R. v. Fiorino, 2008 ONCA 568

CITATION: R. v. Fiorino, 2008 ONCA 568

DATE: 20080728

DOCKET: C36009

COURT OF APPEAL FOR ONTARIO

LASKIN, ROSENBERG and LaFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

DAVID FIORINO

Appellant

Brian Snell for the appellant

David Finley and Michelle Campbell for the respondent

Heard: January 30, 2008

On appeal from the conviction entered on October 7, 2000 by Justice John R. Belleghem of the Superior Court of Justice, sitting with a jury.

ROSENBERG J.A.:

[1] On the appellant’s trial for first degree murder before Belleghem J. and a jury, the central issues were whether the death of the deceased was accidental or intentional and whether it was planned and deliberate. The appellant submits that the trial judge erred in two respects that went to the core of those issues. One alleged error concerns the treatment of expert evidence as to the cause of death. The other error concerns the use of some unusual bad character evidence as similar fact evidence.

[2] I agree that the trial judge erred with respect to both issues and I would therefore order a new trial.

THE FACTS

[3] This case originates in the appellant’s various attempts to make money through the purchase and sale of contraband. In the 1990s the deceased, Stephen Andreopoulos, was involved in the sale first of contraband cigarettes and then contraband liquor. His partners in this latter venture were Dominic Sacco and Jim Pearson. The business was very profitable and the three men were interested in finding a better supply of contraband liquor. A friend of the appellant’s, Mark Bonnell, purchased liquor from the deceased’s group and they asked him if he knew of a better supplier. They offered him a finder’s fee for his help. Bonnell in turn asked the appellant if he knew of a supplier. The appellant approached a number of people including Mike Fontaine, who lived in Cornwall and had contacts with people in the nearby First Nations reserve.

[4] The appellant testified that he wanted to purchase 500 cases of liquor a month from Fontaine, with the first delivery to take place in early July 1996. According to Fontaine, however, the proposed deal was for cigarettes. Fontaine also testified that the appellant told him the money for the purchase would be supplied by his partner and offered to hire Fontaine to kill his partner, the money man. When Fontaine refused, the appellant asked him to supply a gun and stated he would kill his partner himself. The appellant denied there was any such conversation. In any event, Fontaine decided not to deal with the appellant, although it seems that he did not tell the appellant of this decision until early July 1996.

[5] The planning for the purchase from Fontaine took place around the end of June 1996. There were two meetings and several telephone calls involving the various confederates. The appellant told Sacco, Pearson and the deceased that they were to supply a truck to hold 500 cases and provide $50,000 in cash. The appellant told them that the Hell’s Angels were involved and no weapons were to be taken along. He also claimed that corrupt police officers would provide security. When the deceased’s group was unable to come up with a vehicle, the appellant arranged to rent a U-haul truck. The appellant told the owner of the rental company that someone else would be driving. The appellant also told Sacco that they could store the liquor at his family’s farm in Milton. The purchase was to take place on July 2, 1996.

[6] The appellant testified that on the morning of July 2, he decided to steal two trees from a job site where he had worked as a backhoe operator. Accordingly, he drove to the site with a van and trailer in the early morning, and loaded the trees onto the trailer using a backhoe at the site. Each tree was about eight feet tall in addition to its roots, which were wrapped in a burlap and steel tree ball measuring about three feet across. The appellant then went to his uncle’s farm, where he left the trailer with the trees. He returned home from where he called Fontaine. The appellant testified that until that morning when Fontaine told him there would be no deal, he believed the plan to obtain the contraband liquor was going to proceed. According to the appellant, at this point he decided that rather than call the deal off, he would steal the money that his confederates would be bringing to purchase the liquor.

[7] Around 3:00 p.m., the appellant, Sacco and the deceased met at the U-Haul dealer. The deceased rented the truck while Sacco entered the front passenger seat of the appellant’s car. At trial, there was a dispute about the whereabouts of the money. The appellant claimed that Sacco and later the deceased maintained control of the $50,000. However, Sacco testified that after he had rented the truck, the deceased came to the appellant’s car and emptied the money into a gym bag lying in the back seat. In any event, after the truck was rented, the appellant drove away in his car with the deceased following in the truck; Sacco did not accompany them. As they approached Highway 400, the appellant pulled over and pretended to speak on his cell phone. He then told the deceased that they were going to stop at his family’s farm in Milton to pick up a trailer to help transport the liquor.

[8] The appellant was the only witness to the events at the farm. He testified that as he was using the backhoe to remove the trees from the trailer, one of the tree balls accidentally struck the deceased. The deceased fell to the ground and the appellant went over to help him. The deceased’s t-shirt was covered with blood and he was gasping for air. He then went limp. The appellant testified that he panicked; he felt that no one would believe the death was an accident, especially since he was planning to steal the money from the deceased. He picked up the body with the backhoe and took it to a remote part of the farm.

[9] The appellant tried to get hold of his uncle, but without success. He testified that he then went home and returned to the farm with his fiancée. He retrieved the money from the truck and gave it to his fiancée. He used the backhoe to bury the body. He then drove the rental truck to a parking lot where he abandoned it and drove home with his fiancée.

[10] Over the next few days the appellant spent almost the whole $50,000. He testified that he told his family and friends that he had won the money in the lottery. The evidence indicated that at the time the appellant had been in serious financial difficulties with large debts. He did not have a steady job and had debts of about $17,000. In particular, he had a loan for almost $9,000 that had been co-signed by a friend, Ralph Valente, and Valente was pressing him to pay the loan. The appellant used the money to pay off the various debts and to purchase a new truck, which he had arranged to purchase on July l.

[11] Over the next week, the appellant lied to his confederates and the deceased’s wife about what had happened. For example, he told them that the deceased was being held by the police or by bikers. At some point he told Valente that bikers had shot and killed the deceased and then paid him $50,000 to bury the body. Eventually, the deceased’s wife reported to the police that her husband was missing. However, neither she nor the deceased’s partners told the police the whole story. In February 1997, Sacco finally told the police about the liquor deal and the appellant’s involvement. At that point, the appellant became the prime suspect.

[12] The police interviewed the appellant in February 1997, but he denied knowing the deceased or Sacco and tried to focus the police on Bonnell. In other conversations with the investigating officers the appellant suggested that bikers and Fontaine might be involved.

[13] In 1997, the police began to resort to a number of strategies to obtain evidence against the appellant and, in particular, to try to have him direct them to the body of the deceased. For example, undercover police officers posing as bikers told the appellant’s wife and brother-in-law that he owed them money. The police also set up listening devices in the appellant’s home and then tried various strategies to spark conversations. In one of the conversations, the appellant’s brother-in-law confronted the appellant about the deceased’s disappearance. The appellant gave evasive answers to the questions from his brother-in-law. He never told his family about the alleged accident with the tree ball. Further, although on his story his fiancée knew about the accidental killing, her statements on the intercepts seem inconsistent with his position.

[14] The most ambitious strategy employed by the police involved an undercover police officer, Detective Ken Watson, and what came to be called the “Stewart plot”, a variation on the “Mr. Big” scenario.[^1] On August 2, 1997, Watson befriended the appellant and portrayed himself as someone involved in illegal activities. The appellant made a number of incriminating remarks about the death of the deceased including a claim that he had received $200,000 out of an illegal alcohol deal and that the deceased had “opened his mouth” to the police and so “we did him in”. The appellant did not deny making the various statements attributed to him but claimed that he knew Watson was a police officer and was just leading him on to try and get information “to find out what they were up to”.

[15] On August 26, 1997, Watson and the appellant went to the airport to meet Watson’s “boss”, another undercover officer named Bill Campbell. They went to a hotel room where Campbell asked the appellant if he would do a “hit”. The appellant said he had never killed anyone and was not prepared to. He did talk about how he had been involved in an illicit liquor deal with Fontaine and that the deceased was now missing.

[16] After the meeting with Campbell, Watson urged the appellant to become involved, saying that they could make up to $200,000. He said that the “hit” involved someone named Stewart who had shown disrespect to Campbell. Watson said his main concern was getting rid of the body. The appellant told him it could be done if the killing was planned out properly. The appellant agreed to keep talking to Watson about the plot. The appellant suggested they could subcontract the killing, but Watson said they should do it themselves to keep the $200,000. Watson also mentioned that Stewart had lots of money around his house.

[17] By September 1997, the appellant was taking an active role in the planning of Stewart’s murder. He said that Watson’s boss would have to supply them with handguns with silencers. He suggested various ways to dispose of the body such as weighing it down and putting it in the lake, but indicated they were not to plan ahead of time where to dispose of the body. He also suggested dissolving the body with acid, although he cautioned that if they used acid they would have to knock out the victim’s teeth first. He also said they would need a rental car that was in neither of their names and showed him some licence plates he had that they could use. He said he would do the killing while Watson searched for money in the victim’s home. He also suggested they wrap up the body in a plastic bag and place it in a marshy area where animals would consume it. They would also burn the clothes that they had used during the killing.

[18] The appellant also suggested that they entice the victim into thinking they were selling him cocaine. They would offer to make the sale for a much reduced price; it would be an offer Stewart could not refuse. In that way, the victim would have a large quantity of money on hand, which they would steal after the killing. This would alleviate the problem of having to search through the victim’s home looking for money.

[19] Watson asked the appellant if there was “heat” from the last thing he did. The appellant reassured Watson. He said that “people cleaned up afterwards”.

[20] Near the end of September 1997, the appellant and Watson again met with Campbell. Campbell was pressing him to provide evidence that he could be trusted and again asked him if he had killed anyone. The appellant said he had killed someone at the side of the road using a gun and had buried the body. He said he would do the same with this one. Later, Watson questioned the appellant about whether he was being honest with him about the “last time”. The appellant told him about flyers that had been put out when the deceased went missing; he said he had one at home and would give it to Watson. He told Watson that it had happened on July 2 of the previous year. He referred to the deceased by name as the person he killed. As well, he named his “partners”, “Steve Dominic and Jim Dominic”. He said nobody knew he did it “but me and my connection”.

[21] The fictitious murder was planned for October 2007. On October 2, Watson told the appellant that Campbell was not satisfied that the appellant had previously killed someone and wanted proof in the way of a body part. The appellant said it was impossible because he was being watched but eventually agreed to lead them to the body. Later that day, the appellant drove by his uncle’s farm but he did not stop; he later told Watson that he had been followed. Watson told the appellant the murder was off because the appellant had not provided the requisite proof.

[22] The appellant testified that he suspected Watson and Campbell were police officers and he was only telling the police things that they already knew. He agreed to participate in the Stewart plot to “string them along” and get information about the investigation. On the other hand, it is unclear what information he expected to get.

[23] On January 9, 1998, the police executed a warrant at the appellant’s home and found one of the missing person flyers relating to the deceased in his wife’s jewellery box. On February 5, 1998, the police interviewed the appellant’s friend, Valente, and he told them that he knew where the body was buried. The next day he led them to the appellant’s uncle’s property and after several days the police were able to find the body. The appellant was then arrested.

ANALYSIS

(1) The Cause of Death Issue

(a) The Expert Evidence about Cause of Death

[24] The Crown and defence experts were unable to determine the cause of death. Dr. Martin Bullock, the forensic pathologist who performed the autopsy, testified that he observed minor antemortem bruises on the right temple, cheeks and ankles. These bruises were not life-threatening and could have been sustained up to forty-eight hours before death and were consistent with the deceased having fallen to the ground.

[25] Dr. James Ferris, a forensic pathologist, testified for the defence. He agreed that the cause of death could not be determined. He testified that no cause of death is found in about five per cent of autopsies.

(i) Commotio cordis

[26] Drs. Bullock and Ferris testified that the vast majority of unexplained deaths are due to ventricular fibrillation. Possible non-observable causes of fibrillation include minor lesions in the fine arteries, a blockage or tumour in the conducting system or commotio cordis. Commotio cordis became the focus of the defence theory of cause of death. It is a sudden cardiac death associated with an impact to the chest area. It was the defence theory that the accidental striking of the deceased in the chest area with the tree ball caused the deceased’s death through the commotio cordis mechanism. According to Dr. Ferris, while commotio cordis is extremely rare, it is a relatively probable conclusion where there is an impact to the chest and no other discernable cause of death.

[27] Dr. Bullock testified that commotio cordis was a possible cause of death. Dr. Peter Forbath, a cardiologist and electrophysiologist, testified that while commotio cordis is rare, it was a possible cause of death where there was a trauma to the chest not involving contusion and a sudden unexpected death.

(ii) Carbon monoxide

[28] Mr. Ismail Moftah, a forensic toxicologist, found no trace of drugs or poison. He did detect carbon monoxide in the spleen but it could not be quantified and could have been due to a number of factors associated with decomposition as opposed to an accurate indication of the carbon monoxide levels at the time of death.

[29] As I will discuss below, the relevancy of the finding of carbon monoxide became an issue at trial. In Dr. Bullock’s opinion, nothing found at autopsy suggested death by carbon monoxide poisoning. He could not draw any conclusions from the presence of carbon monoxide in the deceased’s spleen. Mr. Moftah testified that it was not possible to determine whether carbon monoxide was a factor in the death. Dr. Ferris could not draw any conclusion that carbon monoxide was a cause of death.

[30] Both Dr. Ferris and Dr. Forbath suggested commotio cordis as a possible cause of death on the assumption that other causes, including carbon monoxide poisoning, had been excluded.

(b) Misdirection on Cause of Death

[31] The prosecution could obtain the appellant’s conviction without establishing a medical cause of death, provided it proved that the deceased died from an unlawful act and that the appellant was legally responsible for that act. The appellant was entitled to defend the case on the basis that not only was there no medical cause of death, but there was a body of evidence supporting the defence position that there was a reasonable doubt that the death was accidental. The appellant was entitled to have this defence accurately presented in the charge to the jury in a way that would allow the jury to understand its full impact.

[32] In R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), Doherty J.A. referred to the leading authorities on the role of the trial judge in charging a jury and the role of the appellate court reviewing that charge. The role of the trial judge has remained unchanged since Azoulay v. The Queen, [1952] 2 S.C.R. 495 at 497-98:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

[33] In this case, the appellant submits that the trial judge misstated the medical evidence on cause of death and misdirected the jury as to the legal effect of that evidence. He submits that the trial judge set up a false dispute between the medical experts as to the relevance of the presence of carbon monoxide. The appellant submits that by the end of the jury charge, the jury would have believed that they could discount the defence theory of cause of death because of the presence of carbon monoxide in the body. The appellant submits that in fact the carbon monoxide finding had no legal significance.

[34] To appreciate the appellant’s submissions it is necessary to review the evolution of the cause of death issue in the charge to the jury and the recharge.

[35] In the early part of a lengthy jury charge, the trial judge accurately summarized the medical evidence. He reviewed Dr. Bullock’s evidence at length, including quoting from his testimony about the significance of Mr. Moftah’s finding respecting carbon monoxide in the spleen. After this lengthy review he accurately summarized the effect of Dr. Bullock’s evidence in these words:

[Dr. Bullock] said basically he could draw no conclusion from the fact that Mr. Moftah had found carbon-monoxide in the spleen. He described various ways that would account for the presence of carbon-monoxide including the atmosphere in which we live and smoking.

[36] Similarly, the trial judge accurately summarized the evidence of Dr. Ferris, including his agreement with Dr. Bullock that there was nothing to suggest death by carbon monoxide. However, that part of the charge also contained this potentially misleading statement:

[Dr. Ferris] was not prepared to agree with Mr. Moftah. He said that he could not say that carbon-monoxide was not the cause of death, or not a factor in death. His view was that the fact that carbon-monoxide was present when in a level beyond interpretation, that one could not say whether or not it was the cause of death. He said in essence there’s no evidential foundation for either.

[37] Standing on its own, this statement suggests that there was some support in Mr. Moftah’s testimony for the view that carbon monoxide was a possible cause of death. Mr. Moftah gave no such evidence. In answer to a direct question from Crown counsel as to whether he could say whether or not carbon monoxide was a factor in the death, Mr. Moftah said this:

Of course I cannot, and I did that in my report. I did say in my report carbon-monoxide was detected and I did say in my report that accurate determination of carbon-monoxide was not possible due to the condition of the submitted sample. So my report was clear enough.

[38] Mr. Moftah went on to explain in answers to questions from Crown counsel, the trial judge, and defence counsel, why he could not say that carbon monoxide was a factor in the death. In particular, in answer to a question from the trial judge he stated that he could not say what the actual level of carbon monoxide was in the body “because we thought it potentially could be misleading. Could be a lot lower than what we have. How much, we don’t know.”

[39] Returning to the charge to the jury, in dealing with the law, the trial judge accurately set out the role of the expert evidence and the importance of considering all of the evidence, not just the medical evidence, on the cause of death issue.

[40] The problem with the charge to the jury began when the trial judge invited counsel at the end of the second day of the charge to voice any objections to his directions that they had to that point. Crown counsel (not Mr. Finley) submitted that the charge on the medical evidence was “significantly unbalanced”. One of Crown counsel’s objections was that the trial judge had not summarized Mr. Moftah’s evidence. Initially, the trial judge was alive to the possibility that Mr. Moftah’s evidence was a “red herring” since, as he understood it, the Crown’s position was not that the deceased died from carbon monoxide poisoning. Crown counsel confirmed that this was their position but then took the position that this was not “truly a negative autopsy” because of the finding of carbon monoxide. It was the Crown’s position that commotio cordis was not available as a cause of death except where there is a negative autopsy. At the beginning, it appeared that Crown counsel simply wanted the trial judge to remind the jury that the fact that cause of death was undetermined was a function of the fact that the autopsy took place eighteen months after death.

[41] The trial judge’s initial position in response to the Crown objections was correct. He was alive to the distinction between proof in a criminal case and what medical science can establish. He was leery about referring to Mr. Moftah’s evidence in a way that would suggest that it had some evidentiary value. For example, he said the following to Crown counsel:

The difficulty is from a language standpoint, the concept that it can’t be excluded as a cause, suggests that it can be included but it can’t be included legally if you’re not saying that you want it included. Like, in other words, you’re medically correct and legally wrong.… This is court, this isn’t [a] medical office.

[42] Unfortunately, however, in the continuing dialogue between the trial judge and Crown counsel and then defence counsel, the value of the finding of carbon monoxide became distorted. In fact, defence counsel (not Mr. Snell) significantly contributed to the confusion by stating that this was a “classic example of experts conflicting, having conflicting evidence on an area, that’s not unusual”. In fact, on the significance of carbon monoxide there was no conflict: it had no evidentiary value.

[43] Crown counsel, however, continued to insist that the carbon monoxide finding was significant. For example, Crown counsel said this to the trial judge:

I do not see, sir, how it can be put any plainer than Your Honour can quote myself many times in this trial as saying, the Crown does not suggest or insinuate that carbon-monoxide was a cause or the factor in the death of Steven Andreopoulos. It entirely goes to the methodology and evidential foundation for Dr. Ferris and Dr. Forbath.

I am perfectly content that you uncategorically indicate that the Crown again does not suggest it is, but it is an important underpinning to their opinion.

[44] Eventually, the trial judge became convinced that there was a dispute amongst the experts and that he had to refer to the finding of carbon monoxide. When he resumed his charge to the jury the following day, the trial judge reviewed Mr. Moftah’s evidence and then set up a conflict between the experts based on that evidence. The trial judge charged the jury as follows:

The presence of carbon-monoxide detected by Mr. Moftah, because he categorized it as a toxin, was a factor, in his opinion, that he could not rule it in or out. What, you may ask, is the significance of this?

The Crown has never suggested for a moment that this was a carbon-monoxide death. Nor does it argue that it played a part in the death. The presence of carbon-monoxide is central however, to the difference in opinion between the Crown and defence experts.

The theory of the defence experts is that this could have been a commotio cordis death. This could support the notion of accident. The Crown expert and the defence experts disagree on whether this can be tendered as a possible diagnosis. Both Crown and defence agree the approach to the diagnosis is by the process of elimination. Commotio cordis is obviously agreed to be rare.

The final mechanism of death is by ventricular fibrillation, it is postulated. However, ventricular fibrillation is the final mechanism of most deaths. How do you diagnose commotio cordis as the mechanism that triggers ventricular fibrillation in cases such as we have here, undetermined argued by the Crown on the basis of Dr. Bullock’s autopsy, or as defence argues, sudden and unexplained death.

Now, the different labels spring from the different views of the evidence.

Now, my understanding of the evidence is that commotio cordis is so rare and so [elusive] in leaving evidence of its existence, that it can only be tendered as a possible cause if preconditions are met:

(1) Natural causes must be ruled out. Dr. Bullock did that.

(2) Toxins as a factor must be ruled out. Keep in mind carbon-monoxide is a toxin.

(3) There must be evidence of a blow to the chest.

Now, saying natural causes are ruled out we move on to the other two premises. The other two premises are the source of debate. Dr. Bullock says since carbon-monoxide was found, even though it cannot be quantified, it cannot be ruled out. It is a toxin and, therefore, is a factor needing to be ruled out. Therefore, premise number two is lacking and thereafter commotio cordis is not a tenable proposition here.

The Crown argues, in addition, that the evidence of the blow to the chest required for the diagnosis of commotio cordis, is not reliable. The accused’s story is either a lie, the Crown argues, or so tenuous as to not afford any support for the needed premise to make the tentative diagnosis of commotio cordis.

Dr. Ferris says that if you cannot quantify the carbon-monoxide, you cannot say it could be a factor and you can, therefore, ignore it in making the possible diagnosis of commotio cordis.

Dr. Forbath did not seem to be aware of the carbon-monoxide issue.

Dr. Bullock says you cannot ignore it.

Now, all of this relates to the defence of accident, and this is what we are talking about.

The Crown has to prove beyond a reasonable doubt that it was not an accident. The defence can tender evidence from which to argue you should have a reasonable doubt. You can either find that it was an accident or at least cause you to have a reasonable doubt on the issue.

The defence does not have to prove anything. It does not have to prove it was an accident. Obviously, however, the stronger the evidence on the issue of accident that favours the defence, the more it can argue that it has raised a reasonable doubt on the issue. [Emphasis added.]

[45] Crown counsel continued to object to this part of the charge because, in his view, the trial judge had not adequately reviewed the expert evidence. Defence counsel, however, was content with the directions.

[46] In my view, the trial judge misdirected the jury and made the very error about which he had been concerned, namely, confusing legal causation with medical certainty. In my view, the trial judge also misstated the evidence from the experts.

[47] I will begin with the misstatement of the evidence. On my review of the record there was no dispute among the experts about the relevance of carbon monoxide. Based on Mr. Moftah’s findings, it was not possible to determine that carbon monoxide played any part in the death of the deceased. This is what the jury should have been told if any further reference to carbon monoxide was to be made in the charge. Instead, the jury was directed that the carbon monoxide finding was relevant. To repeat a part of what the trial judge said in response to Crown counsel’s objection:

Dr. Bullock says since carbon-monoxide was found, even though it cannot be quantified, it cannot be ruled out. It is a toxin and, therefore, is a factor needing to be ruled out. Therefore, premise number two is lacking and thereafter commotio cordis is not a tenable proposition here.

And also:

Dr. Bullock says you cannot ignore it.

However, this was not Dr. Bullock’s evidence. He never said that carbon monoxide cannot be ruled out. On more than one occasion he said that he could draw no conclusions from the finding of carbon monoxide. He also made no reference to carbon monoxide in relation to the possibility of death from the commotio cordis mechanism. The trial judge’s earlier summary of Dr. Bullock’s evidence was correct, when he said this:

[Dr. Bullock] said basically he could draw no conclusion from the fact that Mr. Moftah had found carbon-monoxide in the spleen.

[48] Unfortunately, the impact of this correct instruction was completely overwhelmed by the later incorrect instructions. In the later instructions the trial judge set up the erroneous conflict of the experts.

[49] The trial judge also misdirected the jury by confusing medical diagnosis with legal causation. Even if it were the case that the medical experts could not rule out carbon monoxide poisoning because of the state of decomposition of the body, that was not positive evidence that carbon monoxide poisoning was a relevant consideration in law. The trial judge was entirely correct when, in response to a submission from Crown counsel, he pointed out that if he were to tell the jury that a cause cannot be excluded the jury might draw the mistaken inference that such a cause can be legally included. To put the Crown’s submissions in the vernacular it was attempting to have its cake and eat it too. On the one hand, it properly acknowledged that it could not assert that carbon monoxide was a cause of death, yet it sought to have the jury use the evidence of carbon monoxide to eliminate commotio cordis as a cause of death. However, the carbon monoxide finding could play that role only if it was an alternative explanation for the cause of death, a position Crown counsel explicitly disavowed. In my view, the result was a confusing and erroneous instruction that undermined the effect of the trial judge’s earlier correct instructions.

[50] The Crown mounted a formidable case against the appellant based in particular on circumstantial evidence and the appellant’s admissions to the undercover police officers. However, the appellant testified and denied intentionally killing the deceased, and the jury deliberated for over three days. A central feature of the defence rested on the inability of the prosecution to prove a cause of death and the possibility that death was accidental through the commotio cordis mechanism. Regrettably, at the end of the day, the jury was not left with an accurate factual or legal basis for understanding that defence.

[51] The role of an appellate court where it is argued that the trial judge has misdirected the jury with respect to the position of the defence and the evidence in support of that defence has been described by Doherty J.A. in MacKinnon in these terms at para. 27:

In [R. v. Jacquard (1997), 113 C.C.C. (3d) 1 (S.C.C.)], Lamer C.J.C. stressed that a functional approach must be taken when assessing the adequacy of jury instructions. I take this to mean that instructions must be tested against their ability to fulfill the purposes for which they are given and not by reference to whether any particular approach or formula has been used. By the end of the instructions, whatever approach is used, the jury must understand:

• the factual issues which had to be resolved;

• the law to be applied to those issues and the evidence;

• the positions of the parties; and

• the evidence relevant to the positions taken by the parties on the various issues.

[52] In my view, the jury was not left with a sufficient understanding of the factual issues to be resolved relating to carbon monoxide and cause of death and the application of the law to that issue. In fact, as I have said, the directions significantly undermined the defence theory of accident. Given the importance of that issue to the defence, I cannot be satisfied that no substantial wrong or miscarriage of justice occurred, notwithstanding trial counsel’s failure to object and indeed his apparent agreement with the directions. It seems to me that by the time the trial judge came to give these revised instructions everyone, including defence counsel, were confused on this issue. Certainly, I can see no tactical advantage for the position taken by defence counsel.

(2) The Stewart Plot Issue

(a) The Ruling and Jury Charge

[53] At trial, defence counsel conceded that much of the Stewart plot evidence was admissible to provide the context for admissions the appellant made about the killing of the deceased. However, he argued that the evidence was not admissible for any other purpose. Thus, he sought to limit the amount of evidence that was admitted about the Stewart plot. He argued that only those parts of the conversations that were needed to provide context to the admissions should be introduced into evidence. He also argued that the jury should be instructed that the evidence was admitted solely for the purpose of understanding the admissions.

[54] The trial judge held that the evidence about the Stewart plot was admissible as similar fact evidence. He held that it was relevant for the following purposes:

• To show premeditation
• To show intent to kill
• To rebut accident
• To corroboration Fontaine’s evidence
• To show modus operandi or ruse
• To disprove provocation
• To show the existence of a homicide
• To show the killing of the deceased was a premeditated killing as opposed to a premeditated robbery
• To show motive
• To show context

[55] The trial judge founded his ruling on two bases. First, he considered the Stewart plot evidence similar to the suggestion made by the appellant to Fontaine that he was going to kill the money man. Thus, the Stewart plot evidence could be used by the jury as confirming Fontaine’s evidence. The trial judge said this:

In particular, those aspects of the plot which can be identified as Fiorino’s contributions may be highly probative of the truth of Fontaine’s assertions that Fiorino told him he was going to “kill the money man”. Andreopolous was the “money man”. He was killed. David Fiorino got the money. The “money man” was buried on property backfilled by Fiorino. The conception, development and carrying out of the plot against Andreopolous, the Crown argues, is reflected in Fiorino’s conversations with Fontaine and re-reflected in Fiorino’s conversations with Kenneth Watson and William Campbell.

[56] Second, the Stewart plot evidence was demonstrative of the plot against the deceased. The trial judge considered the Stewart plot a “carbon copy” of the plot to murder the deceased. As he said:

Because of the specificity of the evidence relating as it does in detail to a murder plot, which out of Mr. Fiorino’s mouth appears to parallel the Crown’s theory of the Andreopolous murder, the jury will likely be given a clearer understanding of what, in fact, was going on in the weeks, days, hours, minutes and moments leading up to Andreopolous’ death.

[57] In his ruling, the trial judge also adverted to the fact that the Stewart plot evidence demonstrated the appellant’s “financial motivation”. The trial judge noted that the appellant refined the police officers’ original idea of how to make money out of the fictitious murder. And: “More importantly, he needed money at that time just as he needed it at the time of Andreopolous’ disappearance.” The trial judge did not otherwise elaborate on the similarities between the death of the deceased and the Stewart plot.

[58] This ruling was made, of course, during the Crown’s case. Defence counsel asked the trial judge to revisit his ruling about the uses of the evidence at the close of the case before the charge to the jury. The trial judge refused to reconsider his ruling.

[59] In the charge to the jury, the trial judge provided the jury with a list of similarities between the death and the Stewart plot:

The limited purpose for which the evidence of the accused’s alleged participation in the Stewart plot is admitted is circumstantial.

The Crown alludes to certain features in the Stewart plot that are similar to features that it alleges characterized events surrounding Mr. Andreopoulos’ death. These include:

(1) A scheme whereby a contraband dealer has made an offer he can’t refuse and then killed;

(2) Ensuring the criminal is alone with the killer or killers;

(3) Ensuring that the victim is unarmed.

(4) Avoiding a paper trail by having transportation rented in someone else’s name.

The last is questionable in any event because it was David Fiorino who made the arrangements with Tannous to rent the van.

Now, the Crown seeks to argue from this evidence circumstantially that the time and circumstances of the plot mirrors the accused’s financial situation at the time of the July 2^nd, 1996 event; that it mirrors the alleged modus operandi; that it puts into context and makes more reliable the validity of the alleged admissions made by the accused as to his involvement in Steven Andreopoulos’ death, and renders it more likely that, just as the Stewart plot was a planned murder, that the characteristics of that plot mirroring the allegations in the death of Mr. Andreopoulos, that Mr. Andreopoulos was more likely the victim of foul play than accident.

[60] After this passage, the trial judge explained the defence position with respect to the Stewart plot. In particular, he instructed the jury repeatedly that the Stewart plot evidence was only relevant if the appellant genuinely believed he was contributing to a real plot. He also instructed the jury that what the undercover officers said about the fictitious plot was not evidence against the appellant unless the appellant adopted what they said. Finally, the trial judge gave an extensive warning against using the evidence simply as evidence of bad character.

(b) The Admissibility of the Stewart Plot

[61] As indicated, the appellant concedes that much of the Stewart plot evidence was properly admitted as necessary to understand the appellant’s admissions about the Andreopolous killing. The appellant’s complaint is that the trial judge admitted all the evidence about the plot, even parts that were unnecessary to provide context to the admissions. The admissibility of the Stewart plot evidence for the other purposes identified by the trial judge depends upon applying similar fact analysis as set out in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.). The trial judge did not have the benefit of the Handy decision when he made his rulings. He did, however, apply a similar analysis, relying upon this court’s decision in R. v. B.(L.); R. v. G.(M.A.) (1997), 116 C.C.C. (3d) 481.

[62] In Handy, Binnie J. identified as a key concept the requirement that the trial judge identify the issue for which the similar fact evidence is tendered. As he said at para. 73, the probative value of the evidence cannot be assessed in the abstract, since the “utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact”. Further, as Binnie J. pointed out at para. 78, the degree of similarity required to justify admission will be different depending on the issue for which the evidence is tendered.

[63] I would make one further point. It seems to me that where the evidence is tendered for multiple purposes, the trial judge must decide which issues predominate in order to correctly weigh the probative value of the evidence against its prejudicial effect. To take an example, if the predominant issue for which the evidence is tendered is to prove identity, the measure of similarity and hence admission will probably depend upon a significant degree of distinctiveness, as explained in para. 79 of Handy. This would be the case even if the evidence might also be tendered for some other purpose, such as animus, for which much less compelling distinctiveness may suffice, as explained in para. 80 of Handy. I should point out that this may prove difficult in some cases where the accused’s defence is unclear when the ruling is made and thus the trial judge may not have a clear picture of what the real issues are.

[64] In this case, the Crown tendered the Stewart plot evidence for a myriad of purposes. However, in my view, at least by the close of the defence case the predominant similar fact issues were whether the killing was intentional or accidental and whether it was planned and deliberate. The admissibility of the Stewart plot evidence as similar fact evidence, and not merely to provide context for the appellant’s admissions, had to be measured on whether there was sufficient similarity for those purposes so that the probative value outweighed the prejudicial effect. While the degree of distinctiveness did not have to reach the point of striking similarity, since identify was not in issue, the probative value had to be substantial to outweigh the prejudice.

[65] In Handy, Binnie J. at para. 82 provided a list of factors that a court may use to measure the degree of connectedness between the charged act and the evidence tendered as similar fact evidence, and hence the probative value of that evidence. Those factors are: (1) proximity in time of the similar acts; (2) extent to which the other acts are similar in detail to the charged conduct; (3) number of occurrences of the similar acts; (4) circumstances surrounding or relating to the similar acts; (5) any distinctive feature(s) unifying the incidents; (6) intervening events; (7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

[66] As pointed out in Handy at paras. 83-84, this list was not intended to be exhaustive and not all factors will exist or be necessary in every case. On the other hand, the utility of analyzing the degree of connectedness against this list of factors ensures that the court takes a qualitative rather than quantitative approach. If both the charged act and the similar fact are taken to a sufficient degree of generalization or abstraction a large number of similarities may be counted but the similar fact evidence would lack a sufficient degree of connectedness to warrant admission.

[67] In this case, the Stewart plot and the charged offence were relatively proximate in time. In addition, the plot and the charged offence shared the distinctive feature that the appellant intended to use a ruse of a contraband deal as a pretext for stealing from the victim and killing him. The other factors identified by the trial judge in his ruling and in the charge to the jury tend to lack the distinctiveness that would provide a compelling inference that the accused’s conduct was intentional and premeditated. For example, the trial judge identified as similarities ensuring the victim is unarmed and ensuring he is alone with the killer or killers, and avoiding a paper trail. The first one is simply too generic to be of any assistance. The second is an example of taking the facts to a level of abstraction that is unhelpful. The appellant acted alone when involved with the deceased; the Stewart plot involved two killers and was part of a scheme involving a third. The last factor of avoiding a paper trial is, as the trial judge recognized, not a similarity at all since the appellant had been the one to arrange the rental of the vehicle in the Andreopoulos killing.

[68] In addition, there were a large number of factors that told against a finding of the requisite distinctiveness: the Stewart plot was to involve shooting; the plan was to eliminate any parts of the body that could be used to identify the victim by, for example, knocking out the teeth and removing the hands; the contraband involved in the Stewart plot was cocaine; the Stewart plot was a contract killing involving two perpetrators. In contrast, the deceased was not shot, it was not a contract killing, the appellant acted alone, the body was buried without any attempt to remove identifying features, and the contraband was liquor.

[69] As Simmons J.A. said in R. v. Blake (2003), 181 C.C.C. (3d) 169 (Ont. C.A.), aff’d 2004 SCC 69, [2004] 3 S.C.R. 503, at para. 64:

The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.

[70] In my view, that is what may have occurred here. By relying on generic similarities like the fact that the victim was to be unarmed and alone with his killer or killers, the trial judge failed to adequately take into account the significant dissimilarities. The question becomes whether the fact that in both cases the appellant used a deal for contraband as a ruse was sufficiently probative of the matters in issue to outweigh the prejudicial effect of admitting the evidence. Handy at para. 91 suggests a way of making this determination.

References to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury. [Emphasis added.]

[71] In my view, when the circumstances of the Stewart plot are closely examined they do not provide the compelling inference that the killing of the deceased was intentional and planned and deliberate. In that respect, of particular importance is the difference in context. This was a critical feature in Handy itself, as noted at para. 129, and is also important in this case.

[72] At a general level, both events involved a fake deal for contraband. However, the context of the Stewart plot is different in fundamental ways that affect its value as probative of the issues of intention and planning and deliberation. The most striking difference in context is that the Stewart plot was to be a contract killing in which the appellant decided to enhance the financial benefit by attaching a fake cocaine deal. On the Crown theory of the Andreopoulos killing, the contraband deal was the centrepiece with the killing of the deceased as simply a means of facilitating the theft and avoiding detection. Having regard to the dissimilarities and the different context, the Stewart plot would not be particularly probative of whether the Andreopoulos killing was intentional and planned and deliberate. Rather than demonstrating a particular modus operandi and a specific propensity, the Stewart plot evidence tended to show a general propensity or tendency to criminal conduct.

[73] In this respect, the factor that the Crown most relies upon, that the appellant added the idea of not simply killing Stewart for the contract price but stealing from Stewart, appears to have originated with the police. On August 26, 1997, the appellant was first introduced to Officer Campbell, Watson’s “boss”, and the proposition about the contract killing was put to him. After the meeting with Campbell, the appellant showed some reluctance about doing the killing himself and suggested that he and Watson, in effect, subcontract the killing out to someone else. Watson then suggested that he and the appellant should do the killing; that way they could keep all the contract money and also steal from Stewart. For example, Watson said this to the appellant:

[T]he reason why I had you in mind man is cause you said to me find a fuckin chump and this and that remember you were telling me that find some fuckin loser whatever that has [any] fuckin money that can give you cash and shit like that and this is the exact fuckin way this guy is man he’s got the cash layin around it’s a fuckin joke he’s got cash layin around it’s just a matter of fucking doing the job and taking the cash it’s all fucking there and I know it is because I’ve been to his place and I’ve seen it and he keeps it all there every fuckin dime of it. [Emphasis added.]

[74] After this conversation, the appellant came up with the idea of pretending to sell cocaine to Stewart so that the money would be easy to get and they would not have to search around the house. Again, however, the point is that the context of the Stewart plot and the Andreopoulos plot were different.

[75] Balanced against the limited probative value of the evidence was the significant prejudicial effect. Once the decision was made that the Stewart plot evidence was admissible as similar fact evidence, all of the details of the plot were laid before the jury including many of the gruesome details such as cutting off the victim’s hands and using acid to dissolve the body. As a result, the Stewart plot occupied eight days of evidence at the end of the Crown’s case as the entire history of the plot and the details were reviewed in, as counsel for the appellant put it, “excruciating detail”. Of course, some of the Stewart plot had to be placed before the jury so that they could understand the appellant’s admissions and explain why he made them. However, the amount of evidence necessary for that purpose would have been much more limited.

[76] In my view, the trial judge should have admitted into evidence only so much of the Stewart plot evidence as was necessary to understand the appellant’s alleged admissions in respect of the death of Andreopoulos and instructed the jury accordingly as to the use of the evidence.

(3) Use of After-the-Fact Conduct Evidence

[77] The appellant submits that the trial judge erred in his charge to the jury respecting the use of after-the-fact conduct. The appellant submits that the trial judge erred in instructing the jury that they could use this conduct as evidence of planning and deliberation.

[78] The trial judge originally directed the jury that the after-the-fact conduct was as consistent with manslaughter, second degree murder and first degree murder and therefore it had no probative value on the degree of culpability. However, later in the charge to the jury in reviewing the evidence the jury could use on the issue of planning and deliberation the trial judge included what he referred to as the “catalogue of intimidation evidence”. For example, the trial judge directed the jury that they could use the evidence of the appellant’s attempts to intimidate Sacco and the deceased’s wife to prevent them from going to the police as evidence of planning and deliberation. Thus, the trial judge directed the jury as follows:

The implication in that evidence with respect to planning and deliberation is, from the Crown’s perspective, it contains within it evidence that Mr. Fiorino was intimidating not just Mr. Sacco but Mr. Andreopoulos’ wife after the event, and that that was part of a pre-determined means of diverting attention from himself as the person who had actually ripped off Mr. Andreopoulos.

It was his blaming of the bikers that was part of the plan that he conceived ahead of the death of Mr. Andreopoulos to kill Mr. Andreopoulos, and so be able to blame the bikers so that there was a continuity in his action.

[79] In my view, the trial judge did not err in leaving this evidence to the jury on the issue of planning and deliberation. It was open to the jury to find that in the days prior to the death, the appellant laid the groundwork for the killing by falsely telling his partners that bikers were involved and that he had connections with organized crime. The jury could find that the appellant concocted this story as part of a scheme to blame bikers for the death of the deceased. In other words, his intention all along was to not simply steal the money but kill the deceased and blame bikers or organized crime for the murder. The fact that the appellant then carried on with this deception after the death bolstered the case that the killing was planned and deliberate.

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

DISPOSITION

[81] The respondent argues that even if the trial judge erred as alleged by the appellant, the case against the appellant was so overwhelming that the proviso in s. 686(1)(b)(iii) of the Criminal Code should be applied. The Crown submits that there is no realistic possibility that a new trial would produce a different verdict and relies upon R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751. In Jolivet, Binnie J. speaking for the court explained the application of the proviso in these terms at para. 54:

The application of s. 686(1)(b)(iii) requires the court to consider the seriousness of the error in question, the effect it likely had upon the jury’s inference-drawing process and the probable guilt of the accused on the basis of the legally admissible evidence untainted by the error [citations omitted].

[82] In my view, this is not a case for application of the proviso. While the Crown mounted a formidable case against the appellant, the cause of death and the Stewart plot evidence occupied central positions in the case. The direction on cause of death significantly undermined the defence position and the similar fact ruling resulted in highly prejudicial evidence being placed before the jury. The appellant testified and the jury obviously had difficulty with the case given they deliberated for over three days. I am not convinced that the verdict would necessarily have been the same had the Stewart plot evidence been limited and the jury correctly instructed on cause of death.

[83] Accordingly, I would allow the appeal and order a new trial.

Signed: “M. Rosenberg J.A.”

“I agree John Laskin J.A.

“I agree H.S. LaForme J.A.

RELEASED: “JL” July 28, 2008

[^1]: In the Mr. Big scenario, police officers pose as criminals and attempt to entice the suspect into making admissions in order to impress the “criminals” and gain an entrée into their money-making schemes.