Statutory Warning

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240612 DOCKET: C67393

Miller, Paciocco and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jordan Osborne Appellant

Counsel: Ariel Herscovitch and Martine Di Sabatino, for the appellant Benita Wassenaar, for the respondent

Heard: February 8, 2024

On appeal from the conviction entered on February 12, 2019 and the sentence imposed on February 13, 2019 by Justice C. Boswell of the Superior Court of Justice, sitting with a jury.

Paciocco and George JJ.A.:

Endorsement

[1] At the behest of a drug dealer named Samantha Hall, the appellant and a youth named Z.H. attended at Terence Pringle’s home and attacked him. In exchange for doing so, Ms. Hall promised the appellant and Z.H. cocaine. Ms. Hall was motivated to enter into this arrangement because she was upset that Mr. Pringle had told her landlord that she was dealing drugs from her unit. The appellant had no prior knowledge of, or animus towards, Mr. Pringle and agreed to do as Ms. Hall asked to get drugs.

[2] When the appellant and Z.H. arrived at Mr. Pringle’s residence the appellant entered through a window. The appellant struck Mr. Pringle in the head several times with a hammer, which caused Mr. Pringle’s skull to cave in. Mr. Pringle died as a result of injuries sustained in the attack.

[3] Z.H. was convicted of manslaughter and sentenced as a youth. Ms. Hall pleaded guilty to conspiracy to commit assault causing bodily harm and was sentenced to 26 months’ imprisonment. At Ms. Hall’s guilty plea proceedings, the parties filed an agreed statement of facts which indicated that Ms. Hall told “police that she paid them to hit Terence Pringle, not kill him”. Ms. Hall testified at the appellant’s trial.

[4] The appellant admitted that he struck Mr. Pringle in the head with a hammer. The only issue at trial was whether the appellant had the requisite intent to commit murder. The jury found the appellant guilty of first-degree murder. He was sentenced to life in prison with no chance of parole for 25 years.

[5] The appellant appeals his conviction. In oral submissions he pursued two grounds of appeal, arguing that: 1) the trial judge erred in finding that his statement to the police was voluntary; and 2) the Crown committed an abuse of process by suggesting to the jury that Ms. Hall had sent the appellant and Z.H. to kill Mr. Pringle, contrary to the facts presented by the Crown upon Ms. Hall’s plea.

APPELLANT’S STATEMENT TO THE POLICE

[6] During the early morning hours of November 30, 2016, after his arrest the day before, the appellant was interviewed by two police officers, Detective Constables Reesor and Self. The interview was video recorded. At the outset of the interview the appellant told the police that he had spoken to a lawyer who advised him to not say anything, that he was going to “stick to that” advice, and that he was “very scared … I’m thinking about my dog, I have my dog at home”. When confronted specifically about his role in Mr. Pringle’s death, the appellant told the police that “I want to see my dog. … I want to go home”. This notable exchange then took place:

DC Reesor: …you’re – you’re facing first degree murder. Appellant: I’m just saying I’ve done nothing. DC Reesor: You – do you know what the sentence for that is? Appellant: Twenty-five to life, yeah. But I’ve done nothing. DC Reesor: Listen, that’s what you’re facing… Appellant: I understand that. DC Reesor: …and that’s – and that’s what I have the evidence for. Appellant: I understand that. DC Reesor: If things – if things weren’t supposed to go this way, then maybe you should be charged with something other than first degree murder, if the intention wasn’t to go over there and kill this guy. But – and then you get to see [your dog] sooner, because your sentence isn’t twenty-five to life, it’s potentially something less than that. But right now, all I have is all of this evidence, all of these people, I’ve got video from numerous houses on Stewart Street.

[7] After the appellant offered several further denials, DC Reesor said, “look, you are in a world of hurt right now and I’m giving you the opportunity to help yourself out, but you’re not taking it”. He continued to press the point that it was in the appellant’s interests to speak: “[R]ight now you’re the main guy in this …. and everybody’s talking. Not one person, everybody’s talking. So you may as well talk, as well, and do yourself whatever favours … you can”. Shortly after this part of the exchange, the appellant admitted that he was involved in Mr. Pringle’s death:

DC Reesor: So, Jordan, let me ask you again. When you go over to Terry’s place, is… Appellant: I need my clothes. DC Reesor: …is your – is your intention to kill or is your intention to rough him up to scare him? You need to be honest with me here. Appellant: Just to scare him. DC Reesor: Just to scare him. And things changed, didn’t they? … Okay. Jordan, I know the answer to this. I’m going to give you the opportunity to be honest. What did you use? I’ve already told you I know where it is. I already told you, you know that I know, but I want to hear you tell me. What did you use to kill Terry? Appellant: I didn’t… DC Reesor: I know you didn’t mean to, I know you didn’t mean to. Appellant: And I don’t want to get into trouble with this thing. DC Reesor: I already know the answer to this, right? Appellant: I want to get to see my dog. It’s the only thing… DC Reesor: And so – so help me by telling that …you didn’t mean to go over there and kill him, that you meant to rough him up, right? Appellant: I went there to rough [him] up, and I used a hammer, sir.

[8] After describing what transpired at Mr. Pringle’s home, the appellant told the officer, “I just – I really don’t want to be charged with a first-degree murder charge at all. It wasn’t on purpose. I just really want to see my puppy”. He spoke about how he did not know and had never met Mr. Pringle, reiterated that he missed his dog, and asked how long he will be going to jail for. After confirming his involvement in Mr. Pringle’s death, the appellant asked the officer, “what’s my charge now?”, to which DC Reesor responded, “your charge is the same”.

[9] Near the end of the interview the appellant, who was wearing thin transparent clothing that had been provided to him after his clothes were seized, told DC Reesor that it is “very cold in here”, and asked for a blanket, toilet paper, and a pillow for his cell.

VOLUNTARINESS VOIR DIRE

[10] The Crown called DC Reesor and DC Self as witnesses on the voir dire to determine the admissibility of the appellant’s police interview. Shortly after he became involved in the investigation, DC Reeser received information that a hammer was used to kill Mr. Pringle, and that the appellant was involved. After the appellant’s arrest, around 2 a.m. on November 30, 2016, DC Reesor and DC Self commenced their video recorded interview of the appellant. Detective Constable Reesor could not recall if the appellant was sleeping in his cell when he was brought into the interview room.

[11] A recording of the interview was played during DC Reesor’s testimony. DC Reesor acknowledged that he used the fact that the appellant missed his dog as a way to “build a rapport” with him. DC Reesor further acknowledged that when speaking with the appellant, and in attempt to get him to talk, he drew a distinction between the appellant going to Mr. Pringle’s residence with the intention of murdering him, and going to Mr. Pringle’s residence with the intention of roughing him up. While not explaining this to the appellant, DC Reesor understood that one could be convicted of murder if they intended to cause bodily harm knowing that, or being reckless to the fact that, the bodily harm would likely cause death.

[12] Detective Constable Reesor, who did not have the authority to reduce the charge, denied holding out the hope of advantage to the appellant when he said, “if things weren’t supposed to go this way, then maybe you should be charged with something other than first-degree … then you get to see [your dog] sooner”. He explained that he purposely used the word “maybe’ to make it clear that he was not promising anything to the appellant.

[13] Detective Constable Reesor agreed that when he said to the appellant, “you’re in a world of hurt right now, and I’m giving you the opportunity to help yourself out, but you’re not taking it”, the “hurt” he was referring to was the first-degree murder charge. When it was suggested to him that this was a promise and/or inducement, DC Reesor’s response was that he was still “fact finding. So, if things didn’t happen the way that, um, I had been led to believe up until that point, then it was important for me to know that”. DC Reesor understood that when, later in the exchange and after the appellant had disclosed his involvement in Mr. Pringle’s death, the appellant asked “where [am I] sitting at now, I don’t want to go to jail for a long time”, the appellant was hoping that he would no longer be charged with first-degree murder.

[14] Detective Constable Self was present when the appellant was booked at the police station. While he knew that the appellant suffered from bipolar disorder and was self-medicating with marijuana, he did not advise DC Reesor of same. He also confirmed that the appellant’s clothing, including his undergarments, were seized; and that the appellant was provided with a thin and transparent body suit, a pair of thin blue “sockettes”, and a thin plastic “emergency type blanket”.

TESTIMONY OF SAMANTHA HALL & Z.H.

[15] Samantha Hall testified that, in November 2016, she was living in a rooming house at 296 Stewart St. in Peterborough. She testified that when she first moved in the landlord told her to stay away from Mr. Pringle because of his crack cocaine use. At the time, Ms. Hall was both using and dealing drugs.

[16] At some point, Ms. Hall’s landlord informed her that Mr. Pringle had told him she was selling drugs from her unit and that she was doing so on behalf of a biker gang. Ms. Hall testified that this caused her to worry and feel threatened because she did not want anyone to think she was selling drugs on behalf of bikers when she was not. She reached out to Chris Bolton, who provided drugs to the appellant, to discuss the situation. Ms. Hall later met with Mr. Bolton and Joseph Crawford to discuss the possibility of going to “see Mr. Pringle to rough him up…beat him up, give him a bloody nose or a busted lip, or even a busted jaw”. According to Ms. Hall the objective was simply to “give [Mr. Pringle] the understanding” that he shouldn’t be “talking about things that [he] doesn’t know”.

[17] On the evening of November 25, 2016, around 5 or 6pm, Ms. Hall, Mr. Bolton, Mr. Crawford, the appellant and Z.H. all met at Mr. Bolton’s residence. Ms. Hall brought cocaine with her to sell. Ms. Hall, Mr. Bolton and Mr. Crawford had a private conversation in Mr. Bolton’s bedroom about “what [Ms. Hall] wanted done”. After Mr. Bolton advised Ms. Hall that to do as she asked would cost “a 60 piece” of cocaine, they brought in the appellant and explained to him what they wanted him to do. According to Ms. Hall, the appellant was to ring Mr. Pringle’s doorbell, pretend that he was there to purchase drugs, and to, once inside, “beat him up, um, kinda tell him not to speak, or don’t say things that are none of his concerns”. While not certain, Ms. Hall believed that she told the appellant to not bring weapons. She was clear, however, that she did not instruct the appellant to kill Mr. Pringle.

[18] Although Ms. Hall and the appellant did cocaine that night, the appellant, to her, seemed as “normal as a person on drugs could be”. Ms. Hall did not observe the appellant consume alcohol.

[19] Ms. Hall pleaded guilty to conspiracy to commit assault causing bodily harm. At the time of her plea, the Crown, Ms. Hall, and the court all accepted as fact that she “ wanted Mr. Pringle assaulted so that he would stop talking about her. In payment for Mr. Pringle being assaulted, she was to give a 60 piece of coke”. Ms. Hall’s sentencing judge noted that, while Ms. Hall “did not ask that they kill him;…but for her recruitment of these people to carry out her request, Mr. Pringle would not have been killed”.

[20] Z.H. testified that they went to Mr. Pringle’s home to assault him in order to shut him up.

CROWN’S CLOSING ADDRESS & JURY CHARGE

[21] In her closing address to the jury at the appellant’s trial Crown counsel said this about Ms. Hall:

The Crown takes the position that [the appellant] always intended, planned to kill [Mr. Pringle] or to cause him bodily harm likely to result in his death. That would be first degree murder. So let me take you through some evidence … So who offered you some evidence on what the plan was on this fateful night? Start off hearing Samantha Hall. She was, admittedly, the mastermind behind this. She was the catalyst. She may have told you that she simply wanted [Mr. Pringle] roughed up but she, like many of you heard from, had very good reason to minimize, omit or even lie about her role. An admission that she orchestrated by way of acquiescence or direction, most certainly, it’d be against her interest. That she might lie to you about her position on this is not just speculation. Take a look at one key piece of Samantha Hall’s evidence. She indicated on chief-examination with me once she learned what happened, her only thought was to get home, maybe, she could fix what she started, she might be able to get back, call 911, save the situation. As one of the boys had said, “Pringle was still making groaning noises.” But then she said, “before going home that night, I go over to Tim Horton’s to do a chop to sell some drugs”. She was internally inconsistent in her evidence and you must consider that when you ask whether she’s got credibility.

[Ms. Hall] approached [the appellant] that afternoon and he was ready, willing, able and completely up for this task and its reward. The only thing that [the appellant] was keyed up about that night was one line of cocaine and the fact that he was about to commit a murder.

[22] The Crown urged the jury to disbelieve Ms. Hall, and Z.H.’s, testimony that there was never a plan to kill Mr. Pringle. The Crown argued that the plan all along was to “silence” Mr. Pringle, not by scaring him or beating him up, but by committing planned and deliberate murder thereby silencing him permanently.

[23] In his charge to the jury, when summarizing the Crown’s position, the trial judge said this:

No message was ever delivered to [Mr. Pringle] that night – no words of warning that he better stop talking, because that was never the plan. The plan was to shut him up no matter what, was to ensure he never spoke again. Everything went just as planned.

ANALYSIS

Was The Appellant’s Statement Voluntary?

[24] The trial judge found that the Crown had proved beyond a reasonable doubt that the appellant’s statement was voluntary. He found that the exchange relating to the potential charge and sentence did not amount to an express or implicit inducement or promise for more lenient treatment in exchange for a confession, and he was satisfied that the appellant confessed, not because of these exchanges, but after being confronted with the strength of the case against him. Relatedly, the trial judge rejected the appellant’s argument that he had been misled by those comments, and found that the confession was not rendered involuntary by oppression. The appellant challenges all of these aspects of the trial judge’s ruling.

Quid Pro Quo

[25] The appellant submits that DC Reesor offered a quid pro quo inducement, which was, if he admitted his involvement in Mr. Pringle’s death he would not be charged with first-degree murder (which would lead to a lesser sentence and allow him to see his dog sooner). The appellant acknowledges that this was not expressly promised but submits that if we “examine the entire context of the confession”, per R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, paras. 54, 71; R. v. Spencer, 2007 SCC 11, [2000] 1 S.C.R. 500, para. 15, the inevitable conclusion is that there was a quid pro quo and that consequently his statement was not voluntarily. According to the appellant, the officer gave him the “hope of advantage”.

[26] In Oickle, at para. 49, Iacobucci J. recognized that a promise made by a person in authority to take steps to secure a more lenient sentence in exchange for a confession would constitute a “hope of advantage” inducement:

[I]n Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”. The classic “hope of advantage” is the prospect of leniency from the courts. It is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. Therefore in Nugent , … the court excluded the statement of a suspect who was told that if he confessed, the charge could be reduced from murder to manslaughter. … In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession. [Citations omitted]

[27] As mentioned, there was no express promise made in this case to reduce the first-degree murder charge in exchange for the appellant’s statement. When the officer told the appellant that he should “maybe” not be charged with first-degree murder if he did not attend Mr. Pringle’s home with the intention to kill him, this was a true and accurate statement, not a promise. As the court similarly explained in R. v. Dixon, 2018 BCCA 181, advising an accused that they “might not be charged” if they give a statement is not a promise, but an explanation of circumstances: Dixon, at para. 25. And as the trial judge noted, the appellant was not told by the officers that his charge “would” be reduced if he confessed, or that they had authority to reduce the charge, or that they would attempt to persuade the Crown or the court to do so. “They made no express offer at all”.

[28] An inducement need not be expressly made. It may be implicit, see R. v. Wabason, 2018 ONCA 187, 361 C.C.C. (3d) 98. The question here is whether, upon a complete review of the exchange between the appellant and DC Reesor, and after placing the appellant’s statement in its proper context, the police nonetheless implicitly promised to takes steps to secure a lesser charge (i.e., manslaughter) which would allow him to get home sooner to see his dog. The trial judge considered this question and found that the observation that the appellant’s jeopardy may be less if he had not gone to Mr. Pringle’s home with the intention of killing him was not a promise to reduce the charge. It was open to the trial judge to find that there was no such implied inducement here.

[29] In coming to this decision, the trial judge considered the “problematic suggestion” made to the appellant that “it would be better if you confessed”, language that has been criticized, including in Oickle, at para. 55. Such comments are relevant, but not determinative. As the trial judge noted, “it would be better” comments require exclusion only where the circumstances reveal an implicit threat or promise. The trial judge found there was none.

[30] Even if there has been an inducement, this alone is not a basis for exclusion. An inducement will require exclusion only if “standing alone or in combination with other factors” it is “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57. In Spencer, for example, the inducement was not strong enough in all of the circumstances, including Mr. Spencer’s subjective characteristics, to have caused the confession. As the trial judge put it, “[w]hat is pivotal is the strength of the inducement or threat, considered in the overall context”: see Spencer, at para. 19. Here, the trial judge found, after considering the overall context, that he did “not think that [the appellant] would have understood that he was being promised more lenient treatment in exchange for a confession.”

[31] The trial judge also found that the appellant confessed not because of any inducement but because of the strength of the case against him. This finding was supported on the record. It is important to note in this regard that the police, before they commenced their interview of the appellant, likely had enough evidence to support a murder charge, and that, probably from the outset (but most certainly as the interview progressed), the appellant came to understand that he was in serious jeopardy.

[32] In coming to these decisions and finding that the Crown had proved the confession to be voluntary, the trial judge considered the overall context. What, then, is the context? What we know is that the appellant was advised, at the time of his arrest, that he had the right to speak with counsel; that he was, at the same time, advised of his right to remain silent; that after his arrival at the police station he was again told that he could speak with counsel; that he did in fact speak with counsel before being interviewed; and that prior to speaking with DC Reesor the appellant was not subjected to any violence or threats nor was he promised anything. We also know that the police questioning was not particularly aggressive, and that, at least according to the appellant, he had not consumed any drugs or alcohol (other than marijuana) over the course of the preceding 24 hours. These factors are relevant not only to whether there were oppressive circumstances, but also to the question of what impact an inducement, if there was one, had on the appellant.

[33] We see no basis for interfering with the factual determinations we have just described. As the Supreme Court held in Oickle, “if a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for ‘some palpable and overriding error which affected [the trial judge’s] assessment of the facts’”: Oickle, at para. 71, citing Schwartz v. Canada, [1996] 1 S.C.R. 254, at p. 279. The trial judge committed no such error and there is accordingly no basis for appellate intervention.

[34] The appellant does raise one potential error of principle in the trial judge’s application of the voluntariness test. He argues that the trial judge erred by suggesting that only where an officer offers a definitive inducement is a confession involuntary. As the foregoing discussion makes clear, the trial judge did not suggest this. Rather, he did as the Supreme Court in Oickle directed him to do, and that is focus on the “entire context of the interview” which led him to conclude that the appellant would not have understood that he was promised more lenient treatment in exchange for his statement. As the trial judge observed, the overarching context here is the police had evidence that tended to support a murder charge; the police were merely making truthful references to the state of affairs; and, against that backdrop, the appellant made the voluntary decision to set the record straight and make it clear that he did not attend at Mr. Pringle’s home with the intention of killing him.

[35] In our view, the trial judge did not err in finding that the Crown had proven beyond a reasonable doubt that the appellant’s statement to the police was voluntary.

The Alleged Misrepresentation

[36] As discussed earlier, the appellant contends that the police misled him by suggesting that there is a legal distinction between attending Mr. Pringle’s apartment to kill him and going there to “rough” him up, and that he may not be charged with first-degree murder if he did not go there with the intention of killing him. As the appellant’s trial counsel pointed out, one can be charged with and convicted of murder if they intend to cause bodily harm, knowing that the harm would likely kill the victim, and persist in any event reckless as to whether death would ensue. He argues that this misrepresentation supports an involuntariness finding.

[37] We are not persuaded that there was a misrepresentation. It is evident that, in his effort to have the appellant talk, DC Reesor was simply drawing a distinction between having an intent to kill and not having an intent to kill, as understood in everyday parlance. The trial judge was persuaded, reasonably, that there was no intention to mislead nor was the appellant in fact misled. As the trial judge concluded, “it was reasonably accurate and fair to put to him that there is a difference between visiting another for the purpose of killing him and visiting another for the purpose of roughing him up and/or scaring him”.

Oppressive Circumstances

[38] The appellant argues that the circumstances surrounding the taking of his statement, considered cumulatively, amount to oppressive circumstances. We would reject this argument. As the trial judge found, the appellant was treated respectfully by all of the police officers he came into contact with; he was promptly provided the opportunity to speak with counsel; and he was fed and allowed to sleep in his holding cell. The interview itself was fairly brief, approximately 45 minutes in total, and, while the police could have interviewed the appellant earlier in the evening, rather than at 2 a.m., this did not, on its own, render the circumstances oppressive.

[39] The appellant’s trial counsel, and the trial judge, focused largely on the jumpsuit the appellant had to wear when his clothing (including undergarments) was seized. The trial judge’s findings that there was “nothing untoward about the jumpsuit”, that having to wear it was not “oppressive in any way”, and that the “jumpsuit played no part in the confession”, all attract deference.

[40] There is no basis for interfering with the trial judge’s finding that the confession was not rendered involuntary by oppressive circumstances.

Did the Crown Commit an Abuse of Process?

[41] The appellant argues that it was improper for the Crown to suggest to the jury that Ms. Hall sent the appellant and Z.H. to kill Mr. Pringle, when it had already accepted a guilty plea from Ms. Hall on the basis that she specifically did not want Mr. Pringle killed. In other words, it was wrong for the Crown to accept a fact in one proceeding, Ms. Hall’s guilty plea, but assert a different fact in another related proceeding, the appellant’s trial.

[42] The appellant acknowledges that this is not “strictly within” issue estoppel. His position is that the Crown’s “tactics and conduct” during the trial amount to an abuse of process. In support of this ground of appeal he seeks to admit fresh evidence, namely the transcript of Ms. Hall’s guilty plea.

[43] While the Crown objects to the transcript being admitted as fresh evidence, in our view, it is in the interests of justice and necessary to receive it to properly address this ground of appeal, having regard to the appellant’s interests in fully pursuing available remedies: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 44; R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 100. As Watt J.A. explained in R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 157, leave to appeal refused, [2017] S.C.C.A. No. 17, where an appellant seeks to demonstrate that the trial process was unfair, fresh evidence is received to establish a fact which caused a miscarriage of justice. We are of the view that it is necessary and in the interests of justice to receive and consider the transcript of Ms. Hall’s guilty plea proceedings for this purpose and would therefore admit it.

[44] We will begin by reproducing the relevant passages from the facts read into the record upon Ms. Hall’s guilty plea:

[Ms. Hall] herself eventually admitted to police that on November 25 th , she contacted a number of people stating that [Mr. Pringle] needed to be dealt with as he had been telling people that she was dealing drugs for the Outlaws.

[Ms. Hall] wanted Mr. Pringle assaulted so that he would stop talking about her. In payment for Mr. Pringle being assaulted, she was to give a 60 piece of coke. She wanted Mr. Pringle to receive a punch in the face, a shot to the head, a bloody nose, or anything to shut him up . [Emphasis added].

She stated to police that she paid them to hit [Mr. Pringle], not kill him.

[45] The Crown argued before us that since the phrase, “anything to shut him up” is capable of including killing Mr. Pringle, there is no inconsistency between this agreed statement of facts and the Crown theory at Mr. Osborne’s trial. We do not agree. According to the facts presented at the guilty plea, Ms. Hall admitted that she wanted Mr. Pringle “shut up” by assaulting him in some way, but that she did not pay to have him killed. The Crown theory at Mr. Osborne’s trial, as described in para. 21 above, was that the plan was to silence him by killing him, not by scaring him or beating him up.

[46] Nonetheless, no abuse of process arises. An abuse of process can occur where “state conduct compromises the fairness of an accused’s trial (the ‘main’ category) [… or] where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the ‘residual’ category)”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. We will begin with the residual category.

[47] Two features of guilty pleas need to be borne in mind. First, it must be recognized that a guilty plea is based on the facts an accused person is prepared to admit, and not on the facts the Crown might have succeeded in proving after trial. Second, the decision of the Crown to accept a guilty plea is a tactical one that can properly be influenced by a range of considerations. This includes the strength of the case against the particular accused person and the public interest in accepting a plea agreement from one alleged party to secure testimony against another party. It would not advance the integrity of the judicial process to restrict the Crown in prosecuting another party, on the basis of the same basic factual scenario that the related pleading party was prepared to admit. Imposing such a strict limit would frustrate legitimate tactical decisions to accept pleas of guilt from co-parties and would require verdicts to be imposed after the trial of a co-party that are inconsistent with the facts proved at that trial.

[48] Significantly, the Crown did nothing to mislead the court about its theory when Ms. Hall’s plea was entered. It did not say that Ms. Hall did not intend to have Mr. Pringle killed nor did the Crown, at Ms. Hall’s plea proceeding, present the agreed statement of facts as a complete and candid narrative of what had transpired. Instead, the agreed statement of facts was presented by describing the admissions Ms. Hall had made, including to the police.

[49] Moreover, the evidence as it unfolded during Mr. Osborne’s trial supported the factual scenario the Crown advanced at his trial. There was logic in the Crown’s position that Ms. Hall’s testimony was self-serving, that she had credibility problems, and that there is reason to conclude that in her testimony she minimized her own role. There was also evidentiary support for a finding that the appellant attended Mr. Pringle’s residence with the intention of killing him. This evidentiary support included not only the lethal nature of the weapon used and the brutal force exerted but the testimony of Hannah Moore, who was at Mr. Bolton’s residence immediately before the appellant and Z.H. went to Mr. Pringle’s residence, who testified she heard the appellant say, before he left Mr. Bolton’s residence, that he “just wanted to kill him”. Although Ms. Moore did not know who exactly the appellant was talking about, the circumstances make it clear that it was Mr. Pringle.

[50] There is therefore no Crown conduct that would call into question the integrity of the judicial process.

[51] Nor did the Crown’s conduct compromise the fairness of the trial. As indicated, the Crown’s position was supported by the trial evidence and there was no surprise or subterfuge about its position. There was complete transparency surrounding Ms. Hall’s plea – Ms. Hall was called as a witness at the appellant’s trial, where she confirmed the basis of her plea. During their opening statement, with the appellant and his counsel having full knowledge of Ms. Hall’s guilty plea (and the basis for it), Crown counsel said that Ms. Hall requested “Mr. Pringle be assaulted in order to shut him up” and that it was expected Ms. Hall would “concede her role in arranging this offence, but that she did not know Mr. Pringle would be killed”. Then, during the pre-charge conference, the Crown repeatedly referenced their intention to say in their closing remarks that many of the Crown’s witnesses, including Ms. Hall, were self-interested and that the jury should therefore be cautious in relying on their evidence.

[52] Finally, although trial counsel’s failure to object is never determinative, it can, depending on the circumstances, be a strong indication that counsel did not perceive there to be any unfairness: R. v. Boone, 2016 ONCA 227, 28 C.R. (7th) 1, at para. 53, leave to appeal refused, [2016] S.C.C.A. No. 238 (S.C.C.); R. v. Moore, 2017 ONCA 947, 357 C.C.C. (3d) 500, at para. 21. Here, counsel did not object to this aspect of the Crown’s argument, despite there being no mystery about what the Crown’s theory would be. In those circumstances, the lack of objection could not possibly have been through inadvertence and reflects trial counsel’s reasonable assessment that nothing unfair was transpiring.

[53] There is no basis to interfere with the trial judge’s conclusion that there was no abuse of process. Accordingly, we would reject this ground of appeal.

CONCLUSION

[54] For these reasons, we would dismiss the appeal.

Released: June 12, 2024 “B.W.M.” “David M. Paciocco J.A.” “J. George J.A.” “I agree. B.W. Miller J.A.”