COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
John Magno
Appellant
Marie Henein, Matthew Gourlay and Christine Mainville, for the appellant
John Pearson, for the respondent
Heard: November 19 and 20, 2014
On appeal from the conviction entered on June 29, 2011 and the sentence entered on September 23, 2011 by Justice T. Ducharme of the Superior Court of Justice, sitting with a jury, with reasons for sentence reported at 2011 ONSC 5552.
Overview
1John Magno appeals his conviction on charges of manslaughter, conspiracy to commit arson, arson causing bodily harm and arson for fraudulent purposes. He also seeks leave to appeal his sentence of 12 years’ imprisonment.
2On the conviction appeal, the appellant submits that the trial judge erred in his Vetrovec warning to the jury and in admitting certain hearsay statements of the appellant’s alleged co-conspirators. The appellant also submits that the verdict is unreasonable. On the sentence appeal, he submits that the sentence imposed by the trial judge is unfit.
3For the reasons that follow, I would dismiss the conviction appeal. While I would grant leave to appeal sentence, I would also dismiss the sentence appeal.
Facts
4On the evening of December 24, 2001, the appellant’s hardware store, Woodbine Building Supply (“WBS”), was looted. Seven people were present during the looting: Tony Jarcevic, Jonathan “Sam” Paskalis, Shaun McMaster, Jason Regaldo, Chris Graham, Denver Read and Jennifer Read.
5Later that night, Jarcevic and Paskalis set fire to WBS, causing a large explosion that completely destroyed the building. As a consequence of the explosion and fire, Jarcevic died and Paskalis was seriously injured.
6The appellant made an insurance claim of approximately $3,000,000 for the destruction of WBS, which has not been paid.
7Following an investigation into the fire, which included telephone wiretaps and vehicle probes, the police arrested all those who were present at WBS on the evening of the arson, as well as Adrian Roks and the appellant. For their roles in the scheme, Paskalis, McMaster and Roks were convicted of manslaughter and Regaldo was convicted of conspiracy to commit arson.
8The appellant was charged with second-degree murder, conspiracy to commit arson, arson causing bodily harm and arson for fraudulent purposes. The sole issue at trial was whether the appellant was a participant in the conspiracy to burn down WBS. The appellant did not testify.
9The Crown’s theory at trial was that the appellant hired Paskalis to organize and commit an undetected arson at WBS. The alleged purpose of the arson was to save demolition costs and gain insurance proceeds to fund a condominium development on the land.
10Defence counsel argued that all of the evidence implicating the appellant in the arson scheme originated from Paskalis, who was an inherently unreliable witness due to his history of criminal activity and lying to the authorities. The theory of the defence was that Paskalis was attempting to shift the blame to the appellant for an arson that he orchestrated as a cover-up for the looting of WBS.
11The defence relied on wiretap evidence to demonstrate collusion among the Crown’s witnesses. In particular, defence counsel pointed to conversations intercepted by the police that revealed that Paskalis told Roks what to tell the police and that Paskalis was angry that Graham had given the police information that contradicted his story.
12Further, Roks, Graham, Regaldo and McMaster all admitted at trial to discussing their stories with each other after the fire and to lying to the police after receiving instructions to do so from Paskalis.
13Paskalis also admitted that he had met repeatedly with the other men after the fire to discuss what they were telling the police. In particular, he admitted to conspiring with Roks to lie to the police and to threatening Graham to change his story.
14The Crown was permitted to adduce hearsay evidence of the appellant’s involvement in the arson scheme under the co-conspirator exception. In particular, Regaldo testified that Jarcevic said he was going to burn down the appellant’s store for insurance money and to “get in good” with Paskalis and the appellant. Regaldo also testified that on the night of the fire, Roks said he was going to the appellant’s house to provide the appellant with an alibi. Further, Regaldo testified that, after the fire, Roks told him the appellant could not talk to him because “there was a lot of heat”.
15McMaster also provided hearsay evidence implicating the appellant in the arson scheme. He testified that Paskalis and Roks told him the purpose of the fire was to collect the appellant’s insurance proceeds. McMaster also testified that Roks said he was going to be at the appellant’s house as an alibi. He further testified that, after the fire, Roks said he deleted photos showing a “tie” between Jarcevic and the appellant.
16After receiving instructions from the trial judge, which included a Vetrovec warning to approach the evidence of the colluding witnesses with caution, the jury found the appellant guilty of the lesser included offence of manslaughter, as well as the three arson offences.
17When considering the appropriate sentence, the trial judge found that the appellant was the chief instigator and operating mind behind the arson, had promised remuneration to the co-conspirators for their involvement, and had participated in the conspiracy to cover up the arson. The trial judge ordered a global sentence of 12 years’ imprisonment, less two years’ credit for pre-trial custody and restrictive bail.
Positions of the Parties
18The appellant appeals the conviction on three grounds. First, he submits that the trial judge erred in his Vetrovec warning by instructing the jury that the colluding witnesses could potentially confirm each other’s evidence. The appellant’s position is that whether evidence is capable of being confirmatory is a question of law to be determined by the trial judge. Therefore, where witness collusion is indisputable, as in this case, the trial judge must instruct the jury that the evidence of the colluding witnesses cannot be mutually confirmatory, rather than leaving this determination to the jury.
19Second, the appellant submits that the trial judge erred in admitting certain hearsay statements under the co-conspirator exception. In particular, he argues that the statements were not made in furtherance of any conspiracy involving the appellant; that the content of the statements originated from Paskalis, whom the trial judge found to be an inherently unreliable witness; and that the statements were not necessary, as all the co-conspirators, except the deceased Jarcevic, were available to, and did in fact, testify at trial.
20Third, the appellant submits that the jury’s verdict is unreasonable because all the evidence implicating the appellant originated from an unreliable witness, Paskalis. He argues that no other evidence supported the verdict, or, if it did, it was insufficient to ground the verdict without Paskalis’s evidence.
21The appellant also seeks leave to appeal the sentence, submitting that the trial judge unfairly dismissed an array of pro-social mitigating factors and that the sentence is unfit.
22The respondent submits that the trial judge correctly instructed the jury on the evidence of the co-conspirators. In the respondent’s view, the evidence of these witnesses was not incapable of being mutually confirmatory. Although the witnesses admitted to colluding to frustrate the police investigation, it was up to the jury to determine whether that collusion affected the independence of the evidence the witnesses gave at trial.
23Further, the respondent submits that the trial judge provided the jury with a clear, accurate and thorough Vetrovec warning in accordance with the framework set out in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104. He devoted nine pages of his charge to general instructions on this issue and gave additional witness-specific cautions. Most significantly, the trial judge instructed the jury that if they believed the witnesses colluded in terms of what they said at trial, their evidence could not be considered independent and mutually confirmatory.
24With regard to the hearsay statements, the respondent submits that they were properly admitted under the co-conspirator exception. The necessity requirement is met not only where a witness is unavailable to testify, but also where he cannot be expected to provide evidence of the same value at trial, as was the case here. Further, weaknesses in the reliability of the evidence go to weight, for the jury to assess.
25Next, the respondent submits that the verdict was not unreasonable as there was evidence of the appellant’s close relationship with Paskalis, as well as his motive for and involvement in the arson scheme. It was open to the jury to accept some, none or all of the evidence given by the colluding witnesses, and to consider additional inculpatory evidence.
26Finally, the respondent submits that the sentence is fit for the primary motivator of the arson, and that the trial judge made no error in principle.
Issues
27The issues are, therefore, as follows:
i. Did the trial judge err in his Vetrovec warning by leaving it to the jury to determine whether the evidence of the co-conspirators was independent and thus capable of being mutually confirmatory?
ii. Did the trial judge err in admitting certain hearsay statements of the co-conspirators?
iii. Is the jury’s verdict unreasonable?
iv. Is the sentence imposed unfit?
Analysis
(i) Vetrovec Warning
28The governing legal principles regarding Vetrovec warnings were summarized by Watt J.A. in the related case, R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at paras. 63-64, 67, as follows:
Among the essential elements of a Vetrovec caution is an instruction about the essential characteristics of confirmatory evidence. Jurors are to be told that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused: Khela, at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19; R. v. Sauvé (2004), 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 82, leave to appeal refused, [2005] 1 S.C.R. xv. The trier of fact is to look for confirmation from some other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to show that the accused committed the offence charged (the implicative quality or materiality requirement): Kehler, at para. 19; R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, at p. 829.
The independence requirement insists that to be confirmatory, evidence must not be “tainted” by connection to the Vetrovec witness: Khela, at para. 39.
Despite the bar against mutual corroboration by those who were participes criminis under the former accomplice rule, there may not be a similar injunction against mutual confirmation by Vetrovec witnesses, at least in the absence of a finding of collaboration or collusion among them: R. v. Winmill (1999), 1999 1353 (ON CA), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 120; R. v. Pollock (2004), 2004 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 161; R. v. Naicker (2007), 2007 BCCA 608, 229 C.C.C. (3d) 187 (B.C. C.A.), at para. 34; R. v. Illes (2007), 2007 BCCA 125, 217 C.C.C. (3d) 529 (B.C. C.A.), at paras. 30-31, reversed on other grounds, 2008 SCC 57, [2008] 3 S.C.R. 134. [Emphasis in original.]
29In R. v. Winmill (1999), 1999 1353 (ON CA), 42 O.R. (3d) 582, Osborne J.A. considered the degree of collaboration or collusion necessary before the evidence of one unsavoury witness cannot be corroboratory of another unsavoury witness. In that case, three Vetrovec witnesses had collaborated with each other to some degree before they spoke to police. The trial judge instructed the jury to scrutinize the evidence of each of the three very carefully and to look for other supporting evidence before convicting the accused. In holding that the trial judge’s Vetrovec charge was sufficient, Osborne J.A. wrote, at paras. 115-17, 120:
On a common sense basis, the jury should be directed to look for any evidence which the jury accepts, that would cause the jury to reasonably conclude that the untrustworthy witness is telling the truth. That evidence does not have to implicate the accused: this relic pertaining to the law of corroboration was jettisoned in Vetrovec. Supporting evidence could come from another untrustworthy witness, if the duly cautioned jury chooses to believe it. That is to say, it is for the jury to determine whether the evidence of one unsavoury witness can provide support for the evidence of another. If there are circumstances such as collaboration among the Vetrovec witnesses, the jury should be alerted to that fact which will obviously militate against using the evidence of one unsavoury witness to support the evidence of another. It is for the jury to determine whether an untrustworthy witness's evidence is so compromised by collaboration that it could not reasonably be used to support the evidence of another untrustworthy witness. The final credibility call is, I emphasize, for the jury.
Had the jury concluded that the evidence of Robert, Tina and Chris [the three unsavoury witnesses] was fatally compromised by collaboration, it would as a matter of common sense follow that the evidence of any one of them could not be used to provide support for the evidence of either of the others. As I have said, this is a matter that should be left to the jury to determine.
In my opinion, the Vetrovec charge was sufficient. The jury was directed by clear language to expose the evidence of Robert, Tina and Chris to special scrutiny. The trial judge reminded the jury that they discussed what they would say to the police and that each of them had made false statements to the police. Consistent with Vetrovec, it was for the jury to determine whether the evidence of any of Robert, Tina and Chris was compromised by a desire to protect themselves, or by their discussions about what they would say, and did say, to the police. The jury was duly warned about the danger of accepting their evidence.
I am not prepared to hold that the evidence of one unsavoury witness cannot provide support for the evidence of another. See R. v. Walzak (1988), 1988 9685 (NS CA), 225 A.P.R. 89 (N.S.S.C. (App. Div.)). Such an inflexible rule would be inconsistent with Vetrovec, supra, and Bevan, supra. The jury was very much aware that Robert, Tina and Chris to some degree collaborated before they first spoke to the police. Indeed, their credibility was challenged at both ends of the spectrum during their cross-examination and in defence counsel's closing submissions. On the one hand, it was suggested that they had jointly discussed their versions of events and that that explained the structural similarity in their evidence. On the other hand, each of them was attacked on the basis of inconsistencies in his or her evidence when it was compared with the evidence of the other two unsavoury witnesses.
30Therefore, collusion among Vetrovec witnesses does not necessarily prevent the evidence of one such witness from confirming the evidence of another. It is not enough that the unsavoury witnesses are tainted by allegations of collusion; the evidence they provide and that is potentially confirmatory of each other’s evidence must be so tainted by collusion that it loses its required independence and cannot reasonably be used as confirmation. This is a matter for the jury to decide.
31The nature and content of a Vetrovec warning is highly dependent on the facts of the particular case. Appellate courts afford trial judges considerable deference in fashioning a warning that is appropriate in the circumstances. The warning will generally be held to be sufficient where it: (i) draws the attention of the jury to the evidence requiring special scrutiny; (ii) explains why the evidence requires special scrutiny; (iii) cautions the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied it is true; and (iv) tells the jury that in determining the veracity of the suspect evidence, it should look for evidence from another source tending to show the untrustworthy witness is telling the truth as to the guilt of the accused: Kehla, at paras. 37, 44.
32The critical role of confirmatory evidence and the importance of a clear instruction on the point were described by Fish J. in Khela, at para. 46:
[T]he absence or presence of confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of an impugned witness (Harris, at p. 222). Accordingly, the instruction to the jury must make clear the type of evidence capable of offering support. It is not sufficient to simply tell the jury to look for whatever it feels confirms the truth of a witness’ testimony (see R. v. Chenier (2006), 2006 3560 (ON CA), 205 C.C.C. (3d) 333 (Ont. C.A.), at para. 34).
33There is no obligation on the trial judge to provide an exhaustive list of all potentially confirmatory evidence. Indeed, in some instances the recitation of a seemingly endless list of evidence which is potentially supportive of the untrustworthy witness and, necessarily, the Crown’s case, can result in an injustice to the accused by upsetting the required balance in the charge: R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, at p. 613. Therefore, it is left to the trial judge’s discretion to identify potentially confirmatory evidence in a manner that does not impair the accused’s right to a fair and balanced charge.
34In the present case, the trial judge provided a very thorough review of the law related to Vetrovec warnings. He reviewed in detail the reasons why the jury might conclude that there was collusion among the co-conspirator witnesses and tainting of their evidence. Specifically, the trial judge noted that:
- the witnesses admitted to colluding to get their stories straight for the police, which “raises the real possibility that some or all of them may have colluded with one another in terms of what they would testify to at this trial”;
- the witnesses received disclosure of the Crown’s case;
- Paskalis, McMaster and Regaldo sat through the preliminary hearing where the Crown presented its theory of the case;
- Regaldo admitted that, by August 2002, he was aware that the police theory of the case was that the motive of the arson was insurance fraud;
- the witnesses were all made aware, prior to providing their final statements to the police, that the police wanted information that would implicate the appellant;
- Paskalis, McMaster and Regaldo remained friends and had contact with each other during the trial and were in custody when Paskalis and Regaldo gave their statements to police; and
- Paskalis, Roks, Regaldo and Graham all provided statements to the police at a time when they were working to resolve the charges against them, which may have given them motive to tell the police a version of events that implicates the appellant.
35After reviewing these facts, the trial judge summed up as follows:
As a result of those factors you may find that none of their evidence, none of the evidence of the untrustworthy witnesses, is sufficiently independent for you to rely upon it as corroboration one for the other. You may also find that, despite their past collusion, that their testimony at trial is not the result of collusion and is, in fact, independent from one another. That is for you to decide after considering all of the evidence.
36Counsel for the appellant fairly concedes that, with the exception of the reference to the evidence of the co-conspirators as potentially confirmatory, the Vetrovec caution was correct. The issue then is narrowed to whether the evidence of the co-conspirators should have been left with the jury to determine if it was sufficiently independent to be mutually confirmatory.
37The evidence of one Vetrovec witness can confirm the evidence of another Vetrovec witness. However, to be confirmatory, the evidence must be independent. Collusion among Vetrovec witnesses can, but will not necessarily, deprive the evidence of the requisite quality of independence. The question is ultimately not whether the witnesses colluded, but rather whether there was collusion that rendered the evidence of one not independent from the evidence of the other. The independence inquiry looks to the impact of collusory conduct on the independence of the evidence, not the independence of the witnesses from each other: Winmill, at paras. 115-116.
38The appellant submits that the trial judge failed to fulfill his gatekeeper function because he instructed the jury that the evidence of the co-conspirators could potentially be confirmatory when that evidence was, in fact, not sufficiently independent. The Crown submits that the trial judge has no gatekeeping role in these circumstances and that the determination of whether the evidence is independent is part of the jury’s fact-finding function.
39I agree with the Crown that the determination of whether evidence is independent, and therefore potentially confirmatory of the testimony of a Vetrovec witness, is primarily part of the jury’s fact-finding function. Independence in the context of the Vetrovec instruction cannot be confused with the absence of tainting or collusion in the context of similar fact evidence. While both address questions of the independence of evidence, they do so in very different contexts, which impacts the extent of the trial judge’s gatekeeping function.
40In the case of similar fact evidence, which is presumptively inadmissible, the independence of the evidence – that is, the absence of collusion or tainting – is fundamental to determining the probative value and hence the admissibility of the evidence. Consequently, a trial judge has a significant gatekeeping role to play and must exclude the proffered evidence unless satisfied on a balance of probabilities that the similarities are not the product of collusion or tainting: R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908, at para. 112.
41In contrast, when the independence of evidence arises in the context of its ability to rehabilitate a Vetrovec witness, there is no question about the admissibility of the evidence. Rather, the question is how the trier of fact may use the admissible evidence. In this context, the trial judge has a more modest role to play in assessing the independence of the evidence. He or she must determine if the evidence is capable of being viewed as independent of the Vetrovec witness’ evidence. If there is a reasonable basis for a finding that the evidence is independent of the testimony of the Vetrovec witness, the trial judge must allow the jury to exercise its fact-finding function and make the ultimate determination as to the independence of the evidence.
42In some cases, there will be evidence which, to the jury’s untrained eyes, appears potentially confirmatory, but cannot in law be confirmatory. In those cases, the trial judge must ensure that the jury is not misled by identifying the evidence and instructing the jury that it is not capable of providing independent confirmation of the Vetrovec witness. For example, where a prior consistent statement or impermissible hearsay evidence appears to be confirmatory, the trial judge would be obliged to explain to the jury why they cannot rely on that evidence as confirmatory. This is not a matter of usurping the jury’s fact-finding function; they have no such function where they could not reasonably conclude that the evidence was independent.
43It is the duty of the trial judge to carefully scrutinize the evidence and determine if it is capable of being independent. If there is any reasonable basis for it to be considered independent, the trial judge must allow the jury to exercise its fact-finding function. In my view, considerable deference is owed to a trial judge who is engaged in this analysis, as he or she is best positioned to determine whether the jury could reasonably conclude that the evidence is independent.
44There are two bases upon which the appellant argues that the evidence of the co-conspirator witnesses in the present case is not independent. The first is that their testimony, particularly their cover-up story, was tainted and/or the product of collusion. The second is that Paskalis was the original source of the evidence.
45In my view, the trial judge did not err in concluding that it was open to the jury to find that the co-conspirators’ evidence was independent. While there was significant evidence of collusion among the Vetrovec witnesses, there was a reasonable basis on which the jury could conclude that the witnesses’ evidence implicating the appellant was independent of each other’s.
46With respect to the issue of collusion, the co-conspirators admitted to discussing their stories with each other both before and after providing statements to the police. The wiretap evidence also makes clear that they were attempting to minimize their involvement in the robbery and fire. In addition, the co-conspirators admitted at trial that they colluded to frustrate the police investigation. However, there was no clear evidence that the co-conspirators colluded for the specific purpose of implicating the appellant. The only collusion evidence that directly referred to the appellant was the direction given by Paskalis to Roks and Graham to tell the police that the appellant knew Paskalis was at WBS the night of the fire. Paskalis testified that this direction was meant to support his fabricated alibi that he went to WBS to pick something up, with the appellant’s permission, and when he arrived there, the building exploded. Therefore, while there was undisputed evidence that the co-conspirators colluded to exculpate themselves, there was no clear, let alone indisputable, evidence that they colluded specifically to implicate the appellant.
47Further, the co-conspirators’ trial testimony differed from their post-arson police statements, which were intended to frustrate the police investigation. Most notably, at trial, the co-conspirators admitted that they colluded to cover-up the arson. However, they did not concede that they colluded regarding their trial evidence or that their evidence was tainted by reason of their knowledge of the Crown’s theory, or their desire to co-operate with the police to reduce their sentences.
48An inference could be drawn that the co-conspirators’ trial testimony was not independent because it was the product of collusion. However, it was also open to the jury to conclude that, while the co-conspirators’ statements to the police were the product of collusion, their trial testimony was not. Similarly, while an inference could be drawn that the co-conspirators tailored their evidence to fit the theory of the police and the Crown to help reduce their sentences, it was also open to the jury to conclude that the evidence had not been tainted in this way. Therefore, the jury had a role to play in determining if the co-conspirators’ evidence was independent and the trial judge did not err in pointing to this evidence as potentially confirmatory.
49With respect to the argument that the evidence could not be independent because Paskalis was the original source of it all, I note that the trial judge specifically instructed the jury that “[i]f the evidence is connected to the untrustworthy witness, it cannot confirm his evidence”. He explained, for example, that if Roks reported something that Paskalis said to him, that evidence could not confirm the evidence of Paskalis.
50The appellant submits that Paskalis was the actual source of statements attributed to Jarcevic to the effect that he was going to set fire to WBS for the insurance proceeds and that this was his opportunity to “get in good with Sam [Paskalis] and John [the appellant].”
51According to the appellant, there is an irresistible inference on the entirety of the record that these statements originated from Paskalis because Jarcevic did not have any direct contact with the appellant. Rather, Paskalis was the only one who testified to having direct communications with the appellant about the arson scheme. Although Paskalis testified that Jarcevic and Roks were present at one of the meetings with the appellant, cellphone tracking evidence indicated, and the Crown conceded, that Jarcevic could not have been at the appellant’s home at the time of the alleged meeting. Therefore, the appellant submits that Paskalis must have been the source of Jarcevic’s belief that the appellant was involved in the scheme, which Jarcevic then passed on to Regaldo and McMaster.
52On this basis, the appellant submits that the trial judge’s admission of the statements attributed to Jarcevic effectively permitted Paskalis’s unreliable statements to be admitted into evidence, despite the trial judge’s determination that they should not be admitted due to their lack of reliability.
53While it was open to the jury to find that Paskalis was the source of all Jarcevic’s statements implicating the appellant, I am not satisfied that this was the only available inference. Rather, it was open to the jury to find that the statements originated from the appellant himself.
54The jury was correctly instructed that to rely on Jarcevic’s statements under the co-conspirator hearsay exception, they had to be satisfied beyond a reasonable doubt that the conspiracy existed and that, on a balance of probabilities, the appellant was a member of the conspiracy: R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938, at p. 946; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, at para. 73.
55Considering the statements in the context of an on-going criminal conspiracy, and given that the statements were on a subject matter within the particular knowledge of the appellant, being the WBS insurance proceeds, it was open to the jury to find that Jarcevic’s statements were sourced to the appellant, rather than by Paskalis. Therefore, the trial judge did not err in instructing the jury that these statements could potentially serve as independent and confirmatory evidence.
56In conclusion, I find that there was no error in the trial judge’s Vetrovec instruction and that this ground of appeal must fail.
(ii) Co-conspirator Hearsay Exception
57The trial judge delivered lengthy reasons on the voir dire requested by the Crown to admit certain hearsay statements made by the alleged co-conspirators: see R. v. Magno, 2012 ONSC 4001. Due to serious concerns about the reliability of this evidence, the trial judge found this to be one of the exceptional cases where the co-conspirator exception to the inadmissibility of hearsay evidence should not automatically apply, and a principled analysis was required. The trial judge was, therefore, clearly alive to the potential unreliability of this evidence and significantly limited the hearsay statements that were admitted for consideration by the jury. In particular, he refused to admit statements made by Paskalis on the basis that Paskalis is “an inveterate liar” and his statements are, therefore, not reliable (para. 82). The trial judge also excluded certain statements he found were not in furtherance of the conspiracy. In the end, after carefully establishing their necessity and reliability, the trial judge admitted only 13 of the 27 hearsay statements the Crown attempted to introduce under the co-conspirator exception.
58In my view, there is no basis to interfere with the trial judge’s ruling on the co-conspirator exception to the hearsay rule, as I agree with and adopt his reasoning. The arguments made on appeal were all made on the voir dire and the trial judge properly rejected them. I focus my analysis below on the three principal arguments made by the appellant in support of this ground of appeal.
59First, the appellant submits that statements attributed to Roks in the testimony of Regaldo and McMaster should not be admitted. The trial judge admitted those statements on the basis that there was “very clear evidence” that Roks was involved both in the original arson conspiracy and the post-arson cover-up conspiracy, and that he would not be a co-operative witness (paras. 85-86). The appellant argues that the trial judge erred in this regard because there was no necessity that these statements be admitted since Roks was called as a witness and was not hostile.
60I disagree. The issue of leading a co-conspirator’s hearsay declaration when the witness is available to testify was raised but not answered in R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at paras. 107, 110.However, as noted by Blair J.A. in R. v. N.Y., 2012 ONCA 745, 270 C.R.R. (2d) 294, at para. 78, Chang did not say that non-compellability is required to satisfy the necessity requirement. Rather, “it is the availability of the evidence, not the availability of the witness that is of ultimate significance, and…while co-conspirators may be physically available, their testimony rarely is” (emphasis in original).
61Our courts give the necessity criterion a flexible definition, capable of encompassing diverse situations: R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, at pp. 933-34. The necessity criterion is satisfied where it cannot be expected that evidence of the same value from the same or other sources will be available. Thus, the necessity criterion is fact-specific and its precise limits remain to be established in the context of specific cases: Chang, at para. 105; R. v B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, at p. 798.
62In his ruling on the co-conspirator exception, the trial judge explicitly turned his mind to the fact that Roks was available to testify. He also noted that there must be an evidentiary basis for a finding of necessity and that it should not be based on mere speculation. The trial judge went on to consider Roks’ particular circumstances: “His conviction for murder is currently under appeal, he has always maintained his innocence and, while he has previously testified, it is obvious that he will not admit making any statements that would implicate him in the conspiracy.” The trial judge concluded that the necessity criterion was satisfied since Roks would not admit to making the statements. I see no flaw in this analysis. It was clear that Roks’ evidence at trial would not be of the same value as the hearsay statements.
63Second, the appellant objects to certain statements attributed to Jarcevic in the testimony of Regaldo and McMaster, which were admitted on the basis that “the defence has not identified anything about the reliability of his statements that would justify keeping them from the jury.”
64The appellant argues again, as he did with respect to the Vetrovec warning, that these statements must have originated from Paskalis, whom the trial judge found to be such an unreliable witness that none of his statements were admitted through the co-conspirator hearsay exception. The appellant submits that by admitting these statements, the trial judge effectively allowed Paskalis's statements into evidence, thereby contradicting his own decision to exclude them.
65For this argument to prevail, the only available inference open to the jury was to find that Paskalis was the original source of all of the statements. However, for the reasons given above, I am not satisfied that this was the only available inference. Accordingly, this argument must fail.
66Third, the appellant submits that statements made after the fire are not admissible because there was no evidence that the appellant was involved in a post-arson conspiracy. Therefore, he argues that these statements were not in furtherance of any conspiracy involving the appellant.
67At trial, the Crown submitted that the appellant was a member of conspiracy, the object of which was to defraud the appellant’s insurer or, in the alternative, to evade detection after the arson. The appellant submitted that the object of the conspiracy was simply to commit the arson and, therefore, statements made after the arson could not be in furtherance of the conspiracy.
68The trial judge averted to the admonition of Martin J. A. in R. v. Baron and Wertman (1976), 1976 775 (ON CA), 14 O.R. (2d) 173 (C.A.), at p. 198, that to “engraft a conspiracy to avoid detection and prosecution, as a matter of law, on every conspiracy to commit a crime would have far-reaching implications”. However, he also noted that Martin J.A. expressly recognized that a post-offence conspiracy to evade detection and prosecution could be established by evidence in the same manner as any other conspiracy para. 37).
69The trial judge was careful not to usurp the role of the jury to determine the object of the conspiracy, and limited his analysis to the question of whether the particular statements were capable of coming within the co-conspirator exception. He concluded, at para. 51 of his ruling on the co-conspirator exception, that:
There is also evidence upon which the jury could find that Mr. Magno was a member of a post-arson conspiracy to avoid detection. Whether this latter conspiracy was simply to avoid prosecution or whether it was part of a broader continuing conspiracy to defraud the insurer is a matter that must be left with the jury. The important point however, is that this means that post-arson comments made in furtherance of this conspiracy, however it is characterized, are also capable of being admitted under the co-conspirators’ exception. Thus, I reject the defence submission that all utterances that post-date the arson are inadmissible as being incapable of being made in furtherance of a conspiracy. These statements may well be and that is something for the jury to decide.
70I agree with the trial judge’s analysis. It was open to the jury to conclude that the appellant was engaged in a post-offence conspiracy to evade detection and prosecution or in an on-going conspiracy to defraud the insurance company. Therefore, I reject the appellant’s argument that the statements made after the fire could not be in furtherance of a conspiracy.
(iii) Unreasonable Verdict
71The appellant submits that the verdict was unreasonable because it was based solely on the unreliable evidence of Paskalis and, if any other evidence supported the verdict, it was not sufficient to ground the verdict without Paskalis’s evidence.
72An appeal court may only interfere with a jury verdict on the basis that it is unreasonable where a properly instructed jury, acting judicially, could not reasonably have rendered the verdict: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at para. 25; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. The appeal court independently weighs the totality of the evidence for the limited purpose of determining whether there is evidence supporting the verdict and whether the jury's conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28; R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, at para. 29, aff’d 2014 SCC 73.
73It is not the role of an appellate court to second-guess the jury’s credibility assessments. A verdict based on credibility assessments, such as that in the present case, is unreasonable only if “the trial court’s assessments of credibility cannot be supported on any reasonable view of the evidence”: R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 7.
74In cases where there are inconsistencies in the evidence and motives to concoct the evidence, a jury may reasonably and lawfully deal with such evidence in a variety of ways. It is open to the jury to accept all of the evidence, some of the evidence, or none of the evidence of each witness. Therefore, an appeal court cannot infer from the mere presence of contradictory details or motives to concoct that the jury's verdict is unreasonable: R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at p. 837.
75In the present case, there was a body of evidence, independent of the evidence of the Paskalis, that reasonably supported a conviction, including:
- the appellant’s financial motive in making an insurance claim on a policy that was about to expire;
- the appellant’s very close relationship with Paskalis, including the fact that the appellant funded trips they took to Las Vegas together, paid for Paskalis’s car insurance and acted as his surety in an unrelated criminal proceeding, from which the jury could infer that Paskalis was beholden to the appellant;
- the numerous phone calls between Paskalis and the appellant prior to the fire;
- the testimony of the co-conspirators regarding the appellant’s involvement in the conspiracy;
- the discovery of the key for a padlock located in the parking area of WBS in Jarcevic's van after the fire and the absence of the padlock key from the set of keys the appellant provided to the police shortly after the fire; and
- the evidence that on the night of the fire, the alarm and sprinkler systems at WBS were inoperative, as was the alarm system at Sunrise Landscaping, another company owned by the appellant to which WSB inventory had been transferred.
76It was the responsibility of the jury to evaluate and then accept or reject this evidence, in whole or in part, as it saw fit. While the appellant argues that the jury should not have accepted much of the evidence, I am not satisfied that a properly instructed jury, acting judicially, could not reasonably have rendered a guilty verdict based on this evidence. Accordingly, there is no basis for appellate interference on this ground of appeal.
(iv) Sentence Appeal
77At trial, the appellant submitted that an appropriate sentence was six to eight years’ imprisonment, less credit for pre-trial custody and restrictive bail conditions. The Crown submitted that the appropriate sentence was ten years over and above any such credit. The trial judge accepted the Crown’s submission and imposed a sentence of 12 years, less two years' credit, for an effective sentence of ten years.
78The appellant submits that for a first offender in his mid-50s with a long history of positive involvement in the community and no need for individual deterrence or incapacitation, this sentence is manifestly excessive. He notes that Paskalis and McMaster received much shorter sentences for the same crime.
79The appellant also submits that the trial judge erred in treating as an aggravating factor the negative impact that the appellant’s sentence would have on his family.
80On appeal, the appellant did not make any submission on the appropriate sentence that should be imposed, arguing only that the sentence should be reduced. In oral argument, counsel for the appellant conceded that she was not urging this court to impose a sentence less than the sentence imposed on Roks, which was 10 years' incarceration, less pre-trial custody. She only asked that the court consider the impact of pre-trial delays, the age of the appellant and the shorter sentence imposed on Paskalis.
81I would not give effect to the sentence appeal. The sentencing judge gave thorough reasons for the sentence he imposed. He carefully reviewed the circumstances of the appellant and the relevant legal principles, including denunciation, deterrence and parity.
82The appellant had a high degree of moral blameworthiness. He was involved in a conspiracy that was planned over time and motivated by greed. He must have known that the fire would put the lives of first responders and nearby residents at risk. Further, the conspiracy would not have been possible without the appellant’s involvement, as it was his insurance proceeds that were the object of the arson scheme. Given that the co-accused, Roks, received a 10-year sentence from this court, it would be difficult to say that a 12-year sentence for the appellant is inappropriate.
83The sentencing judge accepted the appellant’s submission that his incarceration will be emotionally devastating for his family. However, the sentencing judge concluded, as he was entitled to do, that this was not a mitigating factor and that the impact on the family underscores that they are victims of the appellant. I see no error in this analysis.
84In these circumstances, the trial judge correctly concluded that the sentencing objectives of deterrence and denunciation must predominate. The reasons for sentence disclose no error in principle and the length of sentence imposed is within the range for a serious crime of this nature.
Disposition
85For the reasons above, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but also dismiss the sentence appeal.
Released: February 17, 2015 “DD”
“C.W. Hourigan J.A.”
“I agree Doherty J.A.”
“I agree John Laskin J.A.”
