Court File and Parties
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Cronk and Watt JJ.A.
BETWEEN:
Her Majesty the Queen Respondent
And
Lisa Marie Quinn Appellant
Joseph Di Luca, for the appellant Dena Bonnet, for the respondent
Heard: November 10, 2009
On appeal from convictions entered by Justice Peter A. Grossi of the Superior Court of Justice, sitting with a jury, dated December 3, 2007, and the sentences imposed by Justice Grossi, dated May 14, 2008.
Reasons for Decision
Overview
1A jury found the appellant guilty of robbery, using an imitation firearm while committing robbery, unlawful confinement and assault causing bodily harm arising out of her conduct during a home invasion.
2The appellant’s liability was left to the jury on the alternative grounds that she aided the two principals in committing each offence charged or that she was a party to the principals’ offences under s. 21(2) of the Criminal Code because she formed a common intention with them to commit and to help them commit robbery.
3The submissions Mr. Di Luca advances on the appellant’s behalf attack both the organization and the substance of the trial judge’s final instructions on the grounds of the appellant’s liability, as well as the use jurors could make of a remark attributed to one of the principals during the home invasion – “We have no more use for the bitch”.
4Mr. Di Luca says that the trial judge’s final instructions were fatally flawed in that they:
i. were so confusing and disjointed that they failed to provide the jurors with the proper legal basis upon which to determine the appellant’s liability;
ii. failed to apprise the jurors of the essential elements of each offence with which she was charged;
iii. failed adequately to instruct the jury on the objective foreseeability component in s. 21(2) of the Criminal Code; and
iv. failed adequately to instruct the jury about the use they could make of the remark “We have no more use for the bitch” and, more generally, the words and conduct of the principals during the home invasion.
5I agree with the appellant that the trial judge’s final instructions did not clearly or correctly explain to the jury the legal basis upon which the appellant’s liability fell to be determined. In the circumstances, I find it unnecessary to consider the final ground of appeal raised by Mr. Di Luca.
Analysis
6Appellate courts must assess the adequacy of a trial judge’s instructions in a functional way. We are required to test those instructions, viewed as a whole, against their ability to fulfil the purpose for which final instructions are given. We do not gauge the adequacy of final instructions by calibrating the precise extent to which they adhere to or depart from any particular approach or formula. That said, a sound, systematic and organized approach to final instructions will go a long way to facilitating jury understanding, rather than getting in its way: R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at p. 386.
7The prosecution’s case against the appellant, who stood trial alone, was that she answered a telephone call the complainant made to an escort agency. Once in the complainant’s home, having concluded some preliminary negotiations and activities, the appellant went downstairs on the pretence of getting a drink of water. She unlocked the door to the house. By pre-arrangement, the principals entered the residence, handcuffed and beat the complainant with the butt of an imitation firearm, and ransacked the premises, taking various items with them as they left, closely followed by the appellant.
8The trial judge introduced the grounds upon which the prosecutor relied to establish the appellant’s liability as “aiding” and “common purpose”. He explained the requirements of each, first briefly, but then more expansively, in general terms, without any reference to the specific offences charged. In discussing the various steps the jury should follow to determine liability under s. 21(2), the trial judge furnished a flawed and incomplete example of the fault requirement and provided no direction about the elements of any offence charged.
9The failure of the trial judge to instruct the jury on the essential elements of the offences charged (the offences of using an imitation firearm while committing robbery, unlawful confinement and assault causing bodily harm) was rooted in the agreement of trial counsel that no such instruction was necessary since it was clear that the principals, who were not on trial, committed each of these offences. Unfortunately, the effect of this agreement was to deprive those who were deciding the case, the jury, of any instructions on the essential elements the prosecutor had to prove to establish the appellant’s guilt.
10As statements of general principle about an accused’s liability as an aider or in accordance with the common purpose doctrine for which s. 21(2) provides, much of what the trial judge said is unexceptionable. But the failure here was to apply the general to the specific, to link aiding and the common purpose doctrine to the specific offences with which the appellant was charged, and to tell the jury what findings were required before the appellant’s guilt was established.
11The final instructions also contain an unfortunate commingling of the alternative grounds of liability: a portion on aiding, followed by a bit about common purpose, then some more about aiding, followed by a more elaborate examination of common purpose, all at a general or abstract level without any linkage to the specific offences charged. In later portions of the charge, the trial judge introduced new and different language to describe the same concepts.
12A more specific problem arises in connection with the trial judge’s application of s. 21(2). The “unlawful purpose” in s. 21(2) must be different from the “offence” the principal commits in carrying out the common purpose: R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 15. In this instance, the same robbery cannot serve as both the “unlawful purpose” and the “offence”. If s. 21(2) applied at all in this case, the more appropriate “unlawful purpose” may have been a home invasion or the unlawful entry offence of s. 349(1) of the Criminal Code.
Disposition
13For these reasons, I am not satisfied that the jury was properly instructed on the legal principles that they were to apply to determine whether the prosecutor had established the appellant’s guilt of the offences charged. I would allow the appeal from conviction, quash the convictions entered at trial and order a new trial. In the circumstances, it is unnecessary to consider the appeal from sentence.
RELEASED: November 20, 2009 “DOC”
“David Watt J.A.”
“I agree Dennis O’Connor A.C.J.O.”
“I agree E.A. Cronk J.A.”
