DATE: 20030730

DOCKET: C33932-C33937

COURT OF APPEAL FOR ONTARIO

CARTHY, DOHERTY and ROSENBERG JJ.A.

B E T W E E N:

Diane Oleskiw

HER MAJESTY THE QUEEN

for the appellant, Wilfredo Portillo

Respondent

Gregory Lafontaine and

Jill R. Presser

• and -

for the appellant, Noe Portillo

WILFREDO PORTILLO and

Philip Downes

NOE PORTILLO

for the respondent

Appellants

Heard: June 16 and 17, 2003

On appeal from the convictions entered by Justice A.J. Abbey of the Superior Court of Justice, sitting with a jury, dated May 29 and 31, 1999 and from the sentences imposed on August 30 and 31, 1999.

DOHERTY J.A.:

I

[1] The appellants, Wilfredo Portillo and Noe Portillo, were convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 12 years. They appeal conviction and sentence.

[2] The grounds of appeal fall into three groups:

• the reasonableness of the verdicts;
• the admissibility of certain evidence tendered by the Crown; and
• the correctness of the trial judge’s instructions to the jury.

[3] The trial judge erred in admitting what was described as the “footwear” evidence. This error necessitates the quashing of both convictions. I am satisfied that the admissible evidence does provide a basis upon which a reasonable jury, properly instructed, could convict the appellants. Consequently, I would quash the convictions and order a new trial.

II

[4] The deceased was strangled to death. The Crown claimed that the two appellants, acting together, killed him and stole property from his apartment. The Crown’s case was entirely circumstantial. The appellants did not testify and did not call a defence.

[5] The deceased was in his early fifties and was partially disabled by a stroke. He was found dead on the morning of May 2, 1998 lying on the floor beside his bed in his small apartment. There was a cushion over his head and some linen and a cloth over his body. His underwear was around his ankles. There was a white extension cord around the deceased’s neck with a bicycle handle bar wrapped into the cord at the back of the neck, presumably to facilitate the use of the cord to strangle the deceased.

[6] There was no sign of forced entry into the apartment, or of any scuffle in the living room. The bedroom was in disarray, but there was evidence that this was not unusual.

[7] The deceased was a heavy drinker and his blood/alcohol level at the time of his death was .400. He was known to entertain in his apartment and there was often a lot of drinking. The appellants knew the deceased and had been in his apartment before the night of the homicide.

[8] The appellants began drinking with a group of men in the early evening of Friday, May 1. Noe Portillo went to the deceased’s apartment about 7:00 p.m. on Friday night with some vodka to visit the deceased. A friend of the deceased was visiting with him when Noe Portillo arrived. There was some evidence that the deceased did not want Noe in his apartment. Noe left about a half an hour later indicating that he would return.

[9] The friend of the deceased left at about 11:00 p.m. He put the deceased to bed, tidied the apartment and left locking the main door. He left the patio door slightly ajar and blocked it with a piece of wood. This same friend found the body the next morning at about 11:00 a.m. The patio door was open.

[10] There was considerable circumstantial evidence from which it could be inferred that the appellants were in the deceased’s apartment drinking beer after 1:30 a.m. on Saturday morning. The Thrashers, neighbours of the deceased, heard the deceased quarrelling with someone between 4:00 a.m. and 6:00 a.m. on Saturday morning. It was open to the jury to infer that the appellants were present when this quarrel took place. There was also evidence from which it could be inferred that whoever was visiting the deceased in the early morning hours of Saturday, May 2 left in a hurry leaving full bottles of beer on the table and the stove turned on.

[11] The Crown led evidence of certain hairs found in the deceased’s apartment. One scalp hair, which matched Noe Portillo’s DNA profile, was found somewhere on the deceased’s underwear. A second scalp hair matching Noe Portillo’s DNA profile was found on the bedroom floor near the deceased’s body. A body hair matching Wilfredo Portillo’s DNA profile was found on the skin of the deceased high on his thigh near the buttocks. Hair that was microscopically similar to Wilfredo Portillo’s scalp hair was found on the back of the deceased’s sweater. Three scalp hairs that were microscopically similar to the deceased’s hair were found on pillowcases seized from the apartment of Wilfredo. These pillowcases were similar in pattern to pillowcases found in the deceased’s apartment.

[12] The defence challenged the “hair” evidence in two ways. First, they established through cross-examination that hair could be transferred from one surface to another with relative ease. The deceased was sitting in his living room in his underwear the night before he was killed and he could have picked up hairs from the furniture both on his underwear and on his thigh just below the buttocks. The defence also sought to establish that the crime scene had not been properly safeguarded and that there was considerable potential for contamination before the forensic samples were retrieved.

[13] The admissibility of the “hair” evidence was not contested at trial. On appeal, counsel contend that the evidence that certain hairs were microscopically similar to the hair of the deceased and the appellants should have been excluded.

[14] The deceased owned a red bicycle that, according to his friend, was in the deceased’s apartment at 11:00 p.m. on May 1 when the friend left. That bicycle was in the possession of Wilfredo Portillo on May 4. Wilfredo Portillo was seen taking the bicycle from his apartment to a field and hiding it under a piece of plywood. Immediately before leaving his apartment with the bicycle, Wilfredo Portillo had been visited by his brother, Noe Portillo.

[15] A green bicycle belonging to the deceased was recovered from the basement of Noe Portillo’s apartment. There was no evidence as to when or how this bicycle came into Noe Portillo’s possession.

[16] There was some evidence from which it could be inferred, that some cash, a wallet and a bank card were taken from the deceased on the night of his death. None of this property was recovered.

[17] Home sewn pillow cases were seized from Wilfredo Portillo’s apartment. Forensic examination revealed that the thread used in those pillowcases were similar to thread used in home sewn pillowcases found in the deceased’s apartment. The pillowcases also had the same floral print design.

[18] A few pieces of costume jewellery were found in clothing belonging to Wilfredo Portillo. On cross-examination, the defence elicited evidence from the police officer who seized that jewellery, that an expert had examined the jewellery and compared it to costume jewellery found in the deceased’s apartment. After some discussion among counsel and the trial judge, that expert was called by the Crown. The expert described the jewellery as mass-produced women’s costume jewellery having minimal value. He said there was a general similarity in value and quality between the jewellery found in the deceased’s apartment and the jewellery found in the possession of Wilfredo Portillo. The expert acknowledged that jewellery of that kind was very common.

[19] There was no objection taken to the admissibility of the “jewellery” evidence at trial. On appeal, counsel submit that the evidence should have been excluded.

[20] The police found two Addidas running shoes in the vicinity of Wilfredo Portillo’s apartment. An expert testified that impressions taken of the treads of those running shoes were similar to two partial footprints found at the scene of the homicide. The admissibility of the “footwear” evidence was objected to at trial and that objection is renewed on appeal. I will describe the “footwear” evidence in more detail when I consider that ground of appeal.

[21] Mrs. Thrasher, one of the deceased’s neighbours who heard arguing between 4:00 a.m. and 6:00 a.m. on May 2, testified that she recognized one of the voices as that of Noe Portillo. The day after Mrs. Thrasher gave this evidence, counsel argued that this evidence was improperly before the jury and moved for a mistrial. After that motion was rejected, counsel eventually took the position that the trial judge should expressly instruct the jury that the purported voice identification of Mrs. Thrasher had no probative value. That position is renewed on appeal. I will address the voice identification evidence in more detail when I consider that ground of appeal.

III

The Admissibility Issues

(i) The “footwear” evidence

[22] In the course of the investigation at the homicide scene, the police found an envelope under the deceased’s head with blood on it and a partial shoe print beside the blood. They found a second partial shoe print in the mud outside of the patio door of the deceased’s apartment. Two days later, a police officer found two Addidas running shoes in the vicinity of Wilfredo Portillo’s apartment. One was found in an alley about 15 feet to the right of a set of stairs leading to Mr. Portillo’s apartment. Those stairs provide access to other apartments as well. This running shoe was closer to the door leading to the apartment next to Wilfredo Portillo’s apartment. The second Addidas running shoe was found in the entrance to the same alley about 20 feet away from the first running shoe. It was on a boulevard in front of an auto body shop. The two running shoes were the same brand, colour and size. Both appeared to have been worn. One shoe had a lace, the other did not.

[23] There was no evidence that Wilfredo Portillo had ever worn running shoes like those found in the vicinity of his apartment. There was no evidence that Wilfredo’s feet were capable of fitting into the shoes. Although there were apparently tests which could be performed to determine whether shoes had been regularly worn by an individual, those tests were not conducted in this case. The police did not canvass the area where the shoes were found or take any other investigative steps to try and locate the owner or owners of the shoes.

[24] An expert compared photographic impressions taken of the treads of the recovered running shoes with photographic impressions of the footprints found at the scene. He testified that the patterns on the treads of the shoes were similar in size, shape and orientation to the patterns found in the footprints. The expert observed no accidental characteristics on the treads of the shoes or footprint impressions which would allow him to make a more definitive comparison. The expert had no idea how many shoes had the same tread pattern as the running shoes found in the vicinity of Wilfredo’s apartment. He could not say whether other types of Addidas running shoes had that same pattern and he could say whether other brands of running shoes had that same pattern.

[25] The footwear evidence was tendered as part of a package of circumstantial evidence from which the Crown asked the jury to ultimately infer that the appellants participated in the deceased’s killing. If it was reasonably open to the jury to find that the partial footprint on the envelope under the deceased’s head was made by Wilfredo, that inference provided cogent evidence of Wilfredo’s involvement in the killing.

[26] The use to which the Crown urged the jury to put the “footwear” evidence is set out in counsel’s closing address. He said:

What other evidence do we have connected to that apartment? [Wilfredo’s apartment] Well, you have those two blue running shoes. You have the evidence and the photographs as to where they were located outside apartment nine. Yes, there’s other people that live in and around that apartment building and yes there’s obviously a lot of Addidas shoes with a similar tread pattern, but there was no evidence that those people left their finger and hand impressions on beer bottles, on a wine glass in Ted Purchla’s apartment [the deceased], left their DNA on a cigarette, left their hair on the victim’s body. Putting that all together, I submit you can find that those shoes are connected to Wilfredo Portillo. What are their significance? Well, you’ve heard the evidence of the yellow coloured envelope with a shoe impression, part of a impression on that envelope that is similar to those Addidas shoes, just similar, not a positive identification like a fingerprint. It is just similar. Another coincidence? That’s for you to decide [emphasis added].

[27] In holding that the evidence was admissible, the trial judge considered probative value and potential prejudicial effect. He concluded that the evidence had some probative value, although he acknowledged that the fact that the shoes were not found in Wilfredo’s possession, diminished their probative value. The trial judge also concluded that there was no potential prejudicial effect. He said:

… There is no potential unfairness to the accused in the sense that this evidence if introduced might be used by the jury for other than its intended and proper purpose.

[28] On appeal, Mr. Downes, for the Crown, argued that the “footwear” evidence was potentially powerful circumstantial evidence placing Wilfredo Portillo in very close proximity to the body when the homicide occurred. Mr. Downes submitted, quite correctly, that as the evidence was but one part of the Crown’s circumstantial case its relevance and ultimate probative value had to be assessed in the context of the rest of the circumstantial evidence.

[29] The Crown’s argument both at trial and on appeal as to the probative value of the “footwear” evidence is seductive. I agree, however, with Ms. Oleskiw’s contention that the Crown’s argument as to the relevance of the evidence is ultimately based on circular reasoning.

[30] The “footwear” evidence consisted of two primary facts:

• two partial shoe prints found at the scene were similar to impressions from two shoes found by the police in the course of their investigation; and
• the shoes were found in the vicinity of Wilfredo Portillo’s apartment.

[31] The “footwear” evidence was relevant if it could reasonably be inferred from those primary facts, considered in the context of the rest of the evidence, that Wilfredo Portillo was at the scene of the homicide in close proximity to the body. That conclusion could be drawn only if these two inferences were reasonably available from the “footwear” evidence:

• the shoes found by the police made the prints at the scene; and
• the shoes belonged to Wilfredo Portillo.[^1]

[32] The “footwear” evidence had relevance only if both of the above inferences could be drawn. With respect to the first inference, that the shoes made the prints found at the scene, other evidence (e.g. hair and fingerprint evidence) connecting the appellant to the scene could only help in concluding that the shoes made the prints if the trier of fact had already drawn the second inference and concluded that the shoes belonged to Wilfredo Portillo. Without that latter inference, evidence that Wilfredo Portillo was at the scene had no logical connection to the question of whether those shoes made the prints. With respect to the second inference, that the shoes belonged to Wilfredo Portillo, evidence of the comparison between the prints found at the scene and the impressions from the shoes could assist in connecting those shoes to Wilfredo Portillo only if the jury had already drawn the first inference and concluded the shoes in fact made the prints at the scene.

[33] The “footwear” evidence could assist in proving either of the factual inferences needed to give the evidence relevance, only if the Crown could first prove the other factual inference for which the “footwear” evidence was offered.

[34] As indicated above, the evidence connecting Wilfredo Portillo to the homicide scene could not assist the jury in determining whether the shoes made the prints found at the scene unless other evidence established that the shoes belonged to Wilfredo Portillo. The only other evidence connecting Wilfredo Portillo to the shoes was the evidence that they were found in the vicinity of Wilfredo Portillo’s apartment. That fact alone could not reasonably support the inference that the shoes belonged to Wilfredo Portillo as opposed to the many other people who had equal access to that area. Similarly, the evidence of the prints found at the scene could only assist in identifying Wilfredo Portillo as the owner of the shoes if there was other evidence from which it could be inferred that the prints were made by those shoes. The only other evidence, was the expert’s evidence that the treads on the shoes were similar to the partial prints found at the scene. That evidence, standing alone, could not reasonably support the inference that those shoes made those prints. This is particularly so given the expert’s frank concession that he could not say how many shoes had the same tread pattern. His evidence amounted to no more than an assertion that the shoes found near Wilfredo Portillo’s apartment were among an undetermined number of shoes that could have made the prints at the scene of the homicide.

[35] The “footwear” evidence could not, absent assumption of facts not proved, or speculation, support either the inference that the shoes made the prints found at the scene or that the shoes belonged to Wilfredo Portillo. The evidence was not relevant.

[36] Having argued that the “footwear” evidence was not only admissible, but was also “powerful” evidence, Mr. Downes does not seek the shelter of the curative proviso. In my view, the proviso cannot overcome the improper admission of the “footwear” evidence. The evidence was offered through an expert witness who gave evidence in a forthright and objective manner. The expert used a variety of demonstrative aids, including charts and photographs to explain his evidence to the jury. Both the source of the evidence, and the manner in which it was presented, may well have given it an aura of cogency which on close analysis it does not deserve.

[37] More importantly, in the passage quoted above from Crown counsel’s closing argument (para. 26), the jury was invited to engage in the circular reasoning I have described above. While initially attractive, on close analysis, that reasoning goes beyond inference to assumption and speculation. The jury may well have engaged in the very reasoning that Crown counsel invited them to undertake. The curative proviso cannot be applied.

[38] The “footwear” evidence was directly admissible against only Wilfredo Portillo. It was, however, the Crown’s theory that the appellants had acted together in the homicide. If the jury used the “footwear” evidence to place Wilfredo Portillo in very close proximity to the body of the deceased it would have furthered the Crown’s case against Noe Portillo as well. Both appellants are entitled to a new trial based on the erroneous admission of the “footwear” evidence.

(ii) The voice identification evidence

[39] In examination-in-chief, Mrs. Thrasher identified the voice of Noe Portillo as the person who was arguing with the deceased in the early morning of Saturday, May 2. Mrs. Thrasher had not given this evidence previously. The next day counsel advised the court that he had not appreciated that Mrs. Thrasher had given the voice identification evidence until he read it in the newspaper. While this might seem odd, the trial judge and trial counsel agreed that Mrs. Thrasher’s testimony was difficult to hear and understand. The trial judge had her evidence replayed so that he could be determine whether she had identified Noe Portillo’s voice.

[40] Counsel moved for a mistrial. The trial judge conducted a voir dire to determine the basis upon which Mrs. Thrasher had purported to identify Noe Portillo’s voice. It turned out that her opinion was based on one very brief prior conversation with Noe Portillo. The trial judge dismissed the application for a mistrial, but indicated that he saw no foundation for Mrs. Thrasher’s voice identification evidence. Crown counsel made it clear that he would not rely on that evidence. The trial judge indicated he would caution the jury against placing reliance on it. At first, counsel for Noe Portillo agreed with this approach, but later he asked the trial judge to specifically tell the jury that the voice identification evidence should be disregarded entirely.

[41] In his instructions, the trial judge said:

… As I said, there is no foundation given in the evidence of Mrs. Thrasher for her ability to have identified the voice of Noe Portillo if, in fact, her testimony was to that effect. In those circumstances I must direct you, and I do now, that it would be dangerous to an extreme degree to place any appreciable weight or significance whatever on the evidence of Mrs. Thrasher should you recall it to be so that she identified the voice of this accused in the victim’s apartment [emphasis added].

[42] I agree with the trial judge that there was no foundation for the opinion evidence advanced by Mrs. Thrasher. For that reason, it was not admissible evidence. The trial judge should have told the jury to disregard that evidence in its entirely. There was a danger, especially in an entirely circumstantial case, that if this evidence was given any weight it could tip the balance in favour of the Crown. As Commissioner Kaufman observed in his Report:[^2]

The … danger is that other evidence which has some weight and is worthy of consideration by a jury (whether or not sufficient to sustain guilt) may elevate this evidence of minimal value to a heightened credibility it should not possess.

[43] I need not decide whether the trial judge’s failure to take the voice identification evidence away from the jury amounts to reversible error since I am satisfied that the improper admission of the “footwear” evidence requires a new trial. On the new trial, the jury will not hear the voice identification evidence.

(iii) The hair comparison evidence

[44] On appeal, counsel contend that the evidence that certain hairs were microscopically similar to the hairs of the appellants and deceased should not have been admitted into evidence. No objection is taken to the admissibility of the hair comparisons that were matched by DNA analysis to the appellants.

[45] The challenged hair comparison evidence cleared the relevance threshold. When considered in combination with the rest of the evidence, the hairs could support the inference that the appellants were at the scene and that Wilfredo Portillo was in possession of the deceased’s property (the pillow cases). Both facts were in turn relevant to the identification of the appellants as participants in the homicide: R. v. Morris, 1983 28 (SCC), [1983] 2 S.C.R. 190.

[46] On appeal, counsel does not suggest that the hair comparison evidence was irrelevant, but instead argues that its prejudicial potential exceeded its very limited probative value. They rely on the critique of hair comparison evidence found in the Kaufman Report, supra, at pp. 311-24.

[47] I accept that in many cases, hair comparison evidence based only on microscopic similarities has limited probative value and may in some cases be excluded under the well recognized power to exclude prosecution evidence if the potential prejudice flowing from the admission of the evidence exceeds its probative value. The evaluation of probative value and prejudicial effect is, however, contextual. For example in this case, the fact that hairs which were a DNA match to the appellants were found on the deceased could add to the probative value of the evidence that certain other hairs found at the scene were microscopically similar to the appellants’ hairs, and at the same time diminish the potential prejudice. In any event, the trial judge was not asked to exclude the evidence. I cannot say that he erred in law in failing, on his own initiative, to exclude this evidence on the basis that its potential prejudicial effect exceeded its probative value.

(iv) The jewellery evidence

[48] The appellants argue that evidence that Wilfredo Portillo was in possession of costume jewellery similar to costume jewellery in the deceased’s possession was irrelevant and should not have been admitted into evidence. Not only was this objection not made at trial, evidence comparing the jewellery found in possession of Wilfredo Portillo and that belonging to the deceased was led at the insistence of the defence.

[49] It was the Crown’s case that the appellants had stolen from the deceased on the night of the homicide and that theft was at least one of the motives for the homicide. Evidence placing the appellants in possession of property owned by the deceased was relevant. While the evidence that the cheap jewellery in the possession of Wilfredo Portillo was generically similar to the cheap jewellery in the possession of the deceased could not alone support the inference that the jewellery in Wilfredo Portillo’s possession belonged to the deceased, there was other evidence placing Wilfredo Portillo in possession of the deceased’s property (the red bicycle and pillow cases). In considering whether the costume jewellery belonged to the deceased, a jury could properly consider that Wilfredo Portillo was in possession of other property belonging to the deceased.

[50] My analysis satisfies me that the jewellery evidence was relevant. There was no attempt at trial to exclude the evidence on the basis that its potential prejudicial effect outweighed its potential probative value. As with the hair comparison evidence, I cannot say that the trial judge should have excluded the evidence on his own initiative.

IV

The Reasonableness of the Verdicts

[51] The appellants submit that when only the properly admissible evidence is considered, there was no basis upon which a reasonable jury, properly instructed, could convict either of them. They ask this court to enter acquittals. The reasonableness standard as applied to the review of criminal convictions is well established and need not be repeated here: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. The question is not whether a conviction was the only reasonable verdict, but whether it was a reasonable verdict.

[52] In considering the reasonableness of the verdicts, I start with the concession made by counsel for the appellants in this court. They acknowledge, quite properly in my view, that the circumstantial evidence could support the inference that the appellants were at the deceased’s apartment when the homicide occurred. Counsel also observe, again quite properly in my view, that the same evidence could support the inference that there were more than two people in the apartment with the deceased when the homicide occurred.

[53] In addition to the evidence placing the appellants in the apartment when the homicide occurred, there was evidence that the apartment was very small and that the deceased had an argument with someone in that apartment in the early morning hours of May 2. I think a jury could infer that the homicide occurred in the course of that argument. Next, there was evidence that whoever was present in that apartment left in a hurry. Again, I think the jury could infer that the departure occurred immediately after the homicide. Finally, there was evidence that the device used to strangle the deceased had to be assembled thus suggesting that the strangulation was not a spur of the moment act.

[54] In addition to the evidence outlined above, there was evidence that Wilfredo Portillo was in possession of the deceased’s red bicycle two days after the homicide. On the evidence of the deceased’s friend, that bike was taken from the deceased’s apartment some time after 11:00 p.m. on Friday night. A jury could reasonably infer that the bicycle was stolen at the time of the homicide and that Wilfredo Portillo stole it. A jury could also infer that theft was a motive for the homicide and that the thief was a party to the killing: Reference re R. v. Coffin (1956), 1956 94 (SCC), 114 C.C.C. 1 per Taschereau J. at 13-14, per Kellock J. at 31-32 (S.C.C.). The evidence placing Wilfredo Portillo at the scene when the deceased was killed following a quarrel, his quick exit from the apartment, combined with the evidence that Wilfredo Portillo stole the deceased’s bicycle at the time of the homicide provided a basis upon which a reasonable jury, properly instructed, could convict Wilfredo Portillo of murder.

[55] The evidence connecting Noe Portillo to the theft from the deceased was weaker than was the evidence connecting Wilfredo Portillo to that theft. I am satisfied, however, on the totality of that evidence, that a reasonable jury could conclude that Noe Portillo was involved in the theft. There was evidence from which the jury could conclude that Noe Portillo was with Wilfredo Portillo when both left the deceased’s apartment after the homicide with Wilfredo Portillo in possession of the deceased’s red bicycle. There was also evidence from which the jury could infer that Noe Portillo was complicit in Wilfredo Portillo’s attempts to hide that red bicycle some two days later. Finally, I think a reasonable jury could, in the context of the evidence concerning the red bicycle, conclude that Noe Portillo stole the green bicycle belonging to the deceased that was found in his possession two days after the homicide at the same time that Wilfredo Portillo stole the red bicycle. The evidence provides a basis upon which a reasonable jury, properly instructed, could convict Noe Portillo of murder.

V

The Charge to the Jury

[56] As I would order a new trial for both appellants, I will refer to the submissions concerning the charge to the jury only to the extent that my comments might assist on the new trial. In doing so, I recognize that there is no guarantee that the evidence heard on the new trial will track the evidence heard on the first trial, and that my comments may be of limited help on the retrial.

(i) The instruction on recklessness

[57] In the course of explaining murder as defined in s. 229(a)(ii), the trial judge defined the concept of recklessness in these terms:

In other words, if a person knows that the bodily harm he is inflicting will likely cause death but goes ahead and inflicts it anyway that person is reckless or heedless of the consequences.

In regard to reckless I have already said to you that you should give it its ordinary meaning, meaning careless as to the consequences or lacking in prudence or caution [emphasis added].

[58] In R. v. Nygaard (1989), 1989 6 (SCC), 51 C.C.C. (3d) 417 at 435 (S.C.C.), Cory J. considered the mental element of murder as defined in s. 229(a)(ii).

The section requires that the Crown prove that the accused meant to cause the victim such bodily harm that he knew that it was likely to cause the death of the victim and was reckless whether death ensued or not as a result of causing that bodily harm. The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought insofar as the basic intent is concerned. …

Thus the section required the accused to intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result in death and to persist in that conduct despite the knowledge of the risk.

In my view, the vital element of the requisite intent is that of causing such bodily harm that the perpetrator knows that it is likely to cause death and yet persists in the assault … [emphasis added].

[59] The emphasized part of the trial judge’s instructions captures the meaning of recklessness described in Nygaard, supra. While criminal lawyers prickle at the use of words or terms such as “careless” or “lacking in prudence” to describe criminal liability, I think the jury would have taken the meaning to be given to those words from the immediately preceding instruction. It would have been better had the trial judge avoided the use of words like “careless” or “lacking in prudence”, but I am satisfied that his instruction as a whole properly conveyed the meaning of recklessness in s. 229(a)(ii) of the Criminal Code.

(ii) The intoxication instruction

[60] The trial judge instructed the jury that they could consider evidence of alcohol consumption by the appellants in determining whether the Crown had proved that the appellants had the requisite criminal intent. There was no evidence as to how much the appellants had had to drink during the evening of May 1 and the early morning of May 2, and there was no evidence as to the effect, if any, that alcohol consumption had had on the appellants. There was evidence that the appellants were part of a group which spent Friday evening and early Saturday morning drinking a great deal of alcohol. I seriously doubt whether intoxication was a live issue at this trial. The relative insignificance of the evidence of intoxication to the appellants’ defence is best demonstrated by the fact that neither counsel for Wilfredo nor Noe Portillo made any reference to intoxication in their closing address to the jury.

[61] Assuming that there was a basis upon which the jury could properly consider the evidence of alcohol consumption in determining the criminal culpability of the appellants, I do agree that the trial judge should have separately related the evidence of alcohol consumption to the mens rea component of s. 21(2) liability. Where an accused is potentially liable for murder under s. 21(2) and intoxication is a “live” issue, it is particularly important that the intoxication instruction be related to the mental component of s. 21(2). Under that section, an accused is liable for murder only if he knew that another party to the joint venture would commit murder as a probable consequence of carrying out that joint venture. In the present case, one appellant could be liable under s. 21(2) only if he formed an intention in common to steal and knew that it was probable that a party to the common design would commit murder in the course of the theft. Evidence of a level of intoxication which may be of no avail to an appellant whose liability flowed from s. 21(1) could take on a more prominent role in a jury’s determination of liability rested on s. 21(2).

(iii) The instruction on party liability

[62] The appellants make three submissions arising out of the instructions to the jury on s. 21(1) and s. 21(2) of the Criminal Code. First, they submit that the trial judge should not have made any reference to potential liability based on omissions in his instructions on s. 21(1)(b) and that his reference to liability based on omissions could have prejudiced the appellants if the jury concluded that one or both was present when the homicide occurred and did nothing to prevent the homicide. Next, the appellants contend that the evidence did not support the conclusion that more than one person was involved in the homicide and that it was, therefore, improper to instruct the jury on aiding (s. 21(1)(b)) or abetting (s. 21(1)(c)). Finally, the appellants submit that there was no evidence of a common design to either kill or steal from the deceased and that criminal liability flowing from a joint venture either under s. 21(1) or s. 21(2) should not have been left with the jury.

[63] If the appellants’ second and third submissions are correct, the trial judge should have told the jury that only one of the appellants could be found culpable and if the jury could not determine which of the two was culpable, it must acquit both: R. v. Schell and Paquette (No. 1) (1977), 1977 1939 (ON CA), 33 C.C.C. (2d) 422 at 428 (Ont. C.A.); R. v. Schell and Paquette (No. 2) (1979), 1979 2983 (ON CA), 47 C.C.C. (2d) 193 (Ont. C.A.).

[64] I agree with the appellants’ submission that the trial judge’s reference to liability based on omissions was inappropriate and potentially prejudicial. There was no basis upon which either appellant could be found to have aided in the homicide by virtue of a mere failure to act. A failure to act by one present at the scene of the crime will not amount to aiding in the crime absent a duty to act and an intention to aid the perpetrator: R. v. Davey (2000), 2000 16859 (ON CA), 137 O.A.C. 53 at 59 (C.A.). Although the trial judge did tell the jury that mere presence at the scene does not constitute aiding, it would have been better had he not made any reference to omissions in his instructions on liability under s. 21(1).

[65] As to the second and third arguments advanced by the appellants, their reliance on Sparrow, supra, and Schell and Paquette, supra, is misplaced. In Sparrow, supra, the deceased was found shot to death at the side of the road. There was circumstantial evidence connecting the accused, Sparrow, to the shooting. The trial judge instructed the jury that Sparrow could be convicted as an aider or abetter. On appeal, counsel argued that there was no basis upon which Sparrow could be found to be other than the actual perpetrator of the shooting. The Crown argued that the location and manner in which the shooting occurred supported the inference that more than one person must have been involved in the shooting thereby justifying the instruction on aiding and abetting. Martin J.A. rejected this submission stating at p. 457:

Suffice it to say that, having regard to the deceased’s intoxicated state, the circumstances relied upon do not support the proposition that the killing required more than one person.

[66] The appellants read this passage as meaning that the Crown must prove that a killing “required more than one person” before liability based on aiding or abetting can be put to the jury. This submission is wrong. There are many cases where there is overwhelming evidence of aiding or abetting and yet it could not be said that the “killing required more than one person”. The words of Martin J.A. must be understood as a response to the Crown’s submission that the circumstances surrounding the killing demonstrated that it must have been more than a “one man” operation thus justifying an aiding and abetting instruction. Martin J.A. rejected this view of the evidence.

[67] The aiding and abetting provisions are properly left as a basis for liability if there is evidence upon which a jury could conclude that an accused was an aider or abetter as defined in the Criminal Code. Martin J.A. made this clear in the passage immediately following the passage relied on by the appellants:

Where, on a joint trial, there is evidence that a crime was committed by two or more accused persons acting in concert, it is, of course, appropriate to charge the jury with respect to the provisions of s. 21 of the Code even though it is uncertain which accused was the actual perpetrator [citations omitted]. 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 Charter 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 when 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 … [emphasis added].

[68] Schell and Paquette, supra, also has no application. That case stands for the proposition that on a joint trial, if there is no evidence that the accused acted together in the commission of the crime charged or in the furtherance of some other criminal object, the jury should not be instructed on aiding and abetting or potential liability under s. 21(2). The jury must also be told that if it cannot determine which of the accused committed the crime, then both must be acquitted.[^3]

[69] In this case, there was evidence from which the jury could infer that both appellants were present in the deceased’s relatively small apartment during an argument that culminated in his death by a means which required some preparation. The jury could also infer that the appellants fled the apartment together. Finally, the jury could infer that the appellants were party to a theft which occurred in the course of the same transaction as the homicide, and that the theft was a motive for the homicide. On this record, there was a basis upon which to leave liability under s. 21(1)(b), s. 21(1)(c) and s. 21(2).

[70] As I understand the evidence, even if the jury was satisfied that the appellants were somehow involved in the death of the deceased, they may well have been unable to determine the exact nature of each appellant’s participation in the homicide. Specifically, even if the jury were satisfied that both appellants were involved in the killing, they may have been unable to determine whether one, the other, or both actually participated in the strangling of the deceased.

[71] In these circumstances, I suggest that potential liability under s. 21(1) might be explained along the following lines:

• The liability of each accused under s. 21(1) must be determined separately. Each accused may be found not guilty, guilty of murder, or not guilty of murder but guilty of manslaughter. The verdicts with respect to each accused do not have to be the same.
• To convict an accused of murder or manslaughter, the jury must be satisfied that the accused participated in the killing.
• Participation means doing something that caused the death of the deceased or doing something for the purpose of helping another person to do something that caused the death of the deceased.
• If the jury is satisfied that an accused participated in the killing as described above, it is unnecessary for the jury to determine the exact nature of that participation.
• If the jury is satisfied that an accused participated in the killing of the deceased, he is guilty of either murder or manslaughter. He is guilty of murder if he did so with the necessary blameworthy state of mind and manslaughter if the Crown has not proved the blameworthy state of mind.
• The blameworthy state of mind consists of intending that the deceased should be killed; or intending that he should suffer bodily harm of a kind likely to result in death and yet proceeding despite knowledge of that risk: R. v. Kirkness (1990), 1990 57 (SCC), 60 C.C.C. (3d) 97 at 127 (S.C.C.).

[72] The jury would also have to be instructed on potential liability for murder and manslaughter under s. 21(2). Liability for murder under s. 21(2) requires that the Crown prove beyond a reasonable doubt that:

• the accused was a party to a common design to steal from the deceased;
• another person who was a party to that same common design committed murder as defined in s. 229(a) in the course of carrying out the theft; and
• the accused knew that murder was a probable consequence of carrying out the common design to steal from the deceased.

[73] If the Crown proves the first two of the three elements described above, but fails to prove that the accused knew that murder was a probable consequence of carrying out the common design, the accused is not guilty of murder but is guilty of manslaughter if a reasonable person would have foreseen the risk of harm to the deceased as a result of carrying out the common design to steal from him: R. v. Jackson, 1993 53 (SCC), [1993] 4 S.C.R. 573.

VI

[74] I would allow the appeals, quash the convictions and order a new trial.

RELEASED: “JJC” “JUL 30 2003”

“Doherty J.A.”

“I agree J.J. Carthy J.A.”

“I agree M. Rosenberg J.A.”

[^1]: It is more accurate to say that the inference had to be that Wilfredo was wearing those shoes at the scene in the early morning of May 2. That inference is, however, clearly available if it can be inferred that the shoes belonged to Wilfredo. [^2]: Ontario, Report of the Commission on Proceedings Involving Guy Paul Morin (Kaufman Report), vol. I (Toronto: Ministry of the Attorney General, 1998) at 321. [^3]: Schell and Paquette, supra, has an unusual judicial history. On the first trial, the jury was not instructed on s. 21(2). In ordering a new trial, this court indicated that s. 21(2) had application. On the appeal after the conviction at the second trial, this court found that the jury had been misdirected on s. 21(2), but went further and held that on the evidence it would be unreasonable to convict the accused on the basis of s. 21(2). Consequently, the appellants were acquitted.