CITATION: R. v. Maciel, 2007 ONCA 196
DATE: 20070322
DOCKET: C37342
COURT OF APPEAL FOR ONTARIO
DOHERTY, LASKIN and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Philip Campbell for the appellant
Respondent
- and -
RICHARD MACIEL
Jennifer Woollcombe for the respondent
Appellant
Heard: December 5-6, 2006
On appeal from the conviction entered on November 2, 2001 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury.
DOHERTY J.A.:
I
OVERVIEW
[1] The appellant was convicted of first degree murder and received the mandatory sentence of life imprisonment without eligibility for parole for twenty-five years.
[2] The appellant appeals his conviction. He submits that this court should receive certain “fresh” evidence which he argues entitles him to a new trial. Alternatively, if the court rejects the “fresh” evidence, the appellant submits that errors in the trial vitiate the verdict and require an order directing a new trial. He argues that the trial judge erred in excluding certain exculpatory statements made by him to an undercover officer and that there were material errors in the charge to the jury.
[3] The evidence tendered on appeal should not be admitted. That evidence was readily available at trial and was not made known by the appellant to his counsel because the appellant decided that it was not in his best interest to lead the evidence at trial. In the totality of the circumstances, the interests of justice are not served by allowing the appellant to secure a new trial by advancing evidence on appeal that he chose not to produce to his lawyer prior to trial.
[4] I would give effect to one of the other grounds of appeal. The trial judge did not review the evidence and relate it to the respective positions of the parties on the issue of planning and deliberation. That non-direction constitutes reversible error in the circumstances of this case. That error could not, however, have affected the jury’s determination that the appellant murdered the victim. While a conviction for first degree murder is available on the evidence, the Crown does not seek a new trial on that charge if the court is prepared to substitute a conviction on a charge of second degree murder. I would substitute a conviction for second degree murder.
II
THE EVIDENCE
[5] On June 2, 1999, Emel Silva was murdered in a pool hall on St. Clair Avenue in Toronto. Silva was shot seven times, probably with one gun, but possibly with two. Three shots struck Silva in the head, three shots hit him in the arm and one shot entered his back. Silva was shot within ten minutes of entering the pool hall. Based on evidence of blood loss, it is likely that the first shot hit Silva in the back. That shot would not have caused Silva to die immediately.
[6] Investigation at the scene of the murder yielded nothing of forensic value save two telephone numbers found in the deceased’s possession that were linked to Arnaldo Maciel (also referred to as Renaldo and Rolando), the appellant’s father. The police could not find any witnesses to the shooting, although it appeared that other individuals were in the pool hall when the shots were fired.
[7] The Crown’s case against the appellant rested on two evidentiary pillars: the evidence of Socorro Rivera, Silva’s mother, and evidence of intercepted private communications. Ms. Rivera testified to discussions she had with her son the day before he was killed and the day he was killed. On consent, this evidence was admitted for the truth of the contents of the statements made by Silva insofar as those statements referred to past events. Ms. Rivera also testified to certain events on the day her son was murdered and a conversation she had with him immediately before he went into the pool hall. This conversation was admitted as evidence of Silva’s intention. The trial judge’s instruction on this evidence is in issue on the appeal.
[8] In late July 1999, an undercover police officer approached various friends and associates of the appellant. He identified himself as Silva’s cousin, who had been sent by the Colombians from New York to find out who killed Silva and to collect an outstanding debt. The undercover officer and two large associates posed as gangsters and acted in a threatening manner in the hope that their actions would precipitate conversations involving the appellant and his friends that would shed light on Silva’s murder. Discussions involving the undercover officer, the appellant, members of his family and associates of the appellant were intercepted by the police between late July and mid-September 1999. These interceptions were made pursuant to judicial authorizations.
[9] The Crown introduced evidence of several intercepted communications. Two intercepts, referred to at trial as intercepts 74 and 75, were crucial to the Crown’s case against the appellant. The trial judge told the jury it must acquit unless it was satisfied beyond a reasonable doubt that the appellant was talking about Silva’s murder in either or both conversations.
(a) The evidence of Ms. Rivera
[10] Ms. Rivera testified that the night before Silva was killed, he told her that about a week earlier he had been confronted by two Colombians from New York and a third person he described as a Dominican. Silva knew the Dominican. Silva told his mother that the Colombians indicated to him that two Portuguese friends of his owed the Colombians money. The Portuguese were identified as a father named Rolando and his son Ricky. The Colombians told Silva that he was responsible for collecting the debt owed by the Portuguese to the Colombians. Silva was told that he would be in personal danger if he did not collect the money. He did not explain to his mother why the Colombians held him responsible for collecting the debt. Silva had, however, recently returned from Colombia where he lived for a short time.
[11] Silva told his mother that after he spoke to the Colombians, he met with Rolando and Ricky and told them about the Colombians’ demands. Silva tried to arrange a meeting between Rolando, Ricky and the Colombians. The Colombians wanted to meet at a location of their choice, and Rolando insisted that the meeting be held at a pool hall on St. Clair Avenue. That pool hall, which is where Silva was murdered on June 2, was owned by a good friend of Rolando and Ricky.
[12] Ms. Rivera testified that she was with her son on the day he was murdered. He spent a good deal of time on the telephone trying to arrange a meeting between Rolando and Ricky and the Colombians. She testified that the Colombians told Silva they would not meet at the pool hall on St. Clair Avenue, but that Rolando was adamant that the meeting must be held at the pool hall.
[13] Ms. Rivera arrived at the pool hall with her son at about 5:35 p.m. He told her he was going to meet with Rolando and Ricky and possibly with the Colombians. In cross-examination, she agreed that she told the police her son mentioned meeting with only Rolando. Silva was nervous about the meeting and left his driver’s licence with his mother when he went inside the pool hall. He told her he did not want anybody inside the pool hall to know where he lived. Silva told his mother that he thought he would be out shortly. Ms. Rivera fell asleep and the next thing she knew a police officer woke her up and told her that someone had been killed. Silva was shot shortly before 5:45 p.m.
[14] At trial, the Crown argued that Silva had found himself in the middle of a dispute over a debt owed by the appellant and his father to a sinister group referred to as the Colombians. The Crown theorized that the appellant, acting alone or in concert with his father, lured Silva to the pool hall where the appellant could act without fear that anyone would cooperate with police, and shot Silva. According to the Crown, the appellant murdered Silva to sever the link between the appellant and his father and the debt to the Colombians. The Crown also suggested, based on a comment made by the appellant in one of the intercepted communications, that the appellant wanted to take over Silva’s business for his father. The exact nature of that business was not disclosed by the evidence.
[15] The defence argued that Ms. Rivera’s evidence did not support the Crown’s theory. The defence contended that if there was a debt owed by the appellant and his father to the Colombians, it was essential that they keep Silva alive as a buffer in their dealings with the dangerous Colombians. The defence argued that it made no sense for the appellant to kill Silva as that would only cause the Colombians to come after him and his father directly. The defence also submitted that there was no evidence that Silva operated any business, much less a business that the appellant would be interested in taking over for his father. Finally, it was the defence position that on Ms. Rivera’s evidence, her son was friendly with the appellant and his father, and the only threats made against him came from the Colombians.
(b) The intercepted communications
[16] It is only necessary to review the contents of the two crucial conversations relied on by the Crown. The first conversation, intercept 74, occurred in the early afternoon of September 2, 1999 and was intercepted by a car probe installed in the appellant’s vehicle. The appellant, his father, and three friends were driving to a meeting with Arthur Amaral, another friend of the appellant, and his father. Amaral had spoken to the undercover officer about forty-five minutes earlier. The officer had terminated that conversation with Amaral in a threatening way, telling him that he wanted a meeting with the two people he considered responsible for his cousin’s death.
[17] In the first part of intercept 74, the persons in the car are speaking about Silva’s murder and the phone calls being made by the undercover officer demanding information concerning Silva’s death. There is some discussion about the best way to deal with Silva’s “cousin” and his demands. After these comments, the appellant’s father and two of the other occupants left the car to go into a restaurant to meet with Mr. Amaral. The appellant remained in the vehicle with one other individual. In the course of the ensuing conversation, the appellant made statements which the Crown alleged referred to Silva’s murder. In particular, the Crown alleged that the appellant said:
Because at the time of the shooting I - I was fucked up in the head … what I care about man, is that I got that cunt for my dad because I wanted to start his business.
[18] The Crown argued that placed in the context of the earlier part of the conversation, it could be inferred that the appellant was referring to the shooting of Silva.
[19] The defence took the position that so much of intercept 74 was inaudible, incomplete and out-of-context that no meaning could safely be ascribed to the bits of the conversation that could be heard. The defence also contended that material parts of the transcript were inaccurate. Finally, the defence argued that there was nothing in the words that could actually be heard on the recording that supported the contention that the appellant was referring to Silva’s murder when he talked about “the shooting”.
[20] Intercept 75 occurred on September 9, using the car probe installed in the appellant’s vehicle. In the course of this conversation with a friend, the appellant acknowledged that he “piped shells” into someone who did not “die instantly”. The appellant referred to the person who had been shot as a person who had “used to be like this big tough guy around but he wasn’t no more after he was dead”.
[21] As with intercept 74, the Crown argued that placed in the context of the entirety of the conversation, other surrounding conversations, and the appellant’s ongoing concern about Silva’s “cousin”, the jury should infer that the appellant was speaking to his friend about Silva’s murder. The Crown argued that certain parts of the description provided by the appellant were consistent with the facts surrounding Silva’s murder.
[22] The defence challenged intercept 75 in much the same way as it had challenged intercept 74. It contended that because so much of it was inaudible, no reliance could be placed on the words that could be heard. The defence also argued that significant parts of the transcript relied on by the Crown were inaccurate. In particular, the defence argued that the transcript omitted the appellant’s reference to the person who had been killed as a “bouncer”. There was no evidence that Silva had ever been so employed. The defence also mentioned that certain comments made by the appellant in intercept 75 referred to facts that were inconsistent with the known facts surrounding Silva’s murder.
[23] It was for the jury to decide what was said by the appellant in intercepts 74 and 75 and to determine what meaning should be given to the appellant’s statements. It is not suggested on appeal that intercepts 74 and 75 were not reasonably open to the interpretation urged by the Crown.
[24] The appellant did not testify and did not call any evidence.
III
THE GROUNDS OF APPEAL
A. The Evidence Tendered on Appeal
[25] The appellant has tendered a great deal of evidence on the appeal. That evidence includes his own affidavit and several other affidavits. The Crown cross-examined on these affidavits. Trial counsel has also filed an affidavit prepared after a discussion with counsel for the Crown and the appellant.
[26] In his affidavit and cross-examination, the appellant contends that he shot and wounded a man named Paul Camara in March 1998. The appellant, who made his living trafficking in drugs at that time, had decided he wanted to obtain Mr. Camara’s interest in a restaurant. The appellant had visited the restaurant and been impressed with the renovations. Mr. Camara’s partner was unhappy with the partnership. The appellant was looking for something for his father to do when his father got out of jail after completing his sentence on a conviction for trafficking in narcotics. Although the appellant’s father was a construction worker and had not previously worked in the restaurant business, the appellant thought that his father would enjoy managing a restaurant.
[27] According to the appellant, the shooting occurred in the restaurant when he met Mr. Camara to tell him that he would buy his interest in the restaurant for $15,000. When Mr. Camara told him he would not sell his interest, the appellant shot Mr. Camara in the leg three times and then fled the restaurant. He made no further attempt to obtain Mr. Camara’s interest in the restaurant. The appellant filed affidavits from Mr. Camara and two other individuals who were at the scene of the shooting in support of his evidence. The Crown does not dispute the appellant’s claim that he shot Mr. Camara in March 1998.
[28] The appellant contends that the reference in intercept 74 to “the shooting” and the references in intercept 75 to “piping shells” and to someone being “dead” were references to the shooting and wounding of Mr. Camara some eighteen months earlier, in March 1998. The appellant produced the affidavit of his friend, Jarry Tome, the person to whom he was speaking in intercept 75. Tome supported the appellant’s contention that they were talking about the shooting of Mr. Camara and not Silva’s murder.
[29] In addition to affidavit evidence offered to explain that the apparently inculpatory references in intercepts 74 and 75 actually referred to the shooting of Mr. Camara, the appellant also takes issue with some of the voice identifications made at trial and the accuracy of some of the transcripts of the intercepted communications filed at trial. These challenges were not made at trial. The appellant does not suggest that the alleged errors in voice identification or the contents of the transcripts, standing alone, warrant any remedy on appeal. He puts these alleged errors before the court in support of his contention that the relevant passages in intercepts 74 and 75 refer to the shooting of Mr. Camara and not the murder of Silva.
[30] The appellant acknowledges that he was aware well before trial that intercepts 74 and 75 referred to the shooting of Mr. Camara. He concedes that he did not tell his trial lawyer about Mr. Camara or explain that the references in the two intercepts were to the shooting of Mr. Camara. The appellant indicated that he chose to keep this information from his trial lawyer, although he knew it was potentially very important to his defence. He stated that although he had an excellent working relationship with his trial lawyer and that he trusted him, he was concerned that if he told his trial lawyer about the shooting of Mr. Camara, his lawyer would feel compelled to lead that evidence at trial regardless of the appellant’s instructions to the contrary. The appellant first shared his explanation for the incriminatory references in intercepts 74 and 75 with counsel almost two years after his conviction.
[31] The appellant and trial counsel reviewed intercepts 74 and 75 in detail many times prior to trial. Trial counsel stressed to the appellant the importance of these interceptions and the need to explain some of the appellant’s comments in them. The appellant appreciated the significance of these calls. Although the appellant lied to his lawyer and told him that he could not recall what he was talking about in intercepts 74 and 75, he did embrace counsel’s theory that the references were to another shooting. He pointed out passages in the two intercepts which, in his view, were inconsistent with the Crown’s contention that the intercepts were referable to the murder of Silva.
[32] The appellant understood that it was his decision whether to testify at trial. He decided that he would not testify because he had no intention of being placed in a position where he might have to explain that the apparently inculpatory references in intercepts 74 and 75 were in fact references to his shooting of Mr. Camara.
[33] The appellant explained that he did not tell his lawyer that the conversations related to the Camara shooting because he was satisfied that he would be acquitted without the need to advance that explanation and admit that he had committed another serious crime. Based on his own assessment of the Crown’s evidence and his lawyer’s opinion, the appellant believed that the Crown did not have a strong case. He also did not want to identify the other people involved in the Camara shooting and potentially get them in trouble with the police.
[34] It would also have been obvious to the appellant that leading evidence of the prior shooting of Mr. Camara was not without considerable risk in a jury trial. Had the appellant chosen to place before a jury the evidence he now puts before this court, that jury would have learned that the appellant made his living as a drug dealer and that his father was also a drug dealer. The jury would have learned that the appellant had a criminal record for crimes of violence, carried a gun, and was prepared to shoot somebody if he saw some economic advantage in doing so. These insights would not have been very helpful in the defence of the appellant, especially in the factual context in which this charge arose.[^1] The appellant also would have been required to testify had he chosen to advance the explanation he now puts forward. A person with the appellant’s criminal background takes a serious risk when he chooses to testify before a jury.
[35] There is no suggestion by the appellant that he did not receive effective assistance from counsel at trial. To the contrary, the appellant accepts that he was well and vigorously defended by Mr. Bloomenfeld, a senior member of the criminal bar. The appellant fully appreciated the case against him, the significance of intercepts 74 and 75, and the potential value to his defence of a credible explanation for the incriminating references in those two intercepts. Mr. Bloomenfeld, with the appellant’s assistance, developed an explanation for those intercepts that in the appellant’s opinion would result in his acquittal without him testifying. He takes responsibility for the decision not to produce at trial the explanation for the intercepts that he now seeks to put before this court. The appellant does not in any way attempt to shift any responsibility for that decision to anything said or done by Mr. Bloomenfeld.
[36] Mr. Campbell, counsel for the appellant, with his usual candour, concedes that the appellant’s decision not to tell his trial lawyer about the explanation for intercepts 74 and 75 that he now seeks to adduce on appeal is an impediment to the admissibility of that evidence on appeal. Mr. Campbell correctly submits, however, that the failure to produce this evidence at trial is not a bar to the admissibility of the evidence on appeal. He contends, again correctly, that this court must exercise its discretion in favour of receiving the proffered evidence where in the totality of the circumstances, the interests of justice dictate that the evidence should be received even though it was readily available at trial: see Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193 (S.C.C.); R. v. Price, [1993] 3 S.C.R. 633, aff’g (1992), 1992 ABCA 156, 131 A.R. 54 (C.A.); R. v. Warsing (1998), 130 C.C.C. (3d) 259 (S.C.C.), aff’g (1997), 119 C.C.C. (3d) 385 (B.C.C.A.); R. v. Lévesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193 (S.C.C.).
[37] Mr. Campbell relies on three features of this case in support of his contention that the court should receive the evidence proffered on appeal even though it was readily available at trial. He points to the age of the appellant at the time of the trial and argues that the immature and rash decision of a nineteen-year-old boy[^2] who did not want to get himself and his friends into trouble for another offence should not be given the weight that would be afforded a considered tactical decision by counsel. Next, Mr. Campbell refers to the profound effect of the verdict on the appellant’s liberty. He stands condemned to life imprisonment. Mr. Campbell submits that as the negative impact of a verdict on an accused’s liberty interest increases, concerns about the factual correctness of that verdict should also increase. He argues that finality concerns, while always relevant, take on less significance in cases where the verdict effects an ongoing and total deprivation of the appellant’s liberty.
[38] Lastly, and I think most importantly, Mr. Campbell submits that the evidence placed before this court is compelling and puts the reliability of the verdict very much in doubt. He contends that it cannot be in the interests of justice to allow a guilty verdict to stand and incarceration to continue where evidence is placed before this court that offers a compelling case that the verdict is factually wrong. Mr. Campbell eloquently argues that both the appellant and the public are best served by accurate results, even if that accuracy comes at some expense to the finality principle, which dictates that all available evidence should be led at trial.
[39] In Reference Re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135 at 144 (Ont. C.A.), a very strong five-judge panel observed:
It is well established, however, that on an appeal by an accused, evidence will not be admitted which was available at the trial or which with reasonable diligence could have been discovered or, at all events, unless there is a satisfactory explanation why the evidence was not adduced at trial. In particular, the Court will not permit evidence to be received on appeal which an accused for tactical reasons deliberately refrained from calling at his trial, and thus permit him to put forward a new defence, when the one advanced has proved unsuccessful. The general rule which precludes the reception on appeal of evidence which was available to the accused at trial is founded on policy considerations, since to permit further evidence to be received, as a matter of course, in such circumstances would result in interminable litigation and, in general, would not be in the interests of justice. [Emphasis added.]
[40] Similar resistance to attempts to undo tactical decisions made at trial through “fresh” evidence applications on appeal is evident in several cases from this court: see for example R. v. Buxbaum (1989), 33 O.A.C. 1 at 9-10; R. v. Canhoto (1999), 140 C.C.C. (3d) 321 at paras. 43-45; R. v. Smith (2001), 161 C.C.C. (3d) 1 at para. 71; R. v. Perlett (2006), 212 C.C.C. (3d) 11 at paras. 141-145; see also Reference Re Gruenke (1998), 131 C.C.C. (3d) 72 at paras. 90-92 (Man. C.A.), aff’d (2000), 2000 SCC 32, 146 C.C.C. (3d) 319 at 320 (S.C.C.); R. v. Huenemann (1993), 38 B.C.A.C. 20 at 29 (C.A.).
[41] While the cases referred to above demonstrate the potential importance of a tactical decision made at trial on an application to adduce evidence on appeal, some of those cases also support Mr. Campbell’s contention that the explanation for the tactical decision is an important consideration. For example, where the “fresh” evidence offered on appeal is evidence that the accused suffered from a mental disorder at the time of the offence, and there is evidence that the accused suffered from that disorder at the time of trial, appellate courts have tended to discount the significance of the decision not to lead evidence of a mental disorder at trial: see Re Regina v. Gorecki, supra; R. v. Warsing, supra; R. v. M.(I.E.) (2003), 173 C.C.C. (3d) 515 at para. 45 (Ont. C.A.). Similarly, a decision not to pursue certain evidence at trial will be given less weight on an application to adduce that same evidence on appeal where the state of the law at the time of the trial was such that the relevance of the evidence to a fact in issue was not as clear as it was by the time of the appeal: see McMartin v. The Queen, [1965] 1 C.C.C. 142 at 149-50 (S.C.C.).
[42] The immaturity of an accused may explain why he or she did not disclose certain information to counsel and may diminish the significance of the failure to adduce that evidence at trial. However, an accused’s youth, standing alone, is not enough. There is nothing in this record to suggest that the appellant’s age (almost 23) should mitigate the effect of his decision not to tell Mr. Bloomenfeld about the evidence he now seeks to adduce before this court. The appellant was a young man, but he was far from a naïve, diffident youngster unaccustomed to making his own significant and important decisions. To the contrary, despite his youth, the proffered evidence demonstrates that the appellant was well into a life of serious crime in which he was operating as an adult and making significant life-altering decisions. Mr. Bloomenfeld described the appellant as “bright, articulate and independent minded”. His involvement in the preparation and presentation of his defence fully justifies Mr. Bloomenfeld’s assessment. The appellant made a calculated, tactical decision as to how best to present his defence at trial. His age provides no reason for discounting the significance of that decision when deciding whether to admit the evidence proffered on appeal.
[43] I also agree that the second factor identified by Mr. Campbell should be taken into account in deciding what weight to give to the failure to lead evidence at trial. Although the seriousness of the consequence of rejecting evidence proffered on appeal has not been referred to in any of the case law, it is well recognized that the due diligence analysis must be “context sensitive” and consider the totality of the circumstances, including the nature of the proceedings: R. v. 1275729 Ontario Inc., [2005] O.J. No. 5515 at para. 29 (C.A.). A judicial discretion that must be exercised “in the interests of justice” cannot ignore the practical consequences that will flow depending on how the discretion is exercised. It is one thing to reject “fresh” evidence on appeal in the name of finality where that rejection means that the defendant remains convicted of a regulatory offence for which he was required to pay a fine, but quite another thing to reject evidence of the same cogency based on the finality principle where that rejection means that the appellant will remain convicted of murder and sentenced to life imprisonment.
[44] The severe consequences to the appellant flowing from his conviction dictate that his failure to adduce the evidence at trial should not estop him from leading it on appeal, provided that the evidence is sufficiently cogent. This leads me to the third and, in my view, determining factor identified by Mr. Campbell.
[45] Mr. Campbell submits that evidence which could have been led at trial will be admissible on appeal if that evidence is “compelling”: see R. v. Warsing, supra, at para. 51; R. v. Lévesque, supra, at para. 15. I agree that at some point, the cogency of the proposed evidence must trump the failure to lead that evidence at trial, even though it was available. The difficulty lies in fixing that point.
[46] There are at least three discernible markers on the cogency continuum. At one extreme is evidence that satisfies the court of appeal that the appellant is innocent. Next on the continuum is evidence that, when considered with the evidence adduced at trial, satisfies the court of appeal that no reasonable jury could convict. If the new evidence reaches this degree of cogency, an appellant is entitled to an acquittal. Finally, there is evidence that is sufficiently cogent to meet the criteria for the admission of fresh evidence on appeal in that it could reasonably have affected the verdict at trial, but is not sufficiently cogent to exclude the reasonable possibility of a conviction. Evidence at this level of cogency requires a new trial: see R. v. Stolar (1988), 40 C.C.C. (3d) 1 at 10 (S.C.C.).
[47] It is safe to say that evidence which satisfies the court of appeal that the appellant is innocent must be received on appeal regardless of whether it was available at trial. It can never be in the interests of justice to maintain a verdict where the court is satisfied that the verdict is factually incorrect.
[48] I also think that evidence should be received on appeal, regardless of whether it was available at trial, at least in the context of criminal cases where an appellant’s liberty is at stake, if the evidence is sufficiently cogent to warrant an acquittal. It is not in the interests of justice to maintain a conviction where, on the totality of the evidence available to the appellate court, that court is satisfied that no reasonable jury could convict the appellant: see also Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at 109-110. Finality concerns are also diminished where the court of appeal is satisfied that an acquittal is the appropriate order. The proceedings will end with an acquittal in the court of appeal. The concerns to the due administration of justice associated with conducting a retrial many years after the event at which the evidence used to acquire the new trial may or may not be adduced do not arise where an acquittal is entered in the court of appeal.
[49] It is equally clear to me that to be “compelling”, the evidence offered on appeal must do more than simply meet the conditions precedent to the admissibility of that evidence. Evidence offered on appeal to challenge factual findings at trial is inadmissible unless it is relevant to a material issue, reasonably capable of belief and sufficiently cogent that it could reasonably be expected to have affected the result at trial when considered in combination with the rest of the evidence: Palmer and Palmer v. The Queen, supra, at 205. In short, if the evidence is not sufficiently strong to compel the ordering of a new trial, it cannot be received on appeal.
[50] If the evidence could have been led at trial, but for tactical reasons it was not, some added degree of cogency is necessary before the admission of the evidence on appeal can be said to be in the interests of justice. Otherwise, the due diligence consideration would become irrelevant. An accused who did not testify at trial could secure a new trial by advancing an explanation on appeal that was reasonably capable of belief. It would not serve the interests of justice to routinely order new trials to give an accused an opportunity to reconsider his or her decision not to testify at the initial trial.
[51] Exactly where on the continuum between evidence that is sufficiently probative to meet the preconditions to the admissibility of evidence on appeal and evidence that is so probative as to warrant an acquittal, evidence will become “compelling” must depend on the totality of the circumstances. Where the proffered evidence was not led at trial because of a calculated decision made by an accused, the integrity of the criminal justice system will suffer if the evidence is received on appeal and a new trial is ordered. That harm can only be justified if the proffered evidence gives strong reason to doubt the factual accuracy of the verdict.
[52] The court of appeal must weigh the evidence to decide whether it is sufficiently cogent to merit admission despite its availability at trial. Both counsel carefully reviewed the proffered evidence in their detailed written and oral submissions. I will not review all of their arguments. The evidence tendered on appeal, considered as a whole, meets the preconditions to the admission of evidence on appeal. The relevance of the evidence to a material issue is not disputed. There are many reasons to doubt the ultimate credibility of significant parts of the evidence, however, I cannot say that it is not reasonably capable of belief insofar as it offers an alternate explanation for the relevant parts of intercepts 74 and 75. I am also satisfied that a reasonable jury considering the evidence tendered on appeal with the rest of the evidence at trial could reasonably be left with a doubt as to whether the references in intercepts 74 and 75 were to the murder of Silva or the shooting of Mr. Camara.
[53] The evidence proffered by the appellant, considered in its best light from his perspective, barely meets the preconditions to admissibility. While it may be said to be sufficiently cogent that it could reasonably be expected to have affected the result at trial, it is far from convincing evidence. The timing of the appellant’s disclosure, years after his conviction, and the manner in which the explanations for the conversations have evolved during the fresh evidence application raise significant credibility concerns. The appellant’s explanation for shooting Mr. Camara makes little sense and his evidence as to his attitude toward Mr. Camara in the eighteen months following the shooting is rife with inconsistency. There is also much merit to the Crown’s argument that it is hardly likely that the appellant would slip into a discussion about a shooting that had occurred eighteen months earlier in the same conversations in which he was discussing Silva’s shooting and the attempts by Silva’s “cousin” to find out about his involvement in Silva’s shooting.
[54] Perhaps the most significant difficulty that the appellant has in attempting to convince this court that the proposed evidence is “compelling” arises out of intercept 75. In that conversation, the appellant clearly talks about somebody being “dead”. Mr. Camara was only wounded. The appellant and his friend, with whom the appellant was speaking, have offered an explanation for the use of the word “dead” in a non-literal sense. That explanation comes very close to defying belief entirely.
[55] The evidence proffered on appeal presents an interpretation of the two critical intercepts that would have been put to the jury but for the appellant’s decision to keep it from the jury. The jury’s verdict might have been different had it heard this evidence. The verdict, however, equally could have been the same. In some respects, the evidence offered on appeal may have made it easier for the jury to accept the Crown’s theory. The evidence is not sufficiently cogent to justify ignoring the considered tactical decision made at trial by the appellant. It does not raise sufficient concerns as to the reliability of the verdict to warrant the damage that would be done to the integrity of the criminal justice process by allowing the appellant to secure a new trial by adducing evidence on appeal that he deliberately chose not to adduce at trial, and that should the court order a new trial may never see the light of day at that trial.
B. The Admissibility of the Appellant’s Exculpatory Statements to the Undercover Officer
[56] During the Crown’s case, the defence sought to introduce tape recordings of two intercepted communications between the appellant and the undercover officer. In the first conversation, intercepted on September 14, 1999, the undercover officer called the appellant and accused him of killing Silva. The appellant denied that he had killed Silva and also denied that he owed any debt. The appellant suggested to the undercover officer that he go back to the people who had directed him to the appellant and get better information. The second call occurred on the same day. The appellant called the undercover officer and again told him that he should go back to the people who had directed him to the appellant as they must know something about the killing.
[57] The trial judge excluded both conversations, analogizing them to exculpatory self-serving statements made by an accused after an arrest. The trial judge held that exculpatory statements of that kind could only be introduced at the instance of the Crown.
[58] The characterization of the appellant’s statements to the undercover officer as “self-serving” should not be determinative of their admissibility. I also do not equate the appellant’s statements to the undercover officer with post-arrest statements made to the police by an accused in answer to a charge. The Crown led evidence of a number of conversations involving the undercover officer and associates of the appellant. The Crown also led evidence of conversations in which the appellant and his associates discussed the activities of the undercover officer. The conversations occurred in the course of the investigation before anyone was charged. The defence was entitled to adduce evidence of other intercepted conversations through Crown witnesses, including conversations involving the appellant, as long as those conversations were relevant to and probative of a fact in issue.
[59] The appellant’s denials of any involvement in Silva’s murder in the conversations with the undercover officer have no possible probative value. The appellant was not sure who the undercover officer was when the appellant spoke with him. He was, however, sure that the undercover officer was either a gangster representing the Colombians from New York or a police officer posing as a gangster. In either event, the appellant would not do anything other than deny involvement in Silva’s murder. The denial could have no probative value in those circumstances.
[60] The two excluded conversations do not provide any added context to the conversations which were introduced by the Crown. There is nothing in them that could impact on the meaning to be given to the other conversations, particularly intercepts 74 and 75.
[61] Lastly, I cannot accept the submission that the two conversations were probative in that they could dispel the Crown’s argument that the conversations adduced by the Crown demonstrated the appellant’s attitude towards the inquiries being made by the undercover officer. The Crown contended that the appellant was concerned about the inquiries being made by the supposed “cousin” and did not know what to make of them. Specifically, the appellant did not know whether the “cousin” was really a gangster or was a police officer attempting to elicit incriminating conduct from the appellant and his friends. Whichever the case, the appellant was proceeding very cautiously insofar as the “cousin” was concerned. The two conversations the appellant sought to produce at trial do not suggest any different attitude towards the activities of the “cousin”. There is nothing in these two conversations that could shed any additional light on the appellant’s attitude towards the activities of the “cousin”.
C. The Alleged Errors in the Jury Instruction[^3]
(i) The alleged misdirection as to the use of the evidence concerning Silva’s intention before entering the pool hall
[62] Silva’s mother testified that immediately before he left the car, Silva told her that he was going into the pool hall to meet the Portuguese “Rolando and Ricky”. He had also indicated that the Colombians might be present. In cross-examination, she agreed that in a statement to the police, she had said that her son told her he was going into the pool hall to meet only Rolando. The admissibility of this evidence was not challenged at trial.
[63] At trial, the defence relied on Silva’s statement to his mother to support its contention that Silva was going to the pool hall to meet the appellant’s father and not the appellant. The defence also argued that the statement offered some support for the contention that the Colombians, who had threatened Silva and whom he feared, may well be at the meeting. The Crown relied on the evidence of Silva’s intention as evidence of “motive and opportunity”. The Crown did not elaborate on this submission.
[64] In his initial charge, the trial judge told the jury:
Assuming that the son did tell the mother about the intended meeting, a statement as to a future event does not prove, does not prove, that the event actually took place after the statement was made. Even if the expected event did take place, the statement does not prove who were present at the expected meeting. [Emphasis added.]
[65] In response to an objection by the Crown, the trial judge recharged the jury:
There is evidence that the deceased, Emel Silva, told his mother that he intended to go to the pool hall on St. Clair West to meet either (and there are two different versions here) one Portuguese, being the accused’s father by the name of Rolando, or two Portuguese, being the accused, Ricky, and his father, Rolando. From that statement, if you find as a fact that it was made, it is open to you to infer that the deceased, Emel Silva, intended to meet either the accused’s father or the accused and his father at the pool hall where he was later shot to death. [Emphasis added.]
[66] The appellant, relying on R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 at para. 183 (S.C.C.), submits that the trial judge had to specifically tell the jury that evidence of Silva’s intention to meet with the appellant in the pool hall could not be used as evidence of the appellant’s intention to meet with Silva in the pool hall or as evidence that the appellant went to a meeting at the pool hall with Silva.
[67] Appellant’s counsel at trial did not request the limiting instruction urged on appeal. No doubt, counsel did not want that instruction because he had urged the jury to infer from the evidence of Silva’s stated intention that Silva met the appellant’s father and perhaps the Colombians, but not the appellant, inside the pool hall.
[68] An out-of-court statement by “X” that he or she intends to do something in the future, such as go to a meeting, may be admissible as evidence that “X” attended that meeting: R. v. Starr, supra, at paras. 168-172. The inference of conduct from evidence of a stated intention to engage in that conduct is relatively straightforward where the conduct involves only the person who made the statement. In this case, Silva’s statement referred to attending a meeting with the appellant and his father, or perhaps just the appellant’s father. R. v. Starr, supra, at paras. 166, 168-174, and 182-183 establishes that Silva’s statement was not evidence of the appellant’s intention to attend the meeting at the pool hall. Starr further stands for the proposition that a jury could not infer from Silva’s statement of his intention to go to a meeting that a meeting with the appellant actually took place.
[69] The trial judge’s instruction and recharge, considered together, adequately alerted the jury to the limited use it could make of the evidence of Silva’s stated intention before he entered the pool hall. The trial judge also avoided denigrating the position the defence had taken as to the use the jury should make of that evidence.
[70] In the initial instruction, the trial judge told the jury that the evidence of Silva’s intention to attend the meeting did not “prove” that a meeting took place or that the appellant attended that meeting. The instruction would have perhaps been more exact had the trial judge, instead of using the word “prove”, told the jury that the evidence of Silva’s intention was not any evidence that the appellant intended to go to the meeting and could not be used to infer that he went to the meeting. I think the net effect of the words used by the trial judge was very close, if not identical to, an instruction in the terms I have set out above.
[71] In the recharge, made at the request of the Crown, the trial judge expressly told the jury what inference it could draw from Silva’s statement if the jury was satisfied that he made the statement. The inference identified by the trial judge was available on a proper use of that evidence. The trial judge did not suggest any further use could be made of the evidence of Silva’s stated intention.
[72] The appellant submits that as it was never in doubt that Silva not only intended to go into the pool hall but in fact did so, the jury would have had no need to use the evidence of his statements to infer that he went into the pool hall. The appellant argues that as the jury would have had no need to use the evidence for the very limited purpose for which it was properly admitted, it must follow that the jury somehow misused the evidence against the appellant. I reject the logic of this argument. If, as the appellant contends, the issue to which the jury was told in the recharge this evidence was relevant was not in dispute by the end of the evidence, I think one must take it that the jury would have quickly passed over the evidence to reach evidence that was relevant to issues that were in dispute.[^4]
[73] The instructions on the evidentiary use of the evidence of Silva’s intention were appropriate and did not constitute reversible error. Before moving to the next ground of appeal, one additional observation relevant to this evidence is appropriate. The appellant does not allege that the evidence of Silva’s statement concerning his intention was inadmissible. There is, however, an admissibility issue lurking just under the surface of the appellant’s argument. The appellant’s submission proceeds on the basis that the evidence of Silva’s intention to go into the pool hall had no probative value beyond demonstrating that Silva acted in accordance with his stated intention and went into the pool hall. Specifically, the appellant’s submission assumes that the evidence had no value on the ultimate question of whether the appellant met with Silva in the pool hall. In taking this position, the appellant relies on the observations of the majority in R. v. Starr, supra, at paras. 182-183.
[74] I am not sure that Starr goes as far as the appellant claims. While it is clear after Starr that Silva’s statement as to his intention was not evidence of the appellant’s intention and could not be used to infer that the appellant attended the meeting, it is not clear to me that evidence of Silva’s intention to meet with the appellant had no probative value on the ultimate question of whether that meeting occurred. It is arguable as a matter of common sense and human experience that Silva’s intention to meet with the appellant when he went into the pool hall, could, when considered in the context of the rest of the evidence, make the occurrence of that meeting more likely than it would have been had Silva not intended to go into the pool hall and meet the appellant. If this reasoning is open, then Silva’s stated intention has some circumstantial relevance to the ultimate question of whether he met with the appellant in the pool hall: see S. Casey Hill et al., McWilliams Canadian Criminal Evidence, 4th ed., looseleaf (Aurora: Canada Law Book, 2006) at para. 4:20. On this approach, Silva’s stated intention was one brick, albeit a small one, in the evidentiary road leading to a finding that the meeting with the appellant occurred. This is the approach taken by Chief Justice McLachlin in dissent in R. v. Starr, supra, at para. 13: see also Lee Steusser: “R. v. Starr and Reform of the Hearsay Exceptions” (2002), 7 Can. Cr. L. Rev. 55 at 63-64.
[75] It is true that the majority expressly disagreed with this aspect of the Chief Justice’s analysis: R. v. Starr, supra, at para. 183. With respect, however, it is unclear to me that the majority addressed the potential probative value of the evidence as described by the Chief Justice. The majority clearly rejected the argument that a statement of the declarant’s intention could be used as evidence that an accused shared that intention. It is equally clear that the majority rejected the claim that the evidence of the declarant’s intention could provide the basis for an inference that the accused acted in accordance with the declarant’s stated intention. The Chief Justice did not, however, rely on either argument to support her assertion that evidence of the declarant’s intention had some probative value on the ultimate question of whether the declarant was with the accused. As described above, she viewed the evidence of the declarant’s stated intention as having some potential circumstantial evidentiary value when it was considered as part of a larger package of circumstantial evidence from which the jury might infer that the event referred to by the declarant actually occurred.
[76] My uncertainty as to what the majority in Starr meant in rejecting the Chief Justice’s analysis flows primarily from the absence of any relevance of the evidence of the declarant’s stated intention to a fact in issue in Starr, unless that evidence could somehow be linked to the question of whether the declarant met with the accused as he had said he intended to do. If the evidence had no probative value on the question of whether that meeting ever occurred, it had no relevance in the case and should have been excluded on that basis without any inquiry into its admissibility as hearsay. Since the majority in Starr seems to accept that if the evidence was properly admissible as hearsay it was admissible at trial, the majority must have regarded the evidence as having some potential probative value on the question of whether the deceased met with the accused.
[77] I think the potential admissibility of evidence of a declarant’s intention to do something with a third party as a piece of circumstantial evidence to be considered with other relevant circumstantial evidence on the issue of whether that event took place, remains an open question after R. v. Starr, supra. However, even if that evidence of the declarant’s state of mind has some value as a piece of circumstantial evidence, its probative value will often be slight. If there is a serious risk that the evidence of the declarant’s intention will be misused by the jury, the trial judge may, in the exercise of his or her discretion, exclude the evidence of the declarant’s intention.
(ii) The alleged misdirection as to the appellant’s liability as a party to first degree murder
[78] The trial judge instructed the jury that it must consider the appellant’s potential liability for first degree murder both as a perpetrator and as a secondary party (an aider). With respect to the appellant’s potential liability as an aider, the trial judge told the jury:
For the accused to be guilty as a secondary party to the first degree murder committed by someone else, presumably by his father, the Crown must prove beyond a reasonable doubt that the accused, Richard Maciel, participated in the planning and deliberation leading up to the intentional killing of Emel Silva or that he knew that the actual shooter, again presumably his father, had planned and deliberated over the killing of Emel Silva. The accused must then have aided or abetted his father for the purpose that Emel Silva be murdered. [Emphasis added.]
[79] The appellant submits that a person can be convicted of first degree murder that is planned and deliberate only if he or she was actually involved in the planning and deliberation. He submits that the trial judge erred in telling the jury that it could convict the appellant of first degree murder as long as he knew that the person he was aiding, presumably his father, had planned and deliberated the murder.
[80] Counsel for the appellant does not contend that the case law supports his position. It does not: see R. v. Brown (1995), 1995 NSCA 186, 102 C.C.C. (3d) 422 at 437-38 (N.S.C.A.); R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C. (2d) 510 at 523 (Ont. C.A.). Nor does counsel contend that the language of s. 21 of the Criminal Code, which addresses accessorial liability, draws any distinction between liability as an accessory to a planned and deliberate murder and liability as an accessory to any other crime. It does not. Counsel relies on what he describes as “principle” and “logic”. The principle invoked, sometimes referred to as the “fair labelling” principle, holds that the offence for which an offender is convicted, and the sentence imposed on that offender, should accurately reflect and be proportional to the offender’s actual culpability: see Glanville Williams, “Convictions and Fair Labelling” (1983) 42 Cambridge L.J. 85; Andrew Ashworth, Principles of Criminal Law, 5th ed. (Oxford: Oxford University Press, 2006) at 88-90.
[81] The fair labelling principle is reflected in the proportionality analysis featured in cases like R. v. Martineau (1990), 58 C.C.C. (3d) 353 (S.C.C.) where it was argued that s. 7 of the Charter rendered certain definitions of murder unconstitutional because those definitions did not require a culpable intent that was consistent with the stigma attached to the crime of murder: see Don Stuart, Charter Justice in Canadian Criminal Law, 4th ed. (Toronto: Thomson Canada, 2005) at 79-81. The appellant does not make any constitutional argument on this appeal.
[82] A court may also consider fair labelling concerns when choosing between competing interpretations of Criminal Code provisions that impose or define criminal liability: see R. v. Jackson (1993), 86 C.C.C. (3d) 385 at 393 (S.C.C.), aff’g R. v. Jackson and Davy (1991), 68 C.C.C. (3d) 385 at 420 (Ont. C.A.). The appellant does not suggest any ambiguity in the relevant sections of the Criminal Code.
[83] In my view, apart from constitutional arguments and as an aid in statutory interpretation, submissions based on the fair labelling principles are properly directed to Parliament and not to the courts.
[84] The trial judge’s instruction on potential liability as an aider to first degree murder is consistent with the case law and the relevant statutory provision. Section 21(1) of the Criminal Code provides:
21.(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it;
or
(c) abets any person in committing it.
[85] Section 21(1) puts perpetrators of crimes and those who aid or abet perpetrators in the commission of crimes on the same legal footing. Parliament has chosen to label perpetrators, aiders and abetters as “parties” to the crime. For the purposes of determining criminal liability, all are equally culpable: see Thatcher v. The Queen (1987), 32 C.C.C. (3d) 481 at 508-511 (S.C.C.).
[86] Section 21(1)(b) renders an accused a party to a crime as an aider if that accused:
• does (or omits) to do something that aids the perpetrator in the commission of the offence [the conduct requirement]; and
• renders that assistance for the purpose of aiding the perpetrator to commit the crime [the fault requirement].
[87] The conduct requirement of liability as an aider is not in issue on this appeal. There are two components to the fault requirement: an intention to assist the perpetrator, and knowledge of the perpetrator’s intention. The intention requirement is reflected in the phrase “for the purpose of aiding” found in s. 21(1)(a). The aider must provide the assistance with the intention of helping the perpetrator commit the crime: R. v. Hibbert (1995), 99 C.C.C. (3d) 193 at paras. 36-37 (S.C.C.). In this sense, it can be said that the aider must intend that the offence will be committed.
[88] The knowledge component of the fault requirement flows from the intention component. An aider can only intend to assist the perpetrator in the commission of the crime if the aider knows the crime that the perpetrator intends to commit. While the aider must know the crime the perpetrator intends to commit, the aider need not know the details of that crime: Dunlop and Sylvester v. The Queen (1979), 47 C.C.C. (2d) 93 at 110 (S.C.C.); Regina v. Yanover and Gerol (1985), 20 C.C.C. (3d) 300 at 329-30 (Ont. C.A.); V. Gordon Rose, Parties to an Offence (Toronto: Carswell, 1982) at 11. Consequently, a person who is said to have aided another in the commission of an attempted murder must know that the perpetrator intended to kill the victim: R. v. Adams (1989), 49 C.C.C. (3d) 100 at 110 (Ont. C.A.). Similarly, a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990), 60 C.C.C. (3d) 97 at 127 (S.C.C.).
[89] The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that was planned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned and deliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knew the murder was planned and deliberate. Whether the aider acquired that knowledge through actual involvement in the planning and deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1).
(iii) The alleged failure to relate the evidence to the issue of planning and deliberation
[90] The trial judge correctly defined “planning” and “deliberation”. He also correctly instructed the jury on the essential components of liability for first degree murder either as a perpetrator or an aider. He reviewed the evidence of Silva’s mother and the contents of intercepts 74 and 75 and the respective positions of the Crown and defence as they related to that evidence. The trial judge did not relate the evidence to the issue of whether the murder was planned and deliberate. He did not direct the jury’s attention to the parts of the evidence that, should the jury conclude that the appellant was guilty of murder, could assist the jury in determining whether he was guilty of first or second degree murder.
[91] Ms. Woollcombe, for the Crown, in her able submissions, argues that it was unnecessary for the trial judge to deal separately with the evidence as it related to the issue of planning and deliberation. As she put it in her factum:
The real issue was whether the appellant participated in the killing and not whether this was a first or second degree murder.
[92] The only defence advanced at trial was that the appellant was not involved in Silva’s murder. Counsel for the appellant made no mention of the issue of planning and deliberation in his closing argument. It is not surprising that he did not advance any position on behalf of the appellant on this issue. An argument that the murder was not planned and deliberate could have undermined the claim that the appellant was not involved in the murder and, therefore, could have no idea of whether it was planned and deliberate.
[93] The defence position at trial does not, however, mean that the characterization of the murder as first or second degree murder, if the jury found against the appellant on the issue of his involvement, was not a live issue for the jury. In addition to the position of the defence, the nature of the allegation and the evidence led at trial must be considered to determine the issues upon which the trial judge must relate the evidence for the jury. In this case, it was obvious that whoever shot Silva committed murder. That was not a live issue. The same cannot be said, however, with respect to whether the murder was first or second degree.
[94] At first glance, the evidence suggests a gangland type murder, the paradigm of a planned and deliberate murder. Closer scrutiny, however, puts the validity of that initial impression in doubt. There is in fact very little evidence as to the nature of the relationship between Silva, on one hand, and the appellant and his father on the other hand, particularly as it relates to the debt owed to the Colombians. The Crown’s claim that by killing Silva, the appellant and his father could somehow avoid paying the debt owed to the Colombians seems based more on speculation than on evidence. The forensic and other physical evidence offered little to assist the Crown in establishing that the murder was planned and deliberate. The evidence of Silva’s mother does not further the Crown’s case on first degree murder except insofar as it establishes the existence of the debt, the ongoing discussions concerning that debt, and Silva’s intention to meet with the appellant and his father. There are one or perhaps two comments in the crucial intercepts that could be taken as supporting the claim that the murder was planned. Those comments are not unequivocal.
[95] Assuming that the appellant murdered Silva, a closer review of the evidence suggests that there is little to choose between two possible scenarios. On the first scenario, Silva was the victim of a planned ambush by the appellant and perhaps his father, a planned and deliberate murder. On the second scenario, Silva was the victim of a failed negotiation with the appellant and perhaps his father, a murder, but not necessarily a planned and deliberate murder.
[96] On the evidence, the question of whether the murder was first or second degree was very much a live issue. It was essential that the trial judge draw the jury’s attention to the evidence that could assist them in distinguishing between first and second degree murder, should the jury conclude that the appellant was guilty of murder. It was particularly important that the trial judge do so because counsel for the appellant, by virtue of the defence advanced on behalf of the appellant, was not realistically in a position to marshal the evidence relevant to planning and deliberation or to argue that the murder was not a planned and deliberate murder.
[97] There was no objection by counsel for the appellant at trial. The failure to object can inform this court’s assessment of the adequacy of a trial judge’s instruction, especially where the appellant relies on non-direction. However, as I am satisfied that it was essential to a fair trial that the trial judge relate the evidence to the issue of planning and deliberation, counsel’s failure to object is no answer to this ground of appeal.
IV
The Appropriate Order
[98] The jury’s finding that the appellant murdered Silva is unaffected by the only error made at trial. That error taints only the jury’s characterization of the murder as first degree murder. There is evidence upon which a properly-instructed jury could convict the appellant of first degree murder. In oral submissions, Crown counsel indicated that if the court concluded that there was reversible non-direction with respect to planning and deliberation, the Crown would not seek a retrial on first degree murder, but would be content if the court exercised its powers under s. 686(1)(b)(i) and s. 686(3) to dismiss the appeal and substitute a conviction on the charge of second degree murder.
[99] The appellant can claim no unfair prejudice were the court to substitute a conviction for second degree murder. The court has the authority to do so: R. v. Wigman (1987), 33 C.C.C. (3d) 97 at 109-110 (S.C.C.); Regina v. Ruggiero (1972), 9 C.C.C. (2d) 546 at 548 (Ont. C.A.). The interests of justice are served by substituting a conviction for second degree murder. Consequently, I would dismiss the appeal, set aside the conviction on the first degree murder charge, and substitute a conviction on the included offence of second degree murder.
[100] The appellant must be sentenced on the second degree murder conviction. Section 686(3) allows this court to either impose sentence on the second degree murder conviction, or direct the trial court to impose the appropriate sentence. Counsel should have an opportunity to make submissions as to the appropriate forum for the sentencing of the appellant. A conference call with me may be arranged to determine how the matter should proceed.
RELEASED: “DD” “MAR 22 2007”
“Doherty J.A.”
“I agree J.I. Laskin J.A.”
“I agree Robert P. Armstrong J.A.”
[^1]: The fact that the evidence concerning the Camara shooting would have triggered certain limiting instructions by the trial judge would not dispel the concerns associated with leading this evidence. [^2]: In cross-examination on his affidavit, the appellant testified that he was born on November 28, 1978. He was, therefore, almost 23 when the trial concluded on November 2, 2001. [^3]: In these reasons, I will consider three of the errors alleged by the appellant. He also argued that the reasonable doubt instruction was wrong in law. The court did not require submissions from the Crown on that issue and I will not address it in these reasons. [^4]: On this analysis, the appellant could have argued at trial that the evidence should be excluded on the basis that it had virtually no probative value and could potentially prejudice the appellant should the jury misuse it. That argument was not advanced at trial because the appellant wanted the jury to use the evidence to infer that Silva met with the appellant’s father and perhaps the Colombians.