Her Majesty the Queen v. Simon [Indexed as: R. v. Simon]
104 O.R. (3d) 340
2010 ONCA 754
Court of Appeal for Ontario,
Juriansz, Rouleau and Watt JJ.A.
November 9, 2010
Criminal law -- Murder -- Mens rea -- Trial judge making error with respect to recklessness component of fault requirement under s. 229(a)(ii) of Code in responding to question from jury but immediately correcting error -- Accused's appeal from conviction for second degree murder dismissed.
Criminal law -- Murder -- Parties -- Deceased shot by either accused or C after accused and C went to his home to purchase drugs -- Both accused armed and no evidence either had money -- Trial judge instructing jury that they could find accused guilty of second degree murder either as principal or as party under s. 21(2) of Code -- Trial judge not erring in leaving s. 21(2) as evidentiary foundation that accused's involvement in either drug deal or robbery amounting to an "unlawful purpose" -- Trial judge erroneously using words "or ought to have known" in his first mention of s. 21(2) but subsequently making it clear that actual knowledge of likelihood that C would commit murder was required -- Instructions never suggesting that objective foresight of murder was sufficient -- Accused's appeal from conviction for second degree murder dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 21(2).
Criminal law -- Trial -- Presence of accused -- Preliminary pre-charge conference taking place in trial judge's chambers in absence of accused at suggestion of defence counsel -- Discussion not resulting in any determination about substance of final instructions and no draft of charge circulated or discussed -- Substantive discussions taking place in open court and in presence of accused and court reporter after drafts of proposed instructions had been circulated to counsel -- Even if preliminary pre-charge conference was part of "trial" for purposes of s. 650(1) of Code, accused's absence constituting procedural error cured under s. 686(1)(b)(iv) of Code -- Pre- charge conferences should be held on the record, in court and in accused's presence -- Accused's appeal dismissed -- Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1), 686(1)(b)(iv).
The accused and C went to the deceased's home to purchase marijuana. They were both armed and they each knew that the other was armed. There was struggle between C and the deceased over a bag of marijuana. The deceased was fatally shot from between one and seven feet away from a shooter using a fairly large-calibre handgun. There was conflicting evidence as to whether the shooter was C or the accused. A preliminary pre- charge conference took place in the trial judge's chambers in the absence of the accused, at the suggestion of defence counsel, before any draft charge to the jury had been circulated. After counsel were provided with a draft charge, subsequent discussions of draft charges took place in court, in the presence of the accused and on the record. The trial judge told the jury that they could find the accused guilty of second degree murder either as a principal under s. 229 (a) of the Criminal Code, or as a party under [page341] s. 21(2) of the Code to a murder committed by C, as principal, in carrying out their common unlawful purpose of robbery or participating in an illegal drug transaction. The accused was convicted of second degree murder. He appealed.
Held, the appeal should be dismissed.
The trial judge did not err in leaving s. 21(2) to the jury. Defence counsel at trial did not object to that basis of liability being left nor to the contents of that part of the charge. The "unlawful purpose" requirement was satisfied by the fact that the accused and C were participating in a drug transaction or in a robbery, given that there was no evidence that either the accused or C took money with them to buy drugs, but both brought guns. While the trial judge erroneously included the alternative "or ought to have known" in his first mention of s. 21(2), he made it clear in his subsequent instructions discussing the requirement of foresight in connection with the offence of murder that only actual knowledge of the likelihood that C would commit murder would satisfy that essential element of s. 21(2). Further, at no point was the jury told that they could convict if they found that from an objective point of view the accused should have known that C would commit a murder.
The trial judge made an error about the recklessness component of the fault requirement under s. 229(a)(ii) of the Code in responding to a question from the jury, but the error was immediately corrected. The more significant aspect of the fault elements are the knowledge and intention requirements and the portion of the instructions dealing with those issues were without error. Finally, the shooter shot the deceased in the chest from a distance of no more than six or seven feet, with a fairly large-calibre handgun. Given those facts, the evidence about the shooter's recklessness as to the consequences of the harm caused to the victim was overwhelming.
Section 650(1) of the Criminal Code requires that, with some irrelevant exceptions, the accused must be present in court during the whole of his trial. The proposal to conduct the pre- charge conference in chambers originated with defence counsel. At the time the preliminary discussions took place in chambers, no drafts of the charge had been given to counsel and no decisions about the substance of the instructions were made. At a later time, counsel received copies of the draft instructions, and all subsequent pre-charge conferences took place in the accused's presence and on the record. According to fresh evidence filed on the appeal, defence counsel at trial specifically disclosed to the accused the substance of the chambers discussions and, according to his affidavit, "would have summarized" the anticipated legal instructions on the fault elements of murder and manslaughter. There was no suggestion that what occurred in chambers exerted any influence on any tactical or other decision made by the defence in its conduct of the case. Even if the preliminary in-chambers pre- charge conference was part of the "trial" for the purposes of s. 650(1), the procedural error is cured by s. 686(1)(b)(iv) of the Code. Notwithstanding the outcome of this appeal, as a matter of practice, pre-charge conferences should be held in court, on the record, in the presence of the accused.
APPEAL by the accused from a conviction for second degree murder entered by Whitten J. of the Superior Court of Justice, sitting with a jury, on December 13, 2005.
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Harder, 1956 58 (SCC), [1956] S.C.R. 489, [1956] S.C.J. No. 28, 4 D.L.R. (2d) 150, 114 C.C.C. 129, 23 C.R. 295; R. v. Howard, 1983 3507 (ON CA), [1983] O.J. No. 13, 3 C.C.C. (3d) 399, 9 W.C.B. 100 (C.A.); R. v. Isaac, 1984 130 (SCC), [1984] 1 S.C.R. 74, [1984] S.C.J. No. 5, 5 D.L.R. (4th) 193, 51 N.R. 308, 9 C.C.C. (3d) 289, 11 W.C.B. 317; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 143 D.L.R. (4th) 433, 207 N.R. 246, J.E. 97-457, 157 N.S.R. (2d) 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280, 33 W.C.B. (2d) 348; R. v. James (2009), 95 O.R. (3d) 321, [2009] O.J. No. 1803, 2009 ONCA 366, 244 C.C.C. (3d) 330, 248 O.A.C. 350; R. v. Joinson, 1986 1195 (BC CA), [1986] B.C.J. No. 1333, 32 C.C.C. (3d) 542, 1 W.C.B. (2d) 149 (C.A.); R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. L. (T.), [2008] O.J. No. 4568, 2008 ONCA 763; R. v. Laws (1998), 1998 7157 (ON CA), 41 O.R. (3d) 499, [1998] O.J. No. 3623, 165 D.L.R. (4th) 301, 112 O.A.C. 353, 128 C.C.C. (3d) 516, 18 C.R. (5th) 257, 56 C.R.R. (2d) 1, 39 W.C.B. (2d) 501 (C.A.); R. v. Mohebtash, [2007] B.C.J. No. 1164, 2007 BCCA 307, 243 B.C.A.C. 70, 220 C.C.C. (3d) 244, 73 W.C.B. (2d) 777; R. v. Moo, [2009] O.J. No. 3706, 2009 ONCA 645, 253 O.A.C. 106, 247 C.C.C. (3d) 34; R. v. Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074, [1989] S.C.J. No. 110, 101 N.R. 108, [1990] 1 W.W.R. 1, J.E. 89-1541, 70 Alta. L.R. (2d) 1, 102 A.R. 186, 51 C.C.C. (3d) 417, 72 C.R. (3d) 257, 8 W.C.B. (2d) 797; R. v. S. (J.H.), [2008] 2 S.C.R. 152, [2008] S.C.J. No. 30, 2008 SCC 30, EYB 2008-133842, 231 C.C.C. (3d) 302, 77 W.C.B. (2d) 781, 265 N.S.R. (2d) 203, 375 N.R. 67, 293 D.L.R. (4th) 257, 57 C.R. (6th) 79; R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, [1985] S.C.J. No. 23, 17 D.L.R. (4th) 577, 58 N.R. 123, [1985] 3 W.W.R. 701, J.E. 85-503, 35 Man. R. (2d) 1, 18 C.C.C. (3d) 223, 45 C.R. (3d) 193, 14 W.C.B. 151; R. v. Scott, 1989 2861 (BC CA), [1989] B.C.J. No. 1548, 50 C.C.C. (3d) 337, 8 W.C.B. (2d) 55 (C.A.); R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, [1988] S.C.J. No. 4, 46 D.L.R. (4th) 466, 81 N.R. 267, [1988] 2 W.W.R. 385, J.E. 88-256, 23 B.C.L.R. (2d) 145, 38 C.C.C. (3d) 481, 62 C.R. (3d) 137, 4 W.C.B. (2d) 36; R. v. Sparrow, 1979 2988 (ON CA), [1979] O.J. No. 1233, 51 C.C.C. (2d) 443, 12 C.R. (3d) 158, 4 W.C.B. 111 (C.A.); R. v. T. (L.W.), [2008] S.J. No. 75, 2008 SKCA 17, 307 Sask. R. 246, 77 W.C.B. (2d) 278, 230 C.C.C. (3d) 220; R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, [1987] S.C.J. No. 22, 39 D.L.R. (4th) 275, 75 N.R. 198, [1987] 4 W.W.R. 193, 57 Sask. R. 113, 32 C.C.C. (3d) 481, 57 C.R. (3d) 97, 2 W.C.B. (2d) 314; R. v. Thériault, 1981 180 (SCC), [1981] 1 S.C.R. 336, [1981] S.C.J. No. 32, 126 D.L.R. (3d) 193, 37 N.R. 361, 61 C.C.C. (2d) 102, 22 C.R. (3d) 138; R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 1804 (ON CA), 26 O.R. (2d) 570, [1979] O.J. No. 4428, 103 D.L.R. (3d) 332, 50 C.C.C. (2d) 406, 10 C.R. (3d) 352, 3 W.C.B. 443; R. v. Vézeau, 1976 7 (SCC), [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, 66 D.L.R. (3d) 418, 8 N.R. 235, 28 C.C.C. (2d) 81, 34 C.R.N.S. 309; R. v. Vézina, 1986 93 (SCC), [1986] 1 S.C.R. 2, [1986] S.C.J. No. 2, 25 D.L.R. (4th) 82, 64 N.R. 93, J.E. 86-197, 23 C.C.C. (3d) 481, 49 C.R. (3d) 351; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602 [page343] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 21, (1), (2), 229(a), (i), (ii), 650 [as am.], (1) [as am.], 650.1, 686(1)(b) (iii), (iv) Authorities referred to Watt, David, Ontario Specimen Jury Instructions (Criminal) (Toronto: Carswell, 2003)
Michael Lacy, for appellant. John McInnes, for respondent.
The judgment of the court was delivered by
[1] WATT J.A.: -- Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here.
[2] Jason Porter was a drug dealer. Everton Cribb and Allister Simon came to Porter's house to buy one-half pound of marijuana. Cribb and Simon brought handguns with them. During a struggle, Cribb or Simon shot Porter once in the chest. Porter died.
[3] Cribb pleaded guilty to manslaughter, then testified for the Crown at Simon's trial. A jury convicted Simon of second degree murder.
[4] Simon appeals his conviction. He says that the trial judge made mistakes in his final instructions to the jury, by leaving some things out and getting other things wrong. Simon also argues that he was improperly excluded from some discussions about the judge's final instructions because those discussions took place in the judge's chambers, rather than in open court.
[5] For the reasons that follow, I would dismiss the appeal and affirm the appellant's conviction for second degree murder. The Background
[6] Everton Cribb and Michael Cieplucha met while both were inmates at Mimico Correctional Centre. They shared a fondness for hip-hop music and marijuana and became friends. Drug purchases were a staple of their conversations. Cribb was impressed by the quality of the marijuana Cieplucha brought to Mimico on weekends as he served his intermittent sentence. [page344]
The drug purchase inquiry
[7] Shortly before noon on March 31, 2003, Cribb called Cieplucha. Cribb had a "chunk of money" and wanted to buy one- half pound or more of the same quality of marijuana that he (Cribb) had enjoyed in Mimico. With the help of Cieplucha's girlfriend, Vera Garcia, and Jason Porter's girlfriend, Nicole Montreuil, a deal was struck to buy one-half pound of marijuana from Porter for $1,300.
The trip to Hamilton
[8] In the early evening of March 31, 2003, Cribb asked his girlfriend, Stacey Powell, whether she would drive him and the appellant to Hamilton. Powell agreed. En route to Porter's home, which he shared with Montreuil, Powell also picked up Cieplucha and Garcia at their place in Hamilton.
[9] On the trip to Hamilton, both Cribb and the appellant seemed paranoid. Cribb asked regularly whether anyone there (at Porter's place) had a gun. Cribb was armed with a .45 calibre grey-coloured handgun. The appellant had a 380 mm silver-plated handgun.
The inquiry
[10] Vera Garcia asked Everton Cribb to go into the Parker- Montreuil home with her. Cribb wanted to know who was inside. Garcia told him "it's a girl". But when Cribb and Garcia went to the front door, it was Porter who answered and admitted them. Porter then left the home to get the marijuana.
[11] Cribb returned to the van. Cieplucha remained in the van. He noticed that both Cribb and the appellant became "extremely paranoid" each time a car passed by the van and house.
The return of Jason Porter
[12] About ten minutes after he left, Porter returned home. Cribb met Porter outside and the two men entered the house together. A few minutes later, the appellant and Cieplucha went to the door. Garcia and Montreuil let them into the house.
[13] Porter and Cribb went into the kitchen to conclude their drug deal. The appellant stood about three feet away from Porter and Cribb, just outside the kitchen area. Cieplucha stayed in the front hall or living room.
The confrontation
[14] A scuffle began in the kitchen. Porter and Cribb were wrestling over some marijuana. Porter yelled out to Joe MacIntosh for [page345] help. MacIntosh, who lived on the second floor, headed downstairs. According to some witnesses, the appellant had a handgun trained on both the combatants, Porter and Cribb.
[15] Evidence about who shot Jason Porter varied. Montreuil believed that Cribb was the shooter. The basis for her conclusion seemed to be that Cribb was the taller of the two men (Cribb and the appellant), at least taller than the man who was fighting with Porter. Cieplucha saw the appellant point a chrome-plated handgun at Porter, then at Cieplucha himself. Cieplucha did not see who shot Porter. Garcia also saw a silver-coloured gun, but could not recall whether it was in the hand of the appellant or that of Cribb.
[16] Everton Cribb said that both he and the appellant had handguns with them because they were buying drugs from strangers.
[17] When police searched the house after responding to a 911 call, they found no weapons, drugs or cash. The gun that fired the fatal bullet, a 380 mm semi-automatic weapon, has never been found.
Cause of death
[18] Jason Porter died from a gunshot wound to the chest. The gun was fired from a distance of about six or seven feet, although the weapon could have been as close as one foot from the deceased. The Grounds of Appeal
[19] For the appellant, Mr. Lacy raises four grounds of appeal relating to the trial judge's final instructions to the jury and a discrete ground alleging jurisdictional error in conducting a pre-charge conference in the appellant's absence.
[20] For my purposes, I would reduce the complaints about the final instructions to three and paraphrase them in this way: (i) alleged error in permitting the jury to consider the appellant's liability for murder as a party under s. 21(2) [of the Criminal Code, R.S.C. 1985, c. C-46] and in the substance of the instructions provided; (ii) alleged error in the instructions on the recklessness component of the fault element in murder under s. 229(a) (ii); and (iii) alleged error in failing to provide a W. (D.) instruction in connection with the evidence of Nicole Montreuil. [page346] Analysis
[21] A convenient place to begin is with the complaints of errors and omissions in the charge to the jury.
Ground no. 1: Jury instructions on liability under s. 21(2) of the Criminal Code
[22] This complaint has two aspects. The first puts in issue the availability of s. 21(2) as a basis upon which the appellant could be convicted of second degree murder. The second claims prejudicial error in leaving liability upon too expansive a basis, one not permitted by the supreme law of Canada.
The instructions of the trial judge
[23] In his final instructions, the trial judge told the jury that they could find the appellant guilty of second degree murder on either of two bases: (i) as a principal, the shooter in an unlawful killing that was murder under s. 229(a); or (ii) as a party under s. 21(2) to a murder committed by Cribb, as principal, in carrying out their common unlawful purpose of robbery or participating in an illegal drug transaction.
[24] The trial judge's first reference to s. 21(2) did not go beyond the terms of the subsection, including a reference to objective foresight of the likely commission of the incidental or collateral crime. In this passage, the trial judge did not identify the "unlawful purpose" or the "offence", thus did not tell the jury that objective foresight of murder was sufficient to establish the knowledge requirement for this basis of liability.
[25] In his second reference to s. 21(2) as a basis of liability, the trial judge separated out the essential elements of the subsection as -- agreement; -- offence; -- knowledge. The trial judge pointed out that this basis of liability was only available for consideration if they (or some of them) were satisfied that Cribb was the shooter. [page347]
[26] In his discussion of the element of "agreement", a compendious term reflective of the statutory language, "an intention in common to carry out an unlawful purpose and to assist each other therein", the trial judge identified participation in an unlawful drug transaction and robbery as the underlying common unlawful purpose. He indicated that the "offence" involved was second degree murder.
[27] After completing his instructions on the "agreement" and "offence" elements of s. 21(2), the trial judge turned to the "knowledge" requirement. He said:
With respect to the third element, knowledge, it depends on the nature of the original planned offence which you find as a fact. If you find, as a fact, the original planned offence was that of a robbery or a drug transaction in which either Cribb or Simon possessed a gun or Simon knew that Cribb had a gun and was prepared to use it to kill, then Crown counsel must prove that Allister Simon actually knew that Cribb would probably commit second degree murder in carrying out the original agreement. Probably means likely, not just possibly.
Knowledge is a state of mind, Mr. Simon's state of mind. To know something is to be aware of it. Did Mr. Simon know that Everton Cribb would probably commit second degree murder in carrying out their original agreement?
To determine what Allister Derrick Simon actually knew about the likelihood of Cribb committing second-degree murder in carrying out the original agreement you look at Mr. Simon's words and conduct before, at the time and after the offence had been committed. All these things and the circumstances in which they occurred may shed light on Mr. Simon's knowledge or otherwise of Everton Cribb's commission of second degree murder. I would ask you to use your common sense.
The positions of counsel at trial
[28] The trial judge provided drafts of his final instructions to counsel from time to time as the trial continued. He gave counsel the opportunity to review the various drafts and to make submissions about the applicability and correctness of the instructions he proposed to give.
[29] The appellant was represented at trial by very experienced counsel who advanced his defence through vigorous cross-examination of prosecution witnesses. With the benefit of the proposed instructions on s. 21(2) in hand, counsel for the appellant at trial did not object to the trial judge's decision to leave s. 21(2) to the jury, nor to the substance of the instructions he gave, including those relating to the "agreement" and "knowledge" element of the subsection. [page348]
The arguments on appeal
[30] For the appellant, Mr. Lacy advances two arguments about the trial judge's instructions on s. 21(2). His first complaint is that the subsection was left at all as an alternative basis of liability. His second criticism has to do with the substance of what was said about the foresight or knowledge element.
[31] Mr. Lacy readily acknowledges that the evidence showed that Cribb and the appellant went to Porter's house to buy marijuana. Each, to the knowledge of the other, was armed. But the handguns were for protection. They were buying marijuana from a dealer with whom they had not done business previously.
[32] Mr. Lacy says that the trial record offers no evidence upon which a reasonable jury, properly instructed, could find that Cribb and the appellant had a common plan to rob Porter. The only evidence about any armed or forceful taking of Porter's property came from Cieplucha's account of the scuffle in the kitchen when Porter had a bag of marijuana in his hand. But the nub of Cieplucha's evidence was that he could not say that what happened was a robbery -- the appellant and Cribb were there to buy drugs.
[33] As for the substance of the instructions, in particular, those about the knowledge requirement in s. 21(2), Mr. Lacy contends that the inclusion of the "ought to have known" alternative in the trial judge's first mention of the provision was at once wrong for the incidental crime of murder and never corrected in any further instructions. What was said later was too little, too late and was aggravated by the trial judge's failure to repeat a correct s. 21(2) instruction in answer to the jury's question about the definition of murder in s. 229(a) (ii).
[34] For the respondent, Mr. McInnes is contrary-minded. Section 21(2) was available as an alternative basis of liability. The evidence supported both common unlawful purposes identified by the trial judge. And despite the initial slip in including "ought to have known" in his first recitation of the terms of s. 21(2), which was only wrong in connection with the incidental crime of murder but not manslaughter, the instructions that followed made it clear that actual knowledge that the likelihood of an intentional killing was required before the appellant could be convicted of murder under s. 21(2).
[35] Mr. McInnes points out that the evidentiary foundation critical to the application of s. 21(2) was in place for both common unlawful purposes identified by the trial judge. The evidence that Cribb and the appellant went to Porter's place to buy [page349] drugs was overwhelming. And despite evidence denying the existence of any pre-formulated plan to rob, which the jury was free to reject, the evidence of what actually occurred furnished the wherewithal necessary to invoke s. 21(2).
The governing principles
[36] The controlling legal principles spark little controversy between the parties. The result of the application of those principles to the circumstances of this case is another matter. A brief recapture of some of the principles that govern the application of s. 21(2) to the incidental crime of murder is all that is required.
[37] Section 21 of the Criminal Code abolishes the common law distinction between principals and secondary parties and renders all who participate in a crime in any manner described in the section parties to the offence. Individual and joint or co-principals. Aiders. Abettors. Participants in a common unlawful purpose or design: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, [1987] S.C.J. No. 22, at p. 690 S.C.R.; R. v. Bew, 1955 47 (SCC), [1956] S.C.R. 124, [1955] S.C.J. No. 71, at pp. 126-27 S.C.R.; R. v. Harder, 1956 58 (SCC), [1956] S.C.R. 489, [1956] S.C.J. No. 28, at p. 493 S.C.R.
[38] Sections 21(1) and 21(2) are different.
[39] Persons who participate in the offence actually committed, whether as a principal, an aider or an abettor, have their liability determined under s. 21(1).
[40] Section 21(2) extends liability for crime in two respects. The first has to do with the persons whose participation in an unlawful enterprise may attract liability. And the second relates to the offence for which participants in an unlawful criminal enterprise may be held liable: R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, [1988] S.C.J. No. 4, at p. 15 S.C.R.; R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 1804 (ON CA), 26 O.R. (2d) 570, [1979] O.J. No. 4428, 50 C.C.C. (2d) 406 (C.A.), at p. 409 C.C.C.; R. v. Howard, 1983 3507 (ON CA), [1983] O.J. No. 13, 3 C.C.C. (3d) 399 (C.A.), at p. 408 C.C.C.
[41] The persons to whom s. 21(2) extends liability are those whose participation in the offence actually committed would not be captured by s. 21(1). These persons have participated in a prior unlawful enterprise with others and either knew or, in most cases at least, should have known that one (or more) of the other participants in the original enterprise would likely commit the offence charged in pursuing their original purpose.
[42] The offence to which s. 21(2) extends liability is not the original "unlawful purpose" to which the subsection refers. The "offence" of s. 21(2) is a different crime, one that a participant in the original "unlawful purpose" commits in carrying out that original purpose. And so it is that we sometimes say that s. 21(2) [page350] extends liability to those engaged in one unlawful purpose to incidental or collateral crimes: crimes committed by any participant (in the original purpose) in carrying out the original purpose that the other knew or should have known would likely be committed in pursuing the original purpose.
[43] Under s. 21(2), the liability of a party to a common unlawful purpose for an incidental crime committed by another participant requires proof of the party's participation in the original unlawful purpose, the commission of the incidental crime by another participant and the required degree of foresight of the likelihood that the incidental crime will be committed. Consistent with general principle, each of these essential elements, earlier described as "agreement", "offence" and "knowledge", must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. What we require is some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, at para. 83; R. v. Isaac, 1984 130 (SCC), [1984] 1 S.C.R. 74, [1984] S.C.J. No. 5, at p. 81 S.C.R.; R. v. Sparrow, 1979 2988 (ON CA), [1979] O.J. No. 1233, 51 C.C.C. (2d) 443 (C.A.), at p. 458 C.C.C.
[44] A final point of governing principle has to do with the standard or scope of appellate review of jury instructions. Those charged with crime are entitled to have their liability determined by properly instructed juries. We impose no requirement of perfection in jury instructions: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at paras. 1-2. We test the adequacy of jury instructions in a functional way, holding them up against the purpose they are required to fulfill: Jacquard, at para. 32.
[45] Appellate review is not the legal equivalent of a laboratory experiment. Although a comparison to a post-mortem examination may be uncomfortably close, we do not dissect the final instructions, examine them every which way, find a misplaced word or ill-suited phrase and pronounce it the cause of death. We examine the charge as a whole, together with the evidence given at trial, all of it, and the positions of the parties: Jacquard, at para. 33; R. v. Vézeau, 1976 7 (SCC), [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, at pp. 285-86 S.C.R. An important, but not dispositive factor in determining whether appellate intervention is warranted is the failure of counsel to object to what is later advanced as prejudicial error: Jacquard, at paras. 36-38; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, p. 143 S.C.R.; R. v. Thériault, 1981 180 (SCC), [1981] 1 S.C.R. 336, [1981] S.C.J. No. 32, at pp. 343-44 S.C.R. [page351]
The principles applied
[46] This ground of appeal fails.
[47] To take first the complaint that the trial judge erred in leaving s. 21(2) as a basis upon which the jury could convict the appellant of murder.
[48] The core of this complaint reduces to a submission that the trial record was barren of evidentiary support for what I have earlier described as the "agreement" requirement of s. 21(2), a compendious term for the statutory language "an intention in common to carry out an unlawful purpose".
[49] Neither trial counsel nor Mr. Lacy suggested that participation in an unlawful drug transaction could not fall within the "unlawful purpose" requirement in the subsection. Nor could there be any doubt about evidentiary support for such a finding. Cribb wanted to buy drugs. He and the appellant went to Porter's house to buy one-half pound of marijuana. Each, to the other's knowledge, was armed with a handgun. No need to go further to establish the evidentiary foundation for this "unlawful purpose".
[50] The evidence goes further. Cribb entered Porter's house first. The appellant, in an agitated state and concerned about his "bro", followed within minutes. Very shortly a struggle began. Guns came out. The struggle continued. Porter had a bag of "weed" in his hand during the struggle. A shot was fired. A later search of the premises turned up neither drugs nor money. No one saw any money produced or in the possession of Cribb or the appellant. The cumulative effect of this evidence met the standard required to engage s. 21(2) as a basis of liability arising out of robbery as the underlying "unlawful purpose".
[51] Nor would I give effect to the argument that the jury were misdirected, or at least confused, about the requirement that the appellant actually knew that Cribb would probably kill Porter in carrying out their original purpose of consummating a drug deal or committing robbery.
[52] In his first mention of s. 21(2), the trial judge included the alternative "or ought to have known" in his instructions. This version was unadorned by any reference to either the "unlawful purpose" or the "offence" that the judge would later describe. In other words, neither the "unlawful purpose" of an illicit drug transaction or robbery, nor the offence of murder were mentioned. More specifically, the jurors were never told that objective foresight of murder was a sufficient basis upon which to find guilt of murder under s. 21(2). [page352]
[53] In each subsequent instruction in which the requirement of foresight was discussed in connection with the offence of murder, the trial judge made it clear that only actual knowledge of the likelihood that Cribb would commit murder would satisfy this essential element of s. 21(2). The instruction on liability for manslaughter under s. 21(2) underscored the difference between the foresight required for murder and what is legally sufficient for manslaughter.
[54] Read as a whole, I am satisfied that the final instructions on s. 21(2) as a basis upon which the jury could convict the appellant of murder were justified on the evidence and free of error. Counsel for the appellant at trial apparently thought so as well. He offered no objection to the charge in either respect.
Ground no. 2: Instructions on the fault element in murder under s. 229(a)(ii)
[55] The appellant advances a second criticism of the trial judge's final instructions. This error relates to the recklessness component of the fault element in the definition of murder for which s. 229(a)(ii) provides.
The instructions of the trial judge
[56] The trial judge instructed the jury on the definition of murder in s. 229 (a) of the Criminal Code. The instructions on s. 229(a)(i) are unimpeachable. The record contains no evidence to challenge the common sense inference of intention from conduct.
[57] The trial judge made several references to the definition of murder in s. 229 (a)(ii) of the Criminal Code. His first two instructions were in the words of the section, words apparently repeated in a decision tree provided for jurors. [See Note 1 below] Two subsequent paraphrases of s. 229(a) were incomplete. The first failed to mention the fault element in s. 229(a)(i) and the second omitted mention of the knowledge component in s. 229(a)(ii).
[58] The error upon which the appellant focuses appears in the trial judge's response to a jury question:
THE COURT: Thank you, ladies and gentlemen, for your question. I have reviewed it with counsel and what I propose to do is read the following to you: "The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that the killer meant either to kill Jason Porter or meant to cause Jason Porter bodily harm that the killer knew was likely to kill Jason Porter and was reckless [page353] whether Jason Porter died or not." Now that last phrase could also be expressed in the following: "That the killer saw the risk that Jason Porter could die from the injury but went ahead, anyway, and took the chance. 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 as long as everyone is sure that one of the required states of mind have been proven beyond a reasonable doubt." So, I'm going to leave that with you, and if there is further amplification required, then you may submit yet another question to me. So, thank you very much. You may now retire.
[59] After defence counsel objected to the trial judge's plain English paraphrase of the concluding words of s. 229(a) (ii), the trial judge recalled the jury. Within five minutes of the original response, the trial judge offered a correction:
THE COURT: Okay. I'm sorry, folks, but I've just reflected on exactly what I've said and I don't want there to be any misunderstandings. As I said to you, the crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove the killer meant either to kill Jason Porter or meant to cause Jason Porter bodily harm that the killer knew was likely to kill Jason Porter and was reckless whether Jason Porter died or not. I then made reference to an alternative phrase, but the alternative phrase was with respect to the word "reckless". For that, leaving aside the direct, the intent to kill -- and when we're talking, we have to think in terms of meant -- the alternative is, "meant to cause Jason Porter bodily harm that the killer knew was likely to kill Mr. Porter [that's a given] and was reckless . . .". Now, the substitute for "reckless" is, or the way of expressing reckless is that the killer saw the risk that Mr. Porter could die from the injury but went ahead and took the chance, but with that use of that expansion or definition of the word "reckless", you still have to have the idea, or you have to find that the killer knew that the bodily harm that he was going to do was likely to kill Mr. Porter. In other words, it's not just the possibility, it's a likelihood that it would kill him and, as I indicated to you before, 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 as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt. Thank you. Sorry about that.
[60] Jury deliberations resumed. The jurors asked no further questions. They returned their verdict of guilty of second degree murder about three hours later.
The argument on appeal
[61] Mr. Lacy for the appellant says that the trial judge's instructions on the recklessness element in s. 229(a)(ii) amount to reversible error. The first paraphrase set the standard of recklessness too low. Even if the further instruction was accurate, the net result was, at best, confusion. And confusion, coupled with a clear misdirection, entitles the appellant to a new trial where a properly instructed jury can re-evaluate the adequacy of the prosecution's proof. [page354]
[62] For the respondent, Mr. McInnes sees it differently. The instructions in the main charge attracted no objection. When the inaccurate instruction was given, the error was noted and immediately corrected. The final instruction was correct and identified as a correction of an earlier error.
The governing principles
[63] Once again, the parties do not differ on the controlling principles. Their divide is on the consequences of the application of those uncontroverted precepts to the circumstances of this case.
[64] Well-known to the criminal law and its practitioners are the components or essential elements of the crime of murder as s. 229(a)(ii) defines it: (i) intention (to cause bodily harm); (ii) knowledge (that the bodily harm will probably be fatal); and (iii) recklessness (whether the victim dies or lives). R. v. Moo, 2009 ONCA 645, [2009] O.J. No. 3706, 247 C.C.C. (3d) 34 (C.A.), at para. 45.
[65] Among the three constituents of the fault element in s. 229(a)(ii), the most prominent is the intention to cause bodily harm of such a grave and serious nature that the author knows that the harm is likely to kill the victim. This combination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost an afterthought: R. v. Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074, [1989] S.C.J. No. 110, at pp. 1087-88 S.C.R.; Moo, at para. 46.
[66] Further, this recklessness component in s. 229(a)(ii) does not exist in a vacuum. Recklessness does not stand alone as the only mental or fault element, rather [it] operates together with the intention of infliction of horrible bodily harm: Nygaard, at p. 1088 S.C.R.; Moo, at para. 47.
[67] In a general sense, recklessness consists of the conduct of a person who sees the risk (of a particular result) and who takes the chance (that the result will not occur): R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, [1985] S.C.J. No. 23, at pp. 581-82 S.C.R. But under s. 229(a)(ii), foresight of the danger or risk of death (from the injuries clause) is not sufficient: the accused must foresee the likelihood of death following from the bodily harm inflicted: R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, at pp. 154-55 S.C.R.; Moo, at para. 48. [page355]
[68] Since both the instruction that reflects error and its correction occurred in response to a question from the jury, it is helpful to remember that errors in response to jury questions cannot be rehabilitated by prior correct instructions in the main charge: R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, at p. 528 S.C.R.; Moo, at para. 57.
The principles applied
[69] Several factors satisfy me that this claim of error fails.
[70] First, this is not a case in which the original instructions, which track the language of the statutory provision, contain errors about the recklessness component of s. 229(a)(ii). Said in another way, this is not a case of repetitive error.
[71] Second, the error made relates to recklessness, not to either intention or knowledge that Nygaard teaches are the most critical components of the fault element that s. 229(a)(ii) describes. The instructions about both intention and knowledge are unencumbered by error. Further, from what I can determine from the instructions given about the decision tree, its language duplicated that of the statute.
[72] Third, the error was immediately corrected. The mistake was identified, described as an error and corrected. The correction attracted no objection, either on the ground that it was erroneous or that it would be confusing to the jury.
[73] In addition to the subservient role of recklessness in the fault element in s. 229(a)(ii), we should not lose sight of the evidence in this case. A gunshot from a handgun of significant calibre, fired from a distance of not more than six or seven feet, perhaps as close as one foot from the deceased. A wound to a vital part of the deceased. And no suggestion of any incapacitating elements, such as intoxication, whether the shooter was Cribb or the appellant. Nothing more need be said.
Ground no. 3: Failure to give a W. (D.) instruction about the evidence of Nicole Montreuil
[74] The final ground of appeal that has to do with the charge to the jury alleges a fatal omission: the failure to include a W. (D.) instruction about the evidence of Nicole Montreuil, a prosecution witness. Unlike the first two grounds of appeal, the appellant's counsel at trial sought such an instruction.
The background
[75] Nicole Montreuil and the deceased were living together in a common law relationship. Montreuil saw the events that led to [page356] Jason Porter's death. She described a scuffle involving Porter and another man. A third man stood nearby, a gun in his hand pointed at Porter and the man with whom he was fighting. Montreuil's principal focus was Porter. She described a silver handgun. Other evidence left it open to the jury to conclude that the silver handgun belonged to the appellant.
[76] Nicole Montreuil acknowledged that at the preliminary inquiry (when Cribb was a co-accused), she had testified that she believed that Cribb was the shooter. She based her belief on her impression that the shooter was the taller of the two men who had entered her home. She did not identify the appellant, whose picture appeared in photo arrays she was shown shortly after the shooting and again about four months later. Cribb's photograph was not included in the array.
[77] Counsel for the appellant at trial did not dispute that the appellant was present at the time of the shooting.
The arguments on appeal
[78] For the appellant, Mr. Lacy says that a W. (D.) instruction was essential for Nicole Montreuil's evidence. She never identified the appellant at any time as the shooter, rather identified Cribb as the shooter at the preliminary inquiry. Her evidence was that the shooter was the taller of the two men. Cribb is three inches taller than the appellant. This significant evidence of "non-identification" warranted a W. (D.) instruction. Failure to give it, or to convey the same message in different words, is fatal to the validity of the conviction.
[79] Mr. McInnes responds with the submission that the trial judge was right in not giving a W. (D.) instruction about the evidence of Nicole Montreuil. The purpose of a W. (D.) instruction, Mr. McInnes says, is to ensure that the jurors understand the relationship between determinations of credibility, on the one hand, and the prosecution's burden of proof on the other. The instruction further ensures that the jury does not decide the case simply by choosing between competing versions of events.
[80] Mr. McInnes points out that the problem with the evidence of Nicole Montreuil was not one of credibility, rather one that had to do with the reliability of her observations. And besides, even if her evidence was exculpatory of the appellant as the shooter, it did not respond to the alternative basis of liability for which s. 21(2) provides. A W. (D.) instruction on Montreuil's evidence had no place in this case and the trial judge was right not to have given it. [page357]
The governing principles
[81] In jury trials in which credibility is the central issue, the trial judge must explain to the jury the relationship between the assessment of credibility, on the one hand, and the prosecution's ultimate burden to prove the guilt of the accused beyond a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, [2008] S.C.J. No. 30, at para. 8. General instructions on reasonable doubt, without adverting to its relationship to the credibility (or lack of credibility) of the witnesses, leaves open too great a possibility of confusion or misunderstanding in the minds of the jurors: S. (J.H.), at para. 8.
[82] An appropriate way in which to instruct a jury on credibility and its relation to the prosecution's ultimate burden of proof is provided in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, at pp. 757-58 S.C.R. But the frequently invoked passage contains a caveat of no little importance: failure to parrot the precise language of Cory J. is not fatal, provided the charge, when read as a whole, makes it clear that the jury could not have laboured under any misapprehension about the controlling burden and standard of proof that governed their deliberations and decision: W. (D.), at p. 758 S.C.R.
[83] The effect of W. (D.) is to unpack for members of the jury the meaning of reasonable doubt in the context of evaluating conflicting testimonial accounts of relevant events: S. (J.H.), at para. 9. But, W. (D.) is not some ceremonial chant or magic incantation that must be uttered on pain of immediate and unmitigated appellate censure. Substance triumphs, not form. And the substance that must be delivered is that the burden of proof rests upon the Crown, never shifts (at least almost never) and requires proof beyond a reasonable doubt of every essential element before a finding of guilt can be made: S. (J.H.), at para. 13. Under no circumstances are the terms used by the trial judge to leave the impression that the jury must choose between two competing versions of events: R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, [2000] S.C.J. No. 57, at para. 19; S. (J.H.), at para. 13. Further, the jury must understand that an accused's lack of credibility is not the equivalent of proof beyond a reasonable doubt: S. (J.H.), at para. 13.
[84] Instructions that convey the substance of the W. (D.) formula, even if not its express terms, are of abiding importance when one or more witnesses, often including the person charged, give a version of events that is at once exculpatory and incompatible with the rendition provided by prosecution witnesses. Absent an appropriate instruction, the risk of resolution by simple [page358] comparative choice is at its most palpable. But it is not in every case of conflicting or exculpatory identification evidence that a W. (D.) instruction or its functional equivalent is mandatory: R. v. L. (T.), [2008] O.J. No. 4568, 2008 ONCA 763, at paras. 5-6.
The principles applied
[85] A gunman shot Jason Porter to death with a single bullet from a 380 mm semi-automatic handgun. The gun and the deceased were at most six to seven feet apart and could have been as close as one foot from each other. The shot was fired as Porter and another man struggled with one another. Porter had a bag of marijuana in his hand. Both the appellant and Cribb were present when the fatal shot was fired. One of them was the shooter.
[86] For one reason or another, evidence about the identity of the shooter varied among the several occupants of the house. The trial judge instructed the jury that the appellant could be found guilty of either second degree murder or manslaughter as the principal (the shooter) or as a party under s. 21(2) (with Cribb as the shooter). The jury were told that they were to make their decision on the basis of all the evidence, but that they need not all agree on the same basis of liability: Thatcher, at pp. 697-99 S.C.R.
[87] The nucleus of the appellant's claim of error in the trial judge's failure to give a W. (D.) or W. (D.)-like instruction in connection with the evidence of Nicole Montreuil is that her evidence identified Cribb as the shooter, thus was exculpatory of the appellant.
[88] I would not give effect to this ground of appeal for several reasons.
[89] First, failure to reiterate the express terms of W. (D.) is not, without more, fatal error. Were it otherwise, form would triumph over substance: S. (J.H.), at para. 13.
[90] Second, what is crucial is that the jury not be left with the impression, either from what the trial judge said or left unsaid, that it had to choose from conflicting versions of events. Further, the jury must not have been left with any misapprehension about the correct burden and standard of proof to apply. Nothing said or left unsaid here, expressly or by necessary implication, invited a decision based on an enforced choice between conflicting alternatives, misplaced the onus or diminished the standard of proof.
[91] Third, in the circumstances of this case, to segregate the evidence of Montreuil and to single it out for a separate instruction is at once to ignore the realities of the evidence adduced at [page359] trial and to fail to appreciate that the appellant's liability did not rest entirely upon his participation as the principal, the shooter who actually caused the death of the deceased. An instruction of the nature suggested was of no moment to a determination of the appellant's liability under s. 21(2). A reasonable doubt about the appellant's participation as the shooter would not require his acquittal.
[92] Finally, the trial judge's instructions made it clear that if the jurors had a reasonable doubt about the appellant's participation as the shooter and as a party under s. 21(2), they were to acquit. They were told, and more than once, that to find the appellant guilty of second degree murder, the Crown must satisfy them of all the essential elements of that offence beyond a reasonable doubt, whether the appellant's participation was as the shooter or as a party under s. 21(2). The message was clear.
Ground no. 4: Exclusion of the appellant from a pre-charge conference
[93] The final ground of appeal does not contest the adequacy or completeness of the trial judge's final instructions to the jury. What is advanced is a claim of jurisdictional error, a breach of the appellant's right to be "present in court during the whole of his . . . trial" for which s. 650(1) of the Criminal Code provides.
[94] To determine whether a breach of s. 650(1) occurred and, if it did, whether the error can be saved by the curative embrace of s. 686(1)(b)(iv) of the Criminal Code requires some added background.
The circumstances of the exclusion
[95] The evidence of Everton Cribb, the former co-accused turned prosecution witness, concluded shortly after the afternoon sittings began on November 30, 2005. The witness who was next scheduled to appear, Stacey Powell, couldn't attend because of a "personal crisis".
[96] The trial judge took advantage of the hiatus in the introduction of evidence to suggest that a pre-charge conference be held to discuss the content of the charge to the jury. As soon as the jurors had been excused, counsel for the appellant at trial, an experienced criminal lawyer and a forceful advocate for his client, began:
I was going to suggest, Your Honour, subject to yourself, I understand we're going to be discussing issues that may arise in your charge and if that's the case, I'm going to propose we go into your chambers rather than in open court here. It might make discussing complex legal issues a little bit easier, but I'm in your hands. I would prefer that, but I'm in your hands. [page360]
[97] The trial judge responded to this suggestion, expressing the view that the pre-charge discussions should be "on the record" or "put on the record". Trial counsel for the appellant continued:
I agree we could either do it here or we could do it in chambers and then come back and put on the record what we discussed.
[98] In open court, in the presence of the appellant and counsel, but in the absence of the jury, the trial judge then reviewed a list of several issues to be canvassed in his final instructions. Apart from an indication that the content of his instructions would follow the applicable parts of the Ontario Specimen Jury Instructions (Criminal) (Toronto: Carswell, 2003), no discussion of the actual substance of the instructions occurred.
[99] During this in-court pre-charge conference, the trial judge indicated that he proposed to instruct the jury on the appellant's liability as a principal (the shooter) and as a party under s. 21(2), and to tell them that they need not be unanimous on the basis of liability, as long as each juror was satisfied, on one basis or the other, that the appellant's guilt had been proven beyond a reasonable doubt.
[100] The trial judge then turned to the essential elements of second degree murder and what he proposed to say about them. When he mentioned manslaughter, an included offence, the prosecutor interjected:
MR. FOX [Crown Counsel]: . . . but something has just suddenly struck me about this whole in-court discussion on this issue.
MR. SAPIANO [Defence Counsel]: We could argue -- does Your Honour. . . . .
THE COURT: Do you want to meet . . . .
MR. FOX: I -- you know, I have a real problem. Before counsel has elected whether or not to call his client, to giving his client a full and complete summary of the law prior to his testifying.
THE COURT: All right, then. Okay.
MR. SAPIANO: A legitimate concern.
THE COURT: Okay. That's fair enough.
MR. SAPIANO: Although we all need to know the law -- but that's another issue.
THE COURT: So, we'll adjourn the charge discussion.
MR. SAPIANO: To chambers.
MR. FOX: Thank you.
THE COURT: Okay.
MR. SAPIANO: Thank you. [page361]
[101] At 3:21 p.m. on November 30, 2005, the trial judge adjourned the in-court proceedings until the next day. He and counsel retired to the judge's chambers. The appellant was not invited.
The chambers discussion
[102] The chambers discussion took place in the appellant's absence. The proceedings were not recorded. No court reporter was there. When trial proceedings resumed the following morning, nobody said anything about the pre-charge discussions in chambers.
[103] Trial counsel for the appellant filed two affidavits as fresh evidence for use on the hearing of the appeal. Mr. McInnes, for the respondent, consented to their introduction and did not cross-examine the affiant.
[104] Trial counsel indicated that, in his experience, it was not uncommon in 2005 for pre-charge conferences to be held in the trial judge's chambers. He intended to summarize what had taken place in chambers when the proceedings resumed on the record the following day, but failed to do so. When he suggested the in-chambers discussion, he did not take into account the requirements of s. 650 of the Criminal Code, nor did he seek specific instructions from the appellant before participating in the chambers discussions.
- When I suggested going into chambers and agreed to do so later, I did not specifically turn my mind to s. 650 of the Criminal Code. I did not specifically seek instructions from the client on that issue. I would have presented the issue to Mr. Simon as being part of the usual course of affairs in a trial and would not have told him that he could withhold consent for discussions to proceed in chambers. Nor did I tell him if he did not consent, that the discussion would not take place in chambers.
[105] Trial counsel for the appellant made no notes of what occurred in the pre-charge discussions in chambers. He described his recollection, nearly four years later, in these terms:
I do not recall exactly how long we were in chambers "off the record". It seems to me, having reviewed the transcript excerpt, that it was likely that it was no more than 20 to 30 minutes and the discussion would have been limited to discussing the appropriate charge to be given to the jury on the state of mind required for the different levels of culpability for homicide.
Although the trial Crown had indicated that going into chambers was necessary so that Mr. Simon would not hear what we discussed, I recall specifically disclosing to Mr. Simon the substance of the discussions in chambers. I would have summarized the anticipated legal instruction on the issues of the state of mind for manslaughter and the state of mind for murder.
The issue of the appropriate state of mind for murder, manslaughter and a finding of innocence was an important one in the context of Mr. Simon's [page362] case. The Crown had made a pre-trial offer for Mr. Simon to plead guilty to manslaughter and that issue was one that was canvassed with Mr. Simon. The issue was also an important one in the context of whether Mr. Simon would ultimately testify at the trial or not.
The further pre-charge conferences
[106] The trial judge provided copies to trial counsel of various instructions he proposed to give to the jury. Further, pre-charge conferences to discuss the proposed instructions took place in open court in the appellant's presence on December 7, 8, 9 and 12, 2005. The discussions included the basis of liability to be left with the jury. Trial counsel for the appellant announced on December 5, 2005 that he was not calling a defence.
The arguments on appeal
[107] For the appellant, Mr. Lacy submits that the conduct of the pre-charge conference in chambers in the appellant's absence breached s. 650(1) of the Criminal Code and cannot be forgiven by s. 686(1)(b)(iv).
[108] Mr. Lacy says that, apart from inapplicable exceptions, s. 650(1) required the appellant's presence in court throughout his trial. The purposes underlying this requirement are the right of each person on trial to hear the case against them and to provide them with the opportunity to respond to it, and the right of an accused to acquire first-hand knowledge of the proceedings in a fair and open process.
[109] To determine whether something that happened in the course of a trial was part of the "trial" for the purposes of s. 650(1) requires an examination of whether what occurred affected the "vital interests" of the accused. No one can gainsay that what was discussed here, the contents of final jury instructions, affected the vital interests of the appellant. These discussions had a direct bearing on the basis upon which his liability would be left to the jury, an important factor for counsel and for the appellant to consider in deciding whether the appellant should testify.
[110] Mr. Lacy takes the position that s. 686(1)(b)(iv) cannot salvage what occurred here. The appellant did not consent to the conduct of the conference in his absence, nor was he adequately apprised of what occurred there. The fairness of the trial was compromised beyond redemption.
[111] For the respondent, Mr. McInnes begins with the submission that the preliminary nature of the in-chambers discussions removes them from the requirement of the appellant's presence under s. 650(1) of the Criminal Code. The subsequent [page363] in-court conferences confirm the preliminary nature of the in-chambers discussions. Nothing was decided about charge content in chambers. What occurred was a canvass of potential subjects. No drafts were proffered.
[112] Mr. McInnes also advances an alternative argument in the event that we determine that what occurred in chambers was part of the "trial" for the purposes of s. 650(1). He contends that what occurred falls within the sanctuary provided by s. 686(1)(b)(iv).
[113] Mr. McInnes points out that it was trial counsel for the appellant who suggested the pre-charge conference take place in chambers. The discussions were preliminary only. The decision not to call a defence did not occur until much later and preceded the more fulsome discussions about modes of participation and the basis upon which the appellant's liability would be determined. Neither the actual nor the apparent fairness of the trial was compromised by the chambers discussion.
The governing principles
[114] Section 650(1) of the Criminal Code requires that, apart from some exceptions that have no place here, an accused must be "present in court during the whole of his . . . trial". Apart from the obvious, such as the introduction of evidence before the jury, counsel's addresses and the trial judge's charge, not everything that happens during a trial is part of the "trial" for the purposes of s. 650(1), and thereby the requirement that the accused be present: R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), at p. 529 C.C.C.; R. v. Grimba (1980), 1980 1652 (ON CA), 30 O.R. (2d) 545, [1980] O.J. No. 3790, 56 C.C.C. (2d) 570 (C.A.), at p. 574 C.C.C.
[115] The watershed case on what constitutes part of the "trial" for the purposes of the presence requirement in s. 650(1) is the decision in Hertrich. There, Martin J.A. made it clear that the term "trial" in s. 650(1) reaches beyond those proceedings that form part of the procedure established for determining guilt or innocence and the imposition of the sentence to include at least some proceedings conducted by the judge during the trial for the purpose of investigating things that have occurred outside the trial but may affect its fairness: Hertrich, at pp. 527-37 C.C.C.
[116] To determine whether something that happened during the course of a trial is part of the "trial" for the purposes of s. 650(1), we ask whether what occurred involved or affected the vital interests of the accused or whether any decision made bore on "the substantive conduct of the trial": Hertrich, at p. 539 C.C.C.; [page364] R. v. Vézina, 1986 93 (SCC), [1986] 1 S.C.R. 2, [1986] S.C.J. No. 2, at pp. 10-11 S.C.R.; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at pp. 707-708 S.C.R.
[117] Discussions in chambers can be part of the "trial" for s. 650(1) purposes: Hertrich, at p. 539 C.C.C.; R. v. Laws (1998), 1998 7157 (ON CA), 41 O.R. (3d) 499, [1998] O.J. No. 3623, 128 C.C.C. (3d) 516 (C.A.), at p. 521 C.C.C.; R. v. James (2009), 2009 ONCA 366, 95 O.R. (3d) 321, [2009] O.J. No. 1803, 244 C.C.C. (3d) 330 (C.A.), at para. 17. But not every in-chambers discussion is part of the trial for the purposes of s. 650(1), especially if the discussion is of a preliminary nature, does not involve any final determination and is recounted in open court in the presence of the accused: R. v. Dunbar, 1982 3324 (ON CA), [1982] O.J. No. 581, 68 C.C.C. (2d) 13 (C.A.), at p. 31 C.C.C.; R. v. Chaudhary, [1988] O.J. No. 1857, 31 O.A.C. 241 (C.A.), at para. 3.
[118] Where something takes place in the absence of the accused that is part of the "trial" for s. 650(1) purposes, it does not inevitably follow that a new trial must be ordered if the accused is convicted.
[119] Section 686(1)(b)(iv) of the Criminal Code came into force on December 4, 1985. Its real focus seems to have been to inter the jurisprudence that regarded procedural errors that caused trial courts to lose jurisdiction as incurable, even on appeal: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, at para. 12. Its embrace includes but is not limited to the procedural irregularity caused by the absence of the accused during his or her trial: Khan, at p. 835 S.C.R.
[120] In R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, 43 C.C.C. (3d) 35 (C.A.), the accused was excluded from the courtroom while counsel argued about the propriety of a question that had been asked of him while he was testifying on his own behalf. After the issue had been settled, the accused and the jury returned to the courtroom. The question that had attracted the exclusion was rephrased by the prosecutor and asked again. The trial continued.
[121] This court identified three types of error that could occur during the conduct of a trial that may require consideration of the curative provisos of what are now ss. 686(1)(b)(iii) and 686(1)(b)(iv): (i) errors of substance, rather than procedure, such as occur in cases in which the trial court lacks jurisdiction over the class of offences charged; (ii) minor irregularities in procedure that do not result in a loss of jurisdiction in the trial courts; and [page365] (iii) irregularities in procedure sufficiently serious that they are deemed to be matters of substance that result in a loss of jurisdiction. Cloutier, at p. 48 C.C.C.
[122] We learn from Cloutier and the authorities that have followed its lead that the curative provisions of s. 686(1)(b) (iv), by their own terms, cannot salvage errors in the first category. They do apply to the second category, but much of the heavy lifting there can be done by its older sibling, s. 686(1) (b)(iii). Section 686(1)(b)(iv) can save a procedural error that falls within category (iii): Cloutier, at p. 48 C.C.C.; R. v. Joinson, 1986 1195 (BC CA), [1986] B.C.J. No. 1333, 32 C.C.C. (3d) 542 (C.A.), at pp. 547-48 C.C.C.; Khan, at pp. 837-38 S.C.R. Breaches of s. 650 are included in this category: Cloutier, at p. 49 C.C.C.; Khan, at pp. 835, 837-38 S.C.R.; R. v. Scott, 1989 2861 (BC CA), [1989] B.C.J. No. 1548, 50 C.C.C. (3d) 337 (C.A.), at pp. 344-46 C.C.C.; R. v. T. (L.W.), 2008 SKCA 17, [2008] S.J. No. 75, 230 C.C.C. (3d) 220 (C.A.), at paras. 28-33; R. v. Mohebtash, 2007 BCCA 307, [2007] B.C.J. No. 1164, 220 C.C.C. (3d) 244 (C.A.), at para. 14.
[123] To determine whether a breach of s. 650(1) may be salvaged by the application of the proviso in s. 686(1)(b)(iv) requires a consideration of all the circumstances surrounding the violation. Relevant factors may include, but are not limited to, (i) the nature and extent of the exclusion, including whether it was inadvertent or deliberate; (ii) the role or position of the defence counsel in initiating or concurring in the exclusion; (iii) whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused; (iv) whether any discussions in the accused's absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters; (v) the effect, if any, of the discussions on the apparent fairness of trial proceedings; and (vi) the effect, if any, of the discussions on decisions about the conduct of the defence.
The principles applied
[124] I would not give effect to this ground of appeal. If the in-chambers discussion was part of the trial, a subject about which reasonable people may differ, I would apply the provisions of [page366] s. 686(1)(b)(iv) to the procedural error in the circumstances of this case.
[125] The in-chambers discussions in this case took place before the prosecution's case had been completed and well in advance of the time at which the appellant was required to make his final decision about whether he would testify in response to the prosecution's case. The discussions in open court that preceded the retirement to chambers consisted of a review of a list of items that might be worthy of inclusion in the charge. No discussion about the substance of the instructions took place. No drafts were offered. The discussions of substance occurred later, in open court, after counsel had received copies of the proposed instructions.
[126] There is much to be said for the conclusion that the preliminary nature of the in-chambers discussions in this case were not part of the "trial" for the purposes of s. 650(1) any more than the preliminary discussion of the response to the jury's question was part of the "trial" in Dunbar or in T. (L.W.). However, I need not come to a firm conclusion about whether this case comes within the "preliminary discussion" exception of Dunbar because I regard it as a case for the application of the proviso in s. 686(1)(b)(iv). My reasons are several.
[127] First, the proposal to conduct the pre-charge conference in controversy here originated with counsel for the appellant at trial. At first, the trial judge demurred. While it was for the trial judge to decide where the discussions would take place, the immediate response of trial counsel for the appellant "to chambers" can scarcely be ignored when considering the applicability of the proviso.
[128] Second, as what took place before and after the chambers interlude reveal, what occurred there was preliminary to the discussions of substance that took place later after drafts of the proposed instructions had been circulated to counsel.
[129] Third, according to his affidavit, trial counsel for the appellant specifically disclosed to the appellant the substance of the chambers discussions and "would have summarized" the anticipated legal instructions on the fault elements of murder and manslaughter.
[130] Fourth, any discussion that occurred in chambers did not result in any determination about the substance of final instructions. Those discussions occurred later, in court, in the presence of the appellant after circulation of draft instructions to counsel.
[131] Fifth, the record belies any suggestion that what occurred in chambers exerted any influence on any tactical or [page367] other decision made by the defence in its conduct of the case. Nothing said or done altered the evidentiary landscape of the trial or the manner in which the balance of the case unfolded.
[132] The exclusion of the appellant from the brief pre- charge discussion held outside the courtroom was inadvertent, heedless of the requirements of s. 650(1) of the Criminal Code. None of the participants seems to have considered that in-chambers discussions about the subjects to be included in final instructions affect an accused's "vital interests" in the proceedings, thus may engage s. 650(1) under Hertrich and later authorities.
[133] Pre-charge conferences to discuss the contents of final instructions in a jury case have been the practice in this province for several decades. Prior to the enactment of s. 650.1 of the Criminal Code, which was proclaimed in force on June 16, 1997, the authority to conduct these conferences was an incident of the common law authority to manage the conduct of a trial. In my experience, both before and after the proclamation of s. 650.1 of the Criminal Code, pre-charge conferences in the superior court of criminal jurisdiction have been and are held in open court, in the absence of the jury, but in the presence of the accused and on the record.
[134] Affirmation of the appellant's conviction in this case ought not to be taken as approval of the practice of conducting preliminary parts of pre-charge conferences in chambers. Nothing could depart further from reality.
[135] The pre-charge conference affects the vital interests of an accused. Under s. 650.1 of the Criminal Code, these conferences are to discuss "the matters that should be explained to the jury and with respect to the choice of instructions to the jury". The elements of the offence. The modes of participation. Available defences, justifications and excuses. These subjects are of vital concern to an accused. That these conferences are part of the "trial" for the purposes of s. 650(1) of the Criminal Code, at least to the extent that they go beyond some preliminary matters, seems inescapable.
[136] Section 650.1 says nothing about the manner in which the pre-charge conference is to be conducted or its location. And it does say "confer with the accused or counsel for the accused". But, s. 650(1) remains and the references to "the accused or counsel for the accused" may well have been inserted to ensure that these conferences are also conducted in cases where the accused is self-represented.
[137] In this case, the trial judge faxed drafts of his proposed instructions to counsel for their review. I see nothing wrong with this or other electronic methods of getting draft instructions into [page368] the hands of counsel at various times during the trial. But electronic exchange of submissions in response to the drafts may be problematic for the same reasons that the in-chambers pre-charge conference nearly invalidated the appellant's conviction. The courtroom is the place for discussion. On the record. In the presence of the accused. Conclusion
[138] For these reasons, I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: The decision tree was not filed as a lettered exhibit, thus is not available for our review.