COURT OF APPEAL FOR ONTARIO DATE: 20230922 DOCKET: C65304, C64251 & C64553

Doherty, Gillese and Zarnett JJ.A.

DOCKET: C65304

BETWEEN

His Majesty the King

Respondent

and

Shawn Cargioli

Appellant

DOCKET: C64251

AND BETWEEN

His Majesty the King

Respondent

and

Kendell Kamal

Appellant

DOCKET: C64553

AND BETWEEN

His Majesty the King

Respondent

and

Famien Morrisson

Appellant

Counsel: James Lockyer and Alexander Ostroff, for the appellant Shawn Cargioli Joseph Wilkinson and Aditi Iyer, for the appellant Kendell Kamal Richard Litkowski, for the appellant Famien Morrisson Tracy Kozlowski, Jennifer Epstein and Jacob Millns, for the respondent

Heard: May 16-17, 2023

On appeal from the convictions entered on July 25, 2015, and the sentences imposed on January 14, 2016, by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

Overview

1During the evening of January 24, 2011, a group of men attacked and repeatedly stabbed Shadi Taleb in the alleyway beside his home where he lived with his parents. Mr. Taleb died from his wounds a short time later.

2The Crown alleged the appellants were part of the group that stabbed and killed Mr. Taleb. Each was charged with first degree murder. I.M., a fourth person alleged to have been involved in the attack, was charged separately as a young person and subsequently convicted of first degree murder. His appeal to this court was dismissed: R. v. I.M., 2023 ONCA 378. A fifth individual, Walid Omar, was discharged at his preliminary inquiry.

3The Crown maintained that a plan to rob Mr. Taleb originated with Mr. Cargioli and some friends. He recruited the appellants, Mr. Morrisson and Mr. Kamal. When the group, including the appellants, arrived at Mr. Taleb’s home late in the evening, Mr. Taleb was outside shovelling snow. The violence quickly escalated. Mr. Taleb was struck in the back of the head with a handgun and stabbed in the face. He was subsequently stabbed several more times.

4At trial, the Crown argued that each of the appellants had committed murder, either as a principal (s. 21(1)(a)), an aider (s. 21(1)(b)), or as a party to a planned robbery, during which one or more of the participants in the plan committed murder (s. 21(2)). The Crown further argued that the murder was first degree murder pursuant to s. 231(5)(e) because Mr. Taleb’s death was caused by the appellants while they were unlawfully confining Mr. Taleb and/or his mother.

5Mr. Cargioli entered a guilty plea on the included offence of manslaughter. He did so on the basis that he was a party to the plan to rob Mr. Taleb, Mr. Taleb was killed during the execution of the robbery, and Mr. Cargioli knew or ought to have known that there was at least a risk of bodily harm to Mr. Taleb when the robbery plan was carried out. Mr. Cargioli’s admission of liability for manslaughter was based on s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”). The Crown did not accept Mr. Cargioli’s plea. The jury convicted Mr. Cargioli of first degree murder. He appeals, seeking a new trial.

6Mr. Morrisson also acknowledged that he was a party to the robbery and guilty of manslaughter under s. 21(2). However, the jury convicted Mr. Morrisson of second degree murder and the trial judge sentenced him to life imprisonment without parole eligibility for 15 years. Mr. Morrisson appeals his conviction, seeking a new trial. In the alternative, he appeals his sentence, seeking a reduction of his parole ineligibility period.

7Mr. Kamal admitted that he drove the group from Toronto to Mr. Taleb’s home in Mississauga. Mr. Kamal acknowledged being in the alleyway during part of the altercation. He became physically involved with Mr. Taleb very briefly. However, Mr. Kamal denied any knowledge of, or any participation in, the plan to rob Mr. Taleb. Mr. Kamal sought an acquittal. The jury convicted Mr. Kamal of second degree murder and the trial judge sentenced him to life imprisonment without parole eligibility for 14 years. Mr. Kamal appeals his conviction, seeking a new trial. In the alternative, he appeals his sentence, seeking a reduction of his parole ineligibility period.

8Each appellant advances several grounds of appeal. Some are raised by all three appellants, some by two, and others by only one. However, I understand counsel for each appellant to rely on the submissions of counsel for the other appellants to the extent that the issues addressed in those submissions are relevant to their clients’ liability. I will address the issues as though they applied to all of the appellants unless I indicate otherwise.

9For the reasons that follow, I would dismiss the appeals of Mr. Morrisson and Mr. Kamal, affirm their convictions, and dismiss their sentence appeals. I would also dismiss Mr. Cargioli’s appeal, but I would, pursuant to s. 686(1)(b)(i) of the Criminal Code, substitute a conviction on the included offence of second degree murder.

II

Summary of the Evidence

10The case for the Crown was based primarily on the following:

• Evidence in the form of testimony and text messages indicating that in the days leading up to the homicide, Mr. Cargioli and others settled upon a plan to rob Mr. Taleb. They believed Mr. Taleb kept drugs and firearms at his residence. He was 17 years old, and Mr. Cargioli and his friends thought that Mr. Taleb would be an easy target for the robbery;
• Evidence from Omaya Taleb, Mr. Taleb’s mother, who was in the residence when her son was attacked. Ms. Taleb was also attacked and injured;
• Forensic evidence and other testimony based on evidence gathered in the alleyway where Mr. Taleb was attacked and killed;
• Statements made by the appellants to the police, parts of which the Crown claimed were inculpatory; and
• Evidence of a jailhouse informant to the effect that Mr. Cargioli admitted that he stabbed Mr. Taleb.

11None of the appellants testified. They relied primarily on the exculpatory portions of their statements given to the police, and on arguments that the forensic evidence gathered in the alleyway supported inferences and conclusions other than those urged by the Crown. In addition, the defence argued that some of the Crown evidence was unreliable, particularly the evidence of Omaya Taleb, who the defence maintained had been caught in a deliberate lie during her testimony.

(i) The plan to rob Mr. Taleb

12Several days before the homicide, Matthew Smith, a friend of Mr. Cargioli, told him about Mr. Taleb, a 17-year old former friend of Mr. Smith. Mr. Smith told Mr. Cargioli that Mr. Taleb sold drugs and firearms, and that he kept his merchandise at his residence. Mr. Smith thought Mr. Taleb would be an easy target for a home invasion/robbery. Mr. Cargioli agreed.

13Mr. Cargioli recruited others to aid in the robbery, including Mr. Morrisson. Mr. Kamal drove the group to Mr. Taleb’s residence. There is no need to detail the evidence establishing the plan to go to Mr. Taleb’s home and rob him. Mr. Cargioli and Mr. Morrisson admit that the plan existed, and they were parties to it. Mr. Kamal does not challenge the existence of the plan to rob Mr. Taleb at his home, but he insists he had no knowledge of it and was not a party to it. Mr. Kamal indicated in his statement that Mr. Cargioli asked him to drive the group to Mississauga to see a person with whom Mr. Cargioli “had a problem”.

(ii) The Crown’s case

14The appellants arrived at Mr. Taleb’s residence at about 10:20 p.m. in Mr. Kamal’s vehicle. He was driving. Mr. Cargioli was armed with a handgun, although he maintained the gun was not loaded. Mr. Taleb happened to be outside shovelling the snow from the alleyway beside his home when the appellants arrived. Mr. Taleb’s mother, Omaya, was inside. His father and brother, who lived in the residence, were not home.

15The alleyway was located between the Talebs’ residence and their neighbour to the west. It was dark and only 53 inches wide. The alleyway ran in a generally north/south direction, beginning at the corner of the front of the Taleb home and extending back 45 feet to a fence at the end of the alleyway. During the evidence, the part of the alleyway located beside the front of the Talebs’ residence was sometimes referred to as the “mouth” of the alleyway. The part of the alleyway at the fence was sometimes referred to as the “end”, or “back”, of the alleyway.

16The attack on Mr. Taleb began just before or at the mouth of the alleyway after he refused to hand over his drugs. Mr. Cargioli struck Mr. Taleb in the back of the head with his handgun. Then others in the group attacked Mr. Taleb.

17The attack on Mr. Taleb continued and moved down the alleyway toward the fence. Mr. Taleb’s body was found about 10 feet from the fence. He had been stabbed at least 12 times, once in the face and 11 times in the back. Mr. Taleb had also suffered significant blunt force trauma to the back of his head. He had no defensive wounds.

18In addition to the head trauma and 12 stab wounds, 2 puncture marks were found in the parka Mr. Taleb had been wearing when the attack started. The parka was found lying in the alleyway near the mouth of the alley. The two puncture marks were consistent with having been caused by a knife belonging to Mr. Kamal that was found lying in the alleyway. However, the marks in the parka were not connected to any of the stab wounds. Whatever caused the puncture marks did not penetrate through all of the layers of the parka and into Mr. Taleb’s skin.

19The forensic evidence suggested that the initial attack on Mr. Taleb occurred at or near the mouth of the alleyway. The blood found on the parka suggested that the stab wound to Mr. Taleb’s face had been inflicted in the mouth of the alleyway while Mr. Taleb was still wearing the parka. That facial wound was 4.7 inches long and passed through Mr. Taleb’s mouth and into his neck. The wound caused significant bleeding and was a fatal injury.

20Blood spatter evidence suggested that the attack on Mr. Taleb continued as the attackers and Mr. Taleb moved along the alleyway toward the fence at the end of the alleyway. The exact number of participants in the attack on Mr. Taleb at any given point as the group moved down the alleyway could not be determined. Nor could the Crown produce the knife, or knives, that caused the stab wounds. The Crown maintained that at least some of the stab wounds were caused by a sword Mr. Taleb had produced after he was attacked in an effort to protect himself. It was the Crown’s theory that one or more of the assailants gained control of the sword and used it to stab Mr. Taleb. Mr. Morrisson took the sword from the scene and later disposed of it.

21The Crown relied on the parts of the appellants’ statements in which they acknowledged being in the alleyway during some part of the attack on Mr. Taleb. In their statements, the appellants also admitted some form of physical interaction with Mr. Taleb and participation in the subsequent search of the home.

22The Crown also relied on the evidence of Mr. Taleb’s mother, Omaya. She was sitting at home watching television while her son was outside shovelling snow. She heard a noise, went to the door, and called out her son’s name. She saw no one and received no answer, so she went back into the house. A minute or two later, Ms. Taleb went back to the door, stepped outside, and looked into the alleyway. She could see at least three people, but she could not see her son. She called out his name for a second time.

23Ms. Taleb testified that Mr. Cargioli appeared at the door and told her, “Your son got stabbed”. Ms. Taleb tried to bar the door, but Mr. Cargioli and others forced their way in. He punched Ms. Taleb and struck her in the back of the head with his gun, telling her, “Don’t scream”. Mr. Morrisson, who entered the home with Mr. Cargioli, also punched Ms. Taleb.

24Ms. Taleb testified there were four, and later five, men in the house. Mr. Cargioli took her to the porch area and forced her to sit in a chair with her head between her knees. The other people were searching the house. Some of the intruders went upstairs to search the bedrooms.

25Mahmoud Taleb, Shadi Taleb’s father, arrived home shortly after the group of men had forced their way into the Talebs' residence. He saw a group of men in the driveway and on the porch. One man was screaming. Mr. Taleb’s older brother, Mohammed, arrived home very shortly after his father. He saw five men emerge from the house, enter a vehicle blocking the Talebs’ driveway, and drive away.

26When Mr. Taleb Sr. and his older son entered the home, Ms. Taleb was inside on the phone calling 9-1-1. She told her husband to check on Shadi, who was between the houses in the alleyway. Mr. Taleb Sr. and Mohammed found Shadi Taleb at the end of the alleyway. His heart was still beating, but he did not say anything. Mr. Taleb died a short time later.

(iii) Mr. Cargioli’s version of events

27In his statement, Mr. Cargioli admitted that he and others agreed to go to Mr. Taleb’s residence and force him to give them his drugs and guns. When Mr. Cargioli and the group arrived at the Talebs’ residence in Mr. Kamal’s vehicle, Mr. Taleb happened to be outside shovelling snow. Mr. Cargioli asked him about selling some “shitz” to him. Mr. Taleb went into the house, apparently to fetch the drugs. When Mr. Taleb returned to where Mr. Cargioli was waiting, Mr. Cargioli put a gun to the back of his head. Mr. Taleb pulled out a large sword he had apparently picked up when he was in the house. Someone in Mr. Cargioli’s group tackled Mr. Taleb. In his statement, Mr. Cargioli said it was very dark and difficult for him to see. Several people in Mr. Cargioli’s group forced Mr. Taleb down the alleyway. Mr. Cargioli picked up a shovel intending to help the others subdue Mr. Taleb but decided that his associates had matters under control. Mr. Cargioli dropped the shovel and went into the home to search for drugs and firearms. According to his statement, Mr. Cargioli thought that the others in the group were just going to assault Mr. Taleb; he did not know they would kill him.

28In his statement, Mr. Cargioli said that he encountered Ms. Taleb at the door. He chased her into the house and hit her twice with the gun. Mr. Cargioli forced Ms. Taleb into a chair and told her to sit with her head down while the others searched the house. Mr. Cargioli searched a bedroom while others in the group were searching different parts of the house. They left when Mr. Taleb Sr. and his older son arrived home. Mr. Cargioli told the police that he only learned that Mr. Taleb had been stabbed after they left the scene.

(iv) Mr. Morrisson’s version of events

29Mr. Morrisson also gave a statement to the police. He began by lying about almost everything. When confronted with the fact that his DNA was located on a toque that had been found in the alleyway, Mr. Morrisson changed his story. On this version, Mr. Morrisson had attempted to grab the marihuana from Mr. Taleb, who had reacted by stabbing Mr. Morrisson in the left forearm with a large sword. Mr. Morrisson told the police that after he was stabbed, he immediately returned to the car and had no further involvement with Mr. Taleb. To his knowledge, none of his associates had any weapons.

30In his statement, Mr. Morrisson acknowledged going into the Taleb household after he was stabbed. He grabbed Ms. Taleb but let go of her when he saw that she was bleeding. Mr. Morrisson proceeded to search parts of the house. He also indicated that he picked up the sword that Mr. Taleb had stabbed him with and took it from the scene. After returning to Toronto, he threw it in the garbage. The sword was never recovered.

(v) Mr. Kamal’s version of events

31In his statement to the police, Mr. Kamal admitted driving the others to Mr. Taleb’s home in his car. He denied knowing they were going to Mr. Taleb’s home to rob him. Mr. Kamal claimed he initially stayed in the car and watched as a group of men fought with Mr. Taleb. Because it was dark, he could not see “who was doing what”. Mr. Kamal then heard his friend, Mr. Morrisson, say, “I got stabbed”. Mr. Kamal left the car and ran to help his friend. Mr. Taleb had a large sword in his hands. Mr. Kamal struck Mr. Taleb, but only to protect Mr. Morrisson.

32In his statement, Mr. Kamal indicated he saw several of his friends fighting with Mr. Taleb at the end of the alleyway. Mr. Kamal denied going down the alley, stabbing Mr. Taleb, or having any knowledge of who stabbed Mr. Taleb. Mr. Kamal acknowledged going into the Talebs’ residence briefly after his involvement with Mr. Taleb in the alleyway. He said he was looking for other people and was panicking.

33In the statement, Mr. Kamal identified a knife found in the alleyway as a knife he kept in his vehicle. Mr. Kamal denied taking the knife from the vehicle or having it in his possession in the alleyway.

III

The Conviction Appeals

A. Issues on which the court did not call on the Crown

34The appellants raised several grounds of appeal. The court did not call on the Crown on four of the grounds of appeal advanced by the appellants. I will address those grounds first.

(i) Did the trial judge err in admitting the expert opinion evidence of Barbara Doupe?

35Ms. Doupe worked in the chemistry section of the Centre for Forensic Sciences as an expert in fiber and textile damage. Ms. Doupe offered opinions as to the nature and recentness of the damage caused to the parka Mr. Taleb was wearing when he was attacked. She opined that the damage was recent, as she defined that term, and that the nature of the damage was consistent with the parka having been pulled off of Mr. Taleb as he moved in the opposite direction. Ms. Doupe also gave opinion evidence about the two penetration marks found in the outer layers of the parka. In her opinion, the marks were consistent with puncture cuts made with a stabbing motion, rather than cuts made with a slashing motion.

36Initially, counsel for the appellants had indicated they would not challenge the admissibility of Ms. Doupe’s evidence. Shortly before trial, counsel for Mr. Morrisson indicated he would challenge the admissibility. A voir dire was held.

37The trial judge gave brief reasons for admitting the evidence: R. v. Cargioli et al., 2015 ONSC 7336, at para. 55. He was satisfied the evidence was necessary, in the sense that Ms. Doupe offered opinions and insights that were beyond the realm of common sense and the everyday experience of jurors. The trial judge was also satisfied that admitting the evidence raised “no hint of prejudice”.

38Ms. Doupe’s evidence was relevant in that it could assist the jury in determining the nature and cause of the tears and puncture marks in the parka, and whether the parka was forcibly removed from Mr. Taleb’s body. Both facts, if established, offered some support for the theory advanced by the Crown.

39The probative value of Ms. Doupe’s evidence was a matter for the jury to decide. As is not uncommon with expert evidence, Ms. Doupe’s opinions were far from determinative of any fact in issue. Nevertheless, the evidence remained relevant and had some probative value.

40When a ruling on the admissibility of expert evidence is challenged on appeal, this court will defer to the trial judge’s balancing of probative value against prejudicial effect absent legal error, a material misapprehension of the evidence, or an unreasonable conclusion: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 231-34. The trial judge’s finding that the evidence was relevant and had some probative value is easily sustainable on this record. Moreover, it is impossible to see how the trial judge could have erred in his finding that there was no prejudice flowing from the admission of the evidence when counsel did not argue at trial that there was any potential prejudice flowing from the admission of the evidence. The suggestion made for the first time on appeal that the prejudice flows from Ms. Doupe’s attempt to tailor her evidence to fit the theory of the Crown must be rejected as baseless.

(ii) Did the trial judge err in rulings made during the testimony of Ms. Omaya Taleb, and did he err in refusing to give a Vetrovec instruction in relation to her?

41In her evidence in-chief, Ms. Taleb testified that one of the intruders told her that her son had been stabbed. In cross-examination, Ms. Taleb agreed that she did not tell the police in her statement that one of the attackers had told her that her son had been stabbed. In fact, in Ms. Taleb’s police statement, she had indicated she was told her son had been stabbed.

42When the actual content of the statement was brought to the attention of the trial judge, he directed that counsel must put the accurate version of the statement to Ms. Taleb if counsel intended to proceed with that line of questioning. Counsel did so.

43The trial judge did not err in his ruling. He could have waited and allowed the Crown to correct the record in re-examination. However, the course followed fell well within the trial management powers of the trial judge: R. v. Samaniego, 2022 SCC 9, 466 D.L.R. (4th) 581, at paras. 39-56. Counsel who inadvertently mislead a witness as to the content of a statement on which the witness is being cross-examined cannot complain when a trial judge directs that steps to correct the misapprehension must be taken by counsel if counsel wishes to pursue that line of questioning.

44Counsel also takes issue with the Crown’s use of the phrase “in fairness” in his objection to counsel’s questions to Ms. Taleb. Counsel submits that Crown counsel’s language would suggest to the jury that defence counsel was engaged in improper conduct. Counsel’s submission is an overreaction to an inappropriate word. The trial judge made it clear to the jury that defence counsel had done nothing improper and that the jury should take nothing from the Crown’s objection.

45The appellants submit that the Crown went beyond the proper limits of re‑examination when questioning Ms. Taleb. They refer to two areas addressed in the re-examination. Both relate to issues that arose in cross-examination. The trial judge did not misuse his discretion in permitting the Crown to ask those questions.

46Counsel for all accused at trial asked for a Vetrovec caution in respect of the evidence of Ms. Taleb. In their submission, Ms. Taleb had been caught in a deliberate lie during her cross-examination. She had testified that when she was on the phone with 9-1-1, she told her husband in Arabic that their son, Shadi, had been stabbed. Ms. Taleb maintained that position until confronted on cross‑examination with an English translation of her statements prepared by a certified translator. When presented with the translation, Ms. Taleb agreed the translation was correct and she had told her husband “somebody” had been stabbed.

47Ms. Taleb’s evidence was important to the Crown’s case. It was open to the jury to find that Ms. Taleb deliberately lied in her testimony concerning her statement to her husband while she was on the 9-1-1 call. The trial judge told the jury that any deliberate lie told by a witness was an important consideration in assessing the witness’s credibility.

48Apart from Ms. Taleb’s evidence about her statement to her husband in Arabic while she was on the 9-1-1 call, there was no reason for a Vetrovec instruction in respect of Ms. Taleb’s evidence. Ms. Taleb was not an accomplice, an unsavoury witness, or someone with a criminal background. She was a grieving mother.

49It was not conceded that Ms. Taleb had deliberately lied on the witness stand. The Crown took the position that Ms. Taleb, who was understandably distraught, had made an honest mistake in her evidence. It was for the jury to decide what to make of the defence argument that Ms. Taleb had deliberately lied. A Vetrovec instruction, based only on the claim that Ms. Taleb had deliberately lied, ran the risk of putting the judicial stamp of approval on the defence contention that Ms. Taleb had deliberately lied, thereby taking away from the jury an important determination to be made by them in assessing her credibility. The trial judge chose to deal with this aspect of her evidence as part of his general credibility instructions.

50Ultimately, it was for the trial judge in the exercise of his discretion to decide whether a Vetrovec instruction was necessary: R. v. Boone, 2016 ONCA 227, 28 C.R. (7th) 1, at paras. 50-51. The trial judge’s decision that a Vetrovec instruction would be inappropriate based upon a single feature of Ms. Taleb’s evidence falls within the scope of that discretion.

(iii) Did the trial judge err in admitting Mr. Morrisson’s statement to the police?

51The trial judge ruled that, with the exception of one part of Mr. Morrisson’s statement, his statement to the police was voluntary and admissible: R. v. Cargioli, 2015 ONSC 3788. The appellant does not take issue with the legal principles as referenced by the trial judge. He does, however, challenge factual findings made by the trial judge and invites this court to reweigh the evidence. This court cannot do so: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 22.

52For example, one of the arguments made at trial rested on the claim that Mr. Morrisson had been induced to make a statement because of police threats to prosecute his girlfriend. The trial judge found as a fact that the relationship between Mr. Morrisson and the girlfriend was not such that Mr. Morrisson would feel any obligation to protect the girlfriend from arrest. That finding was open on the evidence and is not reviewable here.

53The other arguments challenging the ruling are similarly fact-based and also answered by the deference owed to the trial judge’s findings.

(iv) Did the trial judge err in his instructions on the use the jury could make of the evidence that Mr. Morrisson took the sword from the scene of the homicide and later disposed of it?

54In his statement, Mr. Morrisson said that Mr. Taleb stabbed him in the arm with a knife. Others referred to the object in Mr. Taleb’s possession as a “sword”. I will use that terminology. Mr. Morrisson indicated that when he and others left the scene, he took Mr. Taleb’s sword with him and later threw it in the garbage. The sword was never recovered.

55In the part of his instructions dealing with various evidentiary rules, the trial judge instructed the jury on after-the-fact conduct at some length. He described the evidence as a form of circumstantial evidence. He told the jury they had to carefully consider any possible explanation for the after-the-fact conduct other than the commission of the offence. He also told them that they could use the conduct as evidence of the commission of an offence only if they rejected any other explanation for the conduct. He reminded the jury to consider other explanations for the after-the-fact conduct before drawing any inference against an accused.

56The trial judge told the jury that, with the exception of the evidence that Mr. Morrisson had taken the sword from the scene and disposed of it, none of the after-the-fact conduct identified by the trial judge could assist the jury in determining the level of liability of any of the accused. In other words, with the exception of the “sword” evidence, none of the after-the-fact evidence could help the jury decide between manslaughter and murder, or between second degree murder and first degree murder. The trial judge’s instructions on after-the-fact evidence accurately reflected the governing case law: e.g., R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 107-19.

57The trial judge dealt separately with the evidence that Mr. Morrisson removed the sword from the scene and later threw it away. He told the jury they could use that evidence when considering what actions Mr. Morrisson did or did not engage in during the attack on Mr. Taleb. He further indicated that depending on their determination of what acts Mr. Morrisson had engaged in, those acts could be relevant to a determination of his mental state, and in particular whether the Crown had proved that he had the mens rea for murder.

58I see no error in this instruction. The jury could reasonably have drawn a series of inferences, beginning with the inference that the sword taken from the scene by Mr. Morrisson was used to stab Mr. Taleb. The jury could further infer that Mr. Morrisson was in the group that attacked Mr. Taleb and that Mr. Morrisson took the sword from the scene because it was Mr. Morrisson who had used the sword to stab Mr. Taleb. Finally, the jury could infer that if Mr. Morrisson stabbed Mr. Taleb with the sword, he did so meaning to kill him, or cause him bodily harm that he knew was likely to cause Mr. Taleb’s death and was reckless as to that consequence.

59The inferences outlined above, while all reasonable, were certainly not the only possible inferences that could be drawn from the evidence that Mr. Morrisson took the sword from the scene and disposed of it. However, the possibility of other inferences does not mean that the evidence loses its potential probative value: Calnen, at para. 112. It was for the jury to decide what inference, if any, should be drawn from the evidence. In making that decision, the jury would no doubt bear in mind the trial judge’s instruction that they could use the evidence of the after‑the‑fact conduct to support the inference of guilt, only after considering and rejecting any other explanation for the conduct.

60The trial judge did not err in his instructions on the use the jury could make of the evidence that Mr. Morrisson took the sword from the scene and disposed of it.

B. Issues on which the court did call on the Crown

(i) Did the trial judge misapprehend the evidence relating to the location of the shovel found in the alleyway?

61Trial judges review the evidence to assist juries in recalling the substance of the evidence and applying the evidence to the applicable issues. Juries are told that it is ultimately their recollection of the evidence that counts. A factual error by the trial judge in the review of the evidence will not often amount to reversible error. Counsel for Mr. Cargioli submits that this is one of those rare cases where a single factual error did result in a miscarriage of justice. The argument only takes flight if the trial judge actually misstated the evidence. He did not.

62In his statement to the police, Mr. Cargioli said he had struck Mr. Taleb with his gun near or at the mouth of the alleyway. Mr. Cargioli’s associates then attacked Mr. Taleb. As the group moved toward the end of the alleyway, Mr. Cargioli indicated that he picked up a shovel intending to assist in the attack on Mr. Taleb. However, he could not get close to Mr. Taleb because the others had him surrounded in the narrow alleyway. Mr. Cargioli said he became satisfied that the others had the matter under control. He dropped the shovel and headed back to the house to look for Mr. Taleb’s guns and drugs. Mr. Cargioli insisted he did not go to the end of the alleyway where Mr. Taleb’s body was found.

63A police photograph of the alleyway showed a shovel lying in the alleyway toward the end of the alleyway and near where the police found Mr. Taleb’s body. The Crown argued that the location of the shovel in the alley, as evinced by the police photograph, put Mr. Cargioli at, or very near to, the end of the alleyway where Mr. Taleb was killed. The Crown argued that Mr. Cargioli’s presence so close to the murder site, armed with a shovel and prepared to join the attack, provided cogent evidence of his involvement in the attack.

64Counsel for Mr. Cargioli, relying on Mr. Cargioli’s statement, took the position that he did not drop the shovel at the location where it was depicted in the photograph and that the shovel must have been moved at some point before the photograph was taken. Counsel submitted that Mr. Cargioli dropped the shovel near Mr. Taleb’s parka at the mouth of the alleyway. The location of the shovel near the mouth of the alleyway was consistent with Mr. Cargioli’s assertion that he never went down to the end of the alleyway.

65Mr. Taleb’s brother, Mohammed, and his father, Mahmoud, both gave evidence about the location of the shovel. Mohammed testified that the police photograph accurately depicted the location of the shovel when he saw it in the alleyway. In cross-examination, he agreed that he had told the police the shovel was in the front of the alleyway near the parka. He had given evidence to a similar effect at the preliminary inquiry. In re-examination, Mohammed repeated his testimony that the photograph accurately depicted the location of the shovel.

66The evidence of Mr. Taleb’s father about the location of the shovel was brief. He testified that he saw the shovel “between the two houses … in the front like of the two houses, not on the end”. Mr. Taleb Sr. added that the shovel was “just as you pass the – the glass on the porch”. The jury had pictures of the house and the alleyway to assist in following this evidence. The alley was 45 feet long, and Mr. Taleb’s body was found about 35 feet from the front of the alley.

67In his review of the evidence, the trial judge accurately summarized the brother’s conflicting testimony about the location of the shovel. The trial judge summarized the father’s evidence in these words:

He saw one shovel by the side garage door and one in the alley.

There was no cross-examination.

68Counsel for Mr. Cargioli objected to the trial judge’s summary of the father’s evidence. He submitted that the father’s evidence clearly put the shovel in front of, or at the mouth of the alley and not merely “in the alley”. Counsel submitted that the trial judge’s reference to the shovel being “in the alley” undermined the position of the defence and was potentially misleading.

69Ultimately, after listening to the tape of the evidence and hearing submissions from the Crown and counsel for Mr. Cargioli, the trial judge decided that the father’s testimony did place the shovel in the alley. The father was not asked to elaborate on the location of the shovel. The trial judge was satisfied that he should say no more about the location of the shovel in his review of the evidence.

70Like the trial judge, I find the father’s evidence about the location of the shovel vague. The trial judge was concerned that a reference to the location within the alley of the shovel based on the father’s evidence would amount to an interpretation of that evidence and not simply a review of that evidence. The trial judge was satisfied that any further interpretation of the father’s evidence about the location of the shovel was best left to counsel’s submissions. Nothing said by the trial judge interfered with the jury’s ability to come to its own conclusion about the location of the shovel, based on the jury’s understanding of the evidence, as no doubt informed by counsel’s submissions.

(ii) The instructions on the co-conspirator’s exception to the hearsay rule

71The Crown alleged that the appellants entered into an agreement to rob Mr. Taleb and, that in furtherance of that agreement, one or more of the appellants stabbed and killed Mr. Taleb. The Crown’s theory brought into play the exception to the hearsay rule referred to as the co-conspirator’s exception. That exception makes acts and declarations done in furtherance of a common design admissible against all parties to the common design. The application of the co-conspirator exception is governed by the three-step process laid down in R. v. Carter, [1982] 1 S.C.R. 938, at p. 947:

Step One: The jury must consider all of the evidence and decide whether the alleged agreement has been proven beyond a reasonable doubt.

Step Two: If the alleged agreement is proved, the jury must decide, based on evidence directly admissible against a particular accused, or other alleged conspirator, whether, on the balance of probabilities, that person is probably a party to the agreement.

Step Three: If the jury is satisfied that an accused is probably a party to the agreement, the jury must then decide whether the Crown has proved beyond a reasonable doubt that the accused is a party to the agreement. To do so, the jury must consider the evidence directly admissible against an accused and the acts and declarations done or made in furtherance of the agreement by anyone else who was found at step two to be a probable party to the agreement.

72Counsel for Mr. Kamal submits the trial judge made reversible errors at each step of the Carter instruction. Counsel contends that the trial judge erred at Step One by instructing the jury that, in determining whether the Crown had proved the agreement to rob, the jury could take into account acts and statements of the alleged parties to the agreement, even if those acts or statements were not done in furtherance of the agreement, or during the currency of the agreement. Counsel points specifically to the admission by Mr. Cargioli and Mr. Morrisson in their statements to the police that there was a plan to rob Mr. Taleb. Counsel asserts that the statements to the police were not made in furtherance of the agreement and were made after the agreement had ended. For either or both reasons, counsel argues the evidence could not be used by the jury in deciding whether the agreement existed at step one of Carter. Counsel makes the same point in respect of the admissions made at trial by Mr. Morrisson and Mr. Cargioli that there was an agreement to rob Mr. Taleb.

73Counsel’s submission blurs the distinction between step one and step three of the Carter inquiry. The question at step one is the existence of the agreement, and not the identification of the parties to the agreement. Step one is not concerned with whether the evidence shows someone to be a party to the agreement, but only with whether the evidence supports the inference that the agreement existed.

74Evidence of acts done and statements made by alleged parties to an agreement can amount to circumstantial evidence of the existence of the agreement if, as a matter of common sense and logic, they make the existence of the agreement more likely. Used in this way, the evidence is not hearsay, and its admissibility is not dependent on whether the act or statement is in furtherance of the agreement, or was done or made during the existence of the agreement. For example, the statement of a person that he was a party to a previous agreement can, as a matter of common sense, make the existence of that prior agreement more likely. The statement would be admissible at stage one of the Carter inquiry: see R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 543, at paras. 111-14.

75In R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at para. 25, Rosenberg J.A., with his usual clarity, explained the very different nature of the inquiries required under steps one and three of the Carter inquiry:

Assume a conspiracy allegedly involving only an agreement between A and B in which A gives a statement to the police in which he says that he and B conspired to traffic in cocaine. Using all the evidence at stage one, including the statement, the jury could conclude beyond a reasonable doubt that a conspiracy involving A and B to traffic in cocaine existed. However, the statement has a limited use. It could be used to establish the existence of the conspiracy at stage one, and can also be used to show A’s probable membership in the conspiracy at stage two. However, as against B, the statement cannot be used to show that B was a probable member of the conspiracy at stage two.

76The reasoning in Bogiatzis reflects the analysis in R. v. Barrow, [1987] 2 S.C.R. 694, at paras. 73-77: see also R. v. Smith, 2007 NSCA 19, 216 C.C.C. (3d) 490, at paras. 190, 235-36, aff’d 2009 SCC 5; R. v. Collins (1999), 133 C.C.C. (3d) 8 (Nfld. C.A.), at paras. 2, 93; R. v. Tran, 2014 BCCA 343, 316 C.C.C. (3d) 270, at paras. 103-07; D. Paciocco, P. Paciocco, L. Stuesser: The Law of Evidence, 8th ed. (Toronto: Irwin Law Inc., 2020), at pp. 202-05.

77In a footnote in Puddicombe, the court left open the question of whether a confession admitting involvement in an agreement to commit a crime could be admissible at step one of the Carter analysis. In Collins, the Newfoundland Court of Appeal held that a confession could be admitted for that purpose. The observations in Barrow and Bogiatzis strongly suggest that a statement to the police admitting involvement in an agreement will qualify as evidence of the existence of the agreement at step one of the Carter analysis.

78I see no reason why the timing of a particular statement, or the person to whom that statement is made, should determine its admissibility at step one of the Carter analysis as evidence of the existence of the agreement. A statement made while an agreement is ongoing can provide circumstantial evidence of the existence of the ongoing agreement. Similarly, a statement made in reference to a previous agreement can constitute circumstantial evidence that the agreement previously existed. Once it is understood that an act or statement is considered at step one of the Carter analysis only as circumstantial evidence of the existence of the agreement, distinctions based on the timing of the act or statement, or the person to whom the statement is made, become potentially significant only to the probative value of that evidence as proof of the agreement.

79There may be circumstances in which a specific act or statement referring to a prior agreement does not, as a matter of common sense or logic, make the existence of that agreement at the earlier time more likely. In those circumstances, the evidence will not be admissible at step one of the Carter inquiry, not because of any special evidentiary rule, but because the evidence is not relevant to the existence of the agreement and, therefore, cannot be admitted.

80The appellant relies on R. v. Dawkins, 2021 ONCA 113, 155 O.R. (3d) 111, to support the contention that the admissions of Mr. Morrisson and Mr. Cargioli as to the existence of the agreement to rob were not admissible at step one of the Carter inquiry. Dawkins involved a guilty plea to a conspiracy charge entered by a co-accused in a prior proceeding. The trial judge told the jury that the co-accused’s guilty plea at the prior proceeding was conclusive evidence of the existence of the agreement at step one of the Carter inquiry.

81Dawkins is distinguishable. This case does not involve a guilty plea made at a prior proceeding. Nor, in this case did the trial judge tell the jury that any admission made by an accused was conclusive as to the existence of the agreement. Instead, he referred to those statements as part of the evidence to be considered at step one of the Carter analysis. To the extent that the trial judge did refer to the admissions by Mr. Morrisson and Mr. Cargioli, he was not referring to guilty pleas at a prior proceeding, but rather to admissions made as part of the proceedings before the jury. Dawkins does not assist the appellants.

82I see no error in the trial judge’s instruction on step one of the Carter analysis. I would add that the evidence of the existence of an agreement to rob Mr. Taleb was overwhelming and not really in issue at the trial. Even Mr. Kamal, the only appellant to argue that he was not a party to the agreement to rob, did not suggest that the agreement did not exist. Any error in the instruction at step one could not have prejudiced the appellants.

83Counsel for Mr. Kamal submits the trial judge erred at step two of the Carter inquiry by telling the jury they could consider evidence of conversations to which Mr. Kamal was not a party in deciding whether he was likely a party to the plan to rob Mr. Taleb.

84The trial judge told the jury that certain conversations Mr. Cargioli had on the phone with other parties to the agreement to rob could be considered in assessing whether Mr. Kamal was probably a member of the agreement, as required at step two of the Carter analysis. These conversations occurred in Mr. Kamal’s car while he was driving Mr. Cargioli, Mr. Morrisson, and others to Mr. Taleb’s residence for the purposes of robbing him. Some of the conversations occurred almost immediately before the robbery began. There was evidence that the conversations were about the robbery.

85I do not agree that the trial judge erred in his instruction as to the potential use of the evidence of the phone calls during the trip to Mr. Taleb’s home. It was open to the jury to infer that the conversations were about the imminent robbery of Mr. Taleb. It was also open to the jury to infer that Mr. Kamal overheard the conversations and, yet, continued to drive Mr. Cargioli and the others toward the scene. The evidence was directly admissible against Mr. Kamal to show his knowledge of the robbery plan and his participation in that plan. The evidence was properly left with the jury at step two of the Carter analysis.

86Counsel further contends that the trial judge wrongly told the jury that they could infer Mr. Kamal’s likely involvement in the plan to rob based on an inference as to “the co-accused’s state of mind or probable actions of recruitment”. The trial judge told the jury in reference to the evidence admissible against Mr. Kamal at step two that:

You can also decide whether or not in all the circumstances to draw the inference that a group going to commit an armed robbery would not recruit a person to drive who was not in on the plan.

87As I read this instruction, the trial judge was telling the jury that evidence that Mr. Kamal drove the rest of the robbers to the scene of the robbery allowed for the inference that Mr. Kamal, the driver, was also a party to the robbery plan. The trial judge’s instruction that, in deciding whether to draw that inference, the jury could consider whether a group of robbers would recruit someone with no knowledge of the robbery to drive them to the scene, strikes me as no more than a suggestion that the jury use their common sense.

88The appellants’ objection to the trial judge’s instruction on step three of the Carter direction does not allege any error in what the trial judge said to the jury. Instead, the appellants submit that the trial judge was required to repeat the instruction when addressing the essential elements of the offence under each potential basis for liability.

89The trial judge told the jury that liability as a co-principal under s. 21(1)(a) required proof of a common design to rob, as did any liability under s. 21(2). Although the existence of a common design was not an essential element for liability as an aider under s. 21(1)(b), there can be no doubt that the allegation that all of the appellants were party to an agreement to rob Mr. Taleb was a central feature of the Crown’s narrative in respect of all potential bases for liability.

90I do not, however, agree that it was essential to a proper charge that the trial judge repeat the Carter instruction, presumably three times – once for each basis for liability. The Carter instruction explains an evidentiary rule used when deciding whether the Crown has proved beyond a reasonable doubt that an individual is a party to a common unlawful design. I see no reason to repeat the evidentiary rule when instructing the jury on the essential elements of liability applicable to the various modes of criminal participation described in s. 21(1) and s. 21(2) of the Criminal Code.

91The trial judge did explain the elements of liability as a co-principal, aider, or as a party to a common design to rob. He also referred, without detail, to a good deal of evidence relevant to those considerations. A repetition of the Carter instruction would not have advanced the trial judge’s explanation of the basis for liability under the various provisions of the Criminal Code. Even if it might have been helpful to repeat the Carter instruction, given only a short time before the trial judge addressed the elements of liability, that repetition cannot be said to have been essential to a proper charge. The jury was given a well-indexed written version of the charge. They could readily find and refer to the Carter instruction, if needed, when reviewing the various bases for liability under s. 21(1)(a) and s. 21(1)(b) and s. 21(2).

(iii) Did the trial judge err in failing to declare a mistrial after the Crown’s opening?

92Counsel for the appellants all applied for a mistrial after the Crown completed its opening address to the jury. They argued that the opening was too long, argumentative, misstated the evidence, and repeatedly appealed to the jury’s emotions, and in particular the sympathy the jury would feel for Mr. Taleb’s parents.

93The trial judge rejected most of the objections as unfounded. He also concluded that the valid objections to the Crown’s opening could be adequately addressed by way of a corrective instruction. The trial judge gave brief reasons for dismissing the mistrial motion and delivered corrective instructions to the jury some three days later. He subsequently gave more detailed reasons for refusing the mistrial motion: R. v. Cargioli, 2015 ONSC 7336, at paras. 3-44.

94The trial judge told the jury that the Crown’s opening was too long, argumentative, and improperly invoked feelings of sympathy or prejudice in support of the Crown’s position. He instructed the jury that those feelings had no place in their deliberations. He went on to tell the jury that the Crown opening was not evidence of anything, and that it was the defence position that the Crown had misstated evidence in the opening. The trial judge told the jury that it would ultimately be their job to decide what the evidence was and, to the extent that the Crown’s reference to the evidence in his opening was inconsistent with their recollection, they would disregard the Crown’s comments. Finally, the trial judge told the jury that statements made by one accused were, subject to some exceptions he would explain later, admissible only against that accused. This instruction was given in response to the Crown’s reference to statements made by the accused without adding any caveat as to the admissibility of those statements.

95Improper statements by the Crown during its opening address to the jury can invoke a variety of remedies. A corrective instruction by the trial judge is the most common; a mistrial is the most draconian. It is for the trial judge, in the exercise of his discretion, to determine the appropriate remedy in the specific circumstances: R. v. Howley, 2021 ONCA 386, at paras. 46-47.

96The trial judge was satisfied that some aspects of the Crown opening required correction. He was not satisfied, as counsel argued on appeal, that the opening was “egregiously improper”. The trial judge’s characterization of the opening, and his assessment that the failings in the opening were amenable to correction, were not unreasonable. I would not override the trial judge’s exercise of his discretion.

97Counsel further argue that, even if a corrective instruction may have been appropriate, the trial judge’s corrective instructions came too late to be effective. As I understand the record, the instructions came on the fourth day after the Crown’s opening. The judge had heard extensive submissions and had taken some time to consider his decision. He had also commenced the trial, allowing the Crown to call two police witnesses.

98The trial judge’s broad authority to manage the trial included the authority to commence the evidence while his decision on the mistrial motion was pending. The relatively brief and justifiable delay in delivering the corrective instructions could not have had any impact on the remedial force of those instructions.

(iv) Alleged errors in the jury instruction on liability for manslaughter, murder, and first degree murder

99The trial judge had a difficult task when the time came to instruct the jury. There were multiple accused, many legal principles in play, and several evidentiary rules that had to be explained. The trial judge also had many weeks of evidence to be distilled and related to the issues. Counsel and the trial judge worked hard at the charge during a five-day pre-charge hearing.

100The charge to the jury was, of necessity, lengthy (718 paragraphs). The trial judge gave the jury written copies of the instructions to be used by them during their deliberations. As indicated above, that document included a helpful table of contents that the jury could use to find the relevant parts of the trial judge’s instructions during their deliberations.

101The trial judge also provided the jury with a roadmap of his charge in the instructions. He told the jury how he proposed to deal with the evidence:

In discussing the elements of the offence and the questions you must decide, I will make only brief reference to the types of evidence that may relate to those elements and questions. Your obligation is to consider all the evidence unless there is certain evidence that I instruct you cannot be considered for a particular purpose. In Part III of the charge I then summarize the evidence in greater detail. The index [attached to the written version of the charge] should assist you in locating items in the summary.

102Some of the objections to the charge raised on appeal seem premised on the contention that the trial judge’s approach was fundamentally flawed and inevitably resulted in a failure to properly relate the evidence to the issues, a fundamental requirement of a charge to the jury. I cannot accept that contention.

103Appellate review of jury instructions requires a functional perspective. The instructions must be considered as a whole and in the context of the conduct of the particular trial. There is no one way to instruct a jury and there is no one way to deal with the evidence in the course of a jury’s instruction. Trial judges have a broad discretion as to the manner in which they instruct a jury, as long as those instructions adequately arm the jury with the tools necessary to return a true verdict based on the application of the proper legal principles to the facts as found by the jury: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-22; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 44-48; R. v. Jacquard, [1997] 1 S.C.R. 314, at pp. 325-26; R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 19-21. Nothing in the approach taken by the trial judge precluded achieving that goal.

104However, the question remains whether the specific allegations of misdirection and non-direction advanced by the appellants merit reversal.

(a) Alleged errors in the manslaughter instruction

105Mr. Cargioli and Mr. Morrisson acknowledged their liability for manslaughter. Mr. Kamal did not. He alleges error in the instructions on manslaughter.

106Counsel for Mr. Kamal submits that, while the trial judge correctly identified the elements which the Crown had to prove to establish manslaughter, he erred in his review of the relevant evidence in two respects. First, he referred to evidence that was relevant to the existence of the agreement and not Mr. Kamal’s participation in it. Second, his review was unbalanced and failed to refer to evidence favourable to Mr. Kamal’s position that he was not a party to the agreement to rob.

107I begin my consideration of these arguments with the observation that Mr. Kamal was convicted of murder. Assuming no misdirection on the murder charge, I have difficulty seeing how an error in the review of the evidence relating to the lesser and included offence of manslaughter could have prejudiced Mr. Kamal. I will, however, address the merits of this argument as, in my view, it cannot succeed.

108In the course of explaining liability for manslaughter, the trial judge did refer to evidence that was potentially relevant to the existence of the agreement. He was correct in doing so. Proof of the existence of the agreement was a step in proving that Mr. Kamal was a party to that agreement, a prerequisite to Mr. Kamal’s liability for manslaughter.

109The trial judge also reviewed the evidence relevant to Mr. Kamal’s participation in the agreement. In doing so, he referred to evidence capable of supporting Mr. Kamal’s position that he was not a party to the agreement to rob Mr. Taleb. That evidence included:

• Mr. Kamal’s statement to the police in which he said he did not know of any plan to rob Mr. Taleb;
• Mr. Kamal’s statement that he was not wearing a mask;
• Mr. Kamal’s statement that he went into the house only because he panicked and was not thinking straight; and
• Mr. Kamal’s statement that he only punched and pushed Mr. Taleb in an effort to separate him from Mr. Morrisson, who Mr. Taleb had just stabbed.

110The trial judge fairly marshalled the evidence for and against Mr. Kamal’s involvement in the agreement to rob. He also gave a clear W.D. instruction in respect of that evidence. The manslaughter instruction was correct.

(b) The alleged errors in the murder instruction

111The trial judge told the jury that each of the appellants could be found guilty of murder as a principal (s. 21(1)(a)), an aider (s. 21(1)(b)), or a party to a common design (s. 21(2)). The appellants accept that those routes to liability were available on the evidence. They submit, however, that the trial judge made errors in describing the essential elements of each mode of liability.

112Counsel submit that when instructing the jury on potential liability for murder as a co-principal under s. 21(1)(a), the trial judge glossed over “the participation issue” by failing to instruct the jury that an accused could only be a co-principal if he was one of the individuals that jointly attacked Mr. Taleb.

113The trial judge told the jury that liability under s. 21(1)(a) as a co-principal required the Crown to establish three things:

• the accused acted in concert with others to attack Shadi Taleb;
• the accused contributed to the death of Shadi Taleb by stabbing or restraining him as he was stabbed; and
• in attacking Shadi Taleb, the accused had the intent required for murder under s. 229(a).

114In response to a question from the jury, the trial judge further indicated that an accused could be a co-principal to a murder by restraining the victim, only if the restraining occurred “during the stabbing itself”.

115I see no error in this instruction. The trial judge told the jury that an accused could be a co-principal only if physically and actively involved in the joint attack on Mr. Taleb, during which he was killed. By limiting the activity to either the stabbing of the victim, or the holding of the victim while he was being stabbed, the trial judge provided a definition of “participation” which, if anything, was unduly favourable to the accused. The trial judge fully and fairly addressed the “participation” issue engaged when considering liability as a co-principal.

116Counsel further contend that the charge on the mens rea requirement to establish guilt as a co-principal was fatally deficient in two ways. First, they submit the jury was not directed to consider the mens rea as it related to each accused individually but was invited to look for a “group mens rea”. Second, counsel submit that the trial judge erred in failing to direct the jury’s attention to the specific actions taken by each accused when considering whether to draw the inference as to the existence of the necessary mens rea. Counsel assert that the “common sense” inference part of the mens rea instruction was not helpful in the circumstances of this case.

117The charge must be considered as a whole. The trial judge repeatedly told the jury, including in a section of the instructions entitled “Separate Verdicts”, that the jury had to return a separate verdict for each accused, and that they must base that separate verdict on “the evidence and legal principles that apply to him, as I have explained and will explain to you later in these instructions”. The trial judge also told the jury that the burden of proof applied separately to each accused in respect of each offence for which they could be convicted.

118The trial judge made a further reference to the requirement to consider each accused separately, and to apply the burden of proof to each separately. He told the jury:

[E]ach is a separate individual who cannot be found guilty of any offence unless the evidence relating to him proves his guilt of that offence beyond a reasonable doubt. Each person is entitled to separate consideration (in relation to each charge). Each is entitled to have his case decided on the basis of his own conduct and state of mind and from the evidence that may apply to him.

119The trial judge identified the mens rea component for murder under s. 229(a) on at least two separate occasions. He told the jury that the mens rea inquiry under s. 229(a) had to be made separately and individually for each accused.

120In light of all these instructions, I see no reason to conclude that the jury would have understood that they should return their verdicts based on a determination of a “group mens rea”.

121There is no error in the trial judge’s failure to isolate and list for the jury the different actions of each accused that might be relevant to the jury’s determination of the mens rea issue as applied to co-principals. The jury was told that the only acts of participation which could support a finding that an accused was a co‑principal were either stabbing the victim, or restraining the victim while he was being stabbed. Either act admits readily of an inference of the requisite mens rea. The “common sense” inference instruction given by the trial judge was not out of place, assuming the jury was satisfied that the accused participated in the murder in one of the ways identified by the trial judge.

122The appellants’ arguments aimed at the instruction on liability for murder as an aider, but do not take issue with the trial judge’s instructions on the law applicable to liability as an aider and abetter. They submit that the trial judge failed to properly review the evidence relevant to that potential liability.

123The trial judge told the jury that to prove liability as an aider for murder, the Crown had to establish beyond a reasonable doubt that an accused knew the stabber or stabbers intended to commit murder as defined in s. 229(a), and that the aider intended to assist the stabber or stabbers in the commission of the murder. I do not accept counsel’s submissions that the acts of an aider could not be acts that involved the direct involvement in the assault on Mr. Taleb. To the contrary, an accused can be liable both as an aider and a co-principal. Acts which demonstrate that an accused participated in the murder as a co-principal may also constitute the actus reus required for aiding. For example, holding the victim while he is being stabbed by others in the group can be both the conduct of a co‑principal and the conduct of an aider. The distinction between the two forms of liability rests in the required mens rea.

124The trial judge did not separately review the evidence in the part of his instructions dealing with liability for murder as an aider. He did identify certain kinds of conduct which could constitute aiding (e.g., blocking Mr. Taleb’s exit, or restraining Mr. Taleb with the intention of assisting the stabber or stabbers). The relevant evidence was, however, reviewed in other parts of the charge.

125The trial judge was not obliged to argue the case for the Crown or the defence. Considering the entirety of the charge, the trial judge amply reviewed the positions of the parties and the evidence relevant to those positions.

126The appellants also allege the trial judge erred in his instructions on liability for murder under s. 21(2). The trial judge first dealt with the elements of liability under s. 21(2) without specifying whether that liability would be for murder or manslaughter. The instructions were legally correct; although, standing alone, they would not have been a sufficient instruction on murder because of the more specific mens rea requirement for murder in s. 21(2).

127Later in his instructions, however, the trial judge specifically related the elements of s. 21(2) to murder. The trial judge repeatedly told the jury that an accused would be liable for murder under s. 21(2) only if the Crown proved that the accused was party to an agreement to rob Mr. Taleb, and the accused knew that it was probable that another party to the agreement would, in the course of executing the agreement to rob, murder Mr. Taleb. For example, the trial judge told the jury:

Crown counsel must prove beyond a reasonable doubt that the accused person you are considering actually became aware that another party to the original agreement to rob or steal, would probably commit murder in carrying out their original agreement. Probably means likely, not just possibly.

Knowledge is a state of mind. To know something is to be aware of it. Did the accused you are considering know that another party to the original agreement to rob would probably commit murder in carrying out their original agreement?

128The trial judge stressed to the jury that the liability of each accused had to be considered separately based on the evidence applicable to that accused. He reviewed that evidence and reminded the jury that the requirement that the Crown prove the allegations beyond a reasonable doubt applied to each accused separately.

129Counsel further submits that the trial judge’s reference to an original agreement to rob Mr. Taleb and a later agreement, made in the alleyway, to assault Mr. Taleb, would have left the jury uncertain as to the exact nature of the unlawful agreement alleged by the Crown.

130The trial judge’s reference to the possibility of a “spur of the moment” agreement to assault Mr. Taleb was unnecessary, but not ultimately prejudicial. The agreement alleged by the Crown was an agreement by the group to go to Mr. Taleb’s home, confront him and steal his guns and drugs. The agreement clearly contemplated threatening Mr. Taleb and using force against him, if necessary. The agreement to rob Mr. Taleb was also an agreement to assault Mr. Taleb.

131The question for the jury was not whether a new agreement to assault emerged as the violence against Mr. Taleb unfolded in the alleyway. The important question under s. 21(2) was when, if at all, each of the accused who had been shown to be parties to the robbery plan knew, based on the escalating violence in the alley, that the murder of Mr. Taleb was a probable consequence of the execution of the plan to rob him.

132The trial judge got it right:

The knowledge requirement is met if you are satisfied beyond a reasonable doubt that the accused you are considering, while continuing with the common purpose to rob or assault Mr. Taleb, actually became aware that another party to the original agreement would probably commit murder in carrying out the original plan to rob or assault Shadi Taleb. In other words, the knowledge requirement could be satisfied as events proceeded to unfold in the alley.

(c) The alleged errors in the first degree murder instruction

133It follows from my reasons to this stage, that I would dismiss the conviction appeals of Mr. Kamal and Mr. Morrisson. Only Mr. Cargioli was convicted of first degree murder. I come now to his submissions in respect of the instruction on first degree murder.

134In seeking a conviction for first degree murder, the Crown relied exclusively on the definition of first degree murder in s. 231(5)(e):

Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement)

135The trial judge told the jury that it should consider an accused’s potential liability for first degree murder only if the Crown proved that the accused was guilty of murder as a co-principal, aider, or party to a common design under s. 21(2). The trial judge set out three questions the jury had to answer when deciding whether the Crown had proved the first degree murder allegation:

• Has the Crown proven beyond a reasonable doubt that the accused you are considering did something that was an “essential, substantial and integral part” of the killing of Shadi Taleb?
• Has the Crown proven beyond a reasonable doubt that the accused you are considering committed or attempted to commit the offence of unlawful confinement of Shadi Taleb or Omaya Taleb?
• Has the Crown proven beyond a reasonable doubt that the unlawful confinement or attempted unlawful confinement and the murder of Shadi Taleb were part of the same series of events?

136After laying out the essential elements, the trial judge explained the first element in these terms:

By an “essential, substantial and integral part”, I mean that the accused actively participated in the killing of Shadi Taleb. It is not enough to prove that the accused was present, or that he played some minor role in the events.

To convict someone of first degree murder, Crown counsel must prove that that person was an active participant in the killing.

137The trial judge next identified some of the evidence the jury could consider in deciding whether Mr. Cargioli was an “active participant in the killing”. That evidence included Mr. Cargioli’s statement that he put a gun to Mr. Taleb’s head, and his statement that he picked up a shovel, intending to strike Mr. Taleb as Mr. Cargioli’s cohorts were attacking Mr. Taleb and moving toward the end of the alley.

138Counsel for Mr. Cargioli does not take issue with the trial judge’s description of the three elements of first degree murder as defined in s. 231(5)(e). Nor does he allege error in the trial judge’s instruction that the first of the three elements required “active” participation in the killing: see R. v. Harbottle, [1993] 3 S.C.R. 306, at pp. 324-25, 84 C.C.C. (3d) 1, at pp. 13-14.

139Counsel for Mr. Cargioli does, however, contend that on the evidence led in this case, it was essential that the trial judge instruct the jury that conduct by Mr. Cargioli could constitute active participation in the killing for the purposes of s. 231(5)(e) only, if at the time Mr. Cargioli engaged in that conduct, he had the mens rea for murder under s. 21(1)(a) or s. 21(1)(b), or s. 21(2).

140Counsel argues that based on the jury instructions, especially the answers to the jury’s questions about “active participation” as a component of first degree murder, the jury could have convicted Mr. Cargioli based on two factual findings. First, the jury could have found that Mr. Cargioli’s gun-butting of Mr. Taleb immediately before Mr. Taleb was stabbed in the face, amounted to active participation in the killing. Second, the jury could have concluded that at some point in time after Mr. Taleb was stabbed in the face, Mr. Cargioli realized that Mr. Taleb’s murder was the probable consequence of carrying out the robbery plan and continued to participate in that plan.

141Mr. Cargioli submits that the two factual findings set out above could not, in law, justify a conviction for first degree murder. This is because, on those findings, the necessary mens rea for murder and the necessary actus reus for first degree murder do not coexist. The actus reus precedes the formation of the necessary mens rea. Counsel contends that the scenario he posits is not farfetched and does not involve an artificial parsing of the evidence but is exactly the theory advanced by the Crown in support of Mr. Cargioli’s liability for murder under s. 21(2).

142The Crown does not take issue with the legal premise of the defence argument. The mens rea for murder and the actus reus for first degree murder had to coexist to warrant a conviction for first degree murder. Contemporaneity between the actus reus and mens rea of an offence is a long-established principle of criminal law: see R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at paras. 68-71; Fowler v. Paget (1778), 101 ER 1106; D. Stuart, Canadian Criminal Law, 7th ed. (Toronto: Carswell, 2014), at pp. 399-401.

143The Crown submits that the jury was not told that the gun-butt could, on its own, establish Mr. Cargioli’s active participation in the killing for the purposes of first degree murder. Instead, the Crown argues that the jury was told that it could look to Mr. Cargioli’s conduct immediately before the stabbing, which included the gun‑butting, to determine whether Mr. Cargioli was an active participant in the attack on Mr. Taleb, which occurred immediately after the gun-butting. In other words, the jury could infer from the fact that Mr. Cargioli gun-butted Mr. Taleb that he also took part in the stabbing of Mr. Taleb. In support of this position, the Crown points out that the jury was told it could consider potential liability for first degree murder, only if the Crown had proved murder. The jury would not have considered whether particular conduct by Mr. Cargioli made him an active participant in the killing for the purposes of first degree murder unless they were satisfied the killing was a murder.

144The resolution of the competing positions outlined above requires a careful consideration of the trial proceedings. In the initial instructions, the trial judge specifically told the jury to consider first degree murder only if satisfied beyond a reasonable doubt that Mr. Cargioli had committed murder. This instruction is not, however, an answer to the argument advanced on Mr. Cargioli’s behalf. The jury could have been satisfied that Mr. Cargioli committed murder based on a finding that he had the requisite mens rea for murder under s. 21(1)(a), s. 21(1)(b), or s. 21(2) at some time after he gun-butted Mr. Taleb. If the jury found murder on that basis, their finding is no answer to the alleged misdirection in respect of the active participation requirement for first degree murder.

145In his initial instructions, the trial judge did not refer to specific conduct by Mr. Cargioli that was capable of making him an active participant in the murder. Instead, he referred to that conduct as being “relevant” to whether Mr. Cargioli was an active participant. The trial judge’s initial instructions left it unclear whether the jury could use the gun-butting as direct evidence of active involvement, or could only use the gun-butting to support an inference of subsequent conduct that amounted to active involvement in the killing. It is perhaps that uncertainty that led to the jury’s question.

146A few hours into their deliberations, the jury asked a series of questions, one of which related directly to the “active participation” requirement for first degree murder. That question is central to this ground of appeal, and I will set it out in full:

A) Can you further define the meaning of essential, substantial and integral with examples or scenarios as seen in other areas of the charge?

B) How literal should we interpret active participation in the killing? For example, 1) have knowledge of the physical contact of the victim (stabbing, head injury), but did nothing to stop the violence or escalation; 2) physical contact with victim (tackle, punch, gun butt, restraining); 3) stabbing the victim; 4) the act of not allowing the mother to assist her son by chasing her into the house or making a 9-1-1 call.

C) Is the killing the physical act of stabbing, or can it be interpreted as one of a series of events that lead to grave wounds in the alley? For example; physical contact with the victim; prepare to make physical contact with the victim; and blocking the exit of the alley.

147The jury’s question focused on whether certain specific acts could constitute active participation in the killing for the purposes of liability under s. 231(5)(e). The gun-butting of Mr. Taleb was one of the enumerated acts.

148In his submissions prior to the trial judge’s response to the jury’s question, counsel for Mr. Cargioli urged the trial judge to remind the jury that it could find an act by Mr. Cargioli amounted to active participation in the killing only if the jury was satisfied that Mr. Cargioli did that act with the requisite mens rea for murder. The Crown took the position that the jury’s question had nothing to do with the mens rea for murder but was concerned only with the meaning of “active participation” in the context of first degree murder.

149The trial judge’s response to the question indicates he agreed with the Crown’s position.

The words essential, substantial and integral are common words, all of which emphasize or stress that the accused you are considering must play a very active role in the killing. This requires some form of hands-on participation in the killing, such as being the stabber, or holding the deceased as he was stabbed, or striking an incapacitating blow or inflicting an incapacitating wound prior to the fatal stab wound. Examples of acts that would not constitute being an essential, substantial, and integral part of the killing would be: a) not allowing the mother to assist; b) having knowledge of the assault on the deceased and doing nothing to stop the violence or escalation; c) merely making some physical contact with the victim; and d) blocking the exit of the alley. Those would all be examples of acts that are not – that would not constitute being an essential, substantial and integral part of the killing. [Emphasis added.]

150The trial judge’s reference to “striking an incapacitating blow” was clearly a reference to the gun-butting. There was medical evidence to the effect that Mr. Taleb may have been incapacitated by that blow. As I read the trial judge’s response to the jury’s question, the jury could have found Mr. Cargioli to be an active participant in the killing based exclusively on the gun-butting.

151A few hours after the trial judge responded to the first questions asked by the jury, the jury had a second question relating to the active participation requirement for first degree murder. The jury’s question explained that some of the jurors thought they could find active participation based on circumstantial evidence, while others thought there had to be direct evidence of active participation. The jury identified what it regarded as the “direct evidence” against Mr. Cargioli as the “head butt” and the “raising of shovel”. The reference to the “head butt” must be a reference to Mr. Cargioli striking Mr. Taleb in the head with his handgun.

152Counsel for Mr. Cargioli once again asked the trial judge to instruct the jury that conduct by Mr. Cargioli could only amount to active participation in the killing if, at the time of the conduct, he had the mens rea for murder. Counsel said:

The fact they’ve mentioned the head butt, the raising of the shovel, the shoving the victim during the struggle with Morrisson and the rushing of the victim, suggests perhaps erroneously, that they believe that these actions alone make them a substantial, integral and essential part of the killing of Shadi Taleb. And this is why it is so important, in my respectful submission, to make sure that they understand the issue of intent …

… We don’t wanna just put intent in there, we want the jury to understand that issue. That it is definitely not enough for them to find that there was a head butt, a raising a shovel, etc., and that means there is subjective foresight of murder. That’s the concern. We’re very concerned that they’re confused.

153In response to their question, the trial judge reminded the jury of his instructions on direct and circumstantial evidence, repeated the requirement that the accused conduct amount to “an essential, substantial and integral part of the killing”, and told the jury that there need not be direct evidence. The trial judge said nothing about the mens rea requirement.

154Counsel for Mr. Cargioli has convinced me that the jury was not adequately instructed on the active participation requirement of first degree murder. I agree that the jury could have concluded that Mr. Cargioli, in furtherance of the robbery plan, struck Mr. Taleb across the head with his gun, thereby incapacitating him, and that as the attack on Mr. Taleb by the others in the group escalated, Mr. Cargioli, who remained with the group, came to know that the murder of Mr. Taleb would be the probable consequence of carrying out the robbery plan. On that scenario, the incapacitating gun-butt, administered before Mr. Cargioli perceived murder as the probable consequence of the robbery plan, could not amount to active participation in the killing of Mr. Taleb for the purposes of establishing liability for first degree murder. The jury should have been so instructed.

155In oral argument, Crown counsel suggested that, on the evidence, it was open to the jury to find that Mr. Cargioli had the mens rea for murder as a co‑principal, or an aider, at the time he gun-butted Mr. Taleb. Viewed from the perspective of a co-principal or an aider, the gun-butting could amount to active participation in the killing at a time when Mr. Cargioli did have the mens rea for murder.

156The Crown’s argument seems somewhat inconsistent with the primary position advanced by the Crown at trial. As I understand Crown counsel’s jury address, the mens rea for murder under any mode of participation, emerged only as matters escalated in the alley and Mr. Taleb was stabbed in the face.

157In any event, even if there was a basis upon which to find that Mr. Cargioli had the mens rea for murder as a co-principal or aider when he inflicted the gun‑butt, the jury instruction is still inadequate. The Crown relied on s. 21(2) as one route to liability for first degree murder. On that approach, the Crown accepted that Mr. Cargioli did not have the mens rea for murder when he struck Mr. Taleb with the gun. At a bare minimum, the jury had to be told that if they found Mr. Cargioli liable for murder under s. 21(2) the gun-butting could not constitute active participation in the killing for the purposes of first degree murder.

158Mr. Cargioli’s conviction for first degree murder cannot stand.

159Mr. Cargioli also alleges an error in the trial judge’s instructions on the “while committing” requirement in s. 231(5)(e). He submits the trial judge erred in telling the jury that the confinement of Ms. Taleb in her house after her son had been fatally stabbed in the alley could satisfy the requirement that the murder be caused “while committing” an unlawful confinement. As I would find a reversible error in the trial judge’s instructions on the active participation requirement in first degree murder under s. 231(5)(e), I need not address this question.

IV

The Sentence Appeals

160The trial judge sentenced Mr. Kamal to life imprisonment without parole eligibility for 14 years. He sentenced Mr. Morrisson to life imprisonment without eligibility for 15 years: R. v. Morrisson, 2016 ONSC 236.

161The trial judge’s extensive reasons for sentence reveal a full appreciation of the mitigating and aggravating factors applicable to Mr. Morrisson and Mr. Kamal as well as a command of the relevant case law.

162Fixing a period of parole ineligibility, is a matter for the discretion of the trial judge. This court will not interfere with the period of parole ineligibility fixed by the trial judge absent a demonstration that the parole ineligibility period set by the trial judge is demonstrably unfit: R. v. Gager, 2020 ONCA 274, at para. 158.

163Counsel for Mr. Kamal submits that the trial judge’s finding that Mr. Kamal aided the killer, Mr. Cargioli, and perhaps another, in the killing by confining and striking Mr. Taleb was not available given the jury’s acquittal of Mr. Kamal on the first degree murder charge. Counsel contends that the jury’s conviction of Mr. Kamal for second degree murder reflects a less active role by him in the homicide, than the role assigned by the trial judge in his reasons for sentence.

164The trial judge did find that Mr. Kamal’s liability was most likely as an aider to Mr. Cargioli’s murder of Mr. Taleb. He described that aiding as “confining and striking” Mr. Taleb as Mr. Cargioli, and perhaps another, inflicted the fatal wound.

165The finding made by the trial judge would not necessarily dictate a finding of first degree murder based on the trial judge’s instructions. Confining or striking Mr. Taleb would not, on the instructions given by the trial judge, have necessarily made Mr. Kamal an active participant in the killing for the purposes of determining his liability for first degree murder. There is no inconsistency in the jury’s verdict with respect to Mr. Kamal, and the trial judge’s findings on sentencing as to the nature of Mr. Kamal’s participation.

166Counsel for Mr. Kamal has not demonstrated an error that would justify this court’s variation of the sentence imposed by the trial judge.

167Counsel for Mr. Morrisson argues that the 15-year parole ineligibility period was “excessive”. He does not identify any specific errors in the trial judge’s reasons for sentence. He suggests Mr. Morrisson has a “minor criminal record”. That is true. However, as observed by the trial judge, the information placed before him on sentencing demonstrates that for a young man, Mr. Morrisson appeared firmly committed to a life of serious criminal conduct involving robberies and firearm‑related offences even though he had not yet accumulated the catalogue of criminal convictions that his lifestyle would inevitably produce. The trial judge sadly concluded there was little that was positive to be said about Mr. Morrisson’s character. That assessment was a reasonable one.

168The sentence imposed was not inappropriate. I would dismiss the sentence appeals.

V

Conclusion

169The appeals of Mr. Morrisson and Mr. Kamal are dismissed.

170With respect to Mr. Cargioli, there was ample evidence upon which a properly instructed jury could have convicted him of first degree murder. On that evidence, the Crown would be entitled to a new trial on that charge. However, Crown counsel indicated that should the court find reversible error in the instructions on first degree murder but otherwise dismiss the grounds of appeal advanced by Mr. Cargioli, the Crown would not seek a retrial on the first degree murder charge. Instead, the Crown would ask the court to enter a conviction on the included offence of second degree murder.

171I would accede to the Crown’s request. There are no reasons to doubt the validity of Mr. Cargioli’s conviction on the included offence of second degree murder. The error identified in these reasons could have no effect on that finding. If the Crown is prepared to forgo the possibility of a first degree murder conviction at a retrial there is no prejudice to Mr. Cargioli in this court entering a conviction for second degree murder. Pursuant to s. 686(1)(b)(i) of the Criminal Code, I would dismiss the appeal, set aside the conviction on first degree murder and enter a conviction on the included offence of second degree murder.

172Mr. Cargioli must be sentenced on the second degree murder conviction. This court may sentence Mr. Cargioli, or it may remit sentencing to the trial court. Counsel are asked to advise the court within 14 days of the release of these reasons of their position with respect to the appropriate venue for sentencing. Counsel should also arrange a case management meeting with me.