

His serious criminal and antisocial background and dysfunctional early life and his time spent in prison and possible interest in the outcome of the case is also cause for giving his evidence most careful scrutiny before deciding whether to place any reliance and if so, what amount of reliance, upon that evidence.

[emphasis added]

These directions were followed by what was a W.(D.)-like instruction² with respect to Gagnon’s testimony:

But there is an important difference in the role his evidence might play in this trial compared to the evidence of Boisclair and Moore.

I shall shortly be coming to the meaning of “proof beyond a reasonable doubt” and the “burden of proof”.

In considering whether to rely upon the evidence of Boisclair and Moore, you will be considering whether their evidence, along with all the rest of the evidence, satisfies you that the charges facing Chenier and Farley have been proven beyond a reasonable doubt.

However, when you consider the evidence of Andy Gagnon, called by the defence to support the suggestion that it was Boisclair who may have killed Earl Joe because he had become indebted to him and as Gagnon said, had got into “deep shit”, you will not be asked or called on to decide whether you believe Gagnon beyond a reasonable doubt but only whether that evidence raises a reasonable doubt in your mind whether it was Farley who shot Earl Joe or indeed, André Boisclair as Mr. Murphy suggests and as I think was the obvious inference to be taken from Andy Gagnon’s testimony before you.

It is not permissible to give a Vetrovec warning in relation to a defence witness; the warning should only be given where a witness is giving evidence that assists in the demonstration of guilt: R v. Tzimopoulos (1986), 1986 152 (ON CA), 29 C.C.C. (3d) 304 (Ont. C.A.) at 340, leave to appeal refused (1987) 54 C.R. (3d) xxvii; R v. Hoilett (1991), 1991 7285 (ON CA), 3 O.R. (3d) 449 (C.A.) at 451; R v. Pilotte (2002), 2002 34599 (ON CA), 163 C.C.C. (3d) 225 (Ont. C.A.) at para. 92, leave to appeal refused [2002] S.C.C.A. No. 379 (S.C.C.). Consequently, the trial judge erred in giving such an instruction with respect to Mr. Gagnon.

The Crown responds to this ground of appeal on two bases.

Counsel submit, first, that the trial judge’s direction regarding the testimony of Mr. Gagnon did not really constitute a Vetrovec warning in the circumstances because he did not tell the jury that they must look for confirmatory evidence. I disagree. The trial judge said: “ I would give you the same caution about Andy Gagnon” (the emphasis is mine). This direction came immediately after the Vetrovec warning regarding the testimony of Boisclair and, indeed, followed directly that portion of the charge in which the trial judge had dealt with the need for confirmatory evidence. The instructions as worded, and in the context in which they are found, went beyond permissible commentary on the credibility of the witness. See R v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused [2000] S.C.C.A. No. 583 (S.C.C.), and R v. Pilotte, supra, for examples of instructions that were held not to have crossed over the line between permissible commentary on credibility and a Vetrovec warning; the key is the instruction to look for confirmatory evidence. Here, there was a very considerable risk the jury would consider that the need to find confirmatory evidence with respect to the testimony of Mr. Gagnon – i.e., a true Vetrovec warning – applied to his testimony.

Secondly, the Crown argues that the impact of any Vetrovec direction with respect to Mr. Gagnon was neutralized by the trial judge’s explanation of the significant difference between Crown witnesses and those of the defence. In effect, he gave a W. (D.) instruction that they were to acquit even if they did not believe Gagnon but were left with a reasonable doubt from his evidence as to whether Farley was the shooter.

I do not accept this argument either. The rationale behind the principle that a Vetrovec warning is not to be given in connection with defence evidence is that the instruction to look for confirmatory/corroborative evidence impermissibly transfers a burden to the accused and is contrary to the requirements of W. (D.). Defence evidence need only raise a reasonable doubt. In spite of this relationship between Vetrovec and W.(D.) in the context of defence evidence, however, the purpose of a Vetrovec warning and the purpose of a W. (D.) instruction are quite different. The former is designed to help equip the jury to assess the reliability of, and the weight to be given to, the testimony of a disreputable or unsavoury witness called to advance the Crown’s case. The latter is designed to help equip the jury to assess whether the Crown has met its onus of proving the case beyond a reasonable doubt on all of the evidence, once the reliability or non-reliability of the defence evidence has been determined. Thus, where the charge goes beyond what is permissible commentary on the credibility of an unsavoury defence witness and directly or implicitly instructs the jury to find independent confirmation of the witness’ testimony, it is unlikely that coupling such a direction with a specific W.(D.)-like directive will mitigate the erroneous Vetrovec warning respecting the defence witness. Such was the case here.

In R v. Wristen (1999), 1999 3824 (ON CA), 141 C.C.C. (3d) 1 (Ont. C.A.), leave to appeal refused [2000] S.C.C.A. No. 419 (S.C.C.), this Court dealt with a similar problem, albeit in the context of a strongly-worded jury charge respecting the need for caution in dealing with certain exculpatory eyewitness testimony called by the defence. After reviewing a number of authorities dealing with whether a trial judge may direct a jury to view defence evidence with caution (provided it is clear the jury is to decide the issues of credibility) as long as a warning similar to that in Vetrovec is not given, Justices Laskin and Rosenberg wrote (at paras. 44 and 45):

44In our view, these cases stand for the following propositions. It is not misdirection for a trial judge to direct a jury to approach certain kinds of defence evidence with care. The need for care may be because of the character of a witness, as in Cavanagh³ or the inherent frailties of the evidence, as in Jack.⁴ The trial judge may also instruct the jury on the reasons why caution is needed. What the trial judge must not do is go further and direct the jury that it is dangerous to act on that evidence alone. That constitutes error in law. [emphasis added]

45No case suggests that merely instructing the jury to be especially cautious or extremely careful in considering defence evidence constitutes an error in law, especially where that instruction is accompanied by an instruction that accords with R. v. W. (D). Rather, the instruction must be considered in the context of the charge. If the appellate court is satisfied that when the charge is considered as a whole, an especially cautious instruction did not unfairly undermine the defence position, the appeal may be dismissed.

Here, for the reasons I have explained above, the trial judge went too far and gave the jury a Vetrovec-like warning in relation to the testimony of Mr. Gagnon. Although he did not use the word “dangerous”, the language he used would lead the jury to look for evidence confirming Gagnon’s testimony before they acted upon it, which is the core of the problem in giving a Vetrovec-like warning in relation to a defence witness. I do not read Wristen as suggesting this error can be cured by an instruction that accords with W.(D.). André Gagnon’s testimony was central to the defence position in that it provided support to the defence theory that Boisclair had a motive to assist Chenier (to clear away a debt or other trouble that had him in “deep shit”) and therefore that Boisclair was the person who killed Earl Joe. In this context, then, the error is sufficiently serious – at least when taken together with the other Vetrovec issues respecting the testimony of Boisclair – to require the direction of a new trial.

(2) “The Big Guy Did His Job”

Moore testified that Boisclair told him “The big guy did his job” or words to that effect. Everyone understood this reference to be to the sizeable Mr. Farley. Although there was an objection to the admissibility of the evidence on behalf of Farley, the trial judge appears to have accepted that the statement was “already in evidence”. The Crown relied upon this remark in its closing address, but the trial judge gave no instructions to the jury as to how the statement could be used by them, if at all. The striking statement “the big guy did his job”, with its obvious reference to the appellant Farley, is the type of remark that catches the attention of, and stays with, the listener. In my view the trial judge erred in failing to instruct the jury that the statement could not be used as evidence of the truth of its contents against the appellant Farley

There is confusion in the transcript about the basis on which the statement was or was not admissible. The trial judge held a voir dire, but the subject of the voir dire was whether the Crown could put a prior written statement by Moore to the police on the basis of past recollection recorded (the trial judge rejected this motion). The Crown was given leave to cross-examine Moore under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, and, with respect to other written statements he had made, the trial judge cautioned the jury that Moore had not adopted them and therefore that they could only consider what Moore said he could recall as evidence. But Moore said he could recall “the big guy did his job” statement. The defence objected that the remark was not admissible as evidence in furtherance of the conspiracy, and the trial judge appears to have accepted that submission. The Crown argued that it was admissible to rebut the suggestion that Boisclair had recently fabricated his testimony. The trial judge appears neither to have accepted nor rejected that submission.

Following the charge to the jury, defence counsel drew the trial judge’s attention to the fact that the Crown had relied upon “the big guy did his job” statement in his closing remarks, and asked for a corrective instruction on the basis that the evidence was not admissible against the appellant Farley. The trial judge acknowledged this. He said: “Well, he could say Boisclair said it but it wouldn’t implicate or it wouldn’t be evidence against either accused, that’s for sure”. But no corrective instruction was given on the recharge.

This error might not be sufficient by itself to warrant the granting of a new trial. However, when combined with the Vetrovec errors dealt with above, a new trial is required.

THE UNSUCCESSFUL GROUNDS

(1) The Trial Judge’s Instructions on Counselling under s. 22(2) of the Criminal Code

Mr. Ruby argues that the trial judge committed reversible error by leaving s. 22(2) of the Criminal Code with the jury. He submits this was an important error because, he says, the crux of the Crown’s case against Chenier was that he counselled Boisclair and Farley to commit murder.

Context is important in determining this issue.

The appellant, Chenier, was not present when the killing took place. He was not the shooter. He was not the driver. By all accounts he was at home. The Crown’s case against Chenier depended upon his being found guilty as a party to the offence or as having counselled the commission of the offence. Both sections 21 (parties to an offence) and s. 22 (counselling the commission of an offence) of the Criminal Code were therefore relevant. Each of these provisions has two parts:

21(1) Every one is a party to an offence who

a) actually commits it;

b) does or omits to do anything for the purpose of aiding any person to commit it; or

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [emphasis added]

22(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Everyone who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling [emphasis added]

In his initial charge the trial judge left all of these provisions with the jury. Subsequently, in responding to a question from the jury about the application of s. 21(2) to count #3 – the possession of explosives charge – he recognized that s. 21(2) did not apply at all in the circumstances. It deals with a situation where a crime is committed that is collateral or additional to the wrongful act originally intended by the principal and parties. That scenario did not fit with either the murder charge, the conspiracy to murder charge or the possession of explosives charge on the facts as presented at trial. Accordingly, the trial judge instructed the jury not to consider s. 21(2) in their deliberations at all. Since subsection (2) of s. 22 has a similar focus in the counselling context, it could have been – and should have been –withdrawn for the same reason. However, the trial judge omitted to instruct the jury to ignore that provision.

In addition, the jury should have been told that they must ignore the “ought to have known” language in s. 22(2), when the provision was left with them. At trial no one suggested that the “ought to have known” standard in either s. 21(2) or s. 22(2) could not be considered. Mr. Ruby makes that argument on appeal, however. He submits that the phrase “ought to have known” imports a constitutionally impermissible objective component into the mental element required for the crime of counselling murder. This has already been established with respect to the same language in s. 21(2), he submits, and the phrase “ought to have known” in relation to a murder is no more acceptable in s. 22(2) than in s. 21(2). He also points out that the jurors had written copies of the provisions of the Code with them during their deliberations, including a copy of s. 22(2). Although acknowledging that there was no objection to the charge on this point at trial, Mr. Ruby argues that the Court should nonetheless deal with the unconstitutionality of the objective component of the mens rea found in s. 22(2).

His argument is founded upon three decisions released simultaneously by the Supreme Court of Canada in 1990 – R v. Martineau (1990), 1990 80 (SCC), 58 C.C.C. (3d) 353 (S.C.C.); R v. Logan (1990), 1990 84 (SCC), 58 C.C.C. (3d) 391 (S.C.C.); and R v. Rodney (1990), 1990 81 (SCC), 58 C.C.C. (3d) 408 (S.C.C.) – as confirmed by that Court’s subsequent decision in Sit v. The Queen (1991), 1991 34 (SCC), 66 C.C.C. (3d) 449 (S.C.C.) [and applied by this Court in R v. Laliberty (1997), 1997 2992 (ON CA), 117 C.C.C. (3d) 97 (Ont. C.A.)]. In Martineau the Supreme Court established that no one can be convicted of murder unless the Crown proves beyond a reasonable doubt that that person had subjective foresight of the fact that the death of the victim was likely to ensue. In Logan this principle was extended to the objective component (the “ought to have known” provision) of s. 21(2) in cases where a person is convicted of attempted murder as a party to the joint criminal enterprise. Chief Justice Lamer said (at 401):

When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder. Any conviction for attempted murder, whether of the principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional requirement. To the extent that s. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foresight, its operation restricts s. 7 of the Charter. [italics in original]

In Rodney, the principle was applied to the objective component of s. 21(2) where the offence of which the principal and the party were convicted was murder.

The issue has not been considered in the context of s. 22(2) of the Criminal Code – the similar language of the counselling provision – but I see no reason why the same rationale should not apply in similar circumstances under s. 22(2). Indeed, the Crown concedes that “subjective foresight of death is a constitutional requirement for liability for murder and therefore the objective standard ‘ought to have known’ in section 22(2) of the Code is inapplicable where the corollary or additional offence committed, as a consequence of the offence counselled, is murder”.⁵ Crown counsel submit, however, that, although s. 22(2) was left with the jury in error – both because it was inapplicable and because of the inclusion of the objective standard “ought to have known” – the error did not result in any substantial wrong or miscarriage of justice in the circumstances of this case and accordingly, should not give rise to a new trial. In substance, the Crown’s position is that the charge, when read as a whole, made it abundantly clear to the jurors that they had to find the appellants had actual knowledge of the murder that was counselled.

I accept the Crown’s submission in this regard, and would not give effect to this ground of appeal.

I agree that the objective element incorporated into s. 22(2) by the words “ought to have known” is constitutionally inoperative in relation to the counselling of offences such as murder where the fundamental justice component of s. 7 of the Charter requires that foresight of the consequences of the counselled activity be subjective: Logan at 401, and Sit at 452. But I am satisfied that when the trial judge’s charge and recharge are read as a whole, there is no risk that the jury applied an objective standard when assessing the issue of counselling and first degree murder.

The appellants do not object to the portions of the charge dealing with sections 21(1) and 22(1) of the Code. In my view, the reference to s. 22(2) – and it is only a reference, in that there are no specific instructions relating to it – cannot be considered in isolation from the charge respecting those provisions and from the totality of the charge respecting parties and counselling.

After reading s. 21(1) to the jury, the trial judge said:

Someone who does something for the purpose of aiding another person to commit it is also a party to murder, but, to be a party to aiding or abetting . . . to do something for the purpose of aiding another person to commit murder or to abet somebody in murdering does require that the aider or abettor do what they do, knowing – knowing – what the other person is going to do.

In other words, you cannot give somebody else a gun and that person goes off and kills somebody, you are not a party to his being a murderer if you did not know that is what he was going to do.

[emphasis added]

The trial judge then reviewed Boisclair’s evidence to the effect that, even though Chenier had been at home, he had provided the gun, said what to do, encouraged and urged Boisclair and Moore – with increasing frustration – to get the job done, and made it clear that the “job” was to kill Earl Joe. The trial judge told the jury that if they accepted that evidence they should not have much difficulty in finding that Chenier was a party to the killing “and to the extent that he took part in the planning and deliberation, his aiding and abetting would be first degree murder.”

The trial judge then went on and read the jury s. 21(2) – which he later withdrew – and s. 22(2) of the Code. He then continued:

Again, this all comes down to the evidence of Boisclair, augmented somewhat by Moore, but, if you believe that Peter Chenier was counselling or inciting the other two to murder Earl Joe, in the scheming and the planning over those days and weeks that Mr. Boisclair testified to, you could, through either section 21 or 22 of the Criminal Code, find that Mr. Chenier was a party, even though he was at his house, according to the evidence of Boisclair, when Earl Joe was actually shot.

So it is not just the person who is on the scene who may be a party to an offence. You can be a party by doing the offence; aiding or abetting somebody else to do it; or forming an intention in common and counselling somebody to do it.

However, it is important and necessary that anyone who is a party in that more remote sense must know what the other person is going to do and his incitement or his assisting, aiding and abetting must be a knowledgeable one. He must have the full knowledge of what they were going to do to be a party to first-degree murder.

[emphasis added]

Finally, in his response to the jury’s question respecting s. 21(2), the trial judge made it clear that they must be satisfied the appellants had “intended to kill in a planned and deliberate way”.

Mr. Ruby argues that that even though the trial judge told the jury that Chenier “must have the full knowledge of what they (Boisclair and Farley) were going to do”, this instruction was ambiguous and inadequate, since the jury had with them the written version of s. 22(2) with its definition of knowledge incorporating the objective criterion. He also submits that a conviction that may have turned on an unconstitutional provision of the law cannot be sustained. However – given the isolated nature of the reference to s. 22(2) in the charge and the many references elsewhere in the charge and the recharge to the need for the Crown to establish subjective knowledge – I am satisfied that the jurors would not have been misled. They would have understood very clearly the need to find that the appellant Chenier had the subjective foresight of murder, when they were considering the Crown’s case in relation to counselling the commission of the offence of murder.

In these circumstances, then, there is no danger that the conviction turned on the application of an unconstitutional provision of the law. I would accordingly apply the curative provisions of s. 686(1)(b)(iii) of the Criminal Code and reject this ground of appeal.

(2) Conspiracy

Each appellant raises a different issue with respect to the trial judge’s charge on conspiracy to commit murder. On behalf of the appellant Farley, Ms. Magas submits that the trial judge erred in failing to direct the jury on how to apply the three-step Carter process⁶ to determine whether an accused has been proven to be a member of an alleged conspiracy. On behalf of the appellant, Chenier, Mr. Ruby contends that the trial judge erroneously left the jury with the impression that the intention of two or more people to do an unlawful act, as opposed to their agreement to do so, was sufficient to establish a criminal conspiracy.

The trial judge declined to put the three-step Carter process to the jury. In my view, he was entitled to do so in the circumstances of this case. He said:

The evidence, the proof of the conspiracy, if there is one and of the murder here rests so substantially on the evidence of Boisclair, and because there are really no separate acts or declarations by one party which depend on the three-stage analysis for the possible application to other parties to the conspiracy, I have decided that it would be best in this case to simply leave it to the jury on all of the other instructions that I am giving and will give to determine whether there was a conspiracy and if so, whether and to what degree Peter Chenier or George Farley were party to that conspiracy to murder Earl Joe.

The Carter process relates to the steps a jury must follow if they are to rely upon the co-conspirators’ exception to the hearsay rule. This exception permits the jury to use the acts and declarations of an accused’s alleged co-conspirators to be used as evidence against the accused, if the acts or declarations were done or made in furtherance of the conspiracy. In this case, however, the Crown’s case did not depend upon the acts or declarations of co-conspirators. It depended primarily upon the direct evidence of Boisclair as to what Farley himself actually did. A Carter instruction was therefore not required. Directions to a jury on a conspiracy charge are complex and difficult enough for a jury to understand. The trial judge was right to minimize that complexity and not to give a Carter instruction in the circumstances.

Nor, in my opinion, did the trial judge leave the jury with the impression that a conspiracy only requires the intention of two or more, as opposed to the agreement of two or more, to do an unlawful act.

At one point in his charge on conspiracy, he said: “For conspiracy, you would have to be satisfied that the parties to the conspiracy all intended the same thing to be brought about, namely, a murder”. Elsewhere, he said: “To be a participant in a conspiracy, a person must have more than just knowledge of the unlawful object. There must be an element of buying into it, of consenting to co-operate to what is agreed in the obtaining of that unlawful object.” Mr. Ruby attacks all of these expressions, arguing that they left the jury to decide the conspiracy issue on the basis of a common intention or consent, rather than the necessary intention to agree and agreement.

I do not accept this submission. While it would have been preferable if the trial judge had not used the phrase “all intended the same thing” in the way that he did, the clear message from his otherwise careful and full charge on conspiracy was that a conspiracy is an agreement between two or more persons to commit an unlawful act, in this case to murder Earl Joe. He referred repeatedly, (approximately twenty times) to a conspiracy in terms of “an agreement” or in terms of the requirement “to agree”. The jury would have understood his comment about an “element of buying into it” in that sense, and his reference to the offenders being “privy” to the common agreement as a reference to their being a party to it.

Overall, I can find no basis for ordering a new trial on the conspiracy argument.

(3) Bad Character Evidence

As Mr. Ruby noted in his factum, “[t]his case was, perhaps inevitably, chock-full of relevant bad character evidence entered at the demand of the Crown”. Its characters inhabit an essentially anti-social and dysfunctional world. The appellants objected – and continue to object – both to the admissibility of much of that evidence and to the way in which the trial judge dealt with it in his charge to the jury.

We did not call on the Crown with respect to the admissibility issue, and I would dismiss the ground of appeal respecting the trial judge’s charge on this point as well.

The contested bad character evidence consisted of evidence respecting the following: (i) drug dealing and extensive drug use on the part of the appellants and many of their associates and a disreputable lifestyle in general; (ii) a transaction on August 2, 1996 (before Chenier, Boisclair and Moore had met Farley) in which Farley purchased military explosives from a military base in western Canada and sold them to a person named Andy Myre, who in turn sold them to one Terry Larmond; (iii) an assault perpetrated on Andy Myre by Farley, Chenier and Boisclair in March or April 1997, allegedly because Myre owed Farley $30,000 for the explosives; and, (iv) the 1994 assault in which Chenier is alleged to have stabbed Earl Joe in retaliation for Joe’s affair with his wife.

In a careful ruling, the trial judge held that the evidence was admissible. The evidence of drug dealings and drug usage was relevant because the Crown argued that drug indebtedness provided a motive for Boisclair and Farley to assist Chenier in the killing and because the evidence helped to explain the relationship between the various parties. The evidence of the explosives sale helped to show that Farley had access to explosives – which, it will be remembered, were to have been used in the earlier plots to kill Earl Joe – and went as well to his means and opportunity to engage in the conspiracy and the killing. The assault on Myre showed the close relationship between Boisclair, Chenier and Farley at a time just before the killing. And the 1994 stabbing of Earl Joe went directly to the Crown’s case that Earl Joe had been killed in order to avoid his testifying against Chenier at the upcoming trial. The evidence was not tendered by the Crown for classic similar fact purposes. The trial judge balanced all of the relevant factors and, at the end of the day, concluded that the potential prejudicial effect of the challenged evidence was outweighed by its sufficiently strong probative value. His decision in this regard is entitled to considerable deference. There is no basis for interfering with his ruling on admissibility.

Moreover, his instructions to the jury on this issue cannot be faulted. He began with a strong mid-trial direction in which he stressed several times that in considering the bad character evidence the jurors must not think about it as, for example, “the kind of thing that leads you to infer that if these people did that kind of thing, and were that kind of bad character, then, that alone would make it more likely in your view that they committed the crimes that are actually being tried here . . . You must not allow yourselves to find this discreditable character type of evidence, leading you in your own mind to any inference of guilt on the charges that we are actually trying.” And finally, ”Bad character evidence doesn’t lead by itself to any inference of guilt on the charges that you are trying. Okay?” There were no objections to this mid-trial instruction.

As he had promised in the mid-trial instruction he would do, the trial judge returned at considerable length to the issue of how the jury was to deal with the bad character evidence in his charge to the jury. Mr. Ruby submits that although the trial judge properly instructed the jury as to the uses to which the evidence could not be put – that is, it could not be used to reason from general disposition or character to guilt – he failed to delineate with sufficient precision the purposes for which the evidence could be used.

I disagree. In my view, the trial judge properly and adequately directed the jurors on how they could and could not use the bad character evidence. First, he identified the bad character evidence. Then, he emphasized several times that the appellants were not charged with or on trial for anything in relation to that evidence (not for the Earl Joe stabbing; not for the Andy Myre assault; not for the purchase or sale of explosives on August 2, 1996; not for drug dealing or drug usage or for association with other nefarious people, or for being bad characters). He went on to tell the jury that the 1994 stabbing of Earl Joe could be used as evidence of Chenier’s animus and motive; that the explosives transaction and other evidence of explosives went to Farley’s opportunity and means to engage in the plot, as well as to their evaluation of Boisclair’s testimony; and that the evidence of drug use was relevant to their understanding of the background of the offences and to the relationship between the various characters and Farley and Chenier. He was careful to limit the use of the evidence against each accused, instructing the jury that they were not to consider the 1994 stabbing by Chenier as evidence against Farley and the 1996 sale of explosives by Farley as evidence against Chenier. Finally, he stressed repeatedly the danger of using the evidence improperly for propensity reasoning or to convict for something in relation to which the appellants were not charged. As just one example of this, the trial judge said:

But there is a danger that arises out of that background evidence, the evidence that is related to things for which these two men are not on trial. The danger is that that evidence has the potential to reflect badly on the character of Peter Chenier and George Farley.

I want to warn you of that danger and I want you to keep this warning of that danger in mind throughout and I want to make it very clear that you must not allow that evidence to be misused. The danger lies in using evidence of bad character improperly and prejudicially. Pre-judging is to judge without a proper foundation.

Improper and prejudicial use of evidence of bad character would occur if one were to reason this way. Mr. X is a person of bad character. He has done some very unsavoury things, although he is not charged with them. He is charged with this particular crime. Because he is of bad character, I think it is more likely that he may have committed this particular crime.

You see that line of reasoning? That is prejudicial and improper use of bad character evidence.

In my view, this passage, and the trial judge’s mid-trial instructions and his instructions on the issue of bad character evidence overall, fully and adequately alerted the jury to the dangers of what the Supreme Court of Canada in R v. Handy (2001), 2002 SCC 56, 164 C.C.C. (3d) 481 at 520 referred to as “the poisonous nature of propensity evidence, and the need to maintain a high awareness of its potentially prejudicial effect”. The jury was directed, with sufficient clarity and focus, to what uses the bad character evidence could and could not be put. The instructions properly left the jury with an understanding of the special concerns that attach to such evidence, as outlined in R v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.) at 356, namely, that the jurors must beware of the risk of finding the appellants were bad persons and on that account alone concluding they must be convicted, and that they must avert the risk of convicting the appellants not for the crime with which they were charged but for earlier misdeeds that may have gone unpunished.

There was no objection to the caution given by the trial judge either during the course of the trial or in his charge to the jury.

I would not give effect to this ground of appeal.

(4) The Trial Judge’s Instructions on Planning and Deliberation in Relation to First Degree Murder

The appellants concede the trial judge properly gave the jury “the basic definitions” of planning and deliberation for first degree murder purposes – he used model charge language in that regard – but they submit his subsequent explanations of those terms undermined their clarity. In addition, they argue that the trial judge erred in giving the jury s. 231(3) of the Criminal Code as his only example of planning and deliberation.

Section 231(3) defines a contract killing as planned and deliberate – i.e., first-degree – murder. It states:

231(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death. [emphasis added]

The appellants contend that it was misleading to leave this section to the jury as an example of the ordinary meaning of planning and deliberation because a promise to pay someone to kill another can be made without planning and deliberation as ordinarily defined and would not necessarily amount to first degree murder, but for s. 231. I disagree. There was no objection to the charge on this ground. In any event, s. 231(3) is quite clear, and it is definitional: murder is planned and deliberate when it is committed pursuant to a contract killing (as the murder of Earl Joe, on the evidence of Boisclair and Moore, clearly was). The section was quite appropriately left with the jury, and was not left as the only example of planning and deliberation. The trial judge spoke of the evidence regarding the earlier plots to kill Earl Joe using explosives, of the discussions Boisclair and Moore said took place between themselves and Chenier and Farley over a period of time before the actual killing, and in general terms of the nature of the planning and deliberation required.

But the appellants say the trial judge weakened his otherwise appropriate instructions on the definitions of planning and deliberation by contrasting those terms with such phrases as “spur of the moment action” or “in a sudden fight, perhaps a brawl, by anger that came up suddenly” or “a murder committed on a sudden impulse, and without prior consideration”. These complaints cannot prevail. None of the impugned expressions detract from the accurate descriptions of planning and deliberation that were provided, in my opinion. In the context in which they were given, they provided appropriate examples of contrasting situations.

This ground of appeal must be dismissed as well.

(5) The Failure to Leave Second Degree Murder to the Jury

We did not call on the Crown with respect to this submission. In our view, there was no air of reality to a conviction for second-degree murder in the circumstances of this case. On the evidence presented by the Crown – principally through Boisclair and to a lesser extent, Moore – there were only two verdicts open to the jury on the murder charge: guilty of first degree murder or not guilty. The trial judge was correct not to leave second-degree murder to the jury.

(6) The Charge in Relation to the Alleged Inadequacy of the Police Investigation and the Alleged Failure to Preserve Evidence

On behalf of the appellant Farley, Ms. Magas argued that the trial judge erred in neglecting to link the failure of the police to preserve certain evidence with the Crown’s obligation to prove its case beyond a reasonable doubt.

She points to a number of such alleged failures. Amongst them was that there were footprint marks found on the floor inside Earl Joe’s home on what appeared to be the shooter’s path. These footprint marks were neither analyzed nor retained for future comparison, although the police officer agreed the tile could have been cut out and the evidence preserved for future comparison. Boisclair was wearing a particular kind of shoe when he was arrested for the beer store robbery – Dion Sanders shoes – and he told Moore that he was worried the police might trace them back to the murder scene. Secondly, a match box near the entrance to Joe’s unit was not preserved and, although cigarette butts were seized from the Mazda get-away car they were not compared to known DNA samples in the investigation. Boisclair was a smoker. Thirdly, no examination was done respecting fibres taken from the Mazda because, according to the police, they had no comparative samples. Finally, the police did not test for gunshot residue in the Mazda even though they acknowledged that gunshot residue was transferable from the hands of the shooter and they could test for it.

In R v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.) at para. 67, Doherty J.A. said:

Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs.

This is not a Bero-like case, however. The defence did not argue that the failure to preserve or test evidence resulted in a Charter breach or that a stay should be granted on that basis. Instead, the defence cross-examined the police witnesses on these various frailties in the investigation, hoping to persuade the jury that they should have a reasonable doubt as to the appellants’ guilt. The police witnesses explained their conduct in cross-examination. For instance, they said they tried to lift the footprint marks using three different techniques (sticky tape to lift the print, carbon paper to raise the print, and dusting) but could not do so. The matchbox was found in a common walkway in front of an entire row of units and the police did not see the relevance of it. Sgt. Robinson did not testify that cigarette butts were seized from the Mazda and not tested, but that cigarette butts from an ashtray on the porch at Joe’s home were not seized because he did not see the relevance of them. While the police expert testified that gunshot residue was potentially transferable from the shooter to fibres, he had never tested in an area such as the Mazda in this case because there was no evidence of any gun having been fired in the vehicle.

No evidence was led by the defence to suggest that the failure to do any of the things complained of affected the appellants’ ability to make full answer and defence in any way. The trial judge reminded the jury of the defence position with respect to these matters, and there was no objection to the charge on this basis.

I would not give effect to this submission either.

(7) Post Offence Conduct

The Crown relied at trial on a series of post-offence acts and statements by Chenier and Farley as proof of consciousness of guilt. These included, on the part of Chenier, that he (i) fled to Manitoba after Farley’s arrest, (ii) adopted an alias while living in Winnipeg, (iii) commented when arrested a year after the killing that “it was only a matter of time”, (iv) denied knowing Farley, (v) when confronted with the murder of Earl Joe, said “You want me to cry for Earl Joe, not likely. My dad always taught me to take the bull by the horns. I’ll face what I have to face but I’m not going to cry over it”, (vi) minimized his relationship with Boisclair, and (vii) used a common telephone code with Farley when speaking of Boisclair (“Big Moe” and “Moe’s cousin”). The post-offence conduct put forward respecting Farley was that he (i) denied any involvement with explosives (even though there was a video taken of his engaging in the act of selling them), (ii) denied any knowledge of Chenier, (iii) professed not to be able to recognize Boisclair’s photograph, (iv) minimized his connection with Moore, and (v) denied having been at the Playmate bar, “this year”, although both Boisclair and Myre testified that Chenier, Farley and Boisclair had attacked and beaten Myre in the bar in March or April.

Although there was no objection at trial to the admissibility of this evidence as post-offence conduct from which consciousness of guilt might be inferred, the appellants attack both its admissibility and the manner in which the trial judge dealt with it in his charge to the jury on appeal.

During argument the appellants abandoned their submission, based upon the principles set out in R v. Arcangioli (1994), 1994 107 (SCC), 87 C.C.C. (3d) 289 (S.C.C.), that the trial judge should have given a “no probative value” instruction to the jury with respect to post-offence evidence on the basis that the conduct was consistent with attempting to conceal guilt in relation to some other offences of which they did not stand charged. However, they continue to submit that the trial judge erred in admitting the evidence of post-offence conduct with respect to all the charged offences. It is difficult to separate this argument from the abandoned Arcangioli argument.

In my opinion, however, it was appropriate for the appellants to abandon their submission that the trial judge should have given a “no probative value” instruction to the jury with respect to post-offence conduct based on the principles set out in Arcangioli, supra. In Arcangioli the accused testified and admitted the act of assault. The only issue was whether the crime committed was common assault or aggravated assault. Here, the appellants did not testify and do not admit to causing the death of the victim. The identity of the killer(s) is very much in issue. Once the jury decided that the appellants were participants in the killing there was, as I have indicated, no issue about the level of their culpability or requisite intention to commit murder.

The impugned evidence was properly admitted as circumstantial evidence relevant to the issue of whether it was Chenier and Farley who were involved in the Joe murder and the conspiracy to murder. It was open to the jury to find that the post-offence conduct put forward by the Crown was not equally consistent with any other suggested explanation by the appellants but was consistent with their attempts to cover up their involvement in those offences. As the Supreme Court of Canada noted in R v. White, (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385, at para. 27:

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. Consequently, a “no probative value” instruction like the one required in Arcangioli will be called for only in limited circumstances.

Mr. Ruby did not press the argument in his factum respecting the adequacy of the trial judge’s charge to the jury on post-offence conduct. However, Ms. Magas did pursue this argument on behalf of the appellant, Farley. She submitted that the jurors should have been instructed, but were not, that the evidence of post-offence conduct could only be used to support an inference of guilt where they had rejected any other innocent explanation: see R v. Maugey (2000), 2000 8488 (ON CA), 146 C.C.C. (3d) 99 (Ont. C.A.). She argued further that the jury should have been told that Farley’s denial of involvement with respect to explosives could have been to protect himself from being subsequently charged in connection with the August 2, 1996 sale of explosives and that the fact he did not flee the jurisdiction when his sketch was published in a newspaper was a sign of his innocence.

In this case, the trial judge did not tell the jury that the after-the-fact conduct of appellants could itself give rise to an inference of consciousness of guilt. In these circumstances, the fact that the evidence that could indicate consciousness of guilt may also be consistent with an innocent explanation is not sufficient in itself to require the judge to take this evidence away from the jury. If the evidence is reasonably capable of supporting an inference of consciousness of guilt, then the trial judge should let the jury decide whether to use it: see White, supra at para. 27, and R. v. Thurston (2001), 2001 6630 (ON CA), 143 O.A.C. 212 (C.A.).

It does not appear that defence counsel ever suggested to the jurors they could infer Farley was innocent because he remained in the jurisdiction prior to his arrest. Moreover, with respect to the need to reject other innocent explanations for the conduct, I am satisfied that the charge conveyed that message to the jury. Amongst other directions on this issue, the trial judge instructed the jury as follows:

Remember that, when it comes to what was said to the police by Mr. Farley upon his arrest, his denials of knowledge of Peter Chenier and his denial of knowledge of explosives and his minimization of his connections and the recency of his connections with Boisclair and Moore, are not proof that he is a murderer or a conspirator to murder. The mere denial of something does not really prove anything.

However, this post-offence conduct, what was done and said by Chenier and Farley, respectively, in the telephone calls, after their arrest, the denials of things that you may find amount to being untruths or deliberate lies, the fact that Mr. Chenier became a fugitive himself and left town and lived in Winnipeg under an assumed name, those are all pieces of evidence that you may or may not find give rise to any significant inference. You may decide that there is significance to it or not.

What a person says or does after a crime has been committed may help you decide whether it was that person who committed it. It may help; it may not.

The words and the conduct of a person post-offence, after an offence has been committed, may tend to indicate that the person committed the crime.

But, on the other hand, the words or conduct may be those of an innocent person. There may be other innocent explanations as to why a person would lie about their knowledge of someone or something or take flight.

It may be that the person simply wants to avoid involvement in a police investigation or embarrassment for themselves or possibly to avoid detection on some unrelated matter.

And later, the trial judge said:

If you find that any of these things that Chenier or Farley did or said after the shooting of Earl Joe are consistent with either one of them being conscious of having done what they are charged with and not for some other reason, well, then you can consider that evidence, together with all the other evidence in reaching your verdict.

But, if you do not or cannot find that Chenier or Farley did or said any of those things out of consciousness of having been involved in the murder of Earl Joe, then you should not consider that post-offence conduct at all.

In Maugey, supra, Feldman J.A. held that on the facts of that case the jury should have been instructed specifically not to infer guilt unless they had rejected any innocent explanation for the accused’s conduct. She stated, however (at pp. 121-122):

In some cases, the trial judge should provide specific instructions on the use of evidence of after-the-fact conduct. The specific instruction will depend on the facts of each case and the position advanced by the accused during the trial. There is no clear rule to determine the circumstances in which evidence of after-the-fact conduct may be used to support an inference of guilt. It is, in the end, a question of relating the evidence of after-the-fact conduct to the issues raised and determining the extent to which, if at all, it is logically probative of the issues.

I agree with the Crown that in the circumstances of this case the instruction did not have to be given. Having regard to the very fair and balanced instructions of the trial judge, the jury would have understood that they could only find each appellant guilty if, having regard to the evidence as a whole, they were satisfied beyond a reasonable doubt of his guilt. They were not told that they could infer guilt based on the post-offence conduct alone. In the circumstances, it was not necessary to instruct them specifically that they must reject any other explanation before drawing any inference from the post-offence conduct.

There was no objection by counsel at trial to the charge respecting post-offence conduct. I note that the trial judge did not deal at any length with the details of the appellants’ conduct in this regard as relied upon by the Crown. This was to the appellants’ benefit and may well explain why counsel made no objection.

I would not give effect to this ground of appeal.

(8) Reasonable Doubt and Boisclair as the Sole Murderer

The appellants raise two arguments as to the way in which the trial judge dealt with their defence that Boisclair was the sole shooter. First, they submit he erred in failing to marshal the evidence in support of that defence for the jury. Mr. Ruby submits it was not enough to direct the jurors that they must consider Boisclair’s bad character and his admission to being involved in the murder solely in connection with his credibility. They should have been told that his character and his lengthy criminal record, together with his motive for killing Earl Joe – André Gagnon testified that Boisclair had told him he (Boisclair) had a $3000 or $4000 drug debt to Joe and another man – and his lie about not knowing Earl Joe before Chenier pointed him out as the target, all in themselves provided evidence that Boisclair was the killer. Secondly, Ms. Magas submits that the trial judge erred in failing to instruct the jurors explicitly that unless they could exclude the possibility beyond a reasonable doubt that another person killed Earl Joe, the appellants were entitled to be acquitted. She relies upon the decision of this Court in R v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433,at paras. 26-38, for that proposition.

I do not agree that the flaw in the charge to the jury was in its failure to marshal the evidence in support of the defence position that Boisclair committed the murder on his own. The trial judge does not have to refer to every piece of evidence in favour of the defence. The jury was well aware of Boisclair’s considerable record for violent and dishonest crimes, as they were of the defence position that he was the sole murderer. The trial judge reminded the jurors at least twice of that position. He referred specifically to André Gagnon’s evidence contradicting that of his son and stating that Boisclair had told him he (Boisclair) was in “deep shit” and owed two men (including Earl Joe) three or four thousand dollars. He referred as well to the argument that Boisclair had made “a slip of the tongue” in his statement to the police and admitted that he was the shooter, and to Ms. Cloudsdale’s testimony describing the person she saw darting back and forth at Joe’s house in terms that were closer to Boisclair’s physique (a male “tall and thin”) than to Farley’s. Finally, although the Vetrovec-like warning respecting the testimony of André Gagnon should not have been given, it was given. In the course of that instruction, the trial judge told the jury:

However, when you consider the evidence of André Gagnon . . . you will not be asked or called on to decide whether you believe Gagnon beyond a reasonable doubt but only whether that evidence raises a reasonable doubt in your mind whether it was Farley who shot Earl Joe or indeed, André Boisclair as Mr. Murphy suggests and as I think was the obvious inference to be taken from Andy Gagnon’s testimony before you.

I do not think more was required “to marshal the evidence” in support of the defence theory that Boisclair was the killer.

With respect to the point raised by Ms. Magas, I am not persuaded it was necessary for the trial judge to have told the jury specifically that the appellants were entitled to be acquitted unless the jurors could exclude the possibility beyond a reasonable doubt that Boisclair was the murderer. I do not read Katwaru as mandating such an explicit instruction.

It was essential for the jurors to understand that the Crown had the onus of proving beyond a reasonable doubt – based upon all of the evidence, including the evidence highlighted and put forward by the defence to support their alternative version of events – that Farley and Chenier were guilty of first-degree murder. The jurors could not be sure that this was so if they had a reasonable doubt about whether Boisclair was the murderer. See Katwaru, supra. In my view, there is no magic formula or language that is required for purposes of a jury charge in this regard; but the trial judge’s instructions must convey this message to the jury. The appellants argue that the charge in this case failed to do so.

The jurors were clearly reminded of the defence position that Boisclair alone was the killer. However, it is one thing to understand the defence position; it is another thing to understand the onus in relation to it. On the onus issue, the jurors were correctly instructed on the doctrine of reasonable doubt and on the Crown’s burden of proof near the conclusion of the trial judge’s charge. With respect to burden, they were told, in general terms, that the accused “ had no obligation to present any evidence or to prove anything”. In addition, they were specifically directed that the Crown must prove each of the essential elements of the offences in question beyond a reasonable doubt, including, in the case of first-degree murder, “that it was committed by Peter Chenier and/or George Farley”.

It might have been preferable, in my view, if, in the context of his particular instructions concerning the defence position about Boisclair being the sole murderer, the trial judge had brought home more clearly to the jury that they had to be satisfied beyond a reasonable doubt it was Farley, not Boisclair, who was the shooter. Logically, this would mean they had to exclude Boisclair or somebody else in that capacity. The trial judge did not do that.

On balance, however, when the charge is read as a whole, I am satisfied that the jury would have understood its task. This is so particularly given the factors outlined in paragraphs 113 and 117 above. In the end, I would not give effect to this ground of appeal.

(9) Reasonable Doubt and the Lack of a W. (D.) Instruction

Finally, the appellant Farley argues that the trial judge erred in failing to give a W.(D.) instruction with respect to the defence evidence, in particular with respect to the statement Farley gave to the police at the time of his arrest. In that statement he denied any involvement with explosives or in the murder.

Although Farley did not testify, credibility was clearly an issue in this case. It may have been preferable if the trial judge had given the W. (D.) instruction, but the giving of such a direction is within the discretion of the trial judge. I am satisfied on reading the charge as a whole that, as stated in R v. W.(D.), supra at 409, the jurors would not have been “under any misapprehension as to the correct burden and standard of proof to apply”, namely, that they had to find beyond a reasonable doubt based upon all of the evidence, or lack of it, that the appellants were guilty. Moreover, as the Crown points out, defence counsel at trial did not appear to rely upon Mr. Farley’s statement as an exculpatory statement that could raise a reasonable doubt, perhaps because he was aware that on the record it contained several demonstrable falsehoods. Focusing on the statement would have required the trial judge to highlight the evidence tending to show these falsehoods, which the jury might well consider enhanced the Crown’s post-offence conduct argument. In all the circumstances, the failure to give a W. (D.) charge in relation to Farley’s statement did not prejudice Mr. Farley’s defence, and defence counsel may have made a tactical decision not to risk the downside of raising it. I would not give effect to this ground of appeal.

DISPOSITION

For the foregoing reasons, I would allow the appeal and direct a new trial based upon the errors in the charge to the jury relating to the Vetrovec warnings that were given, and the error with respect to the “big guy did his job” statement. I would dismiss the other grounds of appeal.

Footnotes

1. 1Sauvé and Trudel, supra at para. 88.
2. 2R v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397.
3. 3R v. Cavanagh (1976), 1976 649 (ON CA), 33 C.C.C. (2d) 134 (Ont. C.A.)
4. 4R v. Jack (1992), 1992 2764 (MB CA), 70 C.C.C. (3d) 67 (Man. C.A.).
5. 5Crown factum, para. 76.
6. 6R v. Carter (1982), 1982 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C.).