COURT OF APPEAL FOR ONTARIO

**DATE:**20000630

**DOCKET:**C28702

ABELLA, LASKIN AND FELDMAN JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
Mr. Riun Shandler
and Mr. J.A. Ramsay
for the respondent

(Respondent)

and

CALVIN MAUGEY
Mr. Peter Hambly
and Ms. Baran Gerez
for the appellant

(Appellant)

B E T W E E N:

C29319

HER MAJESTY THE QUEEN
Mr. Riun Shandler
and Mr. J.A. Ramsay
for the respondent

(Respondent)

and

DESMOND PRASHAD
Mr. Richard Litkowski
for the appellant

(Appellant)

Heard: May 12, 1999

On appeal from conviction by Sills J., sitting with a jury, on
September 23, 1997 and from sentence imposed on November 3, 1997
at Kitchener, Ontario

FELDMAN J.A.:

[1] Two friends of the appellants, Ally and Ecker, robbed a
Pizza Pizza store on December 24, 1996. They were armed with
knives and attacked the store owner and the pizza delivery
driver. Ally and Ecker were convicted of attempted murder of the
owner of the store, while Ally was also convicted of aggravated
assault on the pizza delivery driver.

[2] At their joint trial, the appellants were convicted
together with Ally and Ecker of conspiracy to rob and robbery of
the store. The appellants were also convicted of being
accessories after the fact to the robbery. They were each
sentenced to three years imprisonment. The appellants appeal
their convictions and sentences. Ally and Ecker did not appeal.
As I would order a new trial for the appellants, I will limit the
recitation of the facts to those necessary to deal with the
issues raised on the appeal.

FACTS

[3] The four accused men were 18, 19, 19 and 20 years old at
the time of the offences, and long-time friends who regularly
socialized and frequented nightclubs together. Maugey, who was
20, did the driving as he had access to a car. Ally, who was 19,
Maugey and Prashad all had cell phones and used them to
communicate with each other.

[4] In December 1996, Ally and Ecker planned a robbery of
their local Pizza Pizza store. They were prepared to plead guilty
to this conspiracy although they denied any involvement by the
two appellants. That plea was not accepted by the Crown. All four
accused testified at the trial, and all denied that the two
appellants had any involvement in or prior knowledge of the
robbery.

[5] The Crown’s theory was that all four men were involved in
the conspiracy, with the role of the appellant Prashad to be look-
out and the appellant Maugey to be get-away driver, and that all
four participated in a practice run of the robbery on the night
before the offences were committed.

[6] On the morning of December 23, the four young men left a
night club between 1:00 and 1:30 a.m. in Maugey’s car along with
another friend, Andrew Birl. Maugey stopped at Ecker’s home where
Ecker ran inside to change, then he drove Ecker and Ally to the
Pizza Pizza, dropped them off, drove Prashad home, then drove
Birl home. Maugey called Ally and Prashad on a three-way cell
call at 1:59 a.m.. The call lasted for nine minutes. Maugey,
Prashad and Birl all testified that the call concerned the
recovery of Ally’s identification from the club they had been at,
although Ally remembered that they discussed an incident at the
night club, but not the problem he had had with his
identification. The Crown alleged that this call was part of the
communication between the accused during the rehearsal for the
robbery. Ecker and Ally testified that that night they had masks
and knives and did intend to rob the store, but were unable to do
so because there were other people around. Maugey then picked up
Ally and drove him home.

[7] The next night the four accused were again out together.
Maugey was the driver. Eventually he dropped off Ally and Ecker
at the plaza where the pizza store was located. He then dropped
Prashad off at the next intersection where Prashad said he began
to walk up a hill behind a school toward his girlfriend’s home.

[8] Ally, Maugey and Prashad had a 15 minute open cell phone
line during the time that Ecker and Ally attacked the pizza store
owner and the pizza delivery driver in the store with knives.
During the struggle, the driver also stabbed Ally and Ecker. The
three accuseds testified that their phone discussion was about
going to Toronto for Chinese food the next day, and that Ally had
disconnected from the conversation early on, while the appellants
continued to talk. The appellants later heard screaming on the
line. Ally said that after the failed robbery, he ran outside,
called Maugey for help, then discovered that the phone was still
connected. He told Maugey he had been stabbed and told him where
he was. During the screaming, Prashad had disconnected his phone.
Maugey called him back and requested his help getting Ally to the
hospital.

[9] Maugey then came and picked up Ally as well as Prashad.
Ally was badly injured and bleeding. Maugey drove him to a
hospital but not the closest one. He dropped off Ally and Prashad
at the arena by the hospital, then he drove home. Prashad took
Ally into the hospital where he provided Ally’s correct
identifying information, but gave a false story that Ally had
been stabbed in a park. Maugey testified that he did not know
that a false story would be told. Ally also gave a false story to
police initially.

[10] Prashad gave a written statement to police on December 24 as
well as a videotaped statement. He initially lied about being
with Maugey when they received the call from Ally that he was
injured, but then admitted that he had been dropped off, then was
summoned by Maugey to assist with Ally, and that they took Ally
to the hospital. The statements were essentially exculpatory and
consistent with his testimony at trial.

[11] However, on January 7, 1997, Prashad was arrested, and
provided a second videotaped statement in which he said that he
and Maugey did know about the robbery in advance. They had
dropped off Ecker and Ally knowing they had a knife. He was
instructed to be the lookout by walking up a hill behind the
school near the Pizza Pizza, to look back and report anything he
saw into the phone. However, he just put the phone in his pocket
and did not act as lookout. When he picked up the phone to tell
Maugey he was going home, he heard screaming and cut off the
connection, but Maugey called him back and insisted that he help
take Ally to the hospital. He testified that he believed that if
he told the police he was supposed to act as a lookout but did
not do it, then he would not be charged.

[12] At trial his statements were conceded to be voluntary and
were admitted as evidence against him. He denied all knowledge of
or participation in the robbery in his testimony at trial.

[13] Maugey also gave a statement to the police on December 24.
He acknowledged picking up Ally and driving him to the hospital,
but lied that he was with Prashad when they received the phone
call from Ally. He also said in his statement that he suspected
that Ecker and Ally were up to something. At trial he denied
suspecting anything.

ISSUES

[14] On the conviction appeal, the appellant Maugey raises the
following 7 issues:

1. The trial judge erred by failing to present to the jury the
   theory of the defence and the evidence which related to that
   theory.

2. The trial judge erred by failing to outline to the jury what
   pieces of evidence they could consider against each appellant
   when applying the three-stage analysis on the conspiracy
   charge.

3. The trial judge erred in his charge by misstating the evidence
   with respect to the cell phone conversation on the night
   before the robbery, by failing to refer to the evidence of
   Andrew Birl who was in the car and overheard the conversation.

4. The trial judge erred by failing to properly answer the
   jury’s question which suggested that the jury may have been
   improperly transferring evidence among the accused.

5. The trial judge erred in his instruction on the mens rea
   element of the charges of accessory after the fact in that he
   told them that if either or both accused was wilfully blind
   to the facts of what Ally had done, then knowledge was proved.

6. The trial judge erred by failing to instruct the jury on the
   law with respect to consciousness of guilt, especially after
   the Crown referred to it in his closing address.

7. The trial judge erred by failing to exercise his discretion
   judicially when he refused to grant Maugey’s motion for
   severance after allowing into evidence Prashad’s statements
   to the police in which he implicated Maugey in the offences.

[15] The appellant Prashad relies on issues 1,3,4, and 5.

ANALYSIS

1) Did the trial judge err by failing to present to the jury the theory of the defence and to outline the evidence supporting that theory?

[16] One of the basic functions of the charge to the jury is for
the judge to state the position of the Crown and of the defence
and to outline for the jury the evidence relating to those
positions: Azoulay v. The Queen (1952), 1952 4 (SCC), 104 C.C.C. 97 (S.C.C.);
Colpitts v. The Queen,1965 2 (SCC), [1966] 1 C.C.C. 146 (S.C.C.); R. v. C.D.,
[2000] O.J. No. 1667 (C.A.). Recently in R. v. Mallot, [1998] 1
S.C.R. 123 at 131, while stating that a jury must be properly
instructed but need not be perfectly instructed, Major J. quoted
with approval the following passage from Azoulay:

The rule which has been laid down, and consistently
followed is that in a jury trial the presiding Judge
must, except in rare cases where it would be needless
to do so, review the substantial parts of the evidence,
and give the jury the theory of the defence, so that
they may appreciate the value and effect of that
evidence, and how the law is to be applied to the facts
as they find them…. [Emphasis added.]

[17] In R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), this
court dealt with how a reviewing court is to approach an
assessment of alleged deficiencies in a jury charge. Doherty J.A.
referred to the case of R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314 where
Lamer C.J.C. reiterated the obligation set out in Azoulay but
also stated that a functional approach must be taken to assessing
the adequacy of jury instructions. Doherty J.A. interpreted that
directive to mean that:

By the end of the instructions, whatever approach is
used, the jury must understand:

• the factual issues which had to be resolved;
• the law to be applied to those issues and the evidence;
• the positions of the parties; and
• the evidence relevant to the positions taken by the
  parties on the various issues. (p. 386)

[18] This was a difficult and complex jury charge. There were
four accused and five counts including a conspiracy charge,
involving various combinations of the four accused. The trial
judge himself stated as he was opening the first question from
the jury, that he did not ever expect to have a more difficult
jury charge to assemble. The trial judge carefully outlined the
law in respect of each offence and its applicability to the
alleged roles of each of the accused in the respective offences.
He also instructed the jury to consider all of the circumstances
and referred to some of the evidence. The issue is whether he
adequately set out the position of each of the appellants on the
counts with which they were charged, and whether he reviewed the
evidence relevant to those positions and related it to them.

[19] The modern test articulated by Doherty J.A. requires
“references to the evidence which are sufficient in the context
of the case and the entirety of the charge to alert the jury to
the particular parts of the evidence which are significant to
particular issues and to the positions taken by the parties on
those issues.” See R. v. MacKinnon, supra, at p. 386-7. In my
view, the jury charge in this case did not meet that test.

[20] On the charge of robbery, the trial judge instructed the
jury on the elements of the offence of robbery as well as the
requirements for a finding of aiding and abetting. His review of
the evidence in respect of the two appellants was the following:

In the end, you will have to consider all of the
surrounding circumstances, including what each of
Maugey and Prashad said and did, in order to decide
whether either of them knew or intended that his
conduct would aid or abet the principal offender.
Please remember the question for you to decide is what
did Maugey in fact intend; what did Prashad actually in
fact intend?

The trial judge did not put the position of the defence to the
jury, nor did he outline the pieces of evidence which supported
their position or were relevant to it. It was the position of
both appellants at trial that they did not know about the robbery
and therefore were not parties to it. That position was supported
by the co-accuseds. The trial judge could have referred to both
appellants’ explanations for their actions that night including,
their cell phone connection with Ally, as well as such evidence
as the appellant Prashad was nearsighted, was not wearing his
glasses, and was at a poor location for acting as a lookout as
alleged by the Crown, the evidence of Birl regarding the cell-
phone conversation, and the evidence of all four co-accused that
the appellants were not involved.

[21] The trial judge next dealt with the conspiracy to commit
robbery charge. I will deal later with his failure to relate the
relevant evidence to the three-part analysis that the jury must
undertake in order to find each accused to be a member of the
conspiracy and therefore guilty of that offence.

[22] The final charge against the appellants was accessory after
the fact to the offence of robbery by the assistance they
provided to Ally when they picked him up after the robbery. Again
the trial judge thoroughly outlined the elements of the offence
which the Crown was required to prove beyond a reasonable doubt.
Dealing with their knowledge that Ally had committed the acts
constituting robbery, the trial judge said only the following
with respect to the evidence:

You may find it difficult to decide what Mr. Maugey or
Mr. Prashad knew. Again, that is because knowledge is a
matter of the mind. In deciding whether Maugey and
Prashad knew that Kris Ally had committed the acts that
constitute the offence of robbery, you will have to
look at all the surrounding circumstances, including
what each of Mr. Maugey and Mr. Prashad said and did.

The trial judge dealt in a similar way with the element of proof
by the Crown that the appellants’ purpose or one of them, in
coming to Ally’s aid, was to help him escape from justice. In
respect of the evidence on that issue, the trial judge referred
to categories of evidence but did not articulate for the jury
actual examples of relevant evidence:

…Again, there needs to be proof of that purpose, and it
is difficult to decide exactly what the purposes of Mr.
Maugey and Mr. Prashad were.

You are entitled as a matter of common sense to draw an
inference that a sane and sober person intends these
natural and probable consequences of his voluntary
acts. Therefore, in deciding what the purposes of Mr.
Maugey or Mr. Prashad were, you are entitled as a
matter of common sense to infer or conclude that their
respective purposes were to bring about the natural
consequences of their respective actions.

If the actions of Mr. Prashad or those of Mr. Maugey
would have the natural effect of assisting Kris Ally,
then you are entitled to conclude that they were done
for that purpose. But you are not required to make this
conclusion. You may decide that there is a reasonable
doubt that they were done for that purpose, even if
this was the natural consequence of their actions, or
of each of their actions. In the end you will have to
consider all of the surrounding circumstances,
including what each of Mr. Prashad and Mr. Maugey said
and did in order to decide whether their actions or
whether their purpose in receiving, comforting, or
assisting Mr. Ally was to help him escape from justice.

You should also consider the explanation of each of Mr.
Prashad and Mr. Maugey when they testified. If the
testimony of each of them or either of them raises a
reasonable doubt about his reason for his conduct, you
must give the benefit of that doubt to that accused and
return a verdict of not guilty.

As this was the end of the substantive portion of the charge, the
trial judge made a further general reference to the evidence at
this point after reiterating that the Crown must prove each
element of the accessory after the fact offence beyond a
reasonable doubt:

The evidence in this case is not particularly extensive. A
considerable amount of time over the past three weeks has
been spent watching videos of statements made. But the facts
upon which all of the counts in this indictment are based
were facts which were developed over a two or three day
period between Dec. 22, 1996 and December 24, 1996.

He also advised the jury that they would be provided with a list
of the witnesses for the Crown and for the accuseds including the
accuseds themselves, in the order in which they testified and
stated:

[23] I hope that will be of assistance to you in the course of
your deliberations.

[24] At no point during the charge did the trial judge set out
the position of the appellants on any of the charges, nor did he
identify the pieces of evidence which supported or related to
those positions. This was not a very simple and straightforward
case as in R. v. Dwyer (1977), 1977 1995 (ON CA), 35 C.C.C. (2d) 400 (C.A.), where
an exception might be able to be made not to repeat to the jury
the facts just set out for them by counsel. This was an
especially complex charge with many legal principles which were
fully explained by the trial judge dealing with the five counts
and their application to the four accused before the court. It
was therefore a case which particularly required the trial judge
to set out the respective positions of each accused on each
charge and to relate the relevant evidence for the jury to each
such position.

[25] Furthermore, it is no answer, as suggested by the Crown,
that a full review of the evidence would have hurt the
appellants, so that the trial judge’s failure to do so enured to
their benefit. The purpose of the functional approach is to
organize and clarify the issues and the applicable evidence for
the jury, as it is for them to decide the guilt or innocence of
the accused. The appellants were entitled to a proper instruction
so that the jury could carry out their function in a fair manner.

[26] Although there was no objection to the charge by counsel,
that does not relieve the trial judge from the obligation to
relate the evidence to the issues: R. v. Pintar (1996), 110
C.C.C. (3d) 402 at 438. (C.A.).

2) Did the trial judge sufficiently set out for the jury which pieces of evidence they could consider against each accused when applying the three-stage analysis on the conspiracy charge?

[27] The conspiracy charge reads as follows:

“Kris Ally, Ryan Ecker, Calvin Maugey, and Desmond Prashad,
on or about the 24th of December, 1996, at the City of
Kitchener, did conspire together to commit the indictable
offence of robbery of Pizza Pizza owned and operated by
Hassan Shah-Fazlollahi situated at 450 Westheights Drive.”

[28] The Crown took the position that all four accused were
members of the conspiracy, so that if the jury was not satisfied
about the membership of all four in the conspiracy, then that
charge failed as against all four. Ally and Ecker admitted that
they were planning a robbery of the pizza store for one or two
weeks prior to the event and pleaded guilty to the conspiracy
charge. All four denied in their testimony that the appellants
were part of the conspiracy or even knew about it. However, in
his January 7, 1997 statement, Prashad had admitted his own
participation in the conspiracy and said that Maugey was also a
member of the conspiracy.

[29] It has been well-established since the cases of R. v. Baron
and Wertman (1976), 1976 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.) and R. v.
Carter (1982), 1982 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C) that the trial judge
must direct the jury how to apply the three-step process to
determine whether an accused has been proved to be a member of an
alleged conspiracy. The first step is to decide beyond a
reasonable doubt whether the conspiracy existed, based on all the
evidence. The second step is for the jury to determine whether
the accused was probably a member of the conspiracy, based only
on his own acts and declarations admissible directly against him.
That question must be answered for each alleged conspirator. If
the jury is satisfied, based only on the accused’s own acts and
words, that he was probably a member of the conspiracy, the jury
may consider the acts and words in furtherance of the conspiracy
of other persons whom they have found to be probable members, as
evidence against the accused that he was a member. Normally such
evidence would be inadmissible hearsay, but because conspirators
are agents of each other, their acts in the agency are admissible
against each other. Acts and words in furtherance of the
conspiracy are those which moved the conspiracy forward, not
narrative discussions or descriptions, or statements made after
the object of the conspiracy has been carried out, such as
statements made to the police after the fact. Finally, the third
step is that the jury must be satisfied beyond a reasonable
doubt, based on all of the evidence, that the accused was a
member of the conspiracy.

[30] In his charge to the jury, the trial judge outlined in a
very satisfactory manner, the three-step process including a
description of the types of evidence that they could use at each
stage of the process. He also discussed the element of intent and
re-emphasized that the onus was on the Crown beyond a reasonable
doubt. That part of the charge covered 6.5 pages in the
transcript.

[31] In Baron and Wertman, supra, at p. 545-6, Martin J.A.
described a five-point procedure to be used by trial judges when
charging juries on the offence of conspiracy. After the trial
judge has instructed the jury on how to determine if an accused
is a probable member of the conspiracy, and if so, how they may
then use the hearsay statements of other co-conspirators, the
fourth point directs:

“As a general rule, it would be desirable for the trial
Judge to then refer the jury to the principal evidence
admissible directly against each accused from which
they may find that such accused was a party to the
conspiracy but the jury should be instructed that it is
for them to say if the evidence has this effect.”

[Emphasis in original.]

In the later Supreme Court decision in Carter, supra, at p. 575-
6, the court described fully the obligation of the trial judge in
charging on conspiracy:

The trial judge must bear in mind that in order to
convict an accused upon a charge of conspiracy the
jury, or other trier of fact, must be satisfied beyond
a reasonable doubt that the conspiracy alleged in the
indictment, existed, and that the accused was a member
of it. In deciding the issue of membership for the
purpose of determining guilt or innocence on the charge
contained in the indictment, the hearsay exception may
be brought into effect, but only where there is some
evidence of the accused’s membership in the conspiracy
directly admissible against him without reliance upon
the hearsay exception raising the probability of his
membership. It is not necessary that the directly
admissible evidence be adduced first before any
evidence of the acts and declarations of other
conspirators may be received. The exigencies of the
trial would make a chronological separation of the
evidence impossible. At the end of the day, however,
before the hearsay exception may apply, such evidence
on the threshold issue of membership of the accused in
the conspiracy must be present. In charging the jury
on this question, the trial judge should instruct them
to consider whether on all the evidence they are
satisfied beyond a reasonable doubt that the conspiracy
charged in the indictment existed. If they are not
satisfied, then the accused charged with participation
in the conspiracy must be acquitted. If, however, they
conclude that a conspiracy as alleged did exist, they
must then review the evidence and decide whether, on
the basis of the evidence directly receivable against
the accused, a probability is raised that he was a
member of the conspiracy. If this conclusion is
reached, they then become entitled to apply the hearsay
exception and consider evidence of the acts and
declarations performed and made by the co-conspirators
in furtherance of the objects of the conspiracy as
evidence against the accused on the issue of his guilt.
This evidence, taken with the other evidence, may be
sufficient to satisfy the jury beyond a reasonable
doubt that the accused was a member of the conspiracy
and that he is accordingly guilty. They should be
told, however, that this ultimate determination is for
them alone and that the mere fact that they have found
sufficient evidence directly admissible against the
accused to enable them to consider his participation
in the conspiracy probable, and to apply the hearsay
exception, does not make a conviction automatic. They
should be clearly told that it is only after they have
become satisfied beyond a reasonable doubt on the whole
of the evidence on both issues, that is, the existence
of the conspiracy and the accused’s membership in it,
that they may convict, and that it is open to them, if
they think it right or if they are not satisfied, to
acquit the accused, even after reaching their initial
determination of probable membership in the conspiracy
which enabled the application of the hearsay exception.
The trial judge should point out to the jury, as well,
the evidence directly admissible against the accused on
the threshold issue of his membership in the conspiracy
to assist them in that determination…. [Emphasis
added.]

[32] The reason why it is so important that the jury be
specifically charged on which evidence is directly admissible
against an accused is because it is that evidence which may make
the accused a probable member of the conspiracy and allows the
hearsay statements of other co-conspirators to be applicable as
evidence against him. In order to be able to apply the test, the
jury must understand which pieces of evidence are available as
evidence admissible directly against an accused.

[33] The matter was particularly open to confusion in this case
where the two appellants each gave statements to police after the
alleged conspiracy was concluded. Such statements, once ruled
voluntary, are admissible against the person who made them, but
are never admissible against another co-conspirator, as they are
not made in furtherance of the conspiracy, but after the
conspiracy was completed. Also, the two other co-accused, Ally
and Ecker, made admissions about their own involvement and gave
evidence explaining the involvement of the appellants. That
evidence was exculpatory for the appellants, as was their own
evidence. This exculpatory evidence was also admissible evidence
for the jury to consider on the issue of probable participation,
but the admissions of Ally and Ecker about their own involvement
were not, as those admissions were not declarations made in
furtherance of the conspiracy. Because there was both inculpatory
and exculpatory evidence on the issue of the appellants’
knowledge and involvement, it is not possible to say what the
jury would have done had they been referred to the available
evidence in the charge.

[34] The trial judge did provide some very brief references to
the evidence after his lengthy explanation of the law:

Some of the evidence that you should consider is that
of each of the accused, particularly as it relates to
their joint conduct during the period of December 22,
1996 through December 24, 1996. There is the evidence
that all four were together on the night of Sunday,
December 22 and the early morning hours of December 23,
and drove together to the Driftwood Plaza, discharging
Ally and Ecker on Driftwood, while Maugey drove off
with Prashad. There is evidence of the conference call
lasting over nine minutes at that time, all of which
the Crown characterizes as a dry run. There is evidence
of all four being together again the next night during
which the robbery occurred, and the three-way telephone
hook-up among them at almost precisely the time the
offences in question were taking place. There is no
direct evidence of what was said during those
conference calls other than the evidence of the accused
that the communications had nothing to do with any
robbery.

I may review more of the evidence in a concluding
fashion, but that is the end of my instruction with
respect to conspiracy specifically…

[35] The trial judge did not provide the jury with any assistance
with respect to which pieces of evidence were directly admissible
against each of the accused separately. The court took a break
after this portion of the charge, and upon the jury’s return and
at the request of counsel, the trial judge provided them with
some clarifying points beginning with the following:

Thank you, ladies and gentlemen. Before I begin again
there are a couple of matters I want to clarify with
you. First, I had just left the conspiracy issue, and
it has been brought to my attention that I failed to
tell you that the video statements taken by the police
officers of Mr. Maugey and Mr. Prashad are not evidence
against anyone other than them as makers of the
statements.

[36] What use could, and more importantly, could not be made of
the video statements made to police was a key issue,
particularly for Maugey. His motion for severance was denied on
the basis that the trial judge would make it clear to the jury
that they could not use Prashad’s video statement of January 7,
1997, which implicated Maugey in the conspiracy and as a party to
the robbery, as any evidence against Maugey. To fail to refer to
this in the original charge was a serious error.

[37] The correction was of some assistance, but did not fully
clarify the matter. First, by referring to the statements and to
their makers in the plural, the trial judge failed to explicitly
say that each statement was only evidence against its own maker.

[38] Second, and more importantly, the instruction did not
explain to the jury that even in the context of the conspiracy
instruction, a statement by one accused to the police was not
evidence against the other. In the context of a joint trial, the
instruction on the limited use of a statement must contain both a
positive and negative element which tells the jury both the use
that they can make of the statement and what they cannot use it
for. The importance of explaining the positive and negative
aspects of such an instruction was recently emphasized by Sharpe
J.A. in R. v. Lam and Diu, 2000 4535 (ON CA), [2000] O.J. 1770 at para.
139. The
statement made by Prashad to the police was admitted into
evidence against him as a voluntary statement amounting to a
confession. It was not a statement in furtherance of the
conspiracy. As a result, the trial judge should have specifically
directed the jury that that statement could not become admissible
as evidence against Maugey even if the jury found that Prashad
and Maugey were both members of the conspiracy after properly
applying the instructions of the trial judge.

[39] In summary, the trial judge did not explain specifically
that not only were the video statements made to the police not
directly admissible against the other accused in the first
instance, but they were also not admissible as hearsay after
applying the conspiracy test, because they were not statements
made in furtherance of the conspiracy.

[40] Accordingly, I conclude that the trial judge erred in
failing to follow the procedure directed in Baron and Wertman,
supra, and in Carter, supra: to set out the evidence which is
directly admissible against each alleged conspirator in order to
assist the jury to determine whether each accused was a member of
the conspiracy, and to properly understand and apply the
conspiracy instruction.

3) Misstatement of evidence by the trial judge

[41] On the night before the robbery Maugey drove the other three
and a fifth friend, Andrew Birl, in his car. Maugey testified
that after they left the nightclubs he drove Ecker home first
where he changed his clothes, then he drove Ecker and Ally to the
Pizza Pizza store, then dropped off Prashad at his home. After
that he drove Birl to his home. Both Maugey and Prashad testified
that they did not know that Ecker and Ally intended to rob the
pizza store but believed they were just going for pizza.

[42] Cell phone records for Maugey’s phone showed a nine-minute
call to Ally at 1:59:01 a.m. after Ally and Ecker were dropped
off. Prashad was joined into the call after a few seconds. The
content of the call was important as some evidence of whether the
appellants or either of them knew what Ally and Ecker had gone to
do while the call was going on. Both Maugey and Birl testified
that Maugey made the call while Birl was still in the car being
driven home. Birl testified that he heard Maugey’s end of the
conversation and that there was no talk of a robbery, but only of
an identification card. The appellants said the call concerned
Ally’s identification which had been confiscated by a bouncer at
a club that night. Ally said the conversation was about a problem
they had had at a club that night with a girl, but not about his
immigration card problem there. In cross-examination, Birl said
that he remembered the night because it was Sunday and there was
school the next day, although there was no school on Monday,
December 23rd. He also said that he had drunk a lot and was not
paying attention to the phone call.

[43] The position of the Crown was that the four accused
conducted a “dry run” of the robbery on the 23rd and that the
events of that evening were evidence of the conspiracy and of the
participation and intent of the two appellants.

[44] Following his charge to the jury on the conspiracy issue,
the trial judge mentioned some evidence that the jury should
consider (quoted above) in respect of the joint conduct of the
four men. He referred to the cell-phone conference calls on the
23rd and the 24th between Ally, Maugey and Prashad, then stated:

There is no direct evidence of what was said during those conference calls other than the evidence of the accused that the communications had nothing to do with any robbery.

[45] This statement clearly excludes from the jury’s
consideration the evidence of Mr. Birl for whatever weight the
jury might have wished to give it. It is a misstatement of the
evidence. The appellants submit that it seriously prejudiced the
defence. However, the trial judge gave the jury the standard
instruction that he may fail to mention something that they
believed was important and that it was their view of the
significance of the evidence that was important and that his view
was not binding on them.

[46] Because the trial judge dealt in such a spare and spartan
manner with the evidence, it is difficult to gage what
significance, if any, the jury may have put on his omission of
any reference to Birl’s evidence on the content of the cell
conversation on the first night. Furthermore, Birl’s evidence was
not without its problems. Although I do not believe that this
error, on its own, would have had a significant effect on the
jury’s appreciation of the case, it is part of a group of errors
related to the failure by the trial judge to adequately deal with
the evidence in his charge to the jury.

4) The jury’s question

[47] The jury returned with the following question very shortly
after retiring for deliberations:

To have “completed” a robbery, does there have to be
proof that actual goods were taken, or does the
“guilty” statement mean it was completed as applies to
the other two, Maugey and Prashad, having taken part in
a robbery?

The trial judge commented after reading out the question that he
was not sure what the jury meant. During discussion with counsel
the trial judge reread the statement and again said that he was
not sure what the jury meant by “the guilty statement.” Crown
counsel suggested that the reference was to the admissions of
Ally and Ecker. Counsel for the appellant Maugey said that those
statements have no effect on the other two, while the Crown and
the trial judge both commented that the evidence given at the
trial was evidence against all of them. Counsel for Prashad
raised the concern as to the use of the guilty pleas by Ally and
Ecker as against the appellants on the issue of robbery.

[48] After some further discussion with counsel, during which
time the jury sent another question, the trial judge gave the
following answer to the jury:

Thank you, ladies and gentlemen. I have your two
inquiries, which I have discussed with counsel. With
respect to the first inquiry regarding robbery, you
have asked: “To have ‘completed’ a robbery does
there have to be proof that actual goods were taken
or does the guilty statement mean it was completed,
as applies to the two other, Maugey and Prashad
having taken part in a robbery.?” My response for
you there is that the actual fact of taking is not
essential to proof of the charge as written in the
Indictment. What is required to be proven is that
the intent to steal must be proven beyond a
reasonable doubt, as I mentioned to you. I was a
little puzzled about what you were referring to as
the guilty statement, whether you were referring to
the testimony given by Mr. Ecker or Mr. Ally, or to
their earlier pleas. If that still remains a problem
in your minds perhaps you could express it and let
me know. I think the question you are asking me is
whether or not there has to be a taking of goods
before the robbery charge could be made out, and I
tell you that the fact of taking is not essential to
proof of the charge as written.

[49] Following that response, counsel for the appellant Maugey
raised the concern that the jury would use the acknowledgement of
guilt by Ally and Ecker to find intent to rob by the appellants.
The trial judge refused to recharge the jury unless they asked
for further clarification.

[50] In my view, this question from the jury demonstrates their
possible confusion regarding what use they were entitled to make
of both in and out of court statements of other co-accused as
against the appellants, not only on the conspiracy charge but on
the other counts.

[51] In his original charge, the trial judge gave a general
explanation of the use of out of court statements. He concluded
by stating that out of court statements are not evidence against
any other accused. He also told the jury that the guilty pleas of
Ally and Ecker could be treated by them as admissions and as part
of the evidence on which to base their verdicts, but without
saying that the pleas were only evidence against the person
pleading. They were not evidence against the appellants: R. v.
Simpson and Ochs (1988), 1988 89 (SCC), 38 C.C.C. (3d) 481 at 491-494 (S.C.C.)

[52] During his charge dealing with proof of intent on the
robbery count against the four accused, the trial judge referred
to the fact that in their own evidence Ally and Ecker said that
they intended to rob the pizza store. He then went on to discuss
the essential elements that the Crown must establish in order to
prove that Maugey and Prashad aided and abetted the other two,
including the fact that they each had to intend that some act of
theirs would aid the robbery and therefore they would each have
to know about the intended robbery. He did not mention the
admissions of Ally and Ecker at this point and made the brief
reference to the relevant evidence which I will repeat here:

In the end, you will have to consider all of the
surrounding circumstances, including what each of
Maugey and Prashad said and did, in order to decide
whether either of them knew or intended that his
conduct would aid or abet the principal offender.
Please remember the question for you to decide is
what did Maugey in fact intend; what did Prashad
actually in fact intend.

[53] From its question, it appears that the jury may have been
confused about what use they could make of the guilty pleas and
the admissions of Ally and Ecker about their own intent to rob,
to establish that the appellants or either of them knew about
those intentions or that either of them intended to aid or abet
Ally and Ecker in their criminal endeavor. Once it appeared from
the jury’s question that they were confused about this issue, the
trial judge erred by failing to clarify first, that the jury
could not use the guilty pleas of Ally and Ecker against the
appellants, and second, that Ally’s and Ecker’s testimonial
admissions of their own roles in the robbery, taken alone, were
not proof of the intent of the appellants. To leave it to the
jury to ask for further clarification was not an adequate
response because the jury did not know what or whether to ask. It
was incumbent on the trial judge in answering the question, to
clarify with the jury what “guilty statement” they were referring
to. If it was the pleas of guilt by Ally and Ecker, those pleas
formed no part of the evidence against either appellant. If it
was their testimony admitting their own roles and intentions in
respect of the robbery, that evidence could be considered by the
jury, along with all of the other evidence, in assessing the
knowledge and intentions of the appellants. The trial judge’s
failure to carefully instruct the jury on this issue may have
resulted in the jury using the guilty pleas or the testimonial
admission of Ally and Ecker viewed in isolation, as evidence
against the appellants to prove that the appellants had knowledge
of Ally’s and Ecker’s intent to rob the pizza store.

5) The error in the jury charge on the issue of individual mens rea on the charge of being an accessory after the fact.

[54] In his charge on this count, the trial judge included the
following statement:

The next ingredient is knowledge that the offence
was committed by the person assisted. This
ingredient that the Crown must prove beyond a
reasonable doubt is that Mr. Maugey and Mr. Prashad
each knew that Kris Ally did the acts that make up
the offence of robbery…

if either or both of Mr. Prashad or Mr. Maugey
deliberately shut their eyes to facts that would
have led each of them to the inevitable conclusion
that Kris Ally committed or was a party to an
offence, then as a matter of law, knowledge of the
offence has been proven. [Emphasis added.]

The Crown concedes that this instruction, by itself was in error,
but points to several places in his charge where the trial judge
made it clear to the jury that the burden is on the Crown to
prove the essential elements of each offence against each
accused, and that they must consider and render separate verdicts
for each accused on each count. Finally, the trial judge told the
jury that: “Each accused is entitled to have his guilt or
innocence as to each of the crimes charged determined from his
own conduct and from the evidence which applies to him as if he
were being tried alone.” I agree with the Crown that this error,
taken alone, would not have misled the jury as to what evidence
was necessary to make a finding of guilt in respect of each
accused. However, in light of the other errors, it is not clear
that the jury would have understood which pieces of evidence
applied to each appellant “as if he were being tried alone.”

6) Failure of the trial judge to instruct the jury on “consciousness of guilt”

[55] In her closing address to the jury, Crown counsel referred
to the lies that the appellant Maugey told to the police together
with his actions in taking Ally to a distant hospital rather than
the closest one, as evidencing “consciousness of guilt.” However,
the trial judge did not address that issue in his charge.

[56] This court has recently set out again the need for a careful
and proper instruction on the significance of what is now
referred to as the accused’s after-the-fact conduct. In Lam and
Diu, supra, Sharpe J.A. stated at para. 121 and 122:

In general, the trial judge should instruct the
jury that the evidence of the accused’s after-the-
fact conduct has only an indirect bearing upon the
issue of guilt, and that the jury should exercise
caution in inferring guilt because the conduct
might be explained in an alternative manner:
Arcangioli, supra, at pp. 299-300, citing
Gudmondson v. The King (1933), 60 C.C.C. (S.C.C.)

The trial judge should also instruct the jury that
the evidence of the accused’s after-the-fact
conduct can only be used to support an inference of
guilt where they have rejected any innocent
explanation for the conduct: Peavoy, supra, at p.
238.

In some cases, the trial judge should provide
specific instructions on the use of evidence of
after-the-fact conduct. The specific instruction
will depend on the facts of each case and the
position advanced by the accused during the trial.
There is no clear rule to determine the
circumstances in which evidence of after-the-fact
conduct may be used to support an inference of
guilt. It is, in the end, a question of relating
the evidence of after-the-fact conduct to the
issues raised and determining the extent to which,
if at all, it is logically probative of the issues.

[57] I agree with the appellant that such an instruction should
have been given in this case, using examples from the evidence of
specific after-the-fact conduct together with the accused’s
explanation for that conduct in each instance.

7) The refusal of the trial judge to grant severance

[58] After nine days of trial, the Crown sought to introduce into
evidence the second video-taped statement made by Mr. Prashad on
January 7, 1997. The statement was admitted to be voluntary. The
other three co-accused, however, objected to the admission of the
statement unless the parts which implicated them were edited out.
Counsel for the appellant Maugey also asked for a severance of
his trial at that point on the basis that the statement by
Prashad which refuted Maugey’s defence that he had no prior
knowledge of what Ally and Ecker planned to do, was so
prejudicial to Maugey that the only way to cure it was by a
separate trial.

[59] The trial judge denied the motions made by all counsel and
admitted the statement. In his reasons for refusing the severance
application, the trial judge noted that all counsel had had the
statement for several months and no severance had been requested
up to that time. Because the essence of both the joint robbery
charge and the conspiracy charge was common enterprise involving
all 4 accused, with evidence of common intention, the trial judge
held that a joint trial was appropriate. The trial judge
recognized the concern on behalf of the co-accused that parts of
Prashad’s statement implicated them, but held that juries are
recognized as able to follow the instructions of the trial judge,
and with a clear instruction as to the proper and exclusive use
they were entitled to make of the statement, the jury could be
trusted to use and apply the statement properly as evidence only
against Prashad.

[60] Before the statement was admitted, the trial judge proceeded
immediately to give the jury a clear instruction that this
statement was only evidence against Prashad. In his general
instructions at the opening of his charge to the jury, the trial
judge repeated clearly that the videotaped statements of Maugey
and Prashad to the police were only evidence against the maker of
the statement and not against any other accused.

[61] As I have already discussed, however, in the jury charge on
the conspiracy count, the trial judge failed to identify the
videotaped statements as evidence which could not be used for any
purpose as against any alleged co-conspirator, although he did
make the point very briefly but not fully, at the request of
counsel after a break during the charge. He also did not specify
that the video statements of one accused could not be used and
considered as part of the circumstances or of the evidence as a
whole on any other charge as against a co-accused.

[62] The trial judge may order severance “where the interests of
justice so require”: s. 591(3) of the Criminal Code. It is a
discretionary decision which is to be accorded substantial
deference by a court on appeal: R. v. Litchfield (1993), 86
C.C.C. (3d) 97 at 113-4.

[63] This court has recently reiterated that there is a
presumption that “persons accused of the joint commission of
crime should be tried together.”: R. v. Suzack (2000), 128 O.A.C.
140 at 162. The appellant challenges the so-called rule of
joinder on this appeal on the basis that it contravenes ss. 11(d)
and 7 of the Charter. He argues that where it allows highly
prejudicial, otherwise inadmissible evidence against one co-
accused to be admitted, it violates both the presumption of
innocence, by putting an onus on the accused to disprove that
evidence, and the right to a fair trial. The appellant also
challenges the proposition that a jury is able to understand and
follow the instructions by the trial judge to ignore a statement
of one co-accused implicating the other in the crime when
considering the Crown’s case against that other accused.

[64] In R. v. Crawford (1995), 1995 138 (SCC), 96 C.C.C. (3d) 481 S.C.C., the
appellant testified at trial that the co-accused was the killer.
The co-accused sought to cross-examine the appellant on the fact
that he had initially exercised his right to silence by not
giving a statement to the police. Normally no mention can be made
of an accused’s failure to testify at any stage. The court
discussed the competing rights of co-accused, including Charter
rights, and the need to balance the rights of each in the context
of a joint trial. In connection with severance, the court stated:

Although the trial judge has a discretion to order
separate trials, that discretion must be exercised
on the basis of principles of law which include the
instruction that severance is not to be ordered
unless it is established that a joint trial will
work an injustice to the accused….

The general rule, therefore, is that the respective
rights of the co-accused must be resolved on the
basis that the trial will be a joint trial. This
does not mean, however, that the trial judge has
been stripped of his discretion to sever. That
discretion remains, and can be exercised if it
appears that the attempt to reconcile the respective
rights of the co-accused results in an injustice to
one of the accused. (p.497-8).

[65] In Suzack, supra, Doherty J.A., speaking for the court,
confirmed the ability of a properly instructed jury to use
evidence of bad character led by one co-accused against another
only for the purposes of the defence of the co-accused who led
the evidence, but not as part of the Crown’s case against the
other accused, because such evidence is not admissible on behalf
of the Crown, but only on behalf of the co-accused as part of his
defence. Doherty J.A. recognized that this evidence, led against
Suzack by his co-accused Pennett “posed a threat to Suzack’s
right to a fair trial.” (p. 167) He further recognized that
severance was an option but that it created other difficulties.
He held that the trial judge did not err in refusing severance
and handling the issue by a proper jury instruction. Doherty J.A.
noted that there is always a concern regarding the ability of a
jury to understand complex legal instructions, and even the
willingness of the jury to follow such instructions. However, he
concluded:

As long as we maintain trial by jury, however, courts
must proceed on the basis that juries accept and follow
the instructions given to them by the trial judge: R.
v. Corbett [(1988), 1988 80 (SCC), 41 C.C.C. (3d) 385] at 401; R. v.
Eng (1999), 1999 BCCA 425, 138 C.C.C. (3d) 188 at 201-202 (B.C.C.A.).

That is not to say that in a specific case a trial
judge could not decide that the risk of misuse of
propensity evidence offered by one co-accused could not
be adequately addressed by a limiting instruction. If a
trial judge reaches that conclusion, he or she will
have no choice but to order severance. It would,
however, be wrong for a trial judge to accept as a
general proposition that a jury would not or could not
abide by a limiting instruction. (p. 172)

[66] It is clear from the recent jurisprudence of both this court
and the Supreme Court that the rule of joinder is
constitutionally valid. Where there is a joint trial the rights
of each co-accused must be carefully balanced by the trial judge.
Where that cannot be done in a way that ensures that each has a
fair trial, or where the trial judge is not satisfied that the
prejudice of the otherwise inadmissible evidence cannot be
overcome in the particular circumstances by an appropriate
limiting instruction to the jury, then the trial judge may
determine that the option of separate trials is the only way to
ensure fairness.

[67] In this case there was no error in the approach of the trial
judge to the issue of severance and I see no basis upon which to
interfere with his exercise of discretion. To the extent that any
of the required instructions could have been made more clear to
the jury, the opportunity is available at a new trial.

8) Application of the proviso: s. 686(1)(b)(iii)

[68] This is not a case for the application of the proviso. This
was a complex and difficult case which required the trial judge
to provide the jury with the assistance they needed to fairly
decide the case. The cumulative effect of the errors, all of
which relate to the same issue of the failure of the trial judge
throughout the charge to present the theory of the defence, to
direct the jury to relevant evidence relating to that theory and
to the conspiracy test, and to clarify the allowed and prohibited
uses of some of the evidence, makes the application of the
proviso inappropriate. I am not satisfied that the verdicts
reached by the jury would necessarily have been the same had the
jury been fully and properly instructed on those issues.

RESULT

[69] I would allow the appeals, set aside the verdicts and order
a new trial. It is therefore unnecessary to consider the appeals
against sentence.

Released: June 30, 2000