DATE: 20030814

DOCKET: C36882-C33702-C34579

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., WEILER and ABELLA JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

JOHN RICHARDSON, KURTON EDWARDS and MARK WILLIAMS

Appellants

Peter Connelly for the appellant, Richardson

T.E. Breen for the appellant, Edwards

James C. Fleming for the appellant, Williams

Carol Brewer, Alex Alvaro and Hilary McCormack for the respondent

Heard: July 2-3, 2003

On appeal from the convictions entered by Justice Douglas J.A. Rutherford, sitting with a jury, dated April 14, 1998.

O’CONNOR A.C.J.O.:

[1] The three appellants were convicted of first degree murder and sentenced to life imprisonment with parole ineligibility for 25 years. They were also convicted of four counts of kidnapping, aggravated sexual assault, assault causing bodily harm and unlawful use of a firearm arising out of the same series of events that gave rise to the murder convictions. Charges of unlawful confinement and possession of a prohibited weapon were stayed.

[2] In all, the appellants raise seven grounds of appeal against their convictions. The most significant grounds relate to the admissibility of a statement under the past recollection recorded exception to the hearsay rule and the trial judge’s charge on the co-conspirator’s exception to the hearsay rule.

[3] For the reasons that follow, I would dismiss the appeals.

FACTS

[4] It is not necessary to set out the facts in detail. However, a brief overview of the circumstances of the offences will provide context for the discussion of the grounds of appeal that follow.

[5] Late in the evening of October 25, 1995, the deceased, S.L., along with three other victims were kidnapped and taken to an apartment on Banner Road in Nepean, Ontario. Three of the victims, S.L., N.B. and D.C. were subjected to vicious assaults in the master bedroom. The fourth victim, M.R. was bound, gagged and blindfolded and was confined in a storage room in the apartment.

[6] S.L. and D.C. were beaten into unconsciousness and N.B. was burned on her back, legs and inside her vagina with a red-hot curling iron. The beatings only stopped because of the unexpected arrival of the police who had been called by a neighbour. S.L. died as a result of the injuries inflicted in the apartment.

[7] There was overwhelming evidence that the three appellants had been actively involved in kidnapping and confining the four victims in the apartment. Indeed, the appellants, Williams and Edwards, conceded that they were guilty of kidnapping, unlawful confinement and, as parties, to assaults on S.L. and D.C. Edwards also conceded guilt for manslaughter in S.L.’s death.

[8] The evidence showed that, in addition to the appellants, a number of other individuals, some of them young persons, were involved in the kidnappings and the assaults.

[9] The Crown suggested three possible motives for these horrific events: one was gang related, a second related to a racial slur and a third to a concern about a set-up in connection with a debt of $400.

[10] At trial, the Crown’s submission was that the appellants were guilty of first degree murder in the death of S.L., either as a planned and deliberate act or by virtue of a murder committed in the course of an unlawful confinement under s. 231(5)(e) of the Criminal Code. The thrust of the defence was that the Crown had failed to establish that the appellants inflicted the assaults, including the fatal beating of S.L., or that they had formed the requisite mens rea to commit murder.

[11] There was evidence which, if accepted, placed each of the appellants in the master bedroom at various times during the course of the beatings. There was also evidence of comments made by the appellants or comments made in their presence supporting an inference of the intention to kill the four victims.

[12] The appellants did not testify at trial, nor did they call any evidence.

[13] The appellants do not argue that the convictions were unreasonable or that they cannot be supported by the evidence. Rather, they take issue with the admissibility of two pieces of evidence and the manner in which the trial judge instructed the jury on a number of different points.

GROUND #1 – Past recollection recorded

(a) Background

[14] The appellants argue that the trial judge erred in admitting a portion of a statement made by N.B. to the police under the past recollection recorded exception to the hearsay rule. N.B. was a Crown witness at the trial.

[15] In examination-in-chief, N.B. testified about a conversation she had with the appellant, Edwards, while he was leading her up the stairwell to the apartment where the assaults were shortly to take place. She testified that she asked Edwards where M.R. (one of the other victims) was and he said, “not to worry, she’s okay”. Then she asked Edwards what was going on. He replied that if she co-operated, everything would be fine. At trial, she could not recall any other conversation taking place in the stairwell.

[16] With a view to refreshing her memory about what else Edwards said to her in the stairwell, the Crown directed N.B. to a statement that she made to the police approximately 16 hours after the events in issue. After reviewing the statement, N.B. testified that her memory was not refreshed. She could not remember the additional conversation referred to in the statement. She testified, however, that at the time she made the statement, the events were fresh in her mind and that she was trying to be accurate and truthful. The trial was 2 ½ years after the events.

[17] Following a voir dire, the trial judge ruled that the part of N.B.’s statement which she could not remember was admissible as past recollection recorded. N.B. was then directed to read to the jury that part of her statement in which she recounted the conversation with Edwards in the stairwell. It was as follows:

And he was showing me every stair, like, he was going, “okay, there’s another stair here.” Where it started, where it ended and where we turned. And I said, “I didn’t say anything to no police, I haven’t been talking to nobody.” And he goes, “I know you haven’t.” And then I go, “So why are you guys doing this?” He goes, “It’s too late now,” he goes, “because we already picked up you and your cousin [S.L.]. “So then if we killed both of them then you’re the only eyewitness left.” And I said, “Where’s M.R. [M.R.]?” And he said, “Don’t worry about M.R.”

[18] The statement in question was the second of three statements made by N.B. to the police. The details of each are set out in the Crown’s factum in the following manner (with alterations for clarity):

The First Statement was made to Constable Adams on October 26, 1995 from 3:24 to 4:25 a.m., approximately one to two hours after the infliction of her burns. The statement was taken in a patient cubicle at the hospital, prior to N.B. receiving any treatment. The officer recorded the statement in his handwriting as N.B. “was in no condition to write that statement on her own.” She was “traumatized” and “something less than in control.” The statement was 9 pages long.

The Second Statement was made to Detective MacDougall and Sergeant Wisker on October 26, 1995 at 6:12 p.m., roughly 16 hours after N.B. was burned. By that time she had received medical attention. The statement was audio-taped for an hour and 20 minutes and subsequently transcribed into a 58 page document. Before the statement was made, N.B. had spoken with M.R. at the hospital. One of the topics discussed by the girls was M.R.’s belief that she had been abducted because Edwards viewed her attempt to collect the $400 as a “set up”.

The Third Statement was made to Sergeants Balkwill and Lengacher on October 28, 1995 between 7:40 and 9:00 p.m. It was audio-taped and transcribed into a 72 page document. N.B. wanted to speak with the police in order to put names to the people whose conversations and actions were described in her earlier statements.

[19] It was only in the second statement that N.B. described the exchange that took place in the stairwell, which was admitted as past recollection recorded. In addition, she did not refer to that exchange when giving evidence at the proceedings against the young offenders or at the appellants’ preliminary hearings.

[20] In her testimony, N.B. acknowledged that prior to providing the police with her second statement, she spoke to M.R. at the hospital and that they briefly discussed what had happened to each of them. However, N.B. said that they did not discuss her conversation with Edwards in the stairwell.

(b) The trial judge’s ruling

[21] In admitting the challenged part of N.B.’s second statement as past recollection recorded, the trial judge found:

• it was not disputed that the transcription of the statement was accurate and N.B. vouched for its truth and accuracy;
• the passage of 16 hours between the events and their recording in the second statement fell inside “the traditional bounds within which the freshness of the recollection gives rise to an assumption of reliability”;
• although there was some conversation between M.R. and N.B. at the hospital before the second statement, there was “no foundation on which to suspect, however, that there could have been any contamination of Ms. N.B.’s recollection of what transpired between her and Edwards … Ms. M.R. was not privy to that event and I cannot see how it could be imagined that their limited conversation could have interfered in any way with Ms. N.B.’s recollection of it”; and
• N.B. had ‘an imperfect present recollection’ of the communication with Edwards and, while “she does retain a present recollection of some of the things that he said,” that did not preclude her “past recorded recollection of the contentious exchange between her and Edwards” from being put before the jury.

[22] It is apparent that the trial judge accepted N.B.’s evidence that she could not recall the critical part of the exchange in the stairwell, and that she had been trying to be accurate and truthful when she made the statement to the police.

[23] The trial judge assessed the admissibility of the evidence against the criteria for the admission of evidence under the past recollection recorded exception to the hearsay rule. The trial judge’s ruling preceded the Supreme Court of Canada’s decision in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 and the trial judge did not subject the evidence to an analysis under the principled approach to the admission of hearsay evidence.

(c) Past recollection recorded

[24] Past recollection recorded is a well established exception to the hearsay rule. Although the test has been described in different language over the years, the essential conditions for admissibility are as follows:

1. Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate.
3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.

See R. v. Fliss (2002), 2002 SCC 16, 161 C.C.C. (3d) 225; Wigmore on Evidence (Chadbourn rev., 1970) vol. 3 at para. 734-755; John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto, Butterworths, 1999) at para. 16.83-16.86.

[25] In my view, there was sufficient evidence before the trial judge to enable him to conclude, as he did, that the four conditions required for the admission of the statement on the basis of past recollection recorded were established.

[26] There is no issue as to the reliability of the record. The statement was audio recorded and accurately transcribed.

[27] The timeliness requirement does not call for strict contemporaneity. It is sufficient if the record is prepared close enough to the events to ensure accuracy. The appropriate length of time will vary with the circumstances of the case. The key is whether the events were fresh in the declarant’s mind. See R. v. Lauzon, [2000] O.J. No. 3940 (C.A.) (3 days); R. v. Weinberg, [1993] O.J. No. 4041 (C.A.) (48 hours); R. v. Eisenhauer (1998), 1998 NSCA 60, 123 C.C.C. (3d) 37 (N.S.C.A.) (6 days).

[28] It was open to the trial judge in this case to conclude that the passage of 16 hours between the events and the recording came within the acceptable bounds to give rise to an assumption of reliability. There is nothing in the evidence to suggest that the passage of time had affected the witness’s ability to recall the events accurately when she gave her second statement to the police.

[29] As to the absence of memory, Ms. N.B. testified that she could not recall the critical exchange and it is apparent that the trial judge accepted her memory loss as genuine.

[30] The appellants argue, however, that because Ms. N.B. had some recollection of the events surrounding the challenged evidence, the absence of memory requirement was not met. I disagree. The absence of memory requirement does not mean that a statement is admissible as past recollection recorded only where the witness has a total loss of memory regarding the relevant events. Wigmore at para. 734 sets out that the past recollection recorded exception can be used where the witness “is either devoid of a present recollection or possessed of an imperfect present recollection”. Wigmore went on to warn at para. 755 that courts should avoid deploying these rules “as inflexible dogmas”.

[31] The trial judge in this case relied on Wigmore to find that the exception could apply where the witness has no recollection of a portion of the statement, but remembers other parts of it. The Nova Scotia Court of Appeal also cited Wigmore in R. v. Eisenhauer, supra, and came to a similar conclusion.

[32] The fourth criterion, the need for a witness to vouch for the accuracy of the statement was clearly satisfied in this case. In her examination-in-chief, Ms. N.B. testified that at the time she made the statement, she was being truthful.

(d) The principled approach

[33] The appellants go on to argue that even if the statement in issue was properly admitted under the common law exception for past recollection recorded, it nonetheless did not satisfy the requirements of the principled approach to the admission of hearsay evidence. They argue that following the Supreme Court of Canada’s decision in R. v. Starr, supra, the past recollection recorded criteria are no longer determinative of admissibility.

[34] At the outset, it is important to note that in Starr, Iacobucci J. emphasized the continued importance of the traditional hearsay exceptions. Even within the principled approach to the admission of hearsay evidence, compliance with a traditional exception is often indicative of admissibility. Importantly, the past recollection recorded exception is grounded in a concern for reliability, and compliance with the requirements of that exception, in my view, should weigh strongly in favour of admissibility under the principled approach.

[35] It is worth noting that the Supreme Court decided R. v. Fliss, supra, after Starr. In Fliss, Binnie J. analyzed the admissibility of the challenged evidence against the criteria for past recollection recorded and did not suggest that the exception should be changed to reflect the principled approach.

[36] In this case, the appellants did not argue strenuously that the necessity criterion had not been met. Loss of memory has been found to satisfy that criterion: R. v. C.C.F. (1997), 1997 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.); R. v. Lauzon, supra. The trial judge’s conclusion that Ms. N.B. had no present recollection of the impugned exchange with Edwards in the stairwell satisfied the necessity requirement.

[37] The requirement for threshold reliability involves identifying the specific hearsay dangers inherent in admitting an out-of-court statement for its truth and assessing whether the facts surrounding the hearsay statement provide sufficient circumstantial guarantees of trustworthiness to compensate for the hearsay dangers: Starr, supra; R. v. K.G.B. (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.).

[38] In my view, the circumstances of this case meet the threshold of reliability requirement. Although the statement itself was not made under oath, N.B. did testify under oath that she was being truthful and accurate when she made the statement. The statement was made when the details were fresh in N.B.’s mind and the trial judge found that it was made voluntarily, without suggestive or leading questions. The statement was accurately recorded.

[39] Importantly, defence counsel were able to conduct a full cross-examination about the circumstances surrounding the making of the statement and how it was that N.B. could recall some events and not others. It is difficult to imagine that the cross-examination would have been significantly different if N.B. had recalled the critical exchange and testified about it directly rather than having it introduced through the past recollection recorded exception. The jury had the opportunity of observing N.B. giving her evidence, seeing her demeanour and assessing her credibility.

[40] The appellants attach importance to the fact that N.B. did not mention the impugned exchange in her first and third statements to the police or when testifying at the young offenders proceeding or at the appellants’ preliminary hearings. However, these were matters that went to the issue of the ultimate reliability of the challenged statement. At trial, defence counsel vigorously cross-examined N.B. about why it was that she only recounted the exchange in issue in the second statement to the police. The jurors were able to consider her failures to mention the critical exchange on other occasions in determining the weight to be attached to it.

[41] The appellants also argue that the statement in issue fails to meet the threshold of reliability because it was tainted by the conversation that N.B. had with M.R. before making the second statement.

[42] The trial judge specifically addressed this argument and found that N.B.’s conversation with M.R. did not contaminate her recollection of what transpired between her and Edwards in the stairwell.

[43] In my view, there was ample evidence to support the trial judge’s finding. M.R. was not present in the stairwell when the impugned exchange took place and N.B. testified that she did not discuss what happened in the stairwell with M.R. Further, N.B.’s second statement, read as a whole, does not lend support to the argument that N.B. added the impugned exchange to her story after speaking to M.R. in order to implicate Edwards. In other parts of the same statement, she made comments about Edwards that were inconsistent with an intention to unfairly implicate him in the offences. Indeed, she described certain events in that statement, as she did on other occasions, which could only be viewed as favourable to Edwards’ position at trial. Moreover, the impugned exchange in the stairwell is consistent with certain comments made by Edwards in the truck on the way to the Banner Road apartment making it less likely that N.B. made up the exchange after speaking to M.R.

[44] In summary, I am satisfied that the impugned portion of N.B.’s second statement to the police was properly admissible under the principled approach to the admission of hearsay evidence.

(e) The trial judge’s charge

[45] In his charge to the jury, the trial judge commented that the jury was “only entitled to hear that kind of evidence [of past recollection recorded] where it satisfied some particular conditions that at least objectively suggests that it may be something on which you can rely.”

[46] While it would have been better if the trial judge had not mentioned the criteria governing the admissibility of this evidence to the jury, as they may have taken the comment as an indication that special weight should be attached to the evidence, I am nonetheless satisfied that the trial judge addressed any possible prejudice arising from this comment. In his charge, he told the jury that it was their task to determine what facts may be relied upon and what facts may not and what weight was to be put on all the evidence. In his recharge, the trial judge told the jury that they must “consider very carefully” and give “extra cautious scrutiny” to the evidence of past recollection recorded before placing reliance on it. He said that past recollection recorded is a “lower form of evidence” because the witness cannot even recall it and that, in contrast with other evidence, these statements were not given under oath.

[47] In my view, the instructions to the jury satisfactorily addressed any prejudice arising from the trial judge’s comments about the admissibility of the past recollection recorded evidence.

GROUND #2 – The co-conspirator’s exception to the hearsay rule

[48] The appellants argue that the trial judge erred in instructing the jury on the co-conspirator’s exception to the hearsay rule.

[49] The co-conspirator’s exception to the hearsay rule is not limited to charges of conspiracy. It may also apply where it is alleged that an accused is a member of a common design. Thus, the exception may operate in conjunction with an allegation under s. 21(2 ) of the Criminal Code.

[50] In this case, the Crown alleged, and the evidence overwhelmingly supported, that the three appellants were members of a common design to unlawfully confine the four victims who were taken to the apartment on Banner Road. It was, therefore, appropriate for the trial judge to instruct the jury on the possibility of finding liability for murder and the assaults pursuant to s. 21(2) of the Criminal Code and to also instruct them on the use of the co-conspirator’s exception to the hearsay rule.

[51] The appellants concede that the trial judge properly described the three-step analysis for the admission of hearsay evidence in the context of a common enterprise that is set out in R. v. Carter (1982), 1982 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C.). However, the appellants argue that the trial judge made two errors in instructing the jury on how that analysis should be applied to this case.

[52] First, the appellants say that the trial judge erred in failing to review the evidence on which the Crown relied to show that each appellant was linked to the common design by his own acts or declarations – the second step in the Carter approach. Although as a general rule, it is desirable for a trial judge to review such evidence, it was not necessary to do so in this case. The appellants Edwards and Williams conceded guilt for unlawful confinement and clearly were acting jointly in the commission of that offence. The evidence against the appellant Richardson that established that he was a member of the enterprise to confine the four victims was overwhelming.

[53] There was no doubt that each of the appellants was a member of a common design by virtue of his own acts or declarations. Indeed, if the trial judge had reviewed all the relevant evidence, he would have emphasized evidence that was not at all helpful to the position of the appellants. If anything, the trial judge’s failure to review such evidence enured to the benefit of the appellants.

[54] The appellants also argue that the manner in which the trial judge charged the jury on s. 21(2) of the Criminal Code, in conjunction with his charge on the co-conspirator’s exception, may have left the jury with the impression that it was only necessary to prove the appellants guilt for the substantive offences of murder and assault on a balance of probabilities. I disagree.

[55] As part of his charge on the use of the co-conspirator’s exception to the hearsay rule, the trial judge referred to the second step of the Carter approach which requires the Crown to establish on a balance of probabilities that an accused was linked to the common enterprise by evidence directly admissible against that accused. The trial judge’s charge made it clear that the use of the balance of probabilities’ onus was limited to the analysis necessary to consider the admissibility of hearsay evidence and was not part of the analysis in determining the issue of the overall guilt of the appellants.

[56] Throughout his charge, the trial judge repeatedly instructed the jury that the onus was on the Crown to prove the appellants’ guilt of the offences charged beyond a reasonable doubt. The main issue at trial was the mens rea for murder. The trial judge took great care in telling the jurors that the mens rea required for murder was subjective, and that in order to find the appellants guilty, they must be satisfied that the necessary mens rea had been established beyond a reasonable doubt. In my view, there was no possibility that the jury may have misunderstood the onus of proof required for findings of guilt.

GROUND #3 – Bad character evidence – Richardson

[57] The Crown led evidence about a conversation that took place on the evening of October 25, 1995, shortly before the assaults occurred. In that conversation, the appellant, Richardson, described an incident in the United States involving a girl and a curling iron in what “wasn’t a nice context”.

[58] The witness who recounted the curling iron conversation also testified that she felt intimidated by Richardson, and as an explanation for her role in the ensuing events, she was permitted to explain that her feeling of intimidation resulted from Richardson’s talk about gang-related incidents involving killing and violence.

[59] The appellants concede that the discussion about the curling iron was properly admitted into evidence. However, they argue that the evidence that the witness was intimidated by Richardson and Richardson’s description of the gang related activities should not have been admitted as part of the Crown’s case.

[60] In my view, there was no prejudice resulting from the fact that the Crown was permitted to lead the challenged evidence as part of the examination-in-chief. Defence counsel cross-examined the witness extensively about her role in the events that took place in the apartment. That line of cross-examination led to the witness’s explanation about being afraid of Richardson. It seems likely that the challenged evidence would have been before the jury, even if the Crown had not led it as part of the examination-in-chief. In fact, it was for that reason that the trial judge admitted the evidence.

[61] In any event, the trial judge properly instructed the jury in his charge that they could not use evidence that the appellants were involved with gangs to conclude that they were more likely to have done what they were charged with. That was a proper limiting instruction. There was no objection to this part of the charge and, in particular, defence counsel did not ask the trial judge to instruct the jury further with respect to the limited use that could be made of the specific comments about gang-related activities attributed to Richardson.

[62] I see no merit to this ground of appeal.

GROUND #4 – Omissions

[63] The trial judge instructed the jury that liability pursuant to s. 21(1)(b) and (c) of the Criminal Code could be based on acts or omissions. However, he did not specifically say that liability based on omissions can only arise where there is an omission in circumstances where there is a legal duty to act . See R. v. Nixon (1990), 1990 10993 (BC CA), 57 C.C.C. (3d) 97 (B.C.C.A.).

[64] The Crown’s theory of liability was not based on an omissions theory. The Crown’s theory and the evidence pointed to all three appellants as active participants in the kidnapping and unlawful confinement. There was sufficient evidence to establish party liability for murder and for the assaults on the basis of the appellants’ actions, assuming the jury concluded that they possessed the requisite intent and that they intended that their actions would aid or abet the assailants.

[65] In his charge, the trial judge did not emphasize the omissions aspect of party liability under s. 21(1)(b) and (c). Indeed, the trial judge made clear on several occasions that mere passive acquiescence or being a bystander was not enough for party liability. Rather than leaving open the possibility of a finding based on an omission, the trial judge told the jury that there must be some actual participation, assistance rendered or active encouraging or urging that the offence be carried out. A mere bystander, he said, was not an aider or abetter.

[66] I would not give effect to this ground of appeal.

GROUND #5 – The review of the evidence/position of the defence

[67] The appellants argue that the trial judge erred in failing to adequately review the positions of the defence and in particular the evidence in support of those positions.

[68] I see no error in this regard. This case was not factually complex. The positions of the Crown and the defence were relatively straightforward. The jurors were permitted to take notes throughout the trial and they heard lengthy addresses from counsel. In his charge, the trial judge specifically incorporated by reference the defence addresses to the jury.

[69] Moreover, during the course of the charge, the trial judge reviewed the positions of the appellants separately and made reference to key evidence relied upon by each in support of the defence theories.

[70] The defence was essentially that the Crown had failed to prove the charges against the appellants and was premised mainly on the lack of credibility or reliability of key Crown witnesses. The trial judge at different points in his charge specifically addressed the defence positions. He alerted the jury to discrepancies in the testimony of Crown witnesses and the need for care in assessing the weight to be attached to the various witnesses’ evidence. He spoke of the lack of memory of some witnesses, the criminal record of some and N.B.’s motivation to implicate the appellants.

[71] In my view, the jury was adequately alerted to particular parts of the evidence that related to the positions taken by the appellants and I see no merit to this ground of appeal.

GROUND #6 – Section 231(5)(e)

[72] The appellants argue that the trial judge failed to adequately instruct the jury as to the degree of participation required for first degree murder pursuant to s. 231(5)(e) of the Criminal Code.

[73] The trial judge’s charge carefully tracked the five-step approach to s. 231(5) set out by the Supreme Court of Canada in R. v. Harbottle (1993), 1993 71 (SCC), 84 C.C.C. (3d) 1 at 14.

[74] In dealing with s. 231(5), the trial judge told the jury that in order to find the accused guilty of first degree murder, it was necessary for the Crown to establish beyond a reasonable doubt the underlying crime of domination, that is forcible confinement. He continued:

The person must be guilty of the forcible confinement. The accused must also be guilty of murder by being a party, either committing it or aiding or abetting it or being a party by subsection (2) of 21. The accused must have been shown to have participated – and this is the crux of it – in the murder in such a manner that he was the substantial cause of the death of the victim.

[75] In my view, the trial judge’s instruction was proper and I see no merit to this ground of appeal.

GROUND #7 – Available verdicts

[76] The appellants submit that the trial judge failed to adequately instruct the jury as to the available verdicts against each of the appellants regarding the charge of first degree murder.

[77] I am satisfied that the trial judge properly set out the available verdicts. He instructed the jury that they could find the appellants guilty of first or second degree murder or manslaughter. He also told the jury that they had to consider each count as it related to each accused separately. The trial judge properly defined first and second degree murder and manslaughter, and correctly explained the application of subsections 21(1) and (2) and the test under s. 231(5)(e) for first degree murder.

[78] I see no merit to this ground of appeal.

DISPOSITION

[79] For the above reasons, I would dismiss the appeals of each of the appellants.

RELEASED: “DOC” “AUG 14 2003”

“Dennis O’Connor A.C.J.O.”

“I agree K.M. Weiler J.A.”

“I agree R.S. Abella J.A.”