DATE: 20010613 DOCKET: C31855

COURT OF APPEAL FOR ONTARIO

FELDMAN, MACPHERSON and SHARPE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Alan D. Gold for the Appellant

Respondent

• and -

WAYNE BERNARD JONES

John Corelli for the Respondent

Appellant

Heard: June 5, 2001

On appeal from a conviction for first degree murder upon a trial by judge and jury presided by Justice Christopher M. Speyer dated March 5, 1999.

BY THE COURT:

[1] The appellant was convicted of first degree murder. He raises two principal grounds of appeal.

[2] The first relates to the sufficiency of the Vetrovec ((1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.)) warning in relation the evidence of Graves. The trial judge instructed the jury to approach Graves's evidence with caution, but the appellant argues that the Vetrovec warning was not sufficiently strong. The judge used language that Mr. Gold conceded has been approved in other cases, instructing the jury that it should approach the evidence of Graves with “care and caution”. Mr. Gold submitted, however, that the word “dangerous” should have been used.

[3] While it certainly would have been open to the trial judge to have given a stronger warning relating to Graves' evidence, he committed no error in approaching the matter as he did. He was very clear on the points which made Graves’ evidence suspect, her prior criminal record, the fact that she was also charged with the murder and stood to gain from inculpating the appellant, and the fact her evidence was inconsistent with prior statements. In our view, this warning was sufficient to bring home to the jury the dangers her evidence posed. Vetrovec itself holds at p. 17 that no particular formula is required and that the matter lies within the discretion of the trial judge. In our view the trial judge did not go outside the acceptable limits of his discretion.

[4] The other Vetrovec point regarding the trial judge's failure to direct the jury as to what could amount to confirmatory evidence was not pressed in oral argument. As pointed out by the respondent, defence counsel asked the judge not to do that as it would only harm the defence by bringing such evidence to the jury’s attention.

[5] The principal argument relied on by the appellant was that the trial judge erred in leaving with the jury the possibility of convicting him as a party to the offence of murder under s. 21. The appellant submits that the Crown should have been restricted to its theory that the appellant was the killer and that the entire transaction was his. As Mr. Gold put it, the Crown alleged a transaction over which the appellant, not Graves, had “ownership”. Mr. Gold argued that there was no factual basis to leave with the jury the alternate theory that the appellant was a party to a murder committed by Graves. It is argued that would constitute a separate and distinct transaction for which the Crown laid no evidential basis, and that leaving the s. 21 theory with the jury unfairly undercut the appellant's essential defence that Graves was the killer.

[6] Mr. Gold conceded that there is no authority for his "ownership" theory, but he argues that the appellant was charged with one offence, advanced a defence to that offence, and then had his defence undercut when the trial judge invited the jury to consider the very different offence of being a party to a murder committed by Graves.

[7] It is common ground that the test for when to put a "party to an offence" theory to the jury in cases such as this is that offered by Martin J.A. in R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 at p. 460 , a passage adopted by the Supreme Court in R. v. Thatcher (1987), 1987 CanLII 53 (SCC), 32 C.C.C. (3d) 481 at p. 507. Martin J. A. stated:

I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain. It is, in my view, however, improper to charge the jury with respect to the liability of the accused as a party under s. 21 where there is no evidence proper to be left with the jury that more than one person was actually involved in the commission of the offence.

Martin J.A. went on to state:

There do not appear to be any Canadian or Commonwealth decisions which have examined or discussed the question presented by this ground of appeal. There are, however, a number of American decisions which have considered the question and, in particular, there is a long line of decisions in the State of Michigan which hold that it is reversible error to charge the jury with respect to aiding and abetting where there is no evidence to support a theory that the accused was acting in concert with another.

[8] In our view, there was ample evidence in this case from which the jury could conclude that both Graves and Jones were involved in the commission of the offence and that they were acting in concert. If the jury was prepared to entertain the suggestion that Graves was the killer, there was ample evidence of acts of the appellant that could give rise to his liability as a party. The weapon was his, he was in the car at the time of the shooting, he went together with Graves to pick up the deceased, and with Graves assistance, he disposed of the body and other incriminating materials including the murder weapon after the crime was committed.

[9] In view of this substantial body of evidence from which the jury could conclude that both the appellant and Graves were involved in the murder and that if Graves was the killer, the appellant knew in advance of the plan to kill the victim, by advancing the defence that Graves was the actual killer, the appellant effectively invited a direction on s. 21 as a possible theory of liability.

[10] It is important to add that the trial judge clearly charged the jury that if they were to convict on the basis of s. 21, the crown had to prove beyond a reasonable doubt that the appellant knew of a plan by Graves to commit murder before its actual commission.

[11] In our view, the circumstances of this case fall within the principles set out in Sparrow and Thatcher allowing the crown to advance alternative theories of liability where those alternatives are supported by the evidence. In Sparrow at p. 460, Martin J.A. concluded:

I am disposed to think that if there had been evidence to warrant charging the jury on s. 21, the charge was sufficient to convey to the jury in simple language the elements of liability under s. 21(1). . . . There was, in my view, simply no evidence of a "plan" to kill Garden involving the appellant as a participant, with another or others, to which this instruction could be related.

[12] We do not accept the submission that leaving s. 21 with the jury unfairly undercut the appellant's defence or subjected him to liability for a different transaction. There was a single murder and evidence that two people were involved in its commission before, during and after. Even if there were doubt about who was the actual killer, there was ample evidence from which the jury could conclude that both the appellant and Graves were implicated from the beginning. The trial judge properly left with the jury two possible theories of liability, both of which were supported by the evidence.

[13] Mr. Gold did not press the submission that the trial judge erred in his instruction with respect to "planned and deliberate" and we see no merit in that submission.

[14] Accordingly, the appeal is dismissed.

“K. Feldman J.A.”

“J. C. Macpherson J.A.”

“Robert J. Sharpe J.A.”

RELEASED: June 13, 2001