R. v. Figueroa, 2008 ONCA 106

DATE: 20080215

DOCKET: C40190-C40252-C40208-C40870

COURT OF APPEAL FOR ONTARIO

DOHERTY, GILLESE and EPSTEIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

NORMAN FIGUEROA, ANDRE JONES, CHRISTIAN ORTIZ & SHU KWAN WONG

Appellants

Christopher Hicks and Sam Scratch for the appellant, Figueroa Anthony Moustacalis for the appellant, Jones Brian Snell for the appellant, Ortiz

Alexander Alvaro for the respondent

Heard: January 14 and 15, 2008

On appeal from the convictions entered by Justice McIsaac of the Superior Court of Justice, sitting with a jury, on July 18, 2002.

DOHERTY J.A.:

I

OVERVIEW

[1] Maria Wong was murdered in the garage of her home in Markham, Ontario at about 9:00 p.m. on February 11, 1999. Her husband, (Johnny) Wong, and the three appellants were charged with first degree murder. All four were convicted. All four originally appealed their convictions, but Mr. Wong has abandoned his appeal.

[2] The convictions are attacked on three grounds:

• counsel for Figueroa argues that the trial judge erroneously told the jury that lies told by Figueroa to the police could be used as circumstantial evidence of Figueroa’s involvement in the plan to murder Mrs. Wong;
• all counsel argue that the positions of the defence and the evidence relevant to those positions were not adequately put to the jury by the trial judge; and
• all counsel argue that the “Vetrovec” instruction given with respect to the two principal Crown witnesses was inadequate.

[3] The court did not call on the Crown to answer the arguments relating to the positions of the defence and the “Vetrovec” instruction. Neither aspect of the charge warrants appellate intervention. Nor do I see any value in an extended examination of those issues. The applicable legal principles are well known and it comes down to whether in the circumstances of this case this charge complied with those principles. I think it did.

[4] I am, however, satisfied that the first ground of appeal outlined above must succeed. The trial judge should have told the jury, as he initially intended to do, that Mr. Figueroa’s statements to the police could not assist the jury in determining whether Mr. Figueroa was a party to an agreement to murder Mrs. Wong. For the reasons that follow, I think he erred in failing to give this instruction and that the error requires a new trial for all three appellants.

II

THE TRIAL

[5] At the trial, the Crown claimed that Mr. Wong was under financial pressure because of large gambling debts and that he stood to benefit financially from his wife’s death. The Crown argued that Mr. Wong went to his friend and co-worker, the appellant Jones, and asked if Jones could assist him in arranging the murder of his wife. Jones agreed to help Mr. Wong.

[6] In December 1998, Jones met with his long-time friend, James Pierce. According to Pierce, Jones said he had agreed to kill somebody, but was unable to do it himself. Jones asked Pierce if he could find someone who could do the job and make it look like an accident. Pierce made some inquiries and was eventually given the phone number of the appellant, Ortiz. He did not know Ortiz.

[7] Pierce met with Ortiz, who was accompanied by the appellant Figueroa. Ortiz agreed to perform the murder for a price of between $7,000 and $9,000. Pierce, Ortiz and Figueroa later met to plan the specifics of the proposed murder. On the Crown theory, after earlier aborted efforts, the murder occurred on February 11 at about 9:00 p.m. in the garage of the Wong household.

[8] The Crown argued that Ortiz was the actual killer and that Figueroa was present at the murder scene and acted as a lookout. On the Crown’s theory, Pierce was nearby in a rented automobile with his girlfriend, Lisa Bateman. A third party, who was not ultimately charged, was with Pierce, Ortiz and Figueroa but fled the scene of the murder before Ortiz killed Mrs. Wong.

[9] Jones and Wong were at their place of business in Markham on the evening of February 11. During that evening, Pierce and Jones spoke several times on their cell phones. Wong spoke with Jones several times. The Crown contended that the plan to murder Mrs. Wong and modifications to that plan were discussed in the course of these telephone conversations.

[10] The Crown’s case was based primarily on the evidence of Pierce and Bateman. Pierce was originally charged with first degree murder. He entered into a plea bargain after the preliminary inquiry pursuant to which he pled guilty to conspiracy to commit murder and received a sentence of sixteen years (plus two and a half years pre-trial custody) in exchange for his testimony. On his testimony, Pierce was a prime mover in the planned and deliberate murder of Mrs. Wong.

[11] Ms. Bateman was not charged with any offence. She was placed in the Witness Protection Program. On the evidence, she could have been charged, at least as an accessory after-the-fact to murder.

[12] Pierce testified that he and Bateman, along with Ortiz, Figueroa and the third person, went to Markham in the early evening of February 11 in a car rented by Pierce. They intended to ambush and murder Mrs. Wong as she left the public library following her English classes. When it developed that Mrs. Wong could not be killed outside of the library, they decided to kill her at her home. The details of the murder plan changed as the evening progressed. Pierce was in constant cell phone contact with Jones, and Jones was speaking to Mr. Wong. Mr. Wong phoned his home and spoke with his wife after she arrived home from the library.

[13] According to Pierce, some time after Mrs. Wong had returned home from the library, Jones called him and said that it had been arranged that Mrs. Wong would leave the home in her car and return shortly afterward. It was the Crown’s position that Jones had called Mr. Wong and asked him to get his wife out of the house so that she could be killed away from the home. According to this theory, Mr. Wong called his wife and asked her to get some “takeout” food at a local restaurant. Mr. Wong acknowledged in his statement to the police that he spoke to his wife in the early evening of February 11 about getting some “takeout” food. Ortiz called Pierce a short time after Pierce spoke to Jones to tell Pierce that they had missed Mrs. Wong when she left her home in her vehicle. Pierce told Ortiz to wait for Mrs. Wong’s return.

[14] Bateman and Pierce sat in the rental car waiting for Mrs. Wong to return. Ortiz, Figueroa and the third party were lying in wait for Mrs. Wong somewhere near the garage. Between 8:30 and 9:30 p.m., Bateman saw the victim’s car returning towards her home. She alerted Pierce. Pierce called Ortiz and warned him that Mrs. Wong was about to arrive home.

[15] A short time later, while Bateman and Pierce were still in the car, Pierce received separate telephone calls from Ortiz, Figueroa and the third man. Pierce picked the three men up at different locations near Mrs. Wong’s home. They returned to Toronto. Ortiz told Pierce that he stabbed Mrs. Wong after she got out of her vehicle in the garage. He said he had stabbed her three times. Ortiz took Mrs. Wong’s car and abandoned it a short distance away hoping to make it appear as though Mrs. Wong had been killed by a carjacker.

[16] The pathology evidence confirmed that Mrs. Wong had been attacked and stabbed in the neck three times.

[17] Pierce testified that when he picked Ortiz up after the murder, he saw blood on Ortiz’s clothing. He made Ortiz remove his clothing before getting into the vehicle. Pierce later destroyed that clothing. Pierce also took the murder weapon from Ortiz, a knife Pierce had purchased a few weeks earlier, broke the knife handle into pieces and threw the blade into Lake Ontario. The police later recovered a knife blade from the area where Pierce said he had thrown the knife blade.

[18] Bateman’s evidence was consistent in most respects with Pierce’s testimony. He had heard her testify at the preliminary inquiry when he was still an accused. There were, however, some differences in their evidence and the defence relied on these differences as one avenue of attack on the credibility of Pierce and Bateman.

[19] The defence submitted that Bateman was not credible. In addition to her role as an accomplice, the defence argued that Bateman was enamoured with the notion of being the leading witness in a high profile murder case. The defence contended that her evidence was fabricated and motivated by a desire to not only avoid jail, but also to gain attention and further her dream of writing screenplays.

[20] Both Bateman and Pierce told several lies to the police while under oath and gave inconsistent versions of the relevant events in various statements.

[21] There was some evidence capable of confirming some material aspects of the evidence of Pierce and Bateman. Toll records for the 407 Highway and cell phone records offered some support for Pierce’s description of his movements and those of the appellants in the weeks preceding the murder and on the night of the murder. The defence, however, contended that in some respects the telephone records were inconsistent with specific parts of Pierce’s testimony as it related to the events of February 11. The defence also placed reliance on the evidence that Pierce had put his cell phone on forward at the time when Mrs. Wong was being killed. The defence argued that this supported the claim that Pierce was the actual killer.

[22] Wong was the only accused to give evidence at trial. He testified that he had nothing to do with his wife’s murder and that he loved her very much. Wong acknowledged that he was a serious gambler and accumulated significant gambling debts from time to time. Wong denied that he was under any pressure to repay these debts or that he could not repay them in a timely fashion. He offered records in support of this position.

[23] Mr. Wong also led evidence that he did not stand to make significant financial gains from his wife’s death. He never made a claim under the only insurance policy under which he was the beneficiary. That policy only provided for a $100,000 payout in the event of Mrs. Wong’s death.

[24] Mr. Wong left for Hong Kong on a one-way ticket with his elderly father a few weeks after his wife’s murder. The Crown relied on this as evidence of flight indicative of Mr. Wong’s involvement in the homicide. Although Mr. Wong did not return voluntarily to Canada, but had to be extradited, he denied that he fled there to avoid prosecution. Mr. Wong offered an explanation for his trip and claimed that he kept the police fully advised of his whereabouts.

[25] Jones did not testify at trial, but through counsel advanced the defence that he knew nothing about Mrs. Wong’s death and was not involved in any plot that led to her murder.

[26] Ortiz did not testify at trial. Through counsel, he advanced the defence that he was party to a plan with Pierce and Figueroa to carjack Mrs. Wong’s car on February 11. Ortiz took the position that he knew nothing about any plan to kill Mrs. Wong and that Pierce, acting entirely on his own, killed Mrs. Wong in the course of the carjacking. Ortiz acknowledged that on the evidence he was guilty of manslaughter as a participant in the carjacking plan that led to Mrs. Wong’s death.

[27] Figueroa did not testify. He advanced the same defence as Ortiz, claiming that he was a party to a carjacking but knew nothing about a planned murder. He also took the position that Pierce killed Mrs. Wong.

III

FIGUEROA’S STATEMENT TO THE POLICE

[28] After an extensive investigation, Figueroa and the other appellants were arrested in late August 1999, about six months after the murder. Figueroa was cautioned and spoke with counsel. He gave a lengthy statement to the police in which he denied any knowledge of, and any involvement in the murder. He denied that he was in Markham on the evening of February 11, the night of the murder. In the course of the interview, the police confronted Figueroa with cell phone records placing his cell phone in Markham on February 11. Figueroa told the police that he regularly lost his cell phone when he was drunk. Figueroa indicated that the cell phone would routinely be returned to him a few weeks after he had lost it.

[29] At trial, counsel for Figueroa admitted that Figueroa had lied to the police in his statement in August 1999. Counsel acknowledged that Figueroa was in Markham on the evening of February 11 with Ortiz and Pierce. Counsel took the position that Figueroa went to Markham with Ortiz and Pierce to steal Mrs. Wong’s car and, presumably, whatever valuables she had on her person. Counsel submitted that Figueroa lied to the police to conceal his involvement in a conspiracy to carjack in the course of which Pierce, acting on his own, had killed Mrs. Wong.

[30] The trial judge instructed the jury on the use it could make of Figueroa’s lies to the police in these terms:

Norman Figueroa gave a lengthy statement to the police on August the 31^st, 1999. In that statement he denies being in Markham and he suggested that he had lost his cell phone when confronted with the suggestion by the police that the group was placed there by the records that had been obtained. He concedes that that was a lie and now suggests through his counsel’s submissions that he only went there to steal. This conceded false explanation may go some distance in confirming his involvement in the murder conspiracy described by James Pierce and Lisa Bateman. It cannot confirm the involvement of any of the other alleged participants. This evidence would, of course, lose its confirmatory potential if you are not satisfied that it was concocted by him to cover up his involvement in this murder plot. He could be lying to cover up his involvement in a plot to simply steal something in Markham. What inference should be drawn is totally within your determination as an issue of fact. This was also a perfect opportunity for Norman Figueroa to advance his present defence that James Pierce murdered Maria Wong in a botched theft conspiracy. He elected, however, to attempt to deceive the police as to his involvement with James Pierce and his crew in Markham that night. This circumstance may confirm that he was part of the plot to murder the victim. [Emphasis added.]

[31] Counsel for Figueroa objected to this instruction. She indicated that in the pre-charge discussions, the Crown had conceded that Figueroa’s lies to the police could not be used to support the inference that Figueroa was a party to a murder plot because those lies were equally consistent with Figueroa’s having been a party only to an agreement to steal Mrs. Wong’s car during which she was murdered by Pierce acting on his own. Trial counsel further indicated that, on her understanding, the trial judge had agreed with the Crown’s concession that the evidence of Figueroa’s lies were not probative of Figueroa’s involvement in the murder scheme.

[32] The trial judge advised counsel that he had originally intended to tell the jury that the evidence of Figueroa’s lies was not probative of whether Figueroa was a party to murder, but, after reading R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), he had concluded that it was open to the jury to infer Figueroa’s participation in the murder scheme from his lies to the police. He did not recharge the jury on this issue.

IV

ANALYSIS

[33] Post-offence conduct, including lies to the police, is a kind of circumstantial evidence. The jury is asked to infer the existence of a fact in issue, e.g. the identity of the perpetrator, from post-offence conduct committed by the accused, e.g. lies to the police. The inference is permissible only if, based on human experience and common sense, that inference is a reasonable one. As with any kind of circumstantial evidence, the inferences to be drawn from post-offence conduct will depend on the nature of that conduct, the fact that is sought to be inferred from that conduct, the position of the parties, and the totality of the evidence. Inference drawing is situation-specific and is not amenable to a set of preset rules that categorize certain kinds of post-offence conduct as always relevant to, or never relevant to, a particular fact in issue: R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 at paras. 19-22 (S.C.C.); R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 at paras. 24-31 (Ont. C.A.).

[34] As a matter of human experience and common sense, Figueroa’s lies to the police were reasonably capable of supporting the inference that he was criminally involved in Mrs. Wong’s death. A reasonable jury could infer that Figueroa lied to the police as to his whereabouts on February 11 because he was involved in Mrs. Wong’s death. That is not to say that involvement in Mrs. Wong’s death was the only inference reasonably open from Figueroa’s lies to the police. There were other possible explanations. As with all circumstantial evidence, it was for the jury to decide which, if any, of the competing reasonable inferences should be drawn from the after-the-fact conduct: R. v. White, supra, at para. 27.

[35] While it is for the jury to choose among reasonable inferences available from the evidence, the jury cannot be invited to draw speculative or unreasonable inferences. Post-offence conduct may reasonably support the inference that an accused was involved in the offence alleged, but may provide no reasonable inference as to the nature of that participation or the accused’s state of mind at the relevant time. Either or both may be crucial to the accused’s level of culpability. Where after-the-fact conduct cannot reasonably assist in fixing an accused’s level of culpability, the jury should be told that the evidence has no probative value in determining the accused’s level of culpability: R. v. Arcangioli (1994), 1994 107 (SCC), 87 C.C.C. (3d) 289 (S.C.C.).

[36] In R. v. White, supra, at para. 28, Major J. described the circumstances in which the limited potential probative value of after-the-fact conduct should be explained to the jury:

Such an instruction [a no probative value instruction] is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such cases, the participation of the accused in the culpable event is not in issue; the question to be decided is merely the extent or legal significance of that participation. [Emphasis added.]

[37] Having made it clear that after-the-fact conduct will often not assist in fixing an accused’s level of culpability, Major J. observed at para. 32 that there could be cases where after-the-fact conduct was relevant to the level of culpability:

This distinction provides some guidance as to when a “no probative value” instruction will be warranted, but it is not a formula. The result will always turn on the nature of the evidence in question and its relevance to the real issues in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged.… [Emphasis added.]

[38] The trial judge, after initially deciding that Figueroa’s lies could not assist in determining his level of culpability as between manslaughter and first degree murder, changed his mind and instructed the jury that the lies could logically support the inference that Figueroa was a participant in a scheme to murder Mrs. Wong rather than a participant in a scheme to steal her car during which she was unexpectedly murdered by Pierce.

[39] I see no reasonable basis upon which a jury could find that Figueroa’s lies to the police were more consistent with his involvement in a murder scheme than with his involvement in a carjacking scheme during which Pierce murdered Mrs. Wong. On either scenario, Figueroa was implicated in serious criminal conduct and could reasonably be expected to attempt to conceal that involvement from the police. I do not think it can be said that Figueroa’s lies are in any way out of proportion to his potential culpability for manslaughter. Nor do I see anything in the substance of the lies told by Figueroa that could reasonably point to involvement in a murder scheme as opposed to involvement in the carjacking scheme.

[40] Crown counsel submits that the rest of the evidence adduced in the case, particularly the evidence of Pierce describing Figueroa’s involvement in the murder, justifies the trial judge’s instruction as to the inference that could be drawn from Figueroa’s lies to the police.

[41] I cannot accept this submission. The reasonable inferences available from circumstantial evidence must depend primarily on the nature of the evidence and the issue to which that evidence is directed. Where more than one inference is reasonably available, the rest of the evidence will become important in determining which of those inferences should be drawn. Where, however, the inference argued for by the Crown does not reasonably flow from the circumstantial evidence in issue, the existence of other evidence implicating the accused cannot make that inference reasonable.

[42] A somewhat extreme example demonstrates the fallacy of the Crown’s argument. The Crown could not argue, based on evidence that an accused was seen ten miles from the scene of a murder a week before the murder, that the jury should infer from that evidence that the accused was at the scene of the murder when it occurred. The suggested inference would be speculative and unreasonable. That inference would remain speculative and unreasonable even if a witness gave direct evidence placing the accused at the scene of the murder when it occurred. If, however, the circumstantial evidence placed the accused at the scene of the murder shortly after it occurred, that evidence could reasonably support the inference that the accused was at the scene when the murder occurred. The strength of that inference would be enhanced by the direct evidence of the witness placing the accused at the scene of the murder.

[43] Nothing in the circumstances surrounding Figueroa’s lies to the police in late August, or in the substance of those lies, could reasonably support an inference as to the level of Figueroa’s culpability in the death of Mrs. Wong. The lies speak to his criminal involvement in her death, but go no further.

[44] There is nothing in R. v. MacKinnon, supra, the authority relied on by the trial judge, that is inconsistent with the above analysis or which justifies the instruction given by the trial judge.

[45] In MacKinnon, the accused were charged with the first degree murder of the employee of a gun club. The Crown contended that the two accused had planned to rob the gun club and murder the employee, who knew MacKinnon. The Crown argued that the employee was killed in the furtherance of that plan.

[46] The Crown led evidence that immediately after the employee was shot and killed, MacKinnon and Crooks stole a gun and fled the scene in a car driven by an accomplice. According to that accomplice, both MacKinnon and Crooks were excited, laughing and said that they had sent the deceased “back to China” – the deceased was Asian. The accused told the accomplice to drive to a schoolyard where they disposed of some material in a dumpster.

[47] MacKinnon argued that his post-offence conduct was equally consistent with his involvement in a plan to commit murder or a plan to illegally purchase firearms in the course of which his co-accused, Crooks, had killed the gun club employee. MacKinnon argued that because the evidence was equally consistent with both forms of culpability, the trial judge should have told the jury that it had no probative value on the question of MacKinnon’s liability for first degree murder.

[48] This court rejected that argument holding at paras. 14-15:

Evidence of after-the-fact conduct is a type of circumstantial evidence. Its probative value will depend upon the nature of the evidence, the issues in the case and the position of the parties. Often, evidence of after-the-fact conduct will be probative of the accused’s participation in the crime alleged, but will have no probative value in determining the level of the accused’s culpability. Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that the accused had a particular state of mind [citation omitted].

[15] The appellants’ conduct as described by Ransome [the accomplice], from the time they fled the club until they disposed of the evidence in the dumpster could, when viewed in its entirety, supports the inference that they had done exactly what they planned to do, that is, enter the club, commit a robbery, and shoot Mr. Chow. This inference would lend considerable support to the Crown’s claim that the murder was planned and deliberate. As the evidence had some probative value on the question of whether the appellants had engaged in a planned and deliberate murder as opposed to a robbery or some other illegal activity which had gone awry, the trial judge could not have instructed the jury that the evidence had no value in determining the appellants’ level of culpability. … [Emphasis added.]

[49] The distinction between the case at bar and R. v. MacKinnon, is found in the nature of the post-offence conduct in the two cases and the reasonable inferences available from that conduct. In MacKinnon, the nature of the post-offence conduct could, as a matter of common sense and human experience, reasonably support the inference that the killing of the employee was the product of a prior plan. Figueroa’s lies to the police could not reasonably support the conclusion that his admitted participation in the death of Mrs. Wong was the product of his participation in a plan to murder her.

[50] The trial judge’s first impression was correct. He should have told the jury that Figueroa’s lies to the police could support the inference that he was involved in a criminal scheme that resulted in Mrs. Wong’s death, but could not assist the jury in determining whether he was a party to a carjacking, and therefore guilty of manslaughter, or a party to a conspiracy to murder Mrs. Wong.

V

THE APPROPRIATE ORDER

[51] The trial judge’s misdirection constitutes an error in law. The Crown, quite properly in my view, does not argue that the curative proviso in s. 686(1)(b)(iii) can be applied as against Figueroa. The error was potentially significant in that it related to one of the few pieces of incriminatory evidence that stood independent of the tainted testimony of Pierce and Bateman. Nor can the Crown’s case against Figueroa be described as sufficiently strong to render the error harmless. Figueroa’s conviction must be quashed and a new trial ordered.

[52] The Crown forcefully argues that the error does not taint the convictions of Jones and Ortiz. In support of this argument, the Crown contends that the trial judge made it clear to the jury that Figueroa’s lies to the police were admissible only against him and could not be used to confirm the Crown’s case against Ortiz and Jones.

[53] The trial judge did give the limiting instructions described by the Crown both during the trial and in his closing instructions to the jury. However, I do not think that the limiting instructions immunize the convictions of Jones and Ortiz from the potential harm caused by the misdirection concerning the use the jury could make of Figueroa’s lies to the police.

[54] As Mr. Snell, counsel for Ortiz, put it, Ortiz and Figueroa were “joined at the hip” throughout the evidence adduced by the Crown. In the course of Pierce’s evidence, reference to one was followed almost immediately by reference to the other. Their defences were identical. Ortiz and Figueroa were, on the Crown’s theory, two parts of the same unit. The chance that a jury, acting reasonably, could return different verdicts with respect to Ortiz and Figueroa was, to say the least, remote. To the extent that different verdicts were possible, the evidence suggested manslaughter for Figueroa and murder for Ortiz.

[55] If the jury, as it could have on this instruction, improperly used the evidence of Figueroa’s lies to convict Figueroa of murder, that verdict must have damaged Ortiz’s chances of a conviction for the included offence of manslaughter. On the evidence led by the Crown, it would have been perverse to find Ortiz less liable than Figueroa. Ortiz’s conviction is tainted by the misdirection and must be set aside.

[56] The Crown’s argument that Jones’ conviction was not tainted by the misdirection concerning Figueroa’s lies to the police is somewhat stronger than the argument that Ortiz’s conviction was not tainted. However, I accept counsel for Jones’ contention that the conviction of Figueroa for first degree murder could well have affected the verdict returned against Jones.

[57] The Crown alleged that the murder was the product of a contract killing arranged through Jones. The conviction of Figueroa and Ortiz as the perpetrators of the murder could not help but enhance the Crown’s case against Jones, the person who, on the Crown’s case, provided the link between the individuals who actually participated in the murder and Mr. Wong, the individual who wanted Mrs. Wong murdered. The Crown has not convinced me that the verdict as against Jones would necessarily have been the same had the trial judge not misdirected the jury concerning the use it could make of the lies told to the police by Figueroa.

[58] There is one further feature of this case that weighs against the application of the curative proviso. There was an extensive pre-charge discussion among the trial judge and counsel. The discussion took place before counsel’s closing addresses. As indicated above, the trial judge accepted the Crown’s concession that Figueroa’s lies could not assist the Crown in proving that Figueroa was a party to an agreement to murder Mrs. Wong. On this concession, Figueroa’s lies to the police did not hurt his position since he acknowledged his liability for manslaughter. Counsel addressed the jury on the basis of the Crown’s concession as accepted by the trial judge and did not refer to the evidence of Figueroa’s lies to the police or the inferences that should be drawn from them.

[59] The trial judge ultimately decided to give a very different instruction to the jury as to the use it could make of Figueroa’s evidence. For unknown reasons, he did not discuss this proposed change with counsel before he instructed the jury. Counsel never had an opportunity to convince the trial judge that his initial impression was the correct one, or to deal with Figueroa’s evidence on the basis that the trial judge ultimately left it with the jury. For example, counsel did not have the opportunity to convince the jury that because Figueroa’s lies were equally consistent with his involvement in a carjacking they should not be taken as any evidence of his involvement in a planned murder. The fact that counsel never had a chance to deal with the evidence on the basis that the trial judge left it with the jury adds to the prejudice caused by the trial judge’s misdirection.

VI

CONCLUSION

[60] I would allow the appeals, quash the convictions and order a new trial for all of the appellants on the charge of first degree murder.

RELEASED: “DD” “FEB 15 2008”

“Doherty J.A.”

“I agree E.E. Gillese J.A.”

“I agree G. Epstein J.A.”