CITATION: R. v. Almarales, 2008 ONCA 692
DATE: 20081010
DOCKET: C43143
COURT OF APPEAL FOR ONTARIO
Sharpe, Cronk and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Adrian Almarales
Appellant
John M. Rosen and Delmar Doucette, for the appellant
Riun Shandler, for the respondent
Heard: March 10, 2008
On appeal from convictions of first degree murder and attempted murder by a jury presided over by Justice Thomas M. Dunn of the Superior Court of Justice dated June 19, 2004, and from the sentences imposed on the convictions of manslaughter and attempted murder by Justice Dunn on October 25, 2004.
Watt J.A.:
[1] In early January, 2003, Joe Prieto shot three men in an apartment in Mississauga. Two of the men died. The third survived.
[2] A few days later, Joe Prieto shot himself to death.
[3] Adrian Almarales was a friend of Joe Prieto. Almarales was with Prieto in the Mississauga apartment when Prieto shot the three men, but not when Prieto shot himself to death in a Scarborough hotel.
[4] A jury convicted Almarales of three offences for his participation in the Mississauga shootings: first degree murder, manslaughter and attempted murder. Almarales appeals his convictions of first degree murder and attempted murder, as well as the sentences imposed upon the convictions of manslaughter and attempted murder.
[5] I would allow the appeals from conviction and order a new trial on the counts of first degree murder and attempted murder, and reduce the sentence imposed on the conviction of manslaughter to 12 years.
THE FACTS
The Principals
[6] By all accounts, Joe Prieto was a difficult, dangerous and unpredictable man: pathologically jealous, abusive of his partners, controlling, quick to anger, prone to violence, a substance abuser and drug trafficker, and often armed with a handgun.
[7] Denise Attard and Joe Prieto had a stormy relationship for about two years until Attard tired of Prieto’s lifestyle and violence and moved elsewhere. But in March, 2002, the couple resumed their relationship and hostilities. Prieto constantly accused Attard of infidelity, assaulted her repeatedly and continued his unwavering allegiance to crack cocaine.
[8] Alexandre Vassiliev and Petr Vladimirski leased Apartment 515 at 3400 Riverspray Crescent in Mississauga in March, 2002. Vladimirski did not move into the apartment until August, 2002. Between March and August, 2002, Joe Prieto lived in the apartment with Vassiliev.
[9] Denys Khomovych was a friend of both Vassiliev and Vladimirski. Khomovych never lived in the apartment with any of Vassiliev, Prieto or Vladimirski.
[10] Almarales defected to Canada from Cuba in 1982. An admitted drug user and trafficker, as well an alcoholic, Almarales has rarely held lawful employment. His common law relationship with Joycelyn Ceballo, often interrupted by jail sentences imposed on Almarales, with littered with violence, as much on the one side as on the other.
[11] Almarales’ criminal record spans nearly two decades and includes crimes of violence, drug offences and failures to appear or to attend court. Aware of the dangers inherent in commercial drug trafficking, Almarales was in the habit of carrying a knife.
[12] Almarales and Prieto met in Collins Bay Penitentiary in 1993. They became friends, drinking companions and fellow travelers during their later periods of mutual liberty.
The Background Events
[13] Over several days prior to January 3, 2003, Prieto repeatedly accused Attard of infidelity and continued his pattern of unyielding emotional and physical abuse of her. Amongst Attard’s list of lovers, Prieto included his former roommate, Vassiliev.
[14] Attard recounted having overheard parts of a telephone conversation between Prieto and Almarales on January 1, 2003. She heard Almarales say, during a dialogue between the two men about Attard’s indiscretions, “Let’s go dump the Russians. Let’s go brother”, or something like that. Almarales denied ever having made such a remark.
[15] Prieto had also left several things at Almarales’ place. On January 2, 2003, Prieto and Attard came to Almarales’ place to pick up Prieto’s possessions. Prieto then accused Attard of being sexually intimate with Almarales. Attard’s denial further angered Prieto who had told Attard earlier that he wanted to kill Almarales.
[16] On January 3, 2003, Prieto and Attard visited Prieto’s sister. Attard’s face was bruised. Later, Prieto’s sister took Attard to Attard’s parents’ home in Brampton.
The Trip to the Apartment
[17] In the early evening of January 3, 2003, Prieto asked Almarales to drive him (Prieto) to the apartment in Mississauga in which Prieto had lived with Vassiliev, so that Prieto could retrieve some items that he had left in the apartment. Almarales agreed.
[18] Prieto directed Almarales to park at the rear of the apartment building. Once there, Prieto accused Almarales of sleeping with Attard, pulled out a gun, which he pressed against Almarales’ cheek, and said “don’t fucking lie … give me a reason why I don’t blow your head off.” Almarales told Prieto to calm down and denied his friend’s accusations. Something seemed to be wrong with Prieto.
[19] Prieto took Almarales’ car keys, put the gun in his pocket and said “let’s go upstairs”. The men went upstairs to Apartment 515 with Prieto “pushing” Almarales along.
The Confrontations and Shootings
[20] When Prieto and Almarales arrived at the door to Apartment 515, they were admitted by its lone occupant, Vladimirski, who told them that Vassiliev had left earlier to get a borrowed van. Prieto and Almarales learned that Vassiliev would be returning in a few minutes and that Vladimirski also expected Denys Khomovych to come by to help Vassiliev move his (Vassiliev’s) girlfriend’s things into the apartment.
[21] Only two persons survived the shootings in Apartment 515 during the evening of January 3, 2003: Vladimirski and Almarales. Each testified about those events. The issues raised on appeal do not command a full rehearsal of the details of each version, rather only a brief resume of the role assigned by each to Almarales.
[22] According to Vladimirski, Almarales swung a cup at Vladimirski’s face as Prieto, Almarales and he sat at the dining room table. Prieto then punched Vladimirski, ordered him down on the floor, and began to beat and kick him. Almarales came up from behind Vladimirski, put a bread knife to his throat, and asked Prieto “let me cut his throat”. Prieto responded: “okay … let me get the duct tape”. As Prieto searched for duct tape, Vladimirski took the bread knife away from Almarales, who made no effort to resist. Almarales did not pursue Vladimirski, say anything to him, or assault Vladimirski further.
[23] Vladimirski ran to the kitchen where he was confronted by Prieto, who was brandishing his handgun. Prieto accused both Vladimirski and Vassiliev of having had sex with Attard on December 24, 2002. Vladimirski denied the allegations and suggested that Vassiliev’s girlfriend looked like Attard. Prieto noticed blood on a mattress in the bedroom as he and Vladimirski searched the room for a photograph of Vassiliev’s girlfriend. Prieto told Almarales to cut off a piece of the mattress for DNA testing. Almarales complied and returned to the living room couch, a knife and small knife sharpener in his hands. Prieto ordered both Vladimirski and Almarales around.
[24] Khomovych knocked at the apartment door. At Prieto’s direction, Almarales turned off the lights and opened the door. Both Almarales and Prieto ordered Khomovych to lie down on the living room floor, face down with his hands behind his back. Khomovych did so, lying beside Vladimirski who was in the same position. Prieto spoke to Khomovych in a friendlier voice as he inquired about Khomovych’s knowledge of Vassiliev’s and Vladimirski’s relationships with Attard and their use of crack cocaine.
[25] A short time later, Vassiliev arrived at the apartment, entered, and turned on the lights. Prieto immediately pointed his gun at Vassiliev and ordered him to lie face down on the living room floor with his hands behind his back, like the others. Vassiliev did so. Prieto became angrier as he confronted Vassiliev about his (Vassiliev’s) involvement with Attard. Vassiliev denied any impropriety.
[26] According to Vladimirski, Prieto said “I want to go homicidal on these three”, then told Almarales to turn up the volume on the stereo and to hold Vassiliev. Vladimirski did not see what Almarales did with Vassiliev. Prieto shot Vassiliev first, then Vladimirski, who shortly lost consciousness. Vladimirski did not see what happened to Khomovych. When Vladimirski awakened, he saw Vassiliev lying in a pool of blood on the floor, but there was no sign of Khomovych.
[27] According to Almarales, Prieto asked Vladimirski about Vassiliev’s whereabouts as soon as Vladimirski admitted Almarales and Prieto to the apartment. When advised that Vassiliev would be back in about 20 minutes, Prieto began his allegations of illicit sexual activities by both men with Attard. Prieto followed his allegations by punching Vladimirski in the face, knocking him to the floor. Despite Vladimirski’s denials, Prieto continued the assault and ordered the appellant to get a knife and hold it against Vladimirski’s throat. The appellant did as he was told. Prieto left the room. Vladimirski grabbed the knife. The appellant let the knife go and Vladimirski ran to the kitchen. There, Vladimirski encountered Prieto armed with a handgun. Prieto ordered Vladimirski back into the living room and directed him to lie on the floor. Vladimirski complied.
[28] The appellant asked Prieto to take it easy with Vladimirski. Prieto rejected the appellant’s suggestion and told him (the appellant) to “shut the fuck up”. At Prieto’s direction, the appellant cut a blood-stained area out of the mattress in the bedroom, ostensibly because, according to Prieto at least, DNA testing of the piece would confirm his allegations about Attard’s infidelities with both occupants of the apartment.
[29] When Khomovych arrived at the apartment, Prieto treated him differently than he had treated Vladimirski and would treat Vassiliev moments later. Prieto acknowledged that Khomovych had done nothing. When Vassiliev entered, Prieto forced him to the floor, accused him of having had sex with Attard, then began to kick and punch his former roommate. Vassiliev resisted. The appellant attempted to intercede, but was rebuffed by Prieto who became progressively more angry. As the appellant urged Vassiliev to clam down and cease his resistance, Prieto shot Vassiliev, then Vladimirski. Khomovych stood up, denied any liaison with Attard, and took a step or two away from Prieto. Prieto then shot Khomovych. Vassiliev and Khomovych died. Vladimirski survived.
The After-the-fact Conduct
[30] Prieto cleaned the blood off his gloves at the kitchen sink. The appellant followed Prieto out of the apartment to the appellant’s car. At Prieto’s direction, the appellant drove Prieto to his (Prieto’s) sister’s house, then to the appellant’s girlfriend’s house where they stayed overnight.
[31] From January 4, 2003, until January 8, 2003, the appellant and Prieto stayed in a Quality Inn in Scarborough in rooms rented by the appellant’s girlfriend.
[32] The appellant was arrested as he left his apartment shortly before 9:00 a.m. on January 8, 2003. In the appellant’s car, officers found a sheathed knife, wedged in the passenger’s side door power seat assembly. In the apartment, police found another knife between the mattress and box springs of the appellant’s bed. In the bedroom closet was a bag with masking tape and 25 rounds of .380 calibre ammunition. The appellant claimed that the ammunition belonged to Prieto.
[33] When police entered Prieto’s room at the Quality Inn, they discovered the weapon used in the shootings on January 3, 2003, a .45 calibre handgun. Prieto was dead of a self-inflicted head wound. Forensic analysis of Prieto’s blood revealed alcohol, cocaine and its metabolite and cannabinoid metabolites.
THE GROUNDS OF APPEAL
[34] The principal grounds of appeal against the convictions of first degree murder and attempted murder allege deficiencies in the trial judge’s final instructions to the jury, including the responses the trial judge gave to several questions asked by the jurors during their lengthy deliberations. The appellant abandoned his appeal against his conviction of manslaughter.
[35] The prosecution’s case against the appellant was that he aided or abetted Prieto in the unlawful killings of Vassiliev and Khomovych. To establish secondary participation, the prosecutor relied on ss. 21(1)(b) and 21(1)(c) of the Criminal Code, then s. 229(a) to prove murder, and, finally, ss. 231(2) and 231(5)(e) to classify the murder as first degree murder. The prosecutor also enlisted ss. 21(1)(b) and 21(1)(c) to demonstrate the appellant’s participation in the unlawful shooting of Vladimirski.
[36] The appellant says that the trial judge failed to properly instruct the jury about what the prosecutor was required to prove in order to establish the appellant’s liability as a secondary participant in the murder of Vassiliev and attempted murder of Vladimirski.
[37] The appellant further contends that the trial judge failed to provide proper instructions to the jury about the limited use the jurors could make of evidence of the appellant’s bad character and of his conduct after the shootings in reaching their decision.
[38] The final ground of appeal against the convictions of first degree murder and attempted murder is that the jury’s verdict on those two counts is inconsistent with the jury’s finding that the appellant was guilty of manslaughter for his role in the unlawful killing of Khomovych.
[39] The appellant also seeks leave to appeal the sentences imposed on the convictions of manslaughter (20 years) and attempted murder (life imprisonment without eligibility for parole for ten years). The sentences imposed, the appellant urges, exaggerate the degree of his moral culpability for the offences and fail to take into account several mitigating factors.
THE APPEALS FROM CONVICTION
Alleged Errors in Instructions on Secondary Participation
[40] The appellant’s primary response to the prosecution’s case, advanced through his own testimony and the evidence of other witnesses, was the excuse of duress. Trial counsel advanced duress with vigour, asking the jury to return verdicts of not guilty.
[41] Before this court, counsel for the appellant, who did not raise inadequate assistance of counsel as a ground of appeal, say that the real defence here, indeed the only defence that bore the necessary air of reality, was that the appellant did not intend to help or encourage Prieto to kill anyone. Thus he was not guilty of murder or attempted murder but rather, at worst, of manslaughter and aggravated assault.
[42] While the excuse of duress occupied center stage for the appellant’s trial counsel, she also urged the position now advanced by appellate counsel, that is to say, that even if the appellant’s conduct had the effect of helping or encouraging Prieto to kill the three victims, the appellant did not intend to do so. As trial counsel put it during the pre-charge conference:
[Defence Counsel]: Well quite frankly, Your Honour, the position of the defence is that Mr. Almarales did not intend the deaths of either Mr. Vassiliev or Mr. Khomovych, nor did not intend the attempted murder of Petr Vladimirski. It would be the defence position that –
THE COURT: To cause death, you mean?
[Defence Counsel]: Sorry, to cause the deaths, correct. It will be the position of the defence that his participation or involvement in terms of actions that support – well actions that support his being a party to the offences, that those are the result of a – of being under duress; that duress being specifically the death threat by Mr. Prieto against Mr. Almarales.
The Instructions
[43] It was no part of the prosecution’s case that the appellant was a principal in any of the shootings. Prieto was the shooter and the only shooter. The prosecutor did not rely on the secondary participation provisions contained in s. 21(2) of the Criminal Code.
[44] The trial judge opened his discussion of the essential elements of the offences charged by pointing out that the Criminal Code not only defined the crime of murder, but also classified it as either second degree murder or first degree murder. After properly defining murder under s. 229(a), the trial judge advised jurors that the appellant’s prospective liability was that of “a party to the offences committed”.
[45] After this brief mention of “party”, the trial judge told the jurors that there were two bases upon which the appellant could be found guilty of first degree murder “as a party”:
• planned and deliberate murder
• murder while committing or attempting to commit forcible confinement.
[46] In his description of planned and deliberate first degree murder, the trial judge made the following reference to party liability:
There is no legal requirement that the Crown must establish that the alleged party to the murder actually participated in the formulation of the plan, provided the Crown proves that the party knew of the plan and intentionally aided or abetted its execution.
[47] The trial judge next explained the essential elements of constructive first degree murder under s. 231(5)(e). He instructed the jury:
It can also be first degree murder where a person causes the death of a human being while committing or attempting to commit certain offences, one of which is forcible confinement, whether or not the person means to cause death, if he means to cause bodily harm for the purpose of facilitating the offence of forcible confinement and death ensues as a consequence. Unlawful or forcible confinement is the intentional confining of another person; to physically restrain the person, contrary to their wishes, thereby depriving that person of their liberty to move from one place to another. Confinement is the unlawful restriction on liberty for some period of time. There is no suggestion here that the confinement of these three people was lawful; in fact it may be conceded that the acts of Mr. Almarales had the effect of confining Vladimirski and Vassiliev – knife to the throat of Vladimirski; he held Vassiliev to prevent him from grabbing Prieto’s feet when Prieto was kicking him – and that these actions were unlawful.
In the case of a party or a participant in the first degree murder, one who does not do the actual killing where forcible confinement is proven beyond a reasonable doubt, the Crown must satisfy you beyond a reasonable doubt that Mr. Almarales participated in such a manner that it can fairly be said that his actions were a substantial and integral cause of the death of Khomovych and/or Vassiliev, for instance. [Emphasis added.]
[48] Immediately after this passage, the trial judge reminded the jurors that the crime of murder required proof of a specific state of mind. He then elucidated for the jurors the state of mind to be proven to establish liability “as a party”:
The crime of murder requires proof of a particular state of mind or intention. For an unlawful killing to be murder, the Crown must prove that Almarales as a party either meant to kill or meant to cause bodily harm that Almarales knew was likely to kill and was reckless whether the victims died or not. The Crown does not have to prove both – one is enough. All of you do not have to agree on the same state of mind or intention, as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt. If Almarales as a party did not mean to do either, but intended to commit an unlawful act that resulted in death, then Almarales may have then committed manslaughter.
[49] After telling the jury how to determine the appellant’s state of mind, the trial judge continued:
As a party did Almarales know that Prieto’s acts were to be inherently dangerous and were going to be such that a reasonable person in the circumstances would have foreseen that Khomovych and Vassiliev might suffer harm that would be neither trivial or transitory as a consequence of Prieto’s actions? Or did Almarales intend to commit an unlawful act from which death flowed? If you are not satisfied beyond a reasonable doubt that Almarales as a party had either state of mind required to make his unlawful killings of the victims murder, you may find him guilty of manslaughter if you find beyond a reasonable doubt that as a party he committed an unlawful act that resulted in death.
Those are two ways in the alternative that the accused, Mr. Almarales, could be found guilty of first degree murder.
[50] The trial judge recapitulated the essential elements of second degree murder in somewhat different terms:
I should also tell you that second degree murder is the unlawful or intentional killing of a person that does not include the elements of planning and deliberation, or is not committed when death is caused while attempting to commit one of the specified offences which require the intent to cause bodily harm for the purpose of facilitating the offence, forcible confinement. The Crown must prove beyond a reasonable doubt the intention of the accused for second degree murder, and that intention is the same as the intention for first degree murder. [Emphasis added.]
[51] After a brief discussion of manslaughter, the trial judge explained the essential elements of attempted murder:
The elements of this offence include that a person’s conduct was an attempt to commit murder; that a person meant to kill – in this case Mr. Vladimiski [sic] – and that Mr. Vladimirski did not die, and finally that the attempt was made using a firearm.
[52] The trial judge next undertook a general discussion of the constituent elements of aiding and abetting, then concluded:
Again having regard to all the evidence, including that of the accused himself and the agreed statement of facts, you should have no difficulty in concluding beyond a reasonable doubt that Mr. Almarales participated in the offences to the extent that he has aided or abetted Joseph Prieto. His intention in doing so, however, is in issue.
[53] Neither counsel at trial objected to the final instructions of the trial judge.
The Jury’s Questions and the Answers Provided
[54] The jurors submitted three sets of questions for the trial judge to answer during their deliberations, which extended over three days.
[55] On the first full day of deliberations, the jurors asked:
Please provide description again of ‘party’ and examples if possible.
The trial judge repeated his earlier instructions about aiding and abetting, but provided no new examples of their application and did not link the general instructions to the offences charged, or any other offences that may have been included in them, depending on the jury’s findings of fact.
[56] Later the same day, the jury asked for help in understanding a decision tree, which counsel had prepared at the judge’s request and that had been provided to the jurors as a deliberation aid:
Sir please review the attached flowchart. A number of individuals are hung up with the flow of page two – page two of three of the decision tree. Would the following also be correct: Intent plus pre-plan equals first degree; intent plus forcible confinement equals first degree; intent only equals second degree; no intent but death happens, manslaughter; no intent, no death happens, not guilty of charge? By intent above this is the box commencing ‘as a party would ensue’.
The trial judge responded:
Now I think we know what you mean by this, and to be very short about it, intent plus pre-plan equals first degree – yes. Intent plus forcible confinement equals first degree – yes.
I think you’ve understood the two routes to first degree murder – route one or route two.
Intent only equals second degree – yes. No intent but death happens – that’s possibly right, but the intent in manslaughter is different. The intent – if you’ll flip over the page – for manslaughter was knowledge of acts inherently dangerous, or did Almarales intend to commit an unlawful act from which death flowed?
The next part of it – no intent, no death happens, not guilty of charge – is again more complex. We’re only talking about the first degree murder thing here; we’re not talking about, as I understand, the attempted murder. Am I right?
MEMBERS OF THE JURY: Yes.
THE COURT: Okay. I just wanted to make sure that I understood that.
With the assistance of counsel again, if I may put it as simply as I can – your flowchart has one error on it that counsel have indicated that I can tell you about, and that is that when you get down to the manslaughter on page three – consider manslaughter – there is no box for ‘no’ ‘not guilty’. It is conceded by counsel that provided – and I say ‘provided’ – you get beyond the first page – that’s duress – and into the second page, if you in other words find beyond a reasonable doubt that the duress defence is not available, then the minimum decision you would come to is manslaughter.
Is that helpful to you?
[57] As part of the same set of questions, the jurors added:
We are still having a problem with the word ‘intend to’. We were only able to pick up phrases of your reading and feel that the whole explanation should be given to us in writing. For example, does ‘intend mean you want it to happen?’
[58] It seems clear from the colloquy that followed that the trial judge provided the jurors with an amended copy of a part of his final instructions. The trial judge explained:
I’ve consulted with counsel and they have no objections to me giving you a copy of my script. I’m not going to give you the whole charge. What I’m going to give you is the substantive part, if you wish – it includes the substantive charges of first and second degree murder and pretty well all that I’ve said. Now occasionally I slipped a word in edgewise, and it has other things like ‘review relevant evidence and relate to issue’. Well that’s the judge’s instructions to himself, okay. So you won’t pay any intention to that. I don’t have any evidence in it at all, except on page 21 I’ve reminded myself of a couple of things that we reviewed with you.
Now I made two other amendments, counsel, did I not? In attempting to define for you ‘unlawful forcible confinement’ I said ‘had the effect of confining’ – and I originally said ‘Vladimirski and Vassiliev’ – I inserted in there ‘these three young men’, and I hope that that is – and I’ll make that amendment in my pen right here, if you don’t mind.
Later, the trial judge outlined some changes he had made to the written copy provided to the jurors. Unfortunately, what the jurors received was never made a lettered exhibit at the trial. Thus it is not available for review by this court.
[59] The jurors’ final question and the trial judge’s response occurred within hours of the jury’s verdict. The question posed by the jurors was this:
Your Honour, ‘A’ and ‘B’ walk into a store and upon seeing a stereo unit decide to steal it. ‘A’ guards the door. ‘B’ picks up the stereo, however he also shoots and kills an employee in the course of stealing the unit. Is ‘A’ equally guilty as ‘B’?
The trial judge responded:
Well we’ve been struggling with your question and how to answer it, even to the extent of changing a number of facts, and that’s where we got bogged down.
May I say to you that this factual situation is one that on this information we can’t answer. For instance, there’s no active participation of ‘A’ in respect of a specified offence, if you are thinking, for instance, of route two to murder in the first degree. Also, as you know, the specified offence that you’re dealing with is that of forcible confinement, and you’ll recall that the route two has the first large box with respect to participation in a manner that can be said that it was a substantial integral cause of death. And then you go on then to the second and third boxes of questioning, and on this scenario we can’t even guess how to change that to – we can, but we can’t agree on how it might be done.
So we’re not very helpful to you. That being said, again route two, if that’s what you’re thinking of, requires murder in the course of a specified offence – forcible confinement – and if you read down the boxes maybe that will help again. Otherwise the 12 of you may be able to think of a different scenario that would be impossible for us to answer.
I hope I haven’t disappointed you unduly. Thank you for your patience.
The Governing Principles
[60] Jury instructions should equip jurors to decide the case the parties have presented to them for decision. From these instructions, the jurors, the decision-makers of the parties’ choice, must understand the issues of fact that require their decision, as well as the legal principles that govern and the essential features of the evidence that inform that decision. The instructions must also leave the jurors with a firm understanding of the positions of the parties. R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.) at para. 27.
[61] We test the adequacy of jury instructions in a functional way, in other words, against their ability to fulfill the purposes for which they are given, rather than by measuring the extent of their compliance with or departure from a particular approach or formula. MacKinnon at para. 27; R. v. Jacquard, [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1 at para. 32; and R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.) at para. 48. The adequacy of jury instructions falls to be decided by an assessment of the instructions as a whole, in the context of the trial in which the instructions were given. Jacquard, at paras. 32 to 38; R. v. Cooper, [1993] 1 S.C.R. 146, 78 C.C.C. (3d) 289 at 301; and Archer at para. 48.
[62] Questions asked by jurors during deliberations reveal a problem that confronts the jurors and upon which the jurors seek further instruction. Jury questions require a timely, complete, careful and correct response. R. v. S. (W.D.), [1994] 3 S.C.R. 521, 93 C.C.C. (3d) 1 at 6. As the length of time between final instructions and juror questions increases, so does the need for a correct and comprehensive judicial response. S. (W.D.) at p. 8. No lesser care should be devoted to responses to juror questions than to the preparation of the final instructions themselves.
Secondary Participation in First Degree Murder
[63] Section 229 of the Criminal Code defines the crime of murder. Section 231 classifies murder for sentencing purposes. Murder is either first degree murder or second degree murder. Planned and deliberate murder is first degree murder. Murder committed during the actual or attempted commission of certain offences involving domination of others, such as unlawful confinement, is also first degree murder.
[64] As a general rule, a person may commit a crime as a principal or as a secondary party. Participation as a secondary party includes aiding or abetting a principal to commit an offence. This general rule, which permits the commission of a crime through participation as a principal or a secondary party, is not a universal rule. Statutory language may confine liability to certain modes of participation. R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, 158 C.C.C. (3d) 486 at para. 62.
[65] Secondary participation by aiding or abetting includes both conduct and fault requirements. Conduct may include acts, omissions (where there is a legal duty to act), words and gestures. The fault element has to do with the aider’s or abettor’s state of mind when engaged in the conduct.
[66] Section 21(1)(b) applies to aiders. A person is a party to a crime as an aider if that person:
• Does (or, in the case of a legal duty, omits to do) something that helps the (or a) principal to commit the offence [the conduct requirement]; and
• Provides the assistance with the intention of helping the (or, a) principal to commit the offence [the fault requirement].
R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.) at para. 86, leave to appeal to S.C.C. refused (2007), 220 C.C.C. (3d) vi; R. v. Hibbert, [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193 at paras. 36-37.
[67] Section 21(1)(c) governs abettors. Despite its use of the verb “abets”, rather than the more expansive “does or omits to do anything for the purpose of abetting”, abetting includes conduct and fault elements similar to those of aiding. A person is a party to a crime as an abettor if that person:
• Says or does something that encourages the (or, a) principal to commit the offence [the conduct requirement]; and
• Offers the encouragement by words or conduct with the intention of encouraging the (or, a) principal to commit the offence [the fault requirement].
R. v. Helsdon (2007), 2007 ONCA 54, 216 C.C.C. (3d) 1 (Ont. C.A.) at paras. 43-44.
[68] A person may be found guilty of first degree murder as a secondary participant in a planned and deliberate murder. Nothing in s. 231(2), which classifies planned and deliberate murder as first degree murder, eliminates or restricts the secondary participation provisions of ss. 21(1)(b) and 21(1)(c).
[69] A person may be found guilty of first degree murder as an aider of planned and deliberate murder if that person:
• Did (or, in the case of a legal duty, failed to do) something that helped the (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and
• Provided the assistance with the intention of helping the (or, a) principal to commit a planned and deliberate murder [the fault requirement].
[70] The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal’s intention. Maciel at para. 87. An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. Maciel at para. 89.
[71] A person may be found guilty of first degree murder as an abettor of a planned and deliberate murder if that person:
• Said or did something that encouraged the (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and
• Offered the encouragement, by words or conduct, with the intention of encouraging the (or, a) principal to commit a planned and deliberate murder [the fault requirement].
[72] As in the case of secondary participation by aiding, abetting requires proof of the abettor’s intention to encourage the principal and of the abettor’s knowledge of the principal’s intention. An abettor must know that the principal intends to commit a planned and deliberate murder and intend to encourage the principal to commit a planned and deliberate murder.
[73] Secondary participation in a constructive first degree murder under s. 231(5)(e) of the Criminal Code is more problematic because of the statutory requirement “when the death is caused by that person …”. Under R. v. Harbottle, [1993] 3 S.C.R. 306, 84 C.C.C. (3d) 1 at 13-14, the degree of participation in the killing by a secondary participant may be insufficient to permit a finding that the secondary party is guilty of first degree murder under s. 231(5). Nette at para. 62.
Secondary Participation in Attempted Murder
[74] A person may also be found guilty of attempted murder as a secondary participant. The knowledge element of the fault requirement demands proof of the aider’s or abettor’s knowledge of the principal’s intention to kill the victim. Maciel at para. 88; R. v. Adams (1989), 49 C.C.C. (3d) 100 (Ont. C.A.) at 110.
The Principles Applied
The Appellant’s Liability for First Degree Murder
[75] The appellant’s liability for first degree murder (as left to the jury) depended upon the combined operation of the provisions of ss. 21(1)(b) or 21(1)(c), and the classification of murder as first degree murder under ss. 231(2) and 231(5)(e).
[76] It fell to the trial judge to ensure that his final instructions left the jurors with a clear understanding of what the prosecution had to prove to establish the appellant’s guilt as an aider or abettor of the first degree murders of Vassiliev and Khomovych. The jurors needed to know the essential elements of murder, the basis upon which murder becomes first degree murder, the constituent elements of aiding and abetting and, most especially, the specific basis upon which the appellant’s liability as a secondary participant in first degree murder was to be decided.
[77] Proof of first degree murder requires proof of murder, thus the necessity for judicial instruction on the essential elements of murder, in this case under s. 229(a). After an instruction that properly defined murder, the trial judge later told the jurors, when mentioning second degree murder, that murder was an unlawful or intentional killing, then added that the intention required for a first degree murder was the same as that required for second degree murder. The erroneous italicized instruction does not appear to have been corrected later in the charge.
[78] The trial judge’s instructions on planned and deliberate first degree murder provided adequate definitions of “planned” and “deliberate”, but omitted prefatory instructions that emphasize not only that both planning and deliberation are required, but also that it is the murder that must be both planned and deliberate, not something else that the principal said or did.
[79] The instructions on the elements of constructive first degree murder under s. 231(5)(e) do not track the requirements laid down in Harbottle, although the trial judge did refer to the contemporaneity and enhanced participation requirements of the section. The instruction is seriously if not fatally flawed, by the direction that it did not matter whether the principal intended to kill the deceased, as long as he intended to cause bodily harm to facilitate the forcible confinement and the victim died.
[80] The general instructions about aiding and abetting are not and could not be challenged.
[81] In a case in which an accused’s liability for first degree murder rests on secondary participation, the trial judge should clearly instruct the jury about what the prosecutor must prove to establish the accused’s liability as an aider or abettor of first degree murder. Further, the judge should review the essential features of the evidence that bear upon this issue, and relate them to the question the jurors are required to decide to ensure that the jurors appreciate the value and effect of the evidence.
[82] In this case, the trial judge never clearly articulated the essential elements necessary to be established to prove the appellant’s guilt as a secondary participant in planned and deliberate first degree murder. Nor did he ever relate the essential features of the evidence to this issue. Rather, he expressly told the jurors that he would not be doing so.
[83] It is at best debatable, on the evidence adduced at trial, whether secondary participation in a constructive first degree murder under s. 231(5)(e) should have been left to the jury as a basis upon which the appellant could be convicted of first degree murder. The Supreme Court of Canada in Nette noted that the degree of participation in the killing by a secondary participant may be insufficient to establish the causation element in constructive first degree murder. What occurred here by the appellant’s hand scarcely seems to be a substantial cause of either deceased’s death.
[84] Even if there were an evidentiary basis to leave first degree murder under s.231(5)(e) for the jury’s consideration, the jury was never properly instructed on the essential elements of this classification. Indeed, the jurors were told that an intention to kill was not required. The trial judge never explained the application of either ss. 21(1)(b) or 21(1)(c) to the essential elements of constructive first degree murder and failed to relate any evidence, let alone the essential features of the evidence, to the issue.
[85] At the trial judge’s request, counsel drafted decision trees to assist the jurors in their deliberations. One series of decision trees dealt with the two counts of first degree murder and included the excuse of duress as the first page. The second decision tree, of which we have no record, had to do with the count of attempted murder.
[86] Decision trees are deliberation aids, not final instructions or their surrogates. Nonetheless, decision trees constitute material provided to jurors for their assistance in deciding the case. To the extent that they include reference to elements of the offences charged or included offences, modes of participation, and defences, excuses or justifications relied upon at trial, decision trees require examination to determine their influence, if any, on the correctness of judicial instructions as a whole.
[87] In this case, the decision trees relating to the murder counts invited the jurors to consider the excuse of duress first. Thereafter, if duress were rejected, the decision trees invited consideration of first degree murder, second degree murder and manslaughter.
[88] This sequence of the decision trees was flawed because, as an excuse, duress only operates where criminal liability has otherwise been established. To invite jurors to consider duress before they have determined whether an accused has committed an offence puts the cart before the horse and risks juror confusion.
[89] There are further difficulties with the decision trees. In the form provided to the jurors on the murder counts, the decision trees do not overcome the deficiencies in the final instructions. In particular, the references in the decision trees to aiding and abetting are, at best, incomplete renditions of the conduct and fault requirements for secondary participation described earlier. It is clear from the questions asked by the jurors during their deliberations over three days that they were encountering difficulties with the elements of secondary participation, the crimes of unlawful homicide and the decision trees themselves. Indeed, it appears that the jurors created their own decision tree, although it forms no part of the record on appeal.
[90] I conclude that, considered as a whole, the combination of final instructions, responses to juror questions and the contents of the decision trees contains erroneous instructions about the essential elements of murder (“an unlawful or intentional killing”) and constructive first degree murder. On the evidence adduced at trial, it is extremely doubtful that constructive first degree murder should have been left with the jury at all. The conduct of the appellant would not seem to demonstrate participation in Prieto’s murder of the deceased in such a manner that the appellant was a substantial cause of their death.
[91] Moreover, viewed in their entirety, the instructions failed to clearly articulate the essential elements required to be proven to establish the appellant’s liability as a secondary participant in first degree murder, and the trial judge failed to relate the essential features of the evidence to those issues, essentially removing the conduct requirement from the jury’s consideration.
TheAppellant’s Potential Liability for Attempted Murder
[92] The appellant’s liability for attempted murder was also as a secondary participant. The trial judge instructed the jury on the essential elements of attempted murder, but did not tell them what the prosecutor had to prove to establish the appellant’s liability as an aider or abettor of Prieto’s attempted murder of Vladimirski. As in the case of the murder counts, the trial judge did not relate the essential features of the evidence to the issues framed for decision on the attempted murder count.
[93] Because the decision tree was not made part of the trial record, thus is not available for our review, I am unable to consider the rehabilitative effect, if any, of its contents on the adequacy of the trial judge’s instructions on the count of attempted murder.
Some Procedural Observations
[94] Before departing from a discussion of this ground of appeal, some procedural observations seem appropriate.
[95] First, the preparation of final instructions, as well decision trees and other jury aids, is the responsibility of the trial judge. While the trial judge is entitled to seek and obtain the assistance of counsel in settling upon the form and content of final (or any) instructions, there should be no delegation of drafting responsibility to counsel such as occurred here.
[96] Second, in response to a request from the jury, the trial judge provided a copy of his “script” of legal instructions to the jury. It seems clear from the trial transcript that the trial judge made some amendments to his original instructions. Unfortunately, no one filed as lettered exhibits, the written instructions ultimately provided to the jury.
[97] The trial judge did not have the benefit of the decision in R. v. McNeil (2006), 213 C.C.C. (3d) 365 (Ont. C.A.), which emphasizes the need for a permanent record of written materials discussed with counsel and provided to jurors, to permit meaningful appellate review. In light of McNeil, it is absolutely essential that draft instructions discussed with counsel, written final instructions and deliberation aids, be filed as lettered exhibits and made part of the trial record to permit meaningful appellate review.
[98] Third, the method or approach the trial judge follows in informing jurors about the issues that require their decision at the end of a trial is left largely to the discretion of the presiding judge. There is no sacred formula. Substance triumphs over form. Yet some approaches are more apt to facilitate juror understanding than others.
[99] The predominant practice in this province is to separate out the essential elements of the offence charged, convert each element to a question, instruct the jurors on the legal principles that govern their decision on the question including any defence that applies to the issue, review the salient features of the evidence relevant to their decision on the question, and leave the issue to the jurors for their decision with instructions about its consequences for their further deliberations or verdict. The questions are replicated in the decision tree provided to jurors. The language used and sequence of the questions followed are identical. This method is suitable for both principals and secondary participants.
[100] In most cases of unlawful homicide, whether charged as manslaughter or murder, or if murder, whether classified as first degree murder or second degree murder, it is advisable to begin with homicide, then unlawful homicide, followed by murder and, when applicable, first degree murder. At each step, relevant defences are discussed, for example, alibi (homicide), accident and private defence (unlawful homicide), and intoxication (murder). Leaving aside the excuse of mental disorder, excuses like duress are better understood if they are left for determination until after the jury has decided whether the accused committed an offence and, if so, which offence.
[101] I would add this caveat. Nothing that I have said should be taken as a requirement that in cases of unlawful homicide a particular formula should be followed in final instructions, failing which appellate reversal will follow. To hold otherwise would substitute form for substance and ignore decades of precedent. That said, an orderly approach involving a series of sequential steps is more apt to facilitate juror understanding than a haphazard accumulation.
Alleged Errors In Instructions On Evidence Of After-The-Fact Conduct
[102] The evidence adduced at trial included testimony about what the appellant and Prieto did after the shootings on January 3, 2003. In general terms, the evidence included flight from the scene and seclusion in a hotel several miles away from the scene of the shootings.
Instructions
[103] The trial judge instructed jurors about the use they could make of evidence of after-the-fact conduct in these terms:
What a person says or does after a crime was committed may help you decide whether it was that person who committed the crimes, or as the case may be aided in them. It may help you decide whether the accused was acting under duress, as I will define it for you, at the time of the crimes. It may help you in deciding what the accused’s state of mind was at the time the offences took place; his relationship to Mr. Prieto. In other words, it may help you decide Mr. Almarales’ intent at the time that the crimes were committed. I say it may help; it may not.
The words, on the other hand, or the conduct, as the case may be, and what he did may be that of an innocent person who simply wants to avoid involvement with the police or embarrassment for himself and others, to avoid for instance danger or threats to himself or his family. It may reflect some concern of embarrassment at the role that he played in the offence, even when he was, as he alleges, forced to participate under duress. You have to first decide whether Mr. Almarales did these things and of course his own evidence says that he did – where he went; what he did to assist Mr. Prieto at the time. Having then made your conclusions, if you find that he did those things, then you should consider whether this was because he committed the offence, or participated in it willingly and his intent was there, or for some other reason. If you find that what he did afterwards is consistent with being conscious of having done what is alleged against him and not for some other reason, then you may consider this evidence together with all the other evidence in reaching your verdict. If you do not or cannot find he did these things for that reason then you must not consider the evidence in this way.
The Claim of Error
[104] The appellant says that the evidence of after-the-fact conduct should have been limited in its application to the excuse of duress. The appellant acknowledged that, if duress failed, he was guilty of manslaughter as a secondary participant. Thus, the argument continues, the trial judge should not have told the jurors that they could consider this evidence on the issue of the appellant’s intent. Such an instruction permitted jury consideration of this evidence to determine the level of the appellant’s culpability, an impermissible use in light of the manslaughter concession.
[105] The respondent points out that the appellant’s position is contrary to the position taken at trial. The evidence is relevant to the excuse of duress, as well as to whether the murders were planned and deliberate.
The Governing Principles
[106] Evidence of post-offence or after-the-fact conduct by a person accused of crime is neither more nor less than circumstantial evidence. Its probative value depends on the nature of the evidence, the issues in the case and the positions of the parties. MacKinnon at para. 14.
[107] Evidence of after-the-fact conduct can support an inference about an accused’s state of mind and thus, in some instances at least, the level of his or her culpability. MacKinnon at para. 14. Further, such evidence can assist in the prosecutor’s proof of an accused’s culpable participation in conduct alleged to be criminal but sought to be justified or excused. R. v. White, [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385 at para. 32; R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.) at 241; and R. v. Fraser (2001), 159 C.C.C. (3d) 540 (Ont. C.A.) at para. 17.
The Principles Applied
[108] The essence of the appellant’s complaint, raised for the first time on appeal, is that the trial judge erred in failing to expressly instruct the jurors that the evidence of after-the-fact conduct had no probative value in their determination of the level of the appellant’s culpability.
[109] In the circumstances of this case, I agree that the after-the-fact conduct of the appellant had no probative value on the issue of his knowledge that Prieto intended to kill the deceased, or that he had planned and deliberated their murder, which affected the level of the appellant’s culpability. In this sense, the reference to “intent” and “state of mind” were at best unhelpful and, at worst, legally wrong.
Alleged Error In Failure To Limit Use Of Bad Character Evidence
[110] Trial counsel defended this case on the basis that the appellant should be excused from liability on account of duress. Pursuit of this excuse led trial counsel to attack the character of Prieto, the shooter, to portray him as a violent, unpredictable man armed with a handgun who had an overweaning desire to exact revenge upon those whom he considered to have had sexual liaisons with Denise Attard.
[111] Trial counsel agreed that her approach to the case had put the appellant’s character in issue, permitting an evidentiary response in kind by the prosecutor. It is unnecessary to list every item of evidence that made its way into the trial in response. Suffice to say that the jury learned that the appellant was a deserter from the Cuban army who illegally entered Canada. There was also evidence that his relationship with his partner and children included physical and emotional abuse, controlling behaviour and a near-pathological jealousy.
[112] In many respects, the bad character evidence adduced earlier through other witnesses was reiterated by the appellant during examination-in-chief by his own counsel. Counsel not only elicited the appellant’s criminal record in examination-in-chief, but proceeded to file it as an exhibit. It included several convictions for offences of violence and confirmed the appellant’s status as a mandatory supervision violator.
The Instructions
[113] The trial judge was not asked and did not give any mid-trial instructions about the limited evidentiary value of evidence of the appellant’s bad character. He did provide mid-trial and final instructions on previous convictions, which included an injunction against propensity reasoning, but added, without further explanation: “It may also help you in other realms too.”
[114] In his final instructions, the trial judge referred to the evidence of Joycelyn Ceballo, the appellant’s common law spouse. After cautioning the jurors about her evidence, the trial judge continued:
Again, at the risk of being repetitious, Ceballo’s evidence, for instance her relationship with him may help you in illustrating perhaps his lifestyle, perhaps his experience and relationship with Prieto. Again you must not use such evidence, what we call ‘bad conduct evidence’ to decide or help you decide that the accused is the sort of person who would commit the offences he faces. That is repetitious.
The Claims of Error
[115] The appellant’s claims of error include assertions that evidence was improperly received in response to the attack on Prieto’s character and, at all events, that the jurors were not properly instructed about the limited use that they could make of the evidence that had been properly received. There was no air of reality to the excuse of duress, thus it became all the more necessary for the trial judge to provide full instructions about the limited use of the evidence offered to rebut this excuse.
The Governing Principles
[116] When an accused puts his character in issue in a criminal trial, the prosecution is entitled to introduce evidence that it would not normally be permitted to lead as part of its case. That said, the prosecutorial response is not without limit. The responsive evidence must be relevant, material and compliant with the rules governing admissibility in such cases. The evidence is also received for a limited purpose and, in a jury trial, should be the subject of a proper limiting instruction.
The Principles Applied
[117] This is one of those cases, of which unfortunately there are many, in which jurors hear evidence about the participation of the principals in a criminal subculture. The appellant chose to rely on the excuse of duress. In support of that excuse, he introduced evidence about the violent and unpredictable disposition of Prieto. The prosecutor was entitled to respond to this evidence and did so without objection by the appellant’s trial counsel. At the end of the day, the trial judge decided that there was an air of reality to the excuse of duress and left that excuse to the jury.
[118] The appellant seeks now to resile from the excuse of duress, asserting that it had no air of reality, thus the prosecutor’s responsive evidence should not have been received, or at the very least, should have been the subject of strong and complete limiting instructions.
[119] In light of the disposition I propose of this appeal, it is neither necessary nor desirable to engage in a forced march through each item of evidence adduced in the prosecutorial response. Two brief observations are apt, however. The first is that the trial judge did not receive much help from counsel conducting the case in curtailing the teem of prejudice and ensuring compliance with such fundamental principles as relevance, materiality and admissibility. Secondly, much of this evidence was led by the appellant’s own counsel at trial, or at least repeated by its introduction through the appellant’s own testimony.
[120] Instructions about the limited use a trier of fact can make of some kinds of evidence have two aspects. One is positive, the other negative. The positive instruction tells jurors, in permissive language, the use they may make of the evidence. Permitted use. Permissive terms. The negative instruction tells jurors, in mandatory terms, the use that they must not make of the evidence. Prohibited use. Mandatory terms.
[121] In this case, albeit with specific reference to the evidence of Ceballo rather than more generally, the trial judge told the jury that it must not use the evidence to conclude or help it conclude that the appellant was the sort of person who would commit the offences charged. Some of the inherent prejudice curtailed by this negative instruction was allowed to seep back in because of the lack of specifics in the direction about the permitted use. It is unnecessary to decide whether, if this omission stood alone, it would require a new trial.
Inconsistent Verdicts
[122] The final ground of appeal against the convictions of first degree murder and attempted murder does not require lengthy discussion.
The Claim of Inconsistency
[123] The appellant says that the verdicts impeached – the convictions of first degree murder and attempted murder – are inconsistent with the verdict that he does not contest – the conviction of manslaughter. The three shootings were all part of a piece. The same shooter, fueled by the same emotions, shot three persons in short order as part of a single plan. First degree murder and attempted murder require proof of an intent to kill. Manslaughter is an unlawful, but unintentional killing, and there is no basis upon which to distinguish the shooting of Khomovych from the other two shootings. Hence, the appellant says, it was inconsistent for the jury to return verdicts of guilty of first degree murder and attempted murder on two counts and of manslaughter on the other.
The Applicable Standard
[124] Impeachment of verdicts on the ground of inconsistency requires satisfaction of a stringent test. The appellant must show that no reasonable jury, whose members had applied their minds to the evidence, could have arrived at the conclusion reached by the jury in the case under appeal. R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, 206 C.C.C. (3d) 6.
The Standard Applied
[125] The appellant is correct to say that the verdicts impeached necessarily include a finding of intent to kill, in the context of secondary participation. No such finding inheres in the conviction of manslaughter.
[126] The circumstances surrounding the killing of Khomovych differed significantly from those of the killing of Vassiliev and the shooting of Vladimirski. Khomovych was an accidental tourist who came by unexpectedly to help the others in a moving project. He didn’t live in the apartment, nor was he part of “let’s dump the Russians” comment attributed to the appellant earlier. Prieto acted differently towards Khomovych, speaking to him in conciliatory terms, the antithesis of his attitude towards the others. The circumstances of Khomovych’s confinement differed in kind from those of the others, likewise the actual shooting.
[127] I would not give effect to this ground of appeal.
CONCLUSION ON APPEAL FROM CONVICTIONS
[128] Despite the persuasive force of Mr. Shandler’s advocacy, I am unable to bring this case within the forgiving grasp of s. 686(1)(b)(iii).
[129] The case against the appellant rested on the combined operation of the secondary participation provisions of ss. 21(1)(b) and 21(1)(c), together with the classification of murder as first degree murder under ss. 231(2) and 231(5)(e). It follows that the parties and the jury were entitled to complete and accurate instructions on what the prosecutor was required to prove to establish the appellant’s guilt as an aider or abettor of a planned and deliberate or constructive first degree murder, and of an attempted murder.
[130] Unfortunately, as I have explained, the final instructions were seriously flawed in several respects. On one occasion at least the trial judge defined (second degree) murder as “an unlawful or intentional killing.” This was a significant error. Moreover, the elements of constructive first degree murder were never fully articulated, and what was said contained a fundamental misdirection, namely, that this basis for first degree murder could be proven “whether or not the person means to cause death, if he means to cause bodily harm for the purpose of facilitating the offence of forcible confinement and death ensues as a consequence.”
[131] The final instructions, including the responses to the jurors’ questions and the decision trees counsel prepared, lack clear direction on the essential elements of secondary participation in first degree murder and attempted murder. The trial judge specifically told the jurors that he did not intend to review the essential features of the evidence and relate it to the issues on which the appellant’s liability turned if the jurors rejected duress, as seemed likely on the evidence adduced at trial. The number and nature of the jurors’ questions revealed significant problems in their comprehension of the final instructions, as well as the decision trees drafted by counsel.
[132] Final instructions on the use jurors could make of evidence of the appellant’s bad character expressly forbade the use of propensity reasoning and may seem vindicated by the different verdicts rendered on the two counts of first degree murder. Unfortunately, the permissive use of the evidence was left somewhat vague, although it is debatable whether further instructions would have enured to the benefit of the appellant. See, for example, R. v. Chambers, [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321.
[133] Further, the instructions on evidence of after-the-fact conduct invited jury use of this evidence on the issue of the appellant’s “intent”. Such an expansive term as “intent”, in the circumstances of this case, could well have left the jury with the impression that the evidence of after-the-fact conduct could be used to determine the level of the appellant’s culpability. On that issue, in this case, the evidence had no probative value.
[134] In the result, I would not apply the curative provisions of s. 686(1)(b)(iii) on the appeal from the convictions of first degree murder and attempted murder. I would quash those convictions and order a new trial on those counts.
THE APPEAL FROM SENTENCE
[135] Given my proposed disposition of the convictions appeal, the only sentence in issue is the sentence imposed on the conviction of manslaughter: imprisonment for a term of 20 years.
[136] In imposing sentence after a jury verdict, the trial judge was required to accept as proven all facts, express or implied, that were essential to the jury’s verdict, but free to find any other relevant fact disclosed by the evidence adduced at trial. Criminal Code, s. 724(2).
[137] The sentence imposed by a trial judge must also be proportionate to the gravity of the offence and the degree of the appellant’s responsibility for it. Criminal Code, s. 718.1.
[138] At the end of the trial, the trial judge imposed sentences for three convictions. One sentence was mandatory, the other two, discretionary. The context in which the manslaughter sentence was imposed no longer prevails. A single conviction remains and it is for that conviction that we are required to decide whether the sentence imposed in different circumstances, nonetheless remains fit and reflects no error.
[139] In my respectful view, the trial judge’s reasons for sentence contain three errors.
[140] First, the prosecution’s case against the appellant was that he was a secondary participant in the shootings of January 3, 2003. He had no gun. He fired no shots. His responsibility, as determined by the jury, was as a secondary participant in an unlawful killing that was not murder. Yet, in the following passage, the trial judge appears to characterize the appellant as a principal:
My own view that the participation of Mr. Almarales was integral to the commission of these crimes, in fact so far that he was a principal in them.
[141] The jury found the appellant guilty of manslaughter as a secondary participant. The case against the appellant was never left to the jury on the basis that he was a principal. He was entitled to be sentenced as a secondary participant, not as a principal of which there was no evidence adduced at trial.
[142] Second, prior to sentence, the appellant had been in custody for about 21 months. Yet the trial judge made no mention of the time spent in custody prior to sentence in imposing the discretionary sentences for manslaughter and attempted murder. It may well be that the trial judge considered time spent in custody to be academic in light of the mandatory sentence for first degree murder and the provisions of s. 746(a) of the Criminal Code.
[143] Section 719(3) permits but does not require a sentencing judge to take into account, in determining a fit sentence, the time the offender has spent in custody “as a result of the offence”. While reasonable people may differ about taking time spent in custody into account in the circumstances applicable at the time of sentencing, there seems no reason in principle not to do so now.
[144] Finally, while there can be no doubt that the application of the prevailing principles of sentence to this appellant and his offence supports the imposition of a substantial penitentiary sentence for the manslaughter conviction, the sentence imposed – 20 years – is beyond the range of sentence imposed on secondary participants in manslaughter cases. Indeed, few persons convicted of manslaughter as a principal, who have been in custody prior to sentence for 21 months, receive a sentence of imprisonment for 20 years.
[145] The appellant is a mature recidivist with prior convictions for offences of violence. He appears to have little regard for the processes of the courts or the restrictions imposed by mandatory supervision. He carries knives and traffics in drugs. He works little.
[146] In my respectful opinion, an appropriate sentence in this case, including credit for pre-sentence custody, is a sentence of 12 years in the penitentiary. I would allow the appeal from sentence on the conviction of manslaughter and substitute a sentence of imprisonment for 12 years in place of the sentence imposed at trial.
RELEASED: October 10, 2008 “RJS”
“David Watt J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree E. A. Cronk J.A.”