DATE: 20000426
DOCKET: C23709
COURT OF APPEAL FOR ONTARIO
CATZMAN, ABELLA AND MACPHERSON JJ.A.
B E T W E E N : )
)
HER MAJESTY THE QUEEN ) John Norris
) for the Appellant
Respondent )
)
and )
)
HUGH FORD ) Michael Bernstein
) for the Respondent
Appellant )
)
Heard: February 14, 2000
On appeal from conviction by Lederman J., with a jury, dated
November 14, 1995.
MACPHERSON J.A.
INTRODUCTION
[1] The appellant, Hugh Ford, was convicted, following a trial
with a jury presided over by Lederman J., of the offence of
counselling murder. However, he was acquitted of the offences of
conspiracy to commit murder and attempted murder. Mr. Ford
appeals his conviction from counselling murder. His principal
ground of appeal is that the jury’s guilty verdict on the charge
of counselling murder is inconsistent with its acquittal on the
other charges.
A. FACTUAL BACKGROUND
[2] On May 13, 1991, the principal Crown witness and alleged co-
conspirator, John Doe,[^1] shot Martin Bidwell in the face from
close range and nearly killed him. It was the theory of the
Crown that the appellant headed a band of break and enter artists
of which Doe was a member. The Crown contended that the
appellant had contracted Doe to kill Bidwell in order to prevent
Bidwell from giving testimony against the appellant in a trial on
charges of break and enter and possession of stolen property.
[3] The evidence in support of this theory emanated almost
entirely from Doe. He testified that he was a member of the
break and enter group headed by Ford. According to Doe, about a
month prior to the shooting Ford mentioned that he had a problem
connected with Martin Bidwell. Ford told Doe that he had been
caught with some stolen property, that the case was going to
court, and that Bidwell was going to testify against him. This
caused Ford great concern. About a week or a week and a half
before the shooting, while they were at The Tavern in the Albion
Mall, Ford brought up the topic of killing Bidwell and said that
he wanted Doe to do it.
[4] The discussion of the killing extended over several
meetings. According to Doe, Ford offered him $1,000 cash, about
$500 for lawyer’s fees “for whatever happened later on” and a
newer weapon. Ford supplied him with a handgun, ammunition, a
police scanner and a balaclava and gave him advice about what
other equipment he would need.
[5] Doe testified that Ford took him downtown to show him where
Bidwell lived and the places he frequented. While they were
there, Ford videotaped and photographed Bidwell’s apartment and
showed Doe possible escape routes. At some point, Ford suggested
various scenarios of how to carry out the killing but left the
final decision up to Doe.
[6] After “constant goading” from Ford, on May 13, 1991, Doe
loaded up his equipment. By coincidence, he met Ford near the
Eaton Centre. Doe told Ford that he had come downtown to kill
Bidwell “as per his plans”. Doe and Ford spent a few hours
together. Then Doe went off on his own to kill Bidwell.
[7] Doe proceeded to Bidwell’s apartment and gained entry by
breaking a window in the front door. He waited inside.
Bidwell’s roommate, Bert Trapman, arrived at about 4:30 p.m. Doe
tackled him but could tell, based on Ford’s description, that
this was not Bidwell. He bound Trapman with tape and fishing
line and waited.
[8] Bidwell arrived home at about 6:10 p.m. Doe jumped out and
shot him in the face. Bidwell headed for the stairs. He and Doe
fell down the stairs together. Bidwell struggled with the lock
on the door and pleaded to be left alone. His assailant replied
something like “Calm down” or “Relax”. Bidwell managed to get
out the door and ran across the courtyard to the front of the
building where he saw the building superintendent. He asked the
superintendent to call an ambulance for him and then sat down in
the open and waited for the ambulance to arrive.
[9] Trapman, still bound inside the apartment, heard Doe come
back into the apartment. He thought he was “done for” but all he
heard was Doe closing some zippers on a satchel or backpack and
then leave.
[10] Bidwell received a gunshot wound to the face which resulted
in trauma to his head region. Dr. Edward McDougall testified
that the wound could have been fatal. The handgun used in the
shooting was identified as a .32 calibre Smith & Wesson
manufactured sometime between 1890 and 1930. Testing determined
that the weapon was in poor condition and would misfire
intermittently.
[11] The case for the defence was presented primarily through the
appellant. Ford denied playing any role in, or having any prior
knowledge of, Doe’s attempt to kill Bidwell. While Ford did
discuss his legal problems with Doe and told him about Bidwell’s
unwillingness to help out, he denied ever suggesting that Bidwell
should be killed, contracting Doe to perform the deed, or
supplying Doe with the handgun or other paraphernalia to commit
murder. Doe was aware of the status of the court proceedings
because he asked Ford about it from time to time.
[12] According to Ford, Doe had his own motives to harm Bidwell
since it was Bidwell who had fouled up the fencing of the
equipment Doe had stolen. Ford testified that Doe felt that
Bidwell had betrayed them and he was upset that he would not be
getting paid for the stolen computers. Doe would have known
Bidwell’s address because it was on a list of client contacts
that Ford had once prepared and shared with Doe.
[13] It was the position of the defence that Doe was a wholly
unreliable witness who acted alone and then tried to shift the
blame onto the appellant.
[14] The trial before Lederman J. was the appellant’s second
trial on the charges relating to the shooting of Martin Bidwell.
At his first trial, the jury returned a verdict of guilty on all
counts in the indictment. The appellant was sentenced to terms
of 20 years imprisonment on the charges of conspiracy and
attempted murder and to six years on the charge of attempting to
obstruct justice. The charge of counselling murder was stayed
pursuant to the rule against multiple convictions for the same
wrongful act: see R. v. Kienapple (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524
(S.C.C.). On November 24, 1994, this court allowed Ford’s appeal
against conviction: see R. v. Ford (1994), 1994 430 (ON CA), 77 O.A.C. 246.
[15] Upon his arraignment at the second trial, the appellant
entered a plea of guilty to the charge of attempting to obstruct
justice and pleas of not guilty to the other charges. The jury
returned verdicts of not guilty on the charges of attempted
murder and conspiracy to commit murder and a verdict of guilty on
the charge of counselling murder. Lederman J. sentenced the
appellant to four years imprisonment on the charge of counselling
murder and to 18 months concurrent on the charge of attempting to
obstruct justice.
[16] The appellant now appeals the conviction for counselling
murder.
B. ISSUES
[17] The issues that need to be considered on this appeal are:
(1) Should the jury’s verdict of guilty on the charge of
counselling murder be set aside because it is inconsistent with
the jury’s verdicts of not guilty on the charges of conspiracy to
commit murder and attempted murder?
(2) Did the trial judge err in his instructions to the jury on
the offence of counselling murder?
(3) Did the trial judge err by admitting the appellant’s guilty
plea to the charge of possession of property obtained by crime?
(4) Did the trial judge err by not correcting the Crown’s
closing address to the jury with respect to the Crown’s portrayal
of Bidwell?
C. ANALYSIS
(1) Inconsistent verdicts
[18] The appellant faces a high hurdle in trying to set aside a
jury’s verdict of guilty on one charge on the basis that it is
inconsistent with the jury’s verdict of not guilty on a second
charge. In the leading Ontario case dealing with inconsistent
verdicts, R. v. McLaughlin (1974), 1974 748 (ON CA), 15 C.C.C. (2d) 562 at 567
(C.A.), Evans J.A. framed the test in this fashion:
The fact that verdicts may be inconsistent does not
mean that in all cases the Court of Appeal ex
necessitate must quash the conviction or grant a new
trial. If the verdicts are violently at odds and
the same basic ingredients are common to both
charges then the conviction will be quashed but the
onus is on the appellant to show that no reasonable
jury who had applied their minds to the evidence
could have arrived at that conclusion.
See also: R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.);
R. v. Ertel (1987), 1987 183 (ON CA), 35 C.C.C. (3d) 398 (Ont. C.A.); R. v.
Peterson (1996), 1996 874 (ON CA), 106 C.C.C. (3d) 64 (Ont. C.A.); and R. v.
Tillekaratna (1998), 1998 6341 (ON CA), 124 C.C.C. (3d) 549 (Ont. C.A.)
[19] The appellant submits that the guilty verdict for
counselling to commit murder is “violently at odds” with the not
guilty verdicts for conspiracy to commit murder and attempted
murder, such that “no reasonable jury who had applied their minds
to the evidence could have arrived at that conclusion”. In
support of this submission, Mr. Norris, in a very able and
reflective argument, referred to overlapping between the Criminal
Code provisions relating to the three offences and to an alleged
lack of logic in the jury’s verdicts in light of the factual
circumstances of the case.
[20] There is, in my view, some force to Mr. Norris’ submissions
on this issue, especially with respect to the potential overlap
between the offences of attempted murder and counselling to
commit murder. Since John Doe admitted that he shot Bidwell, Ford
could only be convicted of attempted murder if the jury was
convinced beyond a reasonable doubt that Ford aided or abetted
Doe in the commission of the offence. The Supreme Court of Canada
has defined “abet” for purposes of party liability as including
“encouraging, instigating, promoting or procuring the crime to be
committed”: see R. v. Greyeyes (1997), 1997 313 (SCC), 116 C.C.C. (3d) 334 at 344
(S.C.C.). Section 22(3) of the Criminal Code defines “counsel” as
including “procure, solicit or incite”. There is no doubt that
these are similar definitions.
[21] However, they are not identical definitions. In my view,
it is important, as submitted by Ms. Reid for the Crown, to
examine closely what the trial judge actually said to the jury
about each offence.
[22] Early in his charge, the trial judge instructed the jury as
follows:
You must consider each count of the
indictment separately, and when considering a
particular count you are only to consider the
evidence that is directly relevant to that
count. If you come to a verdict in one
count, that fact must not influence your
decision or any other count.
[23] The trial judge then provided the jury with definitions of
conspiracy, attempted murder (including aiding and abetting) and
counselling. There is, without question, some overlap in these
definitions. However, in my view, there are sufficient
differences in the definitions provided by the trial judge to
justify the three verdicts reached by the jury.
[24] I have no serious problem with a comparison of the jury’s
guilty verdict for conspiracy to commit murder and its not guilty
verdict for counselling to commit murder. The trial judge
provided separate definitions of these offences. He then went on
and provided the jury with a direct comparison of the two
offences:
One person may counsel or procure
another person to commit the offence as a
result of a long course of persuasion and
bargaining. On the other hand, procurement
may also occur if there is no more than brief
acceptance of an offer to commit an offence
with the promise of reward for doing so.
There is no necessity that the person who
procures another to commit an offence and the
person who actually does it form a conspiracy
or real agreement as to how it will be done.
Therefore, you must remember, too, that
conspiracy to commit murder and counselling
murder are separate offences. If you find
that the Crown has proven beyond a reasonable
doubt that Hugh Ford counselled John to
commit murder it doesn’t mean that you must
also find that Hugh Ford committed the
offence of conspiracy to commit murder.
[25] In this passage, the trial judge points out a fundamental
distinction between the conspiracy and counselling offences:
conspiracy involves an agreement between two persons to do
something; counselling involves one person urging another to do
something. Agreement is the anchor of conspiracy. Agreement is
unconnected to counselling.
[26] The relationship between the attempted murder (grounded in
party liability) and counselling offences is, in my view, a
closer and more problematic one. Indeed, in its factum the Crown
acknowledges that the jury’s verdicts on these offences are
“somewhat curious”. Nevertheless, in my view, once again the
trial judge’s charge established that these were different
charges involving different conduct by the appellant.
[27] Concerning “aiding” and “abetting”, the trial judge said:
[T]he word “aiding” means help or assist
a person. A person can aid a person in the
committing of an offence without being
present when the crime is committed. The
second way in which a person can be a party
to an offence is by abetting and the word
“abetting” means support or encourage. As
with the case with aiding, a person can be an
abettor without being present when a crime is
committed.
To be guilty of aiding or abetting there
must be some actual participation or
assistance rendered. A person must associate
himself with the criminal venture by
participating in it and trying to make it
succeed, or actively encouraging that to
occur.
[28] Concerning “counselling”, the trial judge said:
The word “counselling” includes procuring,
soliciting or inciting. I will explain what
each of these words means. To “counsel”
means to advise or recommend. To “procure”
means to instigate, encourage or persuade. A
person can encourage or persuade without
having instigated the offence. A person
“solicits” another when he or she entreats or
urges another to do something. To “incite”
has a similar meaning. It means to urge or
stir up or stimulate.
[29] In these passages there is some overlap in the definitions.
The word “encourage” appears in the definitions of both abetting
and counselling. Nevertheless, there is a clear difference in
the definitions. The offence of counselling is limited to oral
encouragement by the accused. However, the activity of abetting
requires “actual participation or assistance rendered”. It may
be that the trial judge’s definition of abetting was narrower
than the definition enunciated in R. v. Greyeyes, supra.
However, that may well have inured to the appellant’s benefit in
that he was acquitted of the charge of attempted murder, the
offence grounded in abetting on the facts of this case. In any
event, there was nothing wrong with the trial judge’s definition
of counselling. Moreover, his definition of counselling was
different than his definition of both aiding and abetting.
[30] For these reasons, I do not agree with the appellant’s
submission that the jury’s verdicts in this case meet the high
standard set out in R. v. McLaughlin, supra, and the cases which
have followed it. The jury’s three verdicts are not violently at
odds with each other.
(2) Instructions about counselling murder
[31] The appellant was charged with an offence under s. 464 of
the Criminal Code, counselling an offence that is not committed.
That is because the offence counselled was murder, whereas the
offence ultimately committed by John Doe was attempted murder.
The trial judge correctly instructed the jury on this offence.
However, he injected into his charge a brief reference to s. 22
of the Code which deals with the circumstances in which a person
counselling an offence becomes a party to that offence or other
offences which the person counselling knew or ought to have known
were likely to be committed in consequence of the counselling.
The appellant contends that this reference to s. 22 may have
confused the jury or even created in their minds a larger scope
of liability for the counselling offence than is warranted on the
facts of this case.
[32] I disagree with this submission. It is true that s. 22(1)
was inapplicable in this case. Section 22(2) was either
inapplicable or unnecessary. However, viewing the trial judge’s
instructions on the counselling charge as a whole, the jury could
not have been misled about the only basis on which it could
convict the appellant of counselling - namely, counselling John
Doe to commit murder. On about a dozen occasions the trial judge
instructed the jury that the counselling offence required proof
beyond a reasonable doubt of counselling the commission of the
offence of murder. No other offence was mentioned. Moreover, on
the facts of this case, no other possible offence was in issue.
Accordingly, it is not realistic, in my view, to think that the
jury could have picked up on the trial judge’s brief reference to
s. 22(2) and, without more, used it to find the accused guilty of
counselling on an entirely different basis than that which the
trial judge had placed squarely before it.
(3) Admission of appellant’s guilty plea to the possession
charge
[33] Subsequent to his first trial on the charges relating to the
attack on Bidwell, the appellant pleaded guilty to the charge of
possession of property obtained by crime in relation to the
stolen computers found in Bidwell’s car on December 2, 1990.
Over a defence objection, the trial judge at the re-trial
permitted the Crown to adduce evidence of this entry on the
appellant’s criminal record in its case in-chief as evidence that
the appellant knew the computers were stolen. This in turn was
used to support the Crown’s theory of motive.
[34] A plea of guilty is an admission of the facts in issue and a
waiver of strict proof of the charge. In a number of pre-Charter
cases, courts have held that such a plea may be used against an
accused person at a subsequent criminal or civil trial: see R. v.
Adgey (1973), 1973 37 (SCC), 13 C.C.C. (2d) 177 (S.C.C.); and R. v. Pentiluk and
MacDonald (1974), 1974 1560 (ON CA), 21 C.C.C. (2d) 87 (Ont. C.A.).
[35] The appellant submits that this rule must be re-evaluated in
light of s. 7 of the Canadian Charter of Rights and Freedoms.[^2]
The appellant’s contention is that the admission of a guilty plea
in subsequent criminal proceedings infringes the protection of a
broadened notion of self-incrimination (beyond testimonial
compulsion) anchored in the principles of fundamental justice in
s. 7 of the Charter.
[36] I do not agree with this submission. Absent evidence to the
contrary, a plea of guilty must be assumed to be voluntary and
informed: see R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.).
Once such a plea is made, the conviction which is entered is part
of the public record. It works no injustice on the accused to
permit the guilty plea and conviction to be admitted as evidence
of the truth of the facts for which they stand at a subsequent
criminal trial: see R.v. Duong (T.D.) (1998), 1998 7124 (ON CA), 108 O.A.C. 378. It
remains open to the accused to challenge or explain the previous
conviction if he so desires. No challenge or explanation was
made in this case.
[37] For these reasons, I agree with the trial judge’s ruling on
this issue.
(4) Crown’s portrayal of Bidwell in its closing address
[38] At the trial, defence counsel in his closing address tried
to minimize the significance of Bidwell’s evidence on the break
and enter and possession of stolen property charges Ford was
facing. He did this in an attempt to challenge the Crown’s
theory about Ford’s motive for wanting Bidwell killed. Crown
counsel responded in his closing address by saying that Bidwell
was essential to the case against Ford. The appellant, at
paragraph 86 of its factum, challenges this statement on the
basis that it “misstated the law in a crucial respect”, namely by
ignoring the fact that the Crown could have relied on the
doctrine of recent possession to support its case against Ford.
[39] In my view, there is no merit in this ground of appeal.
Crown counsel did not misstate the law. His use of the word
“essential” was simply a practical response, as a matter of
advocacy, to defence counsel’s closing address. Their exchange
had nothing to do with a rarefied discussion of the different
methods of proof in a different trial relating to possession of
stolen property. Both counsel made forceful, and entirely
appropriate, submissions concerning Bidwell in their closing
addresses.
[40] Moreover, there is an irony in the appellant’s position on
this issue. If Bidwell’s testimony was not essential to the
Crown’s case against Ford, why would Ford have taken steps to try
to persuade Bidwell to change his story, steps which ultimately
led to a guilty plea to the offence of obstruction of justice?
DISPOSITION
[41] I am indebted to the excellent facta and oral arguments of
both counsel.
[42] I would dismiss the appeal.
Released: April 26, 2000 “J.C. MacPherson J.A.
“MAC” “I agree M.A. Catzman J.A.”
“I agree R.S. Abella J.A.”
[^1]: This witness testified for the Crown while he was an inmate in
a federal correctional facility. He had pleaded guilty to the
attempted murder of Martin Bidwell, use of a firearm during the
commission of an indictable offence, pointing a firearm, break
and enter and two counts of forcible confinement. He was
sentenced to 12 years imprisonment. Although he testified using
a pseudonym, there was no suggestion that he was in any danger
from the appellant (who knew Doe’s real name in any event) and
the jury was instructed accordingly.
[^2]: Before the trial judge, the appellant relied on both ss. 7 and
13 of the Charter. The trial judge held that, by definition
alone, s. 13 did not preclude the admission of a guilty plea
because a plea is not “testimony” or “evidence”. The appellant
does not appeal this component of the trial judge’s ruling.