CITATION: R. v. Roks, 2011 ONCA 526
DATE: 20110720
DOCKET: C48418
COURT OF APPEAL FOR ONTARIO
Feldman, Rouleau and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Adrian Roks
Appellant
P. Andras Schreck and Candice Suter, for the appellant Roks
John Pearson, for the respondent
Heard: January 19, 2011
On appeal from convictions of conspiracy to commit arson and second degree murder entered by Justice Gloria J. Epstein of the Superior Court of Justice, sitting without a jury on June 11, 2007, and from the sentence imposed by Justice Epstein on November 27, 2007, on the conviction of conspiracy to commit arson.
Watt J.A.:
[1] Things don’t always work out according to plan. Failures occur at different times and for different reasons. Sometimes, the flaw is in the plan. At other times, the execution is faulty.
[2] The plan in this case involved arson, fraud and use of the proceeds of crime. The scheme was simple enough. Burn down a building after removing anything of value from it. Submit a claim to recover the proceeds of a policy of fire insurance on the building and its contents. And use the proceeds of the insurance claim to pay those involved in the plan and its execution, and to finance a new building on the same site.
[3] The plan failed here when the execution began. The arsonists were too generous in their distribution of the accelerant, gasoline, inside the building. The volatile mixture exploded. An inferno followed. One arsonist, the principal, died. Another was severely injured and will carry the scars of his involvement for the rest of his life.
[4] A lengthy police investigation resulted in the arrest and prosecution of several alleged to have participated in some way or other in the scheme. The charges varied. Some pleaded guilty, then testified for the Crown in the prosecution of others. One, John Magno, has yet to be tried.
[5] Adrian Roks was tried for what the prosecutor alleged was a critical role in the scheme. A judge of the Superior Court of Justice, sitting without a jury, found Roks guilty of conspiracy to commit arson, arson[^1] and second degree murder.
[6] Roks appeals his convictions and the sentence imposed on him on the count of conspiracy to commit arson. Roks says that the conviction of murder is unreasonable and that both convictions are flawed because the trial judge made improper use of some evidence and wrongly admitted other evidence. He argues that the sentence imposed on the conviction of conspiracy to commit arson is erroneous in principle and outside the appropriate range of sentence for the offence.
[7] The reasons that follow explain why I would dismiss the appeal from the conviction of second degree murder and substitute a conviction for manslaughter. I would also dismiss the appeal from conviction of conspiracy to commit arson, but allow the appeal from sentence and reduce the sentence to a term of six years to be served concurrently with the sentence for manslaughter.
A. THE BACKGROUND FACTS
[8] Several participants in the scheme alleged by the prosecutor testified at trial. The appellant did not dispute that he knew about the conspiracy alleged by the prosecutor, but denied that he participated in it. He did not support his denial with his own testimony.
[9] A vignette of several principals provides a suitable beginning for an outline of the circumstances that gave rise to the appellant’s convictions.
1. The Principals and Places
[10] John Magno and his brothers, Frank and Carlo, owned two businesses that sold hardware and building supplies: Woodbine Building Supply (Woodbine) and Sunrise Landscaping (Sunrise).
[11] Woodbine operated out of a single storey building on Danforth Avenue near its intersection with Woodbine Avenue. Customers could purchase hardware and building supplies on the main floor or in the basement. The store was surrounded by houses and other commercial buildings.
[12] The appellant operated a tanning salon, Even Tan, where several of the principals gathered from time to time.
[13] Shaun McMaster met the appellant at Even Tan in June, 2000. McMaster’s role in the scheme was to supply a van, to help to move merchandise from Woodbine to Sunrise, and to act as a lookout on Christmas Eve, 2001, when the fire was to be set at Woodbine. McMaster was outside Woodbine when the explosion and fire occurred.
[14] On January 3, 2008, about seven months after the appellant had been convicted, McMaster pleaded guilty to and was convicted of manslaughter.
[15] Jason Regaldo, a good friend of both McMaster and Tony Jarcevic, met the appellant at Even Tan. Regaldo learned of the plan to set fire to Woodbine in November, 2001. His role was to remove inventory from Woodbine and store it in his garage. Regaldo also agreed to remain outside Woodbine while Jarcevic and Paskalis set the fire, but he changed his mind and left before the explosion and fire occurred.
[16] On July 24, 2004, Regaldo, who had a prior conviction for armed robbery, pleaded guilty to conspiracy to commit arson.
[17] Sam Paskalis, a dedicated recidivist whose catalogue of convictions is dominated by crimes of dishonesty and offences against the administration of justice, met the appellant in early 2000. They became fast friends and, along with Magno, participated in a dizzying array of fraudulent schemes.
[18] Paskalis’ role in the scheme was to ensure that the Woodbine inventory had been cleaned out before the fire and that the fire destroyed the building. Along with Jarcevic, Paskalis was to set the fire, advise Magno of the fire’s progress and provide Magno with an alibi for the time of the fire.
[19] On February 3, 2005, Paskalis pleaded guilty to manslaughter and arson with intent to commit fraud.
[20] Tony Jarcevic was recruited to set the fire at Woodbine along with Paskalis. Jarcevic had training in “fire suppression”. In preparation, the windows at Woodbine were covered with tar paper, the sprinkler and alarm systems disconnected. Gasoline was used as the accelerant and spread throughout the basement of the premises.
[21] Jarcevic died in the explosion and fire. Investigators found his body in the rubble of the basement on January 9, 2002.
2. The Plan
[22] In general terms, the plan involved removal of the inventory from Woodbine and its transfer to Sunrise or Regaldo’s garage, and a fire set on Christmas Eve, 2001, when fewer people were on neighbouring streets and emergency response would be slower. After the fire, Magno would submit an insurance claim for the loss of the building and its contents and use the funds received to pay off the other participants and to develop the property.
[23] The trial judge found that the plan involved the total destruction of Woodbine by fire. The evidence about the extent of the destruction to be caused was conflicting.
[24] According to Paskalis, he, the appellant and Magno were involved in the initial discussions about “blowing up” Woodbine. After several meetings with Magno, the selection of the arsonist was left to others, including the appellant, who chose Jarcevic because of his training in “fire suppression”. The execution of the arson phase of the plan was left to Jarcevic and Paskalis. The inventory at Woodbine was to be moved out to Sunrise or Regaldo’s place before the fire was set.
[25] According to McMaster, Jarcevic told him that the fire was to cause smoke damage to the beams at Woodbine, but not consume the entire building or cause an explosion. Jarcevic never mentioned any plan to “blow up” or “destroy” the building.
[26] The fire was to be set on Christmas Eve, 2001. The neigbouring residents would be at church. Police divisions and the fire department would have fewer members on duty, thus their response time to the alarm would be slower. As Jarcevic explained to McMaster, the risk of injury to passersby would be lessened on Christmas Eve.
[27] The plan also included compensation to participants in the scheme. The nature and amount of compensation varied but included cash, a partnership in an Oshawa nightclub to be purchased with the insurance proceeds, and units (at cost) in a condominium that was to be built on the Woodbine site after the fire.
[28] Magno denied the plan about which the others testified. The trial judge did not believe Magno’s evidence.
3. The Preliminaries
[29] On December 24, 2001, the removal of the Woodbine inventory to Sunrise and Regaldo’s garage was completed. Paskalis and Jarcevic disconnected the sprinkler and alarm systems while two Woodbine employees put tar paper over the windows.
[30] Magno went to his father’s house on Christmas Eve where several relatives and friends had gathered. The appellant, who was to provide an alibi for Magno, arrived around 9:00 p.m. after the final load of inventory had been removed from Woodbine.
4. The Fire
[31] Around midnight Jarcevic began to pour gasoline in the basement at Woodbine. At around 12:15 or 12:30 a.m. on December 25, 2001, Jarcevic spoke to McMaster who was waiting in a van parked outside Woodbine. Paskalis went downstairs into the basement to check on Jarcevic’s progress with the gasoline. He noticed a blue flame appear in the boiler room. An explosion followed. Paskalis suffered very serious burns. He was hospitalized for several months, much of it in a medically-induced coma.
[32] The fire at Woodbine was one of the largest in Toronto’s history. The explosion shook several nearby residences. The area around Woodbine was enshrouded in dense smoke. Debris cluttered the north side of Danforth Avenue. Heat from the fire bent and sagged the I-beams in the store. The north end of the building suffered only minor smoke and fire damage, but otherwise remained intact.
5. The Aftermath
[33] Paskalis fled from the conflagration to a neighbour’s house. The neighbour called 911. McMaster, who was outside keeping watch, repeatedly called Jarcevic’s cell phone, but got no response. McMaster then called the appellant, told him that the building had just blown up and he (McMaster) did not know where Jarcevic and Paskalis were. McMaster then called Regaldo to tell him what had happened.
[34] Shortly before 1:00 a.m. on December 25, 2001, a friend called Magno to tell him about the fire. Magno and his brothers drove to Woodbine and spoke to the police who told them that Paskalis had been injured.
[35] A day or two after the fire, Regaldo spoke to the appellant at Even Tan about the Woodbine inventory stored in his garage. He asked the appellant to contact Magno to do something about the stored property. The appellant told Regaldo to deal with the property himself because Magno was concerned about his associations during the police investigation that had already started.
[36] A thorough search of the fire debris yielded Jarcevic’s body on January 9, 2002. No items of commercial value were found in the rubble.
[37] About four months after the fire, Magno made a claim on his insurance policy for loss of the building and its contents. The claim was for about $3 million.
6. The Police Investigation
[38] The police investigation included authorized interception of private communications and repeated interviews of several of the alleged participants. At different times and in different circumstances, those who testified as prosecution witnesses at trial implicated the appellant in the plan alleged by the prosecutor.
[39] The first to implicate the appellant was Regaldo, about one year after the fire. Regaldo had given several admittedly untruthful accounts to investigators before he appeared for a bail hearing after his arrest. He was upset at the appellant for lying at the preliminary inquiry. Regaldo was lodged in the holding cells at the courthouse when he first implicated the appellant in the Woodbine fire.
[40] Paskalis implicated the appellant briefly on August 8, 2002, and in a more detailed way, about 10 months later, on June 5, 2003.
[41] While McMaster and Paskalis were in pre-trial custody in 2003, they decided that if the appellant did not tell the truth when interviewed, they would implicate him. The appellant implicated McMaster in a statement in June, 2003. McMaster implicated the appellant on February 17, 2005, while in but anxious to be released from custody. McMaster thought that the appellant, not he, should be in jail for what had occurred.
[42] The appellant was arrested on November 22, 2004.
B. THE POSITIONS OF THE PARTIES AT TRIAL
[43] At trial, the prosecutor contended that the appellant was a principal in the conspiracy to burn Woodbine so that Magno could receive the proceeds of the fire insurance claim on the building and its contents. The appellant’s reward was to be a share in an Oshawa nightclub to be purchased with the insurance proceeds, and a condominium unit to be constructed on the site of the destroyed Woodbine building.
[44] The prosecutor argued that the appellant’s role involved planning the arson, recruiting the fire-setters, Jarcevic and Paskalis, and providing an alibi for Magno for the evening of the fire.
[45] To establish the appellant’s liability for murder under s. 229(c), the prosecutor submitted that for the unlawful object of defrauding Magno’s insurers, the appellant was a party to setting fire to Woodbine, an act that the appellant knew would likely cause someone’s death and did cause Jarcevic’s death.
[46] The appellant’s position at trial involved a wholesale attack on the credibility of the prosecution’s witnesses and the reliability of their evidence that implicated him.
[47] At trial, counsel for the appellant (not Mr. Schreck) acknowledged that the evidence established a conspiracy to set fire to Woodbine in order to collect the proceeds of a fire insurance policy Magno held on the building and its contents. The appellant was aware of the conspiracy and knew the conspirators, but was not a participant in it nor a party to it.
[48] The appellant also denied having anything to do with the arson. He did not recruit anyone nor otherwise participate in setting the fire.
[49] The appellant took issue at trial with the prosecutor’s reliance on s. 229(c) to establish his guilt for murder. The appellant said that s. 229(c) could not be used to establish murder where the death caused was of one of the principals in the pursuit of the unlawful object. Further, according to the appellant, even if s. 229(c) could apply to the death of a participant, the appellant was not culpable. He had no connection to the unlawful object, did not participate in the dangerous act that caused death, and did not foresee anyone’s death as a probable consequence of carrying out the unlawful object.
C. THE GROUNDS OF APPEAL
[50] For the appellant, Mr. Schreck raises three grounds of appeal against conviction:
i. that the trial judge erred in law in her self-instruction about the requirement of independence and materiality for evidence to be confirmatory of the testimony of a Vetrovec witness;
ii. that the trial judge erred in admitting evidence of other discreditable conduct of the appellant and in relying on that evidence as confirmatory of the testimony of the Vetrovec witnesses and in rebuttal of any claim of innocent association; and
iii. that the conviction of second degree murder is unreasonable in the absence of any evidence of subjective foresight of the likelihood of death.
[51] On the appeal from sentence on the conviction of conspiracy to commit arson, Mr. Schreck makes three points:
i. the trial judge erred in principle in considering, as an aggravating factor, the meeting among the principals to hire “some muscle” to help Magno collect some outstanding accounts;
ii. the sentence imposed offends the parity principle when the sentences imposed on other participants are taken into account; and
iii. the sentence exceeds the range of sentence appropriate for the appellant and the offence of which he was convicted.
D. THE APPEAL FROM CONVICTION
Ground #1: The Alleged Vetrovec Error
[52] The first ground of appeal claims error in the trial judge’s self-instruction about the essential characteristics of confirmatory evidence for witnesses whose testimony is subject to a Vetrovec caution.
1. The Background
[53] The trial judge considered that the evidence of three witnesses, Paskalis, McMaster and Regaldo, warranted a Vetrovec caution. Each was a participant in the conspiracy and arson. The evidence of each was central to the prosecution’s case against the appellant. Each had provided untruthful statements to the police. Each was motivated by self-interest.
2. The Reasons of the Trial Judge
[54] Early in her reasons, the trial judge described her understanding of the essential characteristics of confirmatory evidence. She pointed out that to be confirmatory of the testimony of a Vetrovec witness, evidence must strengthen the belief of the trier of fact that the Vetrovec witness was telling the truth, but need not fit into some specific category.
[55] The trial judge described the requirements of independence and implicative quality (materiality) in these terms:
[31] To qualify as confirmatory, the evidence need not be more consistent with the truth (as opposed to the falsity) of the suspect witness’s evidence. Confirmatory evidence does not have to emanate independently of the suspect witness, nor does it have to point to the defendant’s guilt. Evidence does not lose its confirmatory quality just because the defendant has accepted and offered an explanation for the evidence. See: R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.), at paras. 12-16.
[32] Gagnon and Vetrovec further establish that a number of circumstances viewed collectively can constitute confirmatory evidence even if they would not do so individually.
[33] Significant in this case is the fact that supporting evidence can come from another untrustworthy witness, if the duly cautioned trier of fact chooses to believe it. See: R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 115.
[34] Evidence that the defendant has otherwise engaged in the same type of offence as that which is before the court can also corroborate the witness’s assertion that he committed the offence on the occasion in question.
[35] Gagnon also establishes that where the suspect witness inculpates two people, evidence corroborating his one inculpatory account will constitute corroboration of both. Using this case as an example, where a witness such as Paskalis inculpates both Roks and McMaster, all of the other evidence inculpating McMaster (including his own testimony), corroborates Paskalis’ testimony against Roks.
3. The Arguments on Appeal
[56] For the appellant, Mr. Schreck says that the trial judge was wrong in her understanding of the essential characteristics of confirmatory evidence. To be confirmatory of a Vetrovec witness, evidence must have about it two essential features: independence and implicative quality (materiality).
[57] According to Mr. Schreck, to satisfy the requirement of independence, evidence must originate in a source other than the suspect witness or other witnesses with whom the suspect witness has colluded. To meet the demand for implicative quality, the evidence must tend to show that the suspect witness is telling the truth about the guilt of the person charged, not about some ancillary or subsidiary issue of no moment to the proof of guilt.
[58] Mr. Schreck submits that the trial judge’s faulty understanding of the essential characteristics of confirmatory evidence led her into error when she relied upon the mutually confirmatory testimony of other suspect witnesses and on evidence that was not independent as confirmatory.
[59] For the respondent, Mr. Pearson says that, even though the trial judge did not have the benefit of the reasons in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, her description of the essential characteristics of confirmatory evidence is consistent with the Khela requirements of independence and implicative quality.
[60] Mr. Pearson contends that in her application of the principles governing confirmatory evidence, the trial judge made it clear that the evidence must originate in a source untainted by its connection to the suspect witness. The trial judge found expressly that the Vetrovec witnesses had not colluded to falsely implicate the appellant, thus the evidence of one could confirm the testimony of another.
[61] In a similar way, Mr. Pearson submits, the trial judge ensured that the confirmatory evidence upon which she relied, in the context of the case as a whole, provided comfort for her conclusion that the suspect witnesses’ evidence that the appellant was a party to the offences charged could be trusted.
4. The Governing Principles
[62] The principal complaint in this case has to do with the essential characteristics of confirmatory evidence and the capacity of the testimony of one witness, whose evidence is subject to a Vetrovec caution, to confirm the testimony of another witness, whose evidence is subject to the same caution.
[63] Among the essential elements of a Vetrovec caution is an instruction about the essential characteristics of confirmatory evidence. Jurors are to be told that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused: Khela, at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19; R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 82, leave to appeal refused, [2005] 1 S.C.R. xv. The trier of fact is to look for confirmation from some other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to show that the accused committed the offence charged (the implicative quality or materiality requirement): Kehler, at para. 19; R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 829.
[64] The independence requirement insists that to be confirmatory, evidence must not be “tainted” by connection to the Vetrovec witness: Khela, at para. 39.
[65] To satisfy the materiality requirement, confirmatory evidence need not implicate the accused: Khela, at paras. 40-41; Kehler, at para. 16. The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed the offence: Khela, at para. 42; Vetrovec, at p. 833. Where the only issue in dispute is whether the accused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on the basis of the Vetrovec witness’ evidence: Khela, at para. 43.
[66] It is worth reminder that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth: Khela, at para. 37; Kehler, at para. 22; Sauvé, at para. 82.
[67] Despite the bar against mutual corroboration by those who were participes criminis under the former accomplice rule, there may not be a similar injunction against mutual confirmation by Vetrovec witnesses, at least in the absence of a finding of collaboration or collusion among them: R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 120; R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 161; R. v. Naicker (2007), 2007 BCCA 608, 229 C.C.C. (3d) 187 (B.C. C.A.), at para. 34; R. v. Illes (2007), 2007 BCCA 125, 217 C.C.C. (3d) 529 (B.C. C.A.), at paras. 30-31, reversed on other grounds, 2008 SCC 57, [2008] 3 S.C.R. 134.
5. The Principles Applied
[68] I would not give effect to this ground of appeal despite the trial judge’s misstatement of the independence requirement for confirmatory evidence. My reasons follow.
[69] Setting to one side for the moment the adequacy of the prosecutor’s proof of the fault element in murder under s. 229(c), the contested ground here had to do with the appellant’s participation in the scheme to burn down Woodbine and collect the proceeds of the fire insurance policy on the building and its contents. The appellant admitted that there was a conspiracy and that he knew about it. The position he advanced at trial, unsupported by his own evidence, was that he did not participate in the conspiracy nor help or encourage its principals.
[70] The appellant asserts no claim of error in the trial judge’s self-instruction about the danger of deciding the case on the unconfirmed testimony of the Vetrovec witnesses. The appellant’s complaint is about the trial judge’s incorrect understanding and application of the independence component of confirmatory evidence and her reliance on the testimony of other Vetrovec witnesses as confirmatory.
[71] Each Vetrovec witness gave direct evidence of the appellant’s participation in the conspiracy. The trial judge found their evidence on this issue at once, truthful and compelling. It is a reasonable inference, in light of her reasons as a whole, that her conclusion about the appellant’s participation did not depend on the fact that the evidence of the Vetrovec witnesses was confirmed.
[72] Second, the trial judge rejected the defence position that the Vetrovec witnesses had put their heads together to falsely implicate the appellant in the overall scheme. From this foundation, the trial judge was entitled to find mutual confirmation in the evidence of the Vetrovec witnesses. Of this, there was an abundance.
[73] And finally, the trial judge grounded her finding of the appellant’s complicity on the cumulative effect of all the evidence, including the evidence of intercepted private communications to which the appellant was a party.
[74] This ground of appeal fails.
Ground #2: Evidence of Extrinsic Discreditable Conduct
[75] The prosecutor proffered and the trial judge admitted evidence of extrinsic misconduct by the appellant. The misconduct was contemporaneous with the conspiracy alleged in the indictment and involved the same principals. The main source of the evidence was the prosecution’s chief witness, the arsonist Paskalis. A brief summary of the evidence is necessary to set up the discussion about its admissibility and the use that the trial judge made of it.
1. The Background
[76] According to Paskalis, he and the appellant owned and operated Olympic Cheque Cashing, a company that cashed cheques for fraudulent telemarketers. They also used a Western Union outlet registered to Olympic to find out where large sums of money were coming into Toronto. They “pulled” these amounts.
[77] Counsel for the appellant at trial admitted that the appellant’s fingerprints were found on a Western Union receipt associated with a telemarketing fraud. It was also admitted that the previous owner of the business had facilitated money-laundering through Olympic. Magno purchased the business in November, 2001, and continued its fraudulent course, sharing the profits with Paskalis and the appellant. According to Magno, he purchased the business to provide a bank account for Paskalis who had an abysmal credit history.
[78] Paskalis also used stolen credit card information to buy taxidermy fish. Some of the fish were kept in the dining room and garage of a home the appellant occupied with his former girlfriend and a roommate.
[79] The appellant operated Even Tan. According to Paskalis, he used stolen credit card information taken from Even Tan customers, clients of a strip club or customers of Woodbine to pay for supplies for Even Tan. The appellant admitted his participation to McMaster.
[80] Paskalis also testified about several other fraudulent schemes in which he and the appellant were involved, including the sale of encoded satellite cards, ordering supplies for Olympic in the names of phoney customers, and the disposal of counterfeit money.
2. The Use of the Evidence
[81] The trial judge admitted the evidence of extrinsic misconduct to confirm the testimony of the Vetrovec witnesses and to rebut the claim of innocent association advanced on the appellant’s behalf.
3. The Positions of the Parties
[82] For the appellant, Mr. Schreck contends that the evidence of extrinsic misconduct should not have been admitted. It was evidence of general propensity. Any similarities to the scheme alleged in the destruction of Woodbine by fire to collect the insurance proceeds were generic only.
[83] Mr. Schreck says that even if the evidence were properly admitted, it cannot be summoned to confirm the evidence of the Vetrovec witnesses, especially Paskalis, since he was the source of it. The fundamental requirement of independence is not satisfied.
[84] For the respondent, Mr. Pearson sees it differently. The trial judge got it right. First, in admitting the evidence. And second, in her use of it. The trial judge recognized that this evidence was propensity evidence, but concluded that its probative value predominated over its prejudicial effect. Her finding on where the balance fell between probative value and prejudicial effect is entitled to deference.
[85] Further, Mr. Pearson says, the trial judge confined the use of the evidence to what the law permits and did not stray into any impermissible chain of reasoning.
4. The Governing Principles
[86] The parties share common ground about the governing principles, but differ about the conclusion that their application mandates in this case.
[87] As a general rule, evidence of the general disposition of an accused is not admissible. The reason is simple. Proof of general disposition is a prohibited purpose. It is no crime to be of bad character. The guilt of an accused is to be proven, if at all, by evidence of what the accused did, not by evidence of the kind of person the accused is: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 72. To say the same thing in another way, we do not permit the prosecutor to adduce, much less to rely upon, evidence of an accused’s character as circumstantial evidence of guilt.
[88] Discreditable disposition or character evidence, at large, creates nothing beyond “moral prejudice”. The prosecution is not entitled to lighten its load by labelling the accused as a bad person: Handy, at para. 72.
[89] On the other hand, we do not exclude evidence that is relevant just because it tends to show an accused is of bad disposition, but only if it shows nothing more: Handy, at para. 71; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at p. 731. To be admitted, the probative value of the evidence must predominate over its prejudicial effect: Handy, at para. 71; B. (F.F.), at p. 731.
[90] To determine the admissibility of evidence that incidentally shows the accused to be a person of bad character requires an identification of the issue to which the evidence is relevant. Probative value does not exist, nor can it be assessed, in the abstract, rather has to do with the ability of the evidence to advance or refute a live issue ripe for determination by the trier of fact: Handy, at paras. 69 and 73.
[91] There is no exhaustive or expansive list of issues to which evidence that incidentally shows an accused’s disposition may be relevant. Each case is different. Sometimes, the evidence may be relevant to rebut an accused’s denial of an essential element of an offence. Thus, evidence of prior discreditable conduct may rebut a claim advanced by an accused that his association with others involved in the commission of an offence was innocent, rather than culpable: Handy, at para. 72.
[92] But relevance to a material issue is not enough for evidence that incidentally portrays the accused as a person of bad disposition to gain entry. The probative value of the evidence on that material issue must overcome the moral and reasoning prejudice inherent in the evidence.
[93] The nature of the admissibility rule, which governs the admissibility of similar acts and other extrinsic misconduct and requires the balancing of probative value and prejudicial effect, bespeaks an attitude of considerable deference by appellate courts to the decisions of trial judges: R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 733-734; R. v. Kinkead (2003), 2003 CanLII 52177 (ON CA), 178 C.C.C. (3d) 534 (Ont. C.A.), at para. 86.
[94] Appellate review of a trial judge’s assessment of the balance between probative value and prejudicial effect should also take into account the nature of the trial forum. Where the trial was before a judge sitting alone, the risk of improper use of evidence of extrinsic misconduct is significantly reduced: R. v. W. (L.) (2004), 2004 CanLII 33349 (ON CA), 191 O.A.C. 22, at para. 9. Further, when the reasons of a trial judge expressly deny or foreclose any improper use of the evidence, we ought to take the trial judge at his or her word and not rummage about the record to test the veracity of his or her disclaimer: R. v. O’Brien, 2011 SCC 29, at para. 16.
5. The Principles Applied
[95] I would not accede to this complaint of judicial error.
[96] The extrinsic misconduct in this case disclosed the appellant’s involvement in other fraudulent schemes. The schemes were contemporaneous with the scheme to burn down Woodbine and collect the proceeds of the fire insurance policy on the building and its contents. The principals in the other schemes were common to the Woodbine scheme.
[97] The prosecutor tendered this evidence of extrinsic misconduct to shore up the credibility of the Vetrovec witnesses and to rebut the claim of the appellant that his association with the principals in the Woodbine scheme was innocent, not culpable. It was on this basis that the trial judge admitted the evidence.
[98] The evidence of extrinsic misconduct admitted in this case demonstrated that the principals in the Woodbine scheme had also been associated in other contemporaneous fraudulent enterprises. The evidence tended to show the closeness of their association and that it was criminal in its nature, not innocent. This evidence tended to rebut the position advanced by the appellant at trial that he knew about, but did not participate in the Woodbine conspiracy.
[99] The use of the evidence of extrinsic misconduct to support the credibility of the Vetrovec witnesses is more problematic. Paskalis’ evidence about extrinsic misconduct could not be confirmatory of his credibility about the Woodbine conspiracy because it lacked the essential characteristic of independence. We must also be cautious about defining the issue on which the evidence of extrinsic misconduct bears too broadly, such as “credibility”, lest we dilute the standard required for admission: Handy, at para. 115.
[100] I would not interfere with the trial judge’s decision about the admissibility of the evidence of extrinsic misconduct. It was rightly admitted to rebut the claim of innocent association. Even if she were wrong to have used this evidence to support the credibility of the Vetrovec witnesses, I would not give effect to the appellant’s complaint because the trial judge did not engage in any prohibited chain of reasoning and was satisfied that the Vetrovec witnesses were speaking the truth when they implicated the appellant.
Ground #3: The Unreasonableness of the Conviction of Murder
[101] The principal ground of appeal relates exclusively to the conviction of murder. Pared to its core, the complaint is that the trial judge’s finding that the prosecutor had established the fault element in murder as defined in s. 229(c) of the Criminal Code beyond a reasonable doubt is unreasonable and not supported by the evidence adduced at trial.
[102] Some reminders about the evidence relevant to this issue are essential to locate this ground of appeal in its proper setting.
1. The Additional Background
[103] No one gave direct evidence about the nature or extent of the appellant’s foresight of the likely consequences for the lives of others of the fire set at Woodbine on Christmas Eve in 2001. The appellant did not testify nor make any admissions to others about this subject.
[104] In the late evening of Christmas Eve, 2001, Tony Jarcevic, a person with some training in “fire suppression”, spread gasoline around the basement of Woodbine, a single storey unoccupied commercial premises that had been purged of its inventory. Paskalis was with him. Jarcevic had been chosen for his task because of his specialized training. The windows in the store had been covered with tar paper and the fire alarm and sprinkler systems had been disconnected before Jarcevic began spreading gasoline around in the basement.
[105] The participants selected Christmas Eve as the opportune time to set the fire at Woodbine. Streets in the neighbourhood would be deserted. Emergency services, especially the fire department, would not be fully staffed. Response time would be delayed.
[106] The evidence was conflicting about the nature and extent of the damage that was to be done to Woodbine by the fire. Regaldo characterized it as smoke and water damage involving burning the beams in the building. Paskalis claimed that the plan involved total destruction, although his account had not always been consistent on this issue. The execution of the plan was left to the arsonists, Jarcevic and Paskalis.
[107] The area around Woodbine includes both commercial buildings and homes. The residences closest to Woodbine are about 100 to 150 feet away.
[108] According to the evidence of the other participants in the scheme, Magno’s plan was to submit an insurance claim for destruction of the building and its contents.
2. The Findings of the Trial Judge
[109] In her reasons for judgment on the murder count, the trial judge considered two issues. The first involved the actus reus, the second, the mens rea or fault element.
[110] The trial judge held that s. 229(c) could apply where the victim of the unlawful homicide was a participant in the dangerous act. Her decision on that issue is not challenged on appeal.
[111] The trial judge concluded that the foresight requirement in s. 229(c) did not oblige the prosecutor to foresee with precision the death actually caused. During the course of her reasons, the trial judge described the fault element on several occasions as foresight of the likelihood of “harm or death”.
[112] In concluding that the prosecutor had proven the fault element in s. 229(c) beyond a reasonable doubt, the trial judge relied upon the following evidence and inferences:
i. an inference from the precautions taken in setting the fire that the conspirators were aware that someone’s death was a likely consequence of their conduct;
ii. an inference that causing someone harm or death is a likely consequence of spreading accelerants in and setting fire to a building;
iii. the location of the premises near a main intersection and close to several residences;
iv. the extent of the fire caused; and
v. the plan to destroy the building and its contents to recoup the maximum return under the fire insurance policy.
3. The Positions of the Parties
[113] For the appellant, Mr. Schreck says that the cumulative effect of the evidence does not reasonably support the inference that the appellant, who neither set the fire nor was aware of the precise details of it, foresaw the likelihood that anyone would die as a result.
[114] Mr. Schreck contends that, in the absence of any direct evidence that the appellant foresaw that someone would likely die in or from the fire, the available circumstantial evidence must support such a finding as the only rational inference available on the evidence as a whole. The cumulative effect of the evidence, Mr. Schreck submits, is simply not up to the task.
[115] Mr. Schreck acknowledges that if the likelihood of death was reasonably foreseeable from setting the fire, it was open to the trier of fact to find that the appellant foresaw the likelihood that somebody would die from or in the fire. But, he says, the evidence cannot support an inference of objective foresight of the likelihood of death, thus cannot be invoked as evidence to fund a finding of subjective foresight on the appellant’s part.
[116] Mr. Schreck points out that the fire was not to be a large fire. The conspirators took precautions, leaving the execution of their plan to a person with specialized training. The appellant did not know any details about the use or amount of accelerant. The time selected minimized the risk to passersby and emergency workers. Foresight of the possibility or danger of death falls short of what is required.
[117] On the other hand, Mr. Pearson says that the verdict is not unreasonable, rather fully supported by the evidence adduced at trial.
[118] Mr. Pearson reminds at the outset that it is the cumulative effect of the evidence as a whole that must be measured against the standard of proof required of the prosecutor. The plan in this case involved the total destruction of a commercial premises by fire. The building was located in an area that included houses, at a time when many residents could reasonably be expected to be home. To ensure that the destruction was complete, accelerants were used and expert help recruited. Precautions were taken to ensure a delayed response by emergency workers.
[119] In the end, Mr. Pearson concludes, the determination made by the trial judge was one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. And that is all that is required to put paid to a complaint of unreasonable verdict.
4. The Governing Principles
Unreasonable Verdict
[120] When a verdict or a finding of guilt is challenged as unreasonable or unsupported by the evidence, an appeal court must determine whether the verdict or finding of guilt is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; and R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at p. 282. The test includes both objective and subjective assessments of the evidence adduced at trial. The appeal court must determine what verdict a reasonable trier of fact, properly instructed, could reasonably have rendered. In carrying out its mandate, the appeal court must review, analyze and, within the limits of appellate disadvantage, weigh the evidence. We must examine the weight of the evidence, not its bare sufficiency: Biniaris, at para. 36.
[121] Where the review for unreasonableness is a finding of guilt entered at the end of a trial by a judge sitting without a jury, the reviewing appeal court may be able to identify a flaw in the evaluation of the evidence or in the analysis, which would serve to explain the unreasonable conclusion reached, and justify its reversal: Biniaris, at para. 37. See also, R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at paras. 5-7.
[122] Under s. 686(1)(a)(i), an appeal court is entitled to review the evidence adduced at trial, to re-examine that evidence and to reweigh it, but only for the purpose of determining whether the evidence, as a whole, is reasonably capable of supporting the trial judge’s conclusion: R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663. We must bring to bear on the exercise of evidentiary review, re-examination and reweighing, our assessment, informed by judicial training and experience, not simply our own personal experience and insight: Biniaris, at para. 42. That we or any of us would have had a reasonable doubt about the appellant’s foresight of the likelihood that someone would die as a result of the set fire does not, standing alone, justify the conclusion that the finding of guilt of murder was unreasonable: R. v. G. (A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 29.
[123] In our assessment of the alleged unreasonableness of the finding of guilt in this case, we should remember that proof and determination of the intent or foresight when one person unlawfully kills another is often a difficult element for the prosecutor to prove and the trier of fact to determine: Biniaris, at para. 51. To succeed on this complaint that the finding of subjective foresight of the likelihood of death from the fire was unreasonable, the appellant must show that no properly instructed trier of fact, acting judicially, could reasonably have concluded that the appellant foresaw that someone would likely die from the fire at Woodbine: R. v. Arias-Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2.
Unlawful Object Murder under s. 229(c)
[124] To establish the appellant’s liability for murder in the death of Jarcevic, the prosecutor relied exclusively on the definition of murder in s. 229(c) of the Criminal Code. Under that definition, culpable homicide is murder:
(c) where a person, for an unlawful object, does anything that he knows or ought to know[^2] is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
[125] The essential elements of murder, as s. 229(c) defines it, may be summarized as:
i. an unlawful object (“for an unlawful object”);
ii. a dangerous act (“does anything that he knows is likely to cause death and thereby causes death to a human being”); and
iii. knowledge or foresight (“that he knows is likely to cause death”).
Each essential element warrants separate treatment.
[126] In s. 229(c), the “unlawful object” is the purpose or goal the accused pursues, the end that the accused seeks to achieve by his or her conduct: R. v. Shand (2011), 2011 ONCA 5, 104 O.R. (3d) 491 (C.A.), at para. 128. The unlawful object must be conduct which, if prosecuted fully by the accused, would amount to a serious crime, that is, an indictable offence requiring mens rea: Shand, at para. 127; R. v. Vasil, 1981 CanLII 46 (SCC), [1981] 1 S.C.R. 469, at p. 490. The unlawful object that an accused pursues must be something other than to cause the death of the victim or to cause the victim bodily harm that the accused knows is likely to cause the victim’s death and be reckless whether the victim lives or dies: Shand, at para. 188.
[127] It is critical that the unlawful object be distinct from and not merge with the dangerous act. The unlawful object must be a genuine object, not simply one aspect of the same “general purpose” of causing death or bodily harm likely to cause death: Shand, at para. 141. In addition, the unlawful object in s. 229(c) must be something other than the harm foreseen as a consequence of the conduct that constitutes the dangerous act: Shand, at para. 136.
[128] The “dangerous act” requirement or element in s. 229(c) emerges from the statutory language, “does anything that he knows is likely to cause death and thereby causes death to a human being”.
[129] Under s. 229(c) the dangerous act must be clearly identified and defined. It must be something done in furtherance of the unlawful object. The dangerous act is often, but need not be, an offence in itself: Shand, at para. 145; Vasil, at pp. 482-483.
[130] The dangerous act in s. 229(c) must be a discrete act or a series of closely related acts that results in the death of a human being. A general course of conduct, only loosely connected to the killing, does not satisfy the dangerous act requirement in s. 229(c): Shand, at para. 146. See also, R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 157-158. An expansive approach to the dangerous act requirement is ill-suited to the causation demand in s. 229(c) and sits uncomfortably with the fault element in this definition of murder: Shand, at para. 190.
[131] The mental or fault element in s. 229(c), summarized earlier as foresight or knowledge, is linked to the dangerous act component of the actus reus. The fault or mental element refers to knowledge of the consequences of the dangerous act. Knowledge of a specific consequence: death of a human being. And knowledge of the prospect of the consequence: the likelihood of its occurrence.
[132] The knowledge or foresight to which s. 229(c) refers is the actual or subjective knowledge of the person charged, not the objective or constructive knowledge of a reasonable person in the same circumstances: Shand, at para. 188. An assessment of the actual knowledge of an accused is an intensely fact-specific inquiry that requires and involves a careful analysis of all the circumstances in which the dangerous act occurred. The inquiry focuses on the accused’s knowledge contemporaneous with the dangerous act. Where the dangerous act consists of a series of acts, the knowledge must be concurrent at some point with an act in the series: Shand, at para. 153; Cooper, at p. 158; R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at pp. 1088-1089.
[133] Like any issue of fact, knowledge of a likely consequence of conduct may be proven by direct evidence, by circumstantial evidence, or by the two kinds of evidence in combination. Of evidentiary value in proof of knowledge are prior, concurrent or subsequent words and conduct of the accused.
[134] The extent of the risk of death occurring as a consequence of the dangerous act is defined by the term “likely”. The accused must know that the death of a human being is a likely consequence of the dangerous act. The term “likely” refers to the probability of a consequence. Proof that an accused was aware of the risk, possibility, danger or chance of death as a consequence of a dangerous act is inadequate to establish the mental or fault element in s. 229(c): Shand, at paras. 153 and 209; Cooper, at p. 155.
[135] A determination of the adequacy of the prosecutor’s proof of the foresight or knowledge requirement in s. 229(c) should not engage retrospectant reasoning from the actual consequences of the dangerous act, the death of a human being, to the actual foresight or knowledge of the accused in committing the dangerous act: Shand, at para. 210. In other words, the fact that someone died as a result of the accused’s dangerous act does not mean that the accused knew that the dangerous act was likely to kill someone.
[136] A trier of fact, whether a judge or jury, may infer a state of mind, such as intention, from the doing of an act, or a series of acts. Where the prosecutor proves that an accused did one or several things the natural consequences of which would be a particular result, absent evidence of an explanation, the trier of fact may, but does not have to infer that the accused intended the consequence that occurred. The inference extends only to the natural and probable consequences of the conduct, not to every possible, conceivable or remote consequence. The inference is one of state of mind, drawn from the probable consequences of conduct.
[137] Knowledge and foresight are states of mind. It seems reasonable to conclude that if intention can be inferred from the natural and probable consequences of conduct, by parity of reasoning, so should an inference of knowledge or foresight of those consequences be available. That said, in cases governed by s. 229(c), a trier of fact must be cautious about inferring actual knowledge based entirely or substantially on the common sense inference. To do so risks substituting a constitutionally impermissible mental or fault element for subjective foresight. Further, to do so may compromise the likelihood component in s. 229(c): Shand, at para. 209.
5. The Principles Applied
[138] For the reasons that follow, I am satisfied that the trial judge’s finding that the appellant committed murder was unreasonable and cannot be supported on a consideration of the evidence as a whole. In place of the conviction of murder, I would substitute a conviction of manslaughter.
[139] The unlawful object to which the appellant was a party was a fraud on Magno’s insurers. A claim would be submitted to the insurers seeking compensation under the policy for the loss of the building and its contents, nearly all of which had been removed and stored elsewhere, caused by an unlawful act to which Magno was a party.
[140] The dangerous act in this case, clearly distinct from the unlawful object of defrauding Magno’s insurers, was setting the store premises on fire. Setting the fire was at once a dangerous act, committed intentionally, and one done in furtherance of but distinct from the unlawful object of defrauding Magno’s insurer. The dangerous act was also unlawful.
[141] The deficit in the prosecutor’s proof of murder in this case resides in the failure of the evidence as a whole to ground the conclusion that the appellant knew that the death of a human being would likely occur from setting the fire at Woodbine.
[142] In the absence of any direct evidence on the foresight or knowledge issue, this element could be proven beyond a reasonable doubt only if the only rational inference available from the circumstantial evidence as a whole was that the appellant (actually) knew that setting the fire at Woodbine would likely cause somebody’s death. See, R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.
[143] The trial judge founded her conclusion that the prosecutor had proven the fault or mental element required under s. 229(c) beyond a reasonable doubt on four considerations:
i. the precautions taken in setting the fire by recruiting an arsonist with training in “fire suppression”;
ii. that harm or death is a natural, even a likely consequence, of spreading accelerants in a building and setting them on fire;
iii. the common sense inference of actual knowledge from constructive knowledge of the probable consequences of dangerous conduct; and
iv. the scope of destruction planned, total destruction of the building and its remaining contents.
[144] In my respectful view flaws in the trial judge’s analysis resulted in an unreasonable finding that the evidence established the fault element required for murder under s. 229(c).
[145] To determine whether the appellant’s conviction of murder is unreasonable, some context is essential. The plan was to burn down Woodbine so that Magno could collect the proceeds of a fire insurance policy. The principals in the conspiracy were to share in those proceeds. The appellant was removed from the setting of the fire. He did not set the fire. He was not at Woodbine when the fire was set. He was not told about how the fire would be set. He knew that the fire was to be set at night when people were not around. He knew that someone with “fire suppression” training would set the fire. It is in this context that we must consider the reasonableness of the conclusion that the fault element in s. 229(c) was proven with the necessary certainty.
[146] The trial judge’s description of the fault element in s. 229(c) alternates between correct and incorrect standards. The following passages reflect errors in describing the fault element in s. 229(c):
[242] The Crown must therefore prove three elements to prove guilt of this offence beyond a reasonable doubt: (i) that action was taken for an unlawful object; (ii) there was subjective foresight of death (see the discussion of R. v. Martineau (1990), 1990 CanLII 80 (SCC), 58 C.C.C. (3d) 353 below); (iii) that death is thereby caused.
[263] Under these circumstances, the likelihood of harm or death was clearly foreseeable. Whether the person harmed would be the one to set the fire, a resident of an adjacent building, or a firefighter called to the scene, is irrelevant for the purposes of s. 229(c). As already noted above, Meiler clearly supports the proposition that neither the precise situation nor the specific individual harmed need be foreseeable. It is sufficient to prove subjective foreseeability of harm to anyone. A normal or reasonable person would have foreseen this likelihood of harm.
[264] I am therefore satisfied beyond a reasonable doubt that the mens rea requirements of s. 229(c) are met in this case: Roks knowingly conspired and assisted in the unlawful object of arson for the purpose of insurance fraud; I am also satisfied that he possessed subjective knowledge that harm or death was a likely outcome of the fire. Anthony Jarcevic died as a result of the fire. [Emphasis added.]
Subjective foresight of death is not enough. Subjective foreseeability of harm or the likelihood of harm, or the likelihood of harm or death is not enough. Nor is the stated conclusion “subjective knowledge that harm or death was a likely outcome of the fire”. What is essential is subjective foresight of the likelihood of death.
[147] Second, the reasons of the trial judge appear to proceed backwards from the size of the fire and the fact that Jarcevic died to the conclusion that the appellant must have known that someone would die. This analysis essentially substitutes objective foreseeability for subjective foresight and is constitutionally infirm: Shand, at para. 210.
[148] Third, the trial judge appears to have relied heavily on the “common sense proposition” that “harm or death is a natural and even likely consequence of spreading accelerants in a building then setting fire to them”. While objective foreseeability is often advanced as an item of evidence to prove subjective foresight, care must be taken in doing so under s. 229(c), lest liability be established on a constitutionally impermissible basis. What is more, the reference to the alternatives “harm or death” falls short of what is required under s. 229(c).
[149] For these reasons, I would conclude that the conviction of murder is unreasonable and substitute for it a conviction of manslaughter.
THE SENTENCE APPEAL
[150] The appellant applies for leave to appeal the sentence imposed upon him on his conviction for conspiracy to commit arson. For the reasons that follow, I would grant leave to appeal that sentence, allow the appeal, and reduce the sentence of imprisonment of ten years imposed by the trial judge to a term of six years to be served concurrently with the sentence imposed for manslaughter.
1. The Background
[151] The appellant was 31 years old at the time of the Woodbine fire and 37 when sentenced. He had no previous criminal record and owned and operated two tanning salons together with his wife. He enjoys strong family and community support.
[152] Evidence was given about a discussion at Even Tan led by the appellant. Magno was in financial difficulty. To alleviate his financial embarrassment, it was proposed that Jarcevic and McMaster would collect his debts using force if necessary. Magno wanted no part of the scheme. Jarcevic and McMaster also demurred. Nothing came of the discussion. No collections occurred.
[153] Paskalis, McMaster and Regaldo pleaded guilty to various offences arising out of their participation in the Woodbine scheme.
[154] Paskalis pleaded guilty to manslaughter and arson. He had a lengthy criminal record for fraud and related crimes and was severely burned in the fire. His injuries required lengthy hospitalization including several months in a medically-induced coma. Prior to the appellant’s trial, Paskalis was sentenced to imprisonment for a term of seven years, less credit of five years for time spent in custody prior to disposition. He served the balance of his sentence in the community.
[155] McMaster was a first offender whose principal role was to assist in the removal of inventory from Woodbine and its transfer to Sunrise and Regaldo’s place. McMaster was outside Woodbine when the explosion occurred, but played no role in setting the fire. He pleaded guilty to manslaughter after the appellant’s trial and was sentenced to a term of imprisonment of six and one-half years.
[156] Regaldo had a previous conviction for armed robbery. His role was similar to that of McMaster, except that he abandoned the others at Woodbine rather than remain outside as had been the original plan. After spending 561 days in pre-disposition custody, Regaldo was sentenced to time served and required to comply with the terms and conditions of a probation order. He was sentenced prior to the appellant’s trial.
2. The Positions of the Parties
[157] For the appellant Mr. Schreck says that the trial judge made three errors in the sentence that she imposed. She erred in principle in considering the debt collection discussion as an aggravating factor, imposed a sentence that was disparate to the sentences imposed on other participants in the scheme, thus offended the principle of parity and, in the end, imposed a sentence that was outside the range of fit sentences for this offence and offender.
[158] Mr. Schreck submits that an appropriate range of sentence would be a penitentiary sentence of four to six years.
[159] Mr. Pearson takes the position that the sentence imposed after trial was fit for the appellant and his offence. He says that the trial judge was not wrong to take the debt collection discussion into account because it was the immediate precursor of the plan ultimately settled upon. Both had as their object the relief of Magno from his financial travail.
[160] Mr. Pearson reminds that few mitigating factors exerted any influence here. The appellant did not plead guilty or co-operate with investigators. The trial judge found that the appellant was not remorseful. The sentencing objectives of deterrence and denunciation predominate because this offence was committed solely for financial gain and involved putting the lives and safety of emergency workers and nearby residents in unnecessary peril.
3. The Governing Principles
[161] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the appellant’s offence and the degree or extent of his responsibility for it. The controlling sentencing objectives are denunciation of criminal conduct committed for financial gain and deterrence to those who, for financial gain, are prepared to compromise the lives and safety of others, including emergency workers.
[162] The principle of parity for which s. 718.2(b) provides is also of importance here. The appellant is entitled to expect a sentence that is similar to the sentences imposed on his associates whose offences and circumstances are similar to his. Parity does not signal equivalence. And parity must recognize that different aggravating and mitigating circumstances may be at work for those with a similar degree of responsibility for the offence.
4. The Principles Applied
[163] For the reasons that follow, I would set aside the sentence of ten years imprisonment imposed by the trial judge and reduce the sentence to a term of six years.
[164] The discussion of strong arm methods of debt collection to help out Magno’s precarious financial state was not a relevant aggravating factor on sentence. Nothing came of the proposal. Magno would have none of it, nor would the proposed “muscle”, Jarcevic and McMaster. These discussions did not form a part of the circumstances of this offence, conspiracy to commit arson, and were not otherwise relevant on sentence.
[165] The sentence imposed after trial offends the principle of parity, even after generous allowance has been made for the discount associated with pleas of guilty and co-operation with the prosecution, and the enhancement warranted for prior criminal convictions. The sentence imposed here for conspiracy to commit arson substantially exceeds the sentences imposed on those who were convicted, after pleas of guilty, of manslaughter.
[166] It is debatable whether lack of remorse was a relevant factor in determining the sentence to be imposed. The appellant pleaded not guilty, but was convicted after trial. He was entitled to assert and maintain his innocence, despite the trial judge’s finding. To point to lack of remorse as an aggravating factor on sentence after a contested trial, is scarcely compatible with the presumption of innocence. Further, it does not follow from the mitigating influence of a plea of guilty, that a plea of not guilty reflects lack of remorse and is aggravating.
CONCLUSION
[167] For these reasons, under ss. 686(1)(b)(i) and (3) of the Criminal Code, I would dismiss the appeal from conviction of second degree murder, and substitute a conviction of manslaughter.
[168] The appellant was not properly convicted of second degree murder but was guilty of manslaughter. In this case the dangerous act of setting the fire at Woodbine was also unlawful, thus supporting a conviction of (unlawful act) manslaughter: R. v. Nantais, 1966 CanLII 182 (ON CA), [1966] 2 O.R. 246 (C.A.), at p. 252; R. v. Ruggiero (1972), 1972 CanLII 1415 (ON CA), 9 C.C.C. (2d) 546 (Ont. C.A.) at pp. 547-548: R. v. Wigman, [1927] 1 S.C.R. 246, at p. 264.
[169] I would grant leave to appeal sentence, allow the appeal from sentence on the conviction of conspiracy to commit arson, and reduce the sentence to six years to be served concurrently with the sentence to be imposed for manslaughter. The parties may make submissions in writing with regard to the sentence for manslaughter. The appellant shall have 14 days from the day these reasons are released to deliver his submissions, and the respondent shall have 14 days thereafter to deliver its submissions. The appellant
shall have a further 10 days to deliver his Reply. If the parties believe that oral submissions are required instead, they may contact the Registrar.
RELEASED: July 20, 2011 “K.F.J.A.”
“David Watt J.A.”
“I agree K. Feldman J.A.”
“I agree Paul Rouleau J.A.”
[^1]: The conviction of arson was stayed by the trial judge.
[^2]: The “or ought to know” alternative was declared unconstitutional in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 648.