COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Puddicombe, 2013 ONCA 506

DATE: 20130807

DOCKET: C52286

Doherty, Rosenberg, Simmons, Armstrong* and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicola Puddicombe

Appellant

David E. Harris, for the appellant

Elise Nakelsky, for the respondent

John North and Iona Jaffe, for the intervener, the Public Prosecution Service of Canada

Peter Copeland and Ryan Clements, for the intervener, the Criminal Lawyers’ Association (Ontario)

Heard: January 30 and 31, 2013

On appeal from the conviction entered on December 3, 2009 by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

overview of the appeal

[1] The appellant appeals her conviction on a charge of first degree murder. Counsel advances several grounds of appeal, all of which arise out of the jury instructions.[^1]

[2] The Crown alleged that the appellant and her girlfriend planned the murder of the victim and that the girlfriend murdered the victim pursuant to that plan. It was the Crown’s position that the appellant was liable as an aider, abetter or counsellor. The trial judge, following this court’s judgment in R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, gave the jury what is known as a Carter instruction. That instruction explains to a jury how and when the acts and declarations of one alleged party to an agreement to commit a crime can be used against another party to that agreement.

[3] Most of the arguments made on appeal were directed at the Carter instruction. Those submissions fall into two categories. First, counsel argued that this court should reverse its holding in Bogiatzis and declare that the Carter instruction should not be given where the Crown alleges a two-person agreement to commit the crime. Counsel argues that the Carter instruction creates the very real risk that the jury will use evidence of the acts and declarations of the other alleged party to the agreement to convict an accused even where those acts and declarations are not properly admissible against the accused.

[4] This court determined in Bogiatzis that binding obiter dicta in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694 declared that the Carter instruction applied to a two-person conspiracy. Consequently, a five judge panel was convened to consider whether Bogiatzis was correctly decided. The Public Prosecution Service of Canada intervened to support the Crown’s contention that Bogiatzis was correctly decided. The Criminal Lawyers’ Association (Ontario) intervened to support the appellant’s contention that Bogiatzis should be overruled.

[5] The second category of submissions challenging the Carter instruction accepts that Bogiatzis was properly decided and the Carter instruction applies to a two-person agreement. Counsel submits that the trial judge made various errors in her Carter instruction.

[6] I would reject the arguments aimed at the Carter instruction. I think Bogiatzis was correctly decided. I am also satisfied that apart from the obligations of stare decisis, and bearing in mind the functional purpose underlying all jury instructions, a Carter type instruction, properly tailored to the individual case, can be given in cases involving an alleged two-person agreement. With respect to the alleged errors in the trial judge’s Carter instruction, while as with virtually any jury instruction hindsight reveals possible improvements, none of the shortcomings rise to the level of reversible error.

[7] I also would not give effect to the grounds of appeal involving the issues other than the Carter instruction. Those grounds of appeal will be addressed at the end of these reasons.

II

overview of the trial proceeding

[8] On October 27, 2006 in the early morning, Dennis Hoy, the appellant’s boyfriend, was struck six times on the head with the blunt end of an axe while he lay asleep in the appellant’s bed. He was dead when the paramedics arrived. Later that day, the police, on the strength of a confession obtained after lengthy questioning, charged Ashleigh Pechaluk, the appellant’s roommate and girlfriend with murder. In her confession, Pechaluk indicated that the appellant had nothing to do with the homicide.

[9] The police investigation continued after Pechaluk’s arrest. In March 2007, the police charged the appellant with Hoy’s murder. The police believed that Pechaluk and the appellant had planned the murder together and had fabricated a story involving an unknown intruder who came into the apartment and murdered Hoy while the appellant was in the shower. The police believed that Pechaluk had wielded the axe and the appellant had misled the police as planned.

[10] The Crown proceeded separately against Pechaluk and the appellant. Pechaluk was tried first. Her confession was excluded from evidence and she was acquitted.

[11] The Crown called Pechaluk at the appellant’s trial. By the time of the appellant’s trial, Pechaluk and the appellant were estranged. Pechaluk, who was very much in love with the appellant, had learned after the appellant’s arrest in March 2007 that the appellant had become pregnant while Pechaluk was in custody. Pechaluk felt betrayed.

[12] According to Pechaluk’s trial testimony, the appellant had raised the possibility of murdering Hoy many times with Pechaluk. In the days before Hoy’s murder, the appellant had devised a plan whereby she would see to it that Hoy fell asleep in her bed. The appellant would then signal Pechaluk who would come into the bedroom and beat Hoy to death with a baseball bat. The appellant would call the police and tell them that Hoy had been killed by an intruder while she was in the shower. The appellant told Pechaluk that she would make the story about the intruder more believable by telling the police that Hoy had extensive connections to criminal gangs and had been involved in serious criminal activity.

[13] Pechaluk testified that when the time came, she could not go through with the plan. The appellant, however, came to her later the same evening and told her that Hoy had been beaten to death by an intruder while she was in the shower. The appellant called 911 and when the police arrived told them the “intruder” story just as she and Pechaluk had discussed in the days leading up to the murder.

[14] It was the Crown’s position at trial that the appellant wanted Hoy dead for two reasons. He had been unfaithful to her and she was his beneficiary under his pension plan and life insurance policy. The appellant stood to gain over $250,000 from Hoy’s death.

[15] The Crown argued that the appellant used Pechaluk to kill Hoy. The appellant knew that Pechaluk, who was about 11 years younger than the appellant, was infatuated with her. The appellant manipulated Pechaluk by pretending that she wanted to spend her life with Pechaluk if only she could get away from Hoy. The appellant led Pechaluk to believe that Hoy was abusive, had an extensive criminal background and would kill the appellant rather than let her be with Pechaluk. On the Crown’s theory, Pechaluk joined in the appellant’s murder plot firmly believing that Hoy’s murder was morally justified.

[16] The appellant did not testify and did not call a defence. The defence argued to the jury that Pechaluk, as she initially told the police, acted on her own when she murdered Hoy. The defence maintained that the appellant’s statement to the police when they first arrived at her apartment was the truth as far as she knew it at that time. She believed that an intruder had come into her bedroom and killed Hoy while she was in the shower.

III

the evidence

A. the evidence of pechaluk

[17] The Crown’s case depended mainly on Pechaluk’s testimony. The summary set out below, to the extent that it describes discussions between Pechaluk and the appellant, is taken from Pechaluk’s evidence. Her credibility was vigorously challenged at trial.

[18] The appellant and Hoy had been in a relationship for about 11 years at the time of his death in October 2006. In the last year of that relationship, Hoy was seeing other women and the appellant had become romantically involved with Pechaluk.

[19] The appellant, who was a manager of a Loblaws store, met Pechaluk in early 2005 through a mutual friend. Pechaluk, who was 21 years old, worked at a different Loblaws store. The appellant and Pechaluk became friends. Pechaluk met Hoy and knew he was the appellant’s boyfriend. The three went out together from time to time.

[20] By September 2005, the relationship between the appellant and Pechaluk had changed and become an intimate one. In the following months, Pechaluk became devoted to the appellant. They spent a great deal of time together and exchanged numerous texts and notes expressing their strong feelings for each other.

[21] In late 2005, the relationship between the appellant and Hoy had deteriorated, in part because Hoy was seeing other women. The appellant began to tell Pechaluk that Hoy was physically and emotionally abusive. She also indicated that Hoy would at times forbid the appellant from spending time with Pechaluk.

[22] In the following months, the appellant repeatedly told Pechaluk that she was afraid of Hoy who, according to the appellant, was a gang member, had killed people in the past, and was involved in serious criminal activity. The appellant reiterated complaints about Hoy’s longstanding physical and emotional abuse of her.

[23] Hoy was a large man and had been a bouncer. There was no evidence that he was in fact a gang member or had been involved in serious criminal activity. There was some evidence that he had told people that he had gang affiliations. It is not clear whether the stories the appellant told Pechaluk came from Hoy or were made up by the appellant. In either case, it was the Crown’s position that the appellant told these stories to Pechaluk, in part at least, to motivate her to kill Hoy.

[24] By June 2006, Pechaluk wanted to marry the appellant. She believed that Hoy was dangerous and that his ongoing relationship with the appellant presented a real danger to the appellant. Pechaluk hoped that Hoy would lose interest in the appellant in favour of one of the other women that he was seeing at the time.

[25] In June 2006, the appellant went with Hoy on a holiday to Las Vegas. She repeatedly texted Pechaluk telling her that Hoy was mistreating her and she was having a terrible time. Photographs of the appellant and Hoy taken during the Las Vegas trip suggested that the appellant was, in reality, having a good time on her vacation with Hoy.

[26] The appellant had given Pechaluk a journal to keep while she was in Las Vegas. Pechaluk’s journal entries, made at the encouragement of the appellant, demonstrate that Pechaluk firmly believed that Hoy was abusing the appellant and had to be stopped. Pechaluk even contemplated driving to Las Vegas to stop the mistreatment of the appellant.

[27] In September 2006, Pechaluk moved into an empty bedroom in the appellant’s apartment. She went to great lengths to avoid any contact with Hoy when he would visit the apartment. The appellant told Pechaluk that it would be very difficult to continue their relationship as long as Hoy was “in my life”.

[28] The appellant talked to Pechaluk about “getting rid of” Hoy. After Pechaluk moved into the apartment, the discussions became more frequent and more detailed. Initially, the appellant suggested poisoning Hoy. Later, she suggested killing Hoy and claiming self-defence. In the initial version put forward by the appellant, she would be the one to actually kill Hoy.

[29] In October 2006, someone slashed tires on two of Hoy’s automobiles. He was concerned about his safety and decided to stay at the appellant’s apartment. Pechaluk stayed in her bedroom to avoid Hoy.

[30] Pechaluk did not want Hoy staying at the apartment. The appellant professed to want Hoy out of the apartment as well. The appellant spoke to Pechaluk about different ways of killing Hoy, including beating him to death with a baseball bat and claiming that an intruder had come into the apartment while the appellant was in the shower. The appellant told Pechaluk that because of her Catholic beliefs, she could not actually kill Hoy and that Pechaluk would have to inflict the fatal blows. The appellant explained to Pechaluk that the “intruder” story would be made more credible by Hoy’s criminal associations and the recent incidents involving the slashing of the tires on his cars. The appellant made it clear to Pechaluk that she wanted Hoy killed in the very near future. On October 21, some six days before the murder, the appellant told Pechaluk that she wanted Hoy killed in her bed.

[31] Over the next few days, the appellant spoke to Pechaluk about killing Hoy several times. She added details to the story about the intruder. The appellant again told Pechaluk that Pechaluk would have to wield the baseball bat, explaining that Pechaluk should commit the murder because she was stronger than the appellant.

[32] Pechaluk testified that when the appellant brought up the various plans to kill Hoy, she did not say anything to discourage the appellant because she did not want to lose the appellant’s affection.

[33] Pechaluk testified that the longer Hoy stayed in the apartment, the more the appellant talked about killing him. On October 23, four days before the homicide, she indicated to Pechaluk that she wanted to kill Hoy that night while he was asleep. That same day, she sent a text message to Pechaluk describing Hoy as a “jackass” and telling Pechaluk “I want to be with you so much but my hands are tied”.

[34] The appellant and Pechaluk exchanged further emails on October 24, including one in the early morning of October 25, in which the appellant asked:

Why aren’t you sleeping? You are going to need your rest for tomorrow.

[35] In the late afternoon of October 26, Pechaluk picked up the appellant at work. When they arrived at the apartment, Pechaluk went straight to her room to avoid any contact with Hoy who was still staying with the appellant. At one point during the evening, the appellant knocked on Pechaluk’s door and asked her if she was “ready”. Pechaluk responded that she could not kill Hoy. The appellant said nothing and walked away from Pechaluk’s bedroom.

[36] Later that evening, Pechaluk awoke to the sound of the appellant banging at her bedroom door. The appellant told Pechaluk that she thought Hoy was dead. Pechaluk and the appellant ran to the bedroom of Kilpatrick Knowles who also lived in the apartment and told him that they believed there was an intruder in the house. The appellant called 911 and told the “intruder” story. She did not ask for an ambulance or for any medical help for Hoy.

[37] The police arrived at the apartment shortly after the 911 call. A police officer, using very general language, asked the appellant what had happened in the apartment. The appellant launched into a detailed monologue that included reference to Hoy’s extensive criminal connections, the slashing of his tires, and the appellant’s taking of a shower with the radio on at the time the attack apparently occurred. These details were among those mentioned by the appellant when she was discussing her plan to kill Hoy with Pechaluk in the days before the homicide.

B. the evidence of sarah sousa and keisha brooks

[38] Sarah Sousa and Keisha Brooks worked at the same Loblaws store as Pechaluk. All three were good friends.

[39] Ms. Sousa knew from Pechaluk that she and the appellant were involved in a relationship. During the summer and early fall of 2006, Pechaluk spoke to Sousa about Hoy’s abusive conduct toward the appellant. Pechaluk was angry and frustrated. She believed Hoy was interfering with her relationship with the appellant.

[40] Over time, Sousa’s discussions with Pechaluk turned from frustration and anger with Hoy to ways that Pechaluk might “get rid” of Hoy. Pechaluk spoke of the possibility of poisoning Hoy and asked Sousa about drugs that might induce a heart attack. Pechaluk also spoke of the possibility of killing Hoy and making it appear as though the appellant had acted in self-defence.

[41] Sousa said that in these conversations Pechaluk was asking her “how do I get rid of Dennis [Hoy]?” Sousa mainly listened to Pechaluk’s statements about killing Hoy, although she did ask some questions. In Sousa’s mind, Pechaluk was trying to work out various possible scenarios for Hoy’s murder. Sousa testified that when Pechaluk talked about potential plans to murder Hoy, she would use the pronoun “we”.

[42] On October 20, 2006, a week before the murder, Pechaluk spoke with Sousa outside of the Loblaws store. She told Sousa they were “doing it the next day”. Pechaluk mentioned that Hoy’s tires had been slashed so that now was the perfect time to kill him. The plan was to attack Hoy while he slept in the appellant’s bed and beat him to death with a baseball bat. Pechaluk was an accomplished baseball player. After the beating, the appellant would phone 911 and tell the authorities that someone had broken into the apartment and murdered her boyfriend while she was taking a shower. The appellant would also tell the police about Hoy’s prior abuse of her and his many connections to criminal activities and criminal gangs. According to Sousa, Pechaluk was calm during this conversation.

[43] Sousa testified that she asked Pechaluk various questions about the plan to murder Hoy. For example, she asked how they would deal with the presence of Mr. Knowles at the apartment. Pechaluk had answers for the questions Sousa posed.

[44] In her testimony, Pechaluk acknowledged speaking to Sousa about plans to kill Hoy. She testified, however, that she never described it as her plan and never indicated that she would kill Hoy. Pechaluk testified that she told Sousa that the appellant wanted her to beat Hoy to death with a bat, but that she had not agreed to do so.

[45] Keisha Brooks testified that Pechaluk spoke to her about Hoy’s verbal and physical abuse of the appellant. She told Brooks that Hoy was a dangerous person with criminal connections. According to Brooks, Pechaluk spoke about murdering Hoy in late 2005. Brooks told Pechaluk that she should not get herself involved in the relationship between the appellant and Hoy.

[46] Brooks testified that in early 2006, Pechaluk spoke about poisoning Hoy. Brooks did not take these statements seriously.

[47] On October 25, 2006, Pechaluk told Brooks that she and the appellant had decided to get rid of Hoy before the end of the weekend. Brooks, once again, told Pechaluk that she should let the appellant deal with Hoy on her own. Pechaluk insisted that the appellant was not strong enough to get rid of Hoy. According to Brooks, Pechaluk was very upset during the conversation on October 25. When Brooks told Pechaluk she did not want to hear about any plans to murder Hoy and that it was wrong, Pechaluk replied that Brooks did not understand the situation.

[48] Brooks testified that she was devastated when she learned of Hoy’s death on October 28. She had not reported her discussions with Pechaluk to anybody because she did not think Pechaluk would go through with it.

[49] In her evidence, Pechaluk admitted to speaking to Brooks about poisoning Hoy. She also admitted to speaking to Brooks on October 25, 2006. She denied, however, that she said that she and the appellant were going to kill Hoy before the weekend was over. According to Pechaluk, she told Brooks that the appellant wanted the murder done within a couple of days. Pechaluk denied that she ever told Brooks that she would kill Hoy.

C. the other evidence

[50] The Crown led physical evidence to demonstrate that the “intruder” story was a fabrication and evidence connecting the appellant and Pechaluk to the murder weapon. I need not review that evidence. When the case went to the jury, no one suggested that anyone other than Pechaluk and/or the appellant had murdered Hoy.

[51] The appellant was the beneficiary under Hoy’s life insurance policy valued at $238,000 and was entitled to survivor benefits under his pension plan. Within four days of Hoy’s murder, the appellant contacted his employer to inquire about collecting the survivor benefits. She made certain misrepresentations to the employer in an apparent effort to speed up the process. The appellant received survivor pension benefits in the amount of $20,305.82 in February 2007. No life insurance proceeds were ever paid out to the appellant.

[52] There was a great deal of evidence about Hoy’s abuse of the appellant. That evidence came from statements made by the appellant to various people, including Pechaluk. There was no other evidence of physical abuse. There was some evidence from Pechaluk and another witness that Hoy did on occasion become quite angry with the appellant.

IV

the carter grounds of appeal

A: The Trial Context

[53] The Crown alleged that Hoy was killed in furtherance of a plan devised and promoted by the appellant whereby the appellant persuaded Pechaluk to come into her bedroom and bludgeon Hoy while he was asleep. The Crown argued that the plan included the “intruder” story devised to mislead the police.

[54] The defence agreed that there was a plan to kill Hoy and that it included the “intruder” story. However, the defence argued that the plan was formulated by and involved only Pechaluk.

[55] By the end of the evidence, the parties agreed that Hoy’s homicide was a first degree murder. There were three possibilities. Hoy was murdered by Pechaluk acting alone (the defence position), the appellant acting alone (Pechaluk’s testimony), or by Pechaluk and the appellant acting pursuant to a plan to kill Hoy (the Crown’s position). The jury was left with only two possible verdicts – either guilty of first degree murder or not guilty.

[56] On the Crown’s theory, the Crown had to prove beyond a reasonable doubt that the appellant had planned Hoy’s murder with Pechaluk and that the murder was perpetrated by Pechaluk in furtherance of that plan. If the Crown proved both beyond a reasonable doubt, it followed as a matter of law that the appellant was a party to the first degree murder committed by Pechaluk.

[57] Because the Crown alleged that the appellant was party to the murder by virtue of her agreement with Pechaluk to murder Hoy, the trial judge was required to instruct the jury both as to the existence of the agreement as a basis upon which the appellant could be found to be a party (aider, abetter or counsellor) to the murder and on the evidentiary rule commonly referred to as the co-conspirator exception to the hearsay rule. That rule potentially made certain acts and declarations of Pechaluk admissible against the appellant to prove that the appellant was a participant in the plan to murder Hoy.

[58] The trial judge instructed the jury on the concepts of aiding, abetting and counselling at some length. She expressly told the jury that participation in the formulation and execution of the plan could constitute aiding:

However, if you find that she was participating in the plan, certainly the act of participating in the plan and planning can be considered helping.

[59] The trial judge did not expressly instruct the jury that the appellant’s participation in the planning and execution of the plan to kill Hoy would constitute abetting and/or counselling. The tenor of her instructions, however, conveyed that message. I do not understand counsel to suggest that the jury would not understand that on the Crown’s theory the appellant’s liability as an aider, abettor or counsellor depended upon the Crown proving beyond a reasonable doubt that the appellant and Pechaluk had agreed to murder Hoy and that he was murdered in furtherance of that plan.

[60] The trial judge also instructed the jury on the co-conspirator exception to the hearsay rule using the three-step process set out in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. That process as applied to this case proceeds as follows:

Step One:

• The jury must be satisfied beyond a reasonable doubt based on all of the evidence that the alleged plan to murder to Hoy existed.

Step Two:

• If the jury was satisfied that the alleged plan existed, it must review all of the evidence directly admissible against the appellant and decide whether she was probably a participant in the plan to murder Hoy.

Step Three:

• If the jury concluded at step two that the appellant probably participated in the plan, the jury must then decide whether the Crown had proved her participation beyond a reasonable doubt. In making that determination, the jury could use evidence of the acts and declarations of Pechaluk done during and in furtherance of the plan as long as the jury was satisfied on evidence directly admissible against Pechaluk that she was a probable participant in the plan.

B: Should Bogiatzis be Overruled?

(i) The argument

[61] Counsel for the appellant submits that this court was wrong in Bogiatzis in holding that it was bound by the obiter dicta in Barrow to the effect that the Carter instruction applied to a two-person conspiracy. Counsel submits that Barrow did not actually hold that the Carter instruction applied to a two-person conspiracy and that, even if it did, that comment was not the kind of obiter that should be taken as binding on this court: see R. v. Henry, 2005 SCC 76, 3 S.C.R. 609 at para. 57. Counsel submits that nothing in Barrow compels this court to use the Carter instruction in cases where the conspiracy alleged involves only two persons.

[62] Counsel next submits that the Carter instruction inevitably confuses the jury and prejudices an accused if the allegation involves a two-person conspiracy. Counsel contends that in cases involving a two-person conspiracy, a finding at stage one that the agreement alleged exists must inevitably lead to a finding at stage three that the accused was a member of that conspiracy. The finding of membership inevitably follows a finding of the existence of the agreement because the agreement cannot exist without at least two members. Counsel argues that whatever the jury may be told, the logical connection between a finding of the existence of the agreement and a finding of an accused’s membership in the agreement is so strong where the allegation involves a two-person conspiracy that a jury will inevitably move directly from a finding of the agreement to a finding of membership. Counsel points out that the initial finding of the existence of the agreement may well be based on acts and declarations of others that are not properly admissible against an accused to prove his or her membership in the conspiracy.

[63] Counsel relies on the judgment of Tyndale J.A., writing for himself, in R. v. Comeau, [1992] R.JQ. 344 at 348, aff’d without reference to this point, 1992 CanLII 47 (SCC), [1992] 3 S.C.R. 473.[^2] Tyndale J.A. held that the comments in Barrow about two-person conspiracies were not binding. In his view, the Carter instruction was confusing and prejudicial in cases involving two-person conspiracies. Tyndale J.A. opined that the jury should not be instructed on the co-conspirator exception to the hearsay rule if the Crown alleged a conspiracy involving only two persons, but should determine guilt strictly on the evidence directly admissible against an accused.

[64] Counsel for the appellant also relies on observations in Bogiatzis at para. 24:

The problem arises because the essence of a conspiracy is an agreement. If the jury has found an agreement and there are only two people involved, it follows that both must be guilty, otherwise there could be no agreement. I admit that the application of the Carter formula in a two-person conspiracy is challenging…

(ii) Stare decisis

[65] The submission that this court should overrule Bogiatzis engages two different components of the stare decisis doctrine. First, the court is asked to hold that certain obiter in a decision of the Supreme Court of Canada is not binding. Second, the court is asked to depart from its own prior holding wherein it declared that the obiter was binding. The first part of the submission addresses the extent to which this court is bound by obiter dicta from the Supreme Court of Canada (vertical precedent). The second addresses this court’s approach to overruling its own prior decisions (horizontal precedent): see David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 388; Debra L. Parkes, “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2007) 32 Man. L.J. 135.

[66] I think it best to begin with the first aspect of the stare decisis doctrine engaged by this submission. If Bogiatzis correctly reads the obiter in Barrow as binding, there is obviously no need to consider whether this court should overrule Bogiatzis.

[67] R. v. Henry instructs that some obiter from the Supreme Court of Canada must be regarded as authoritative and other obiter will be persuasive only:

All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding”…

[68] In R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401, aff’d without reference to this point, 2012 SCC 49, [2012] S.C.J. No. 49, this court, relying on Henry, distinguished between obiter that was integral to the analysis underlying the ratio decidendi of the judgment and obiter that was incidental or collateral to that analysis. The former kind of obiter, but not the latter, is binding on this court. In characterizing obiter from the Supreme Court of Canada, lower courts should begin from the premise that the obiter was binding.

(iii) What does Barrow decide?

[69] The Crown alleged a three-person conspiracy in Barrow. The appellant, Barrow, and one of the other alleged conspirators were tried together. The third alleged conspirator had pleaded guilty before trial. The trial judge instructed the jury in accordance with Carter. He told the jury that it must first be satisfied on all of the evidence and beyond a reasonable doubt that the conspiracy alleged existed. He next told the jury that if satisfied of the existence of the conspiracy, it could move to steps two and three of the Carter instruction to determine whether either or both of the accused were members of the conspiracy.

[70] The appellant in Barrow argued that because a conspiracy required at least two members, if the Crown alleged a three-person conspiracy, the jury could only be satisfied of the existence of the conspiracy at step one of the Carter direction if the jury was satisfied that at least one of the two accused was a member of the conspiracy. Counsel argued that this finding could well be made on evidence that was not properly admissible against an accused to show his membership in the conspiracy.[^3]

[71] In support of the argument that the Carter instruction prejudiced the appellant, counsel for Barrow argued that the Carter instruction would clearly be prejudicial if the Crown alleged a two-person conspiracy because a finding of a conspiracy at step one would constitute a finding of membership in the conspiracy as against both alleged conspirators.

[72] McIntyre J., speaking for the court on this issue,[^4] rejected the appellant’s submissions. He observed that the Carter instruction was intended to and did distinguish between the existence of the conspiracy – the subject matter of step one of the inquiry – and individual membership in the conspiracy – the subject matter of steps two and three of the inquiry. An affirmative finding at step one did not establish individual membership in the conspiracy under steps two and three: Barrow, paras. 74-75.

[73] McIntyre J. also dealt with the two-person conspiracy argument. He observed that the case law established that where the Crown alleged a two-person conspiracy, the jury could convict one accused and acquit the other. The possibility of the acquittal of one accused and the conviction of the other could only be explained on the basis that it was open to the jury to find that while the Crown had proved the existence of the two-person conspiracy beyond a reasonable doubt, it had not, on evidence properly admissible against one accused, proved that accused’s membership in the conspiracy beyond a reasonable doubt.

[74] McIntyre J., at para. 77, rejected the contention that the different verdicts in a case involving an alleged two-person conspiracy would demonstrate illogicality or inconsistency.

In my view, there is no inconsistency in this position. The apparently inconsistent verdict does not result from the impossible conclusion that A conspired with B to commit a given crime and that B did not conspire with A on the same occasion to commit the same crime, but rather from the fact that there was evidence admissible against A to establish his guilt, but not sufficient evidence admissible against B to prove his participation. The fact that upon arrest Mr. A says to the police “yes, B and I agreed to murder X” will not be admissible against B, but does not deprive it of its evidentiary force against A.

[75] I think the rejection of the two-person conspiracy argument in Barrow was central to the court’s analysis of the claim that the Carter instruction had prejudiced the appellant in Barrow. The appellant argued that the Carter instruction had prejudiced him because of the substantial risk that the jury would conflate step one in the Carter instruction with steps two and three and conclude that proof of the conspiracy constituted proof of the appellant’s membership in the conspiracy. That argument had its plainest and most powerful application in a case involving an alleged two-person conspiracy. The appellant could only hope to convince the court that the Carter instruction had prejudiced his case if he could first demonstrate the inherent prejudice in the Carter instruction as applied to a two-person conspiracy.

[76] I must, with respect, disagree with the observation of Tyndale J.A. in Comeau, at 348, that the two-person conspiracy argument was not “squarely raised, debated or decided” in Barrow. To the contrary, McIntyre J., at para. 76 in Barrow, described the two-person conspiracy argument as the “root of the argument advanced on this issue”.

[77] Bogiatzis, at para. 24, recognized that the references to the applicability of the Carter instruction to a two-person conspiracy were obiter in Barrow. The court did not attempt to characterize that obiter, but simply indicated that it was bound by it. I take from that conclusion that the court in Bogiatzis was satisfied that the two-person conspiracy analysis in Barrow was integral to the analysis leading to the rejection of the submission that the Carter instruction should not have been given in Barrow.

[78] Not only am I satisfied from a reading of Barrow that the observations relating to a two-person conspiracy were integral to the analysis, I also see no other basis upon which to question the obiter in Barrow. Unlike Prokofiew, there is no Supreme Court of Canada authority, prior or subsequent to Barrow, that contradicts or even casts any doubt upon the correctness of the obiter in Barrow.

[79] On appeal, no one argued that the brief reasons of the Supreme Court of Canada in Comeau, affirming the decision of the Quebec Court of Appeal, supported the view of Tyndale J.A. that Carter had no application to a two-person conspiracy. Cory J., speaking for a unanimous court, simply acknowledged errors in the instructions “regarding evidence of conspiracy” and explained why the curative proviso applied. He made no reference to Barrow, Carter, or the reasons of Tyndale J.A.[^5]

[80] Lastly, I find nothing in the other provincial appellate authorities counsel referred to in support of the argument that the obiter in Barrow is not binding. Those cases recognize that the Carter instruction can present difficulties if a two-person conspiracy is alleged. They also recognize that some modification of the Carter instruction or some added instruction might be appropriate. None suggests that the Carter instruction should not be given: see e.g. R. v. Buckingham, 1998 CanLII 18095 (NL CA), 162 Nfld. & P.E.I.R. 211 (Nfld. C.A.), at paras. 21-24; R. v. Viandante (1995), 1995 CanLII 16408 (MB CA), 102 Man. R. (2d) 126 (Man. C.A.), leave to appeal refused, [1996] S.C.C.A No. 243, at paras. 42-53.

[81] For the reasons set out above, I agree with the holding in Bogiatzis. The obiter in Barrow is binding on this court.

(iv) The Carter instruction and two-person conspiracies

[82] As I am satisfied that Bogiatzis correctly bowed to the obiter in Barrow, it is unnecessary to address the merits of the argument that the Carter instruction cannot be fairly applied to an allegation of a two-person conspiracy. However, given the thorough submissions received from the parties and the interveners, I will, for the sake of completeness, address the merits of that argument.

[83] In my view, the Carter instruction can properly be given where the Crown alleges a two-person conspiracy. Before explaining my reasons for coming to that conclusion, I want to make one point crystal clear. The Carter instruction, like all jury instructions, is intended to give to the jury information the jury needs to properly decide the case. The functional approach to the content of all jury instructions dictates that those instructions, including the Carter instruction, must be modified and tailored to meet the needs of the specific case. Consequently, when I say the Carter instruction has application to a two-person conspiracy, I do not mean to suggest that the instruction cannot be modified or even bypassed as the circumstances of the particular case demand: see R. v. Viandante at para. 51.[^6]

[84] I have three reasons for concluding that the Carter instruction applies to two-person conspiracies:

• The rationale underlying the Carter instruction applies as much to two-person conspiracies as to conspiracies involving multiple persons.

• The logical difficulties inherent in the Carter instruction as applied to a two-person conspiracy, while undeniable, can be overcome by an appropriately tailored instruction.

• No viable alternative to a Carter instruction has been offered.

(a) The rationale for the instruction

[85] Allegations of conspiracy and substantive offences committed in pursuit of a common design present a unique evidentiary problem. Generally, a declaration is admissible only against its maker and an act is admissible only against the doer of that act. However, evidence of acts and declarations made during the course of a conspiracy and in furtherance of the object of that conspiracy are receivable against other conspirators to prove their membership in the conspiracy. The evidentiary rule, however, is predicated on proof of the existence of the agreement. That agreement is the crime itself, if conspiracy is charged, and the basis upon which the Crown alleges that an individual is a party to the offence if a substantive offence is charged. It seems that either the rule has no value since it applies only if the conspiracy has already been established, or that the rule works unfairly against an accused in that it assumes the existence of the agreement, a fact which the Crown is required to prove beyond a reasonable doubt.

[86] The Carter instruction is a uniquely Canadian response to the conundrum posed by the application of the co-conspirator exception to the hearsay rule.[^7] The direction seeks to provide the jury with reliable evidence relevant to an accused’s membership in the agreement in the form of the acts and declarations in furtherance of the conspiracy by other conspirators, while ensuring that the jury is satisfied that two preconditions to that reliability, the existence of the agreement, and the accused’s probable membership in the agreement, have been established on evidence properly admissible for those purposes.

[87] In R. v. Mapara, 2005 SCC 23, 1 S.C.R. 358, the court considered a challenge to the continued viability of the co-conspirator exception to the hearsay rule under the modern principled approach to the admission of hearsay evidence first enunciated in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 and further developed in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. The court concluded that the co-conspirator exception did survive scrutiny. In so holding, the court relied on the three-step Carter instruction as an effective means of establishing sufficient circumstantial indicators of the reliability of the proffered hearsay evidence. The court also held that the rule, as constrained by the Carter instruction, did not operate unfairly against an accused and that its operation promoted the effective administration of criminal justice: Mapara, paras. 28-29. Mapara clearly viewed the Carter instruction as essential to the continued viability of the co-conspirator exception to the rule against hearsay.

[88] I see no connection between the number of members of a conspiracy and the rationale for the three-step approach to the co-conspirator exception to the hearsay rule. The justification for that rule and the reliability enhancing function played by the three-step approach designed in Carter are as germane to a two-person conspiracy as they are to a multi-person conspiracy.

[89] Tyndale J.A., in Comeau at 348-49, would eliminate both the need for a separate inquiry into the existence of the alleged agreement and the operation of the co-conspirator exception to the hearsay rule if the Crown alleged a two-person conspiracy. With respect to Tyndale J.A., there is no justification for excluding what is otherwise reliable hearsay evidence in the form of a co-conspirator’s acts and declarations simply because the criminal agreement involved only two members. As the Chief Justice observed in Mapara, at para. 29, when referring to the co-conspirator exception as articulated in Carter:

The rule allows the Crown to effectively prosecute criminal conspiracies. It would become difficult and in many cases impossible to marshal the evidence of criminal conspiracy without the ability to use co-conspirator statements of what was said in furtherance of the conspiracy against each other. To deprive the Crown of the right to use double hearsay evidence of co-conspirators as to what they variously said in furtherance of the conspiracy would mean that serious criminal conspiracies would often go unpunished.

[90] The “serious criminal conspiracies” alluded to by the Chief Justice may involve only two persons. I cannot support an approach which would exclude potentially valuable evidence from a jury’s consideration in those cases.

(b) An appropriate jury instruction can be given

[91] Many courts, including this one in Bogiatzis, at para. 29, have commented on the difficulty, in the context of a two-person conspiracy, of explaining to a jury the distinction between the finding at step one that the conspiracy existed and the finding after step three that an accused was a member of the conspiracy: see e.g. Ahern v. R, (1988) 80 A.L.R. 161 (H.C.). Those problems are real but not insurmountable: see R. v. Duff (1994) 1994 CanLII 6408 (MB CA), 95 Man.R. (2d) 167 (Man. C.A.) at paras. 48-54.

[92] Unfortunately, some rules governing criminal trials are of necessity complicated. Others are counterintuitive and inconsistent with how a reasonable person might approach the same problem if left unguided by judicial instruction. The limitations surrounding the use that can be made of evidence of an accused’s bad character is perhaps a good example of a rule that requires delicate instruction because it runs contrary to what many would see as common sense and logic.

[93] Our system of trial by jury, however, presumes that juries can and do understand and apply instructions given to them by trial judges: see R. v. Emms, 2010 ONCA 817, 104 O.R. (3d) 201, aff’d, [2012] S.C.J. No. 74, at paras. 26-27. If those instructions can be plainly put, I do not think that one should assume that a jury cannot follow them simply because they may seem illogical to the jury.

[94] A proper instruction in a case involving a two-person conspiracy would not only make the three steps of the Carter instruction clear to the jury, but would also caution against following the incorrect path directly from stage one to a conviction. I have set out in Appendix A to these reasons a draft instruction that contains a caution against resort to the logical, but improper assumption that proof of the existence of the agreement at stage one can constitute proof of participation in that agreement as against the individual accused. No doubt, other acceptable formulations of that caution could also be articulated.

(c) Alternative approaches

[95] The intervener, the Criminal Lawyers’ Association (Ontario), in its helpful submissions, suggests essentially three alternatives to the Carter instruction.

[96] Counsel submits that step one of the Carter instruction could be left to the trial judge. This possibility was vetted in Bogiatzis and is also advanced by counsel for the appellant. On this approach, the trial judge would decide, on some standard of proof, whether the Crown had established that the alleged agreement existed. If the judge was so satisfied, the jury would then be instructed to determine whether the Crown had proved that the accused was a member of the conspiracy by the application of steps two and three of the Carter instruction. This is the American approach: e.g. see Bourjaily v. United States, 483 U.S. 171 (1987).

[97] I have two problems with this approach. First, it removes from the jury’s consideration a fundamental factual question – the existence of the alleged agreement. While it may be that in many cases membership in the conspiracy and not the existence of the conspiracy will be the focus of the trial, there are cases where the existence of the agreement is very much in issue. It is, in my view, unacceptable in a case of trial by jury that the jury not decide what may be the factual focal point of the trial.

[98] The approach is also contrary to the binding authority in Mapara. In Mapara, the appellant argued that both steps one and two of the Carter instruction should be left to the trial judge to avoid potential unfairness and prejudice to an accused. In rejecting this submission, Chief Justice McLachlin said, at para. 32:

While courts may adjust common law rules incrementally to avoid apparent injustice, they do so only where there is clear indication of a need to change the rule in the interests of justice. That is not established in this case. Indeed, the appellant’s suggestion was considered and rejected in Carter precisely because of the danger that the jury might confuse the direct and hearsay evidence against the accused and rely on the latter to convict the accused. The court concluded that the three-stage approach was better suited to bring home to the jury the need to find independent evidence of the accused’s participation in conspiracy. I would not accede to this request.

[99] The Chief Justice’s words apply equally to two-person conspiracies. Regardless of the number of alleged conspirators, the instruction must “bring home to the jury the need to find independent evidence of the accused’s participation in conspiracy”. The Carter instruction does that by distinguishing between the agreement and membership, directing the jury to look only at evidence directly admissible against an accused in determining probable membership in the agreement, and by the “in furtherance” limitation on the use of acts and declarations of the co-conspirator.

[100] Although I do not accept the submission of the Criminal Lawyers’ Association (Ontario) that the finding required by step one of the Carter instruction should be left to the trial judge, I do accept the related submission that in some cases it will be unnecessary to give any separate instruction as to the existence of the agreement. If having regard to the evidence and the position of the parties it is clear that the agreement existed, the trial judge may be able to so instruct the jury and move directly to steps two and three of the Carter direction. I do not see that, however, as a rejection of the Carter instruction as applied to two-person conspiracies, but rather as an example of the modification of that instruction to suit the needs of a specific case.

[101] I can deal briefly with the other two alternatives put forward by the Criminal Lawyers’ Association (Ontario). Counsel suggests that the determination of the existence of the conspiracy at step one in the Carter direction could be moved to the end of the instruction, meaning that the jury would first determine the question of membership in the agreement. I do not think this approach would make anything clearer. If anything, the jury would be confounded by an instruction that first told them to look for membership in the conspiracy and, second, told them to look for the existence of the conspiracy.

[102] The third alternative put forward by the Criminal Lawyers’ Association (Ontario) would eliminate any instructions along the lines of step one in the Carter direction. From the jury’s perspective, this is no different than the suggestion that the trial judge determine the question posed at step one of the Carter direction. I have already considered and rejected that possibility. I would observe, however, that this alternative removes the safeguard of at least having the trial judge determine whether there is adequate evidence of the existence of the agreement.

[103] In summary, I do not pretend that the jury instruction in cases involving allegations of conspiracy or common design is an easy one, particularly if the allegation involves only two persons. However, the rationale driving the formulation of the three-step approach in Carter applies equally to a two-person conspiracy. The jury must understand that the existence of the agreement and membership in the agreement are discrete issues and the jury must understand how to approach the evidence in respect of both issues, particularly the issue of individual membership in the conspiracy. The Carter direction accomplishes both ends. None of the alternative suggestions do this as well, much less better. The instruction appropriately tailored to the case and accompanied with a clear caution against assuming membership based on the existence of the agreement will, in my view, avoid prejudice to the accused.

C. the alleged errors in the carter instruction

[104] Counsel for the appellant made several submissions in his factum challenging various aspects of the trial judge’s Carter instruction. He did not pursue all of those arguments in his oral submissions. I would not give effect to any of the arguments and will address what I regard as the principal submissions advanced on behalf of the appellant. Those submissions relate to step one and step three of the Carter instruction and the adequacy of the caution given by the trial judge in the face of the particular potential for prejudice posed by the Carter instruction in cases involving two-person conspiracies.

(i) Step One

[105] The trial judge, applying Carter, explained to the jury that in determining the evidence that could potentially be used against the appellant to prove her membership in the plan to murder Hoy, the jury must first determine whether there was in fact a plan to murder Hoy. The trial judge outlined for the jury the evidence it could consider at this first step.

[106] The appellant alleges two errors. He submits that the jury should not have been told that Pechaluk’s testimony constituted evidence of the plan to murder Hoy because Pechaluk denied being a party to that plan. The appellant further submits that the trial judge erred in instructing the jury that the evidence of Sousa and Brooks about statements made to them by Pechaluk concerning the plan to kill Hoy could be considered at the first stage of the Carter instruction.

[107] The first submission must be rejected. Pechaluk described in detail the evolution of the plan to murder Hoy and her conversations with the appellant about that plan. Her evidence concerning these conversations presents no hearsay issues, is clearly logically relevant to the existence of the alleged plan and is, therefore, admissible. I would add that Pechaluk’s evidence about the appellant’s actions and statements relating to the plan were also admissible to show the appellant’s involvement in the plan at step two of the Carter instruction: see R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421 at para. 342.

[108] Pechaluk’s testimony that the plan was exclusively the appellant’s and that she did not join the plan was irrelevant to the admissibility of her testimony on the issue of whether the plan existed. In any event, the jury was free to reject that part of Pechaluk’s evidence. There was ample other evidence from which the jury could conclude that Pechaluk was a participant in the plan. The trial judge properly left Pechaluk’s testimony describing the plan as evidence from which the jury could infer the existence of the plan.

[109] The second submission challenging the instruction at step one of the Carter direction raises a more complicated question. The answer to that question begins by determining what the trial judge said to the jury. Crown counsel persuasively submits that the trial judge did not instruct the jury that the evidence of Sousa and Brooks as to what Pechaluk said to them about the plan was admissible at step one of the Carter instruction. The Crown submits that the trial judge told the jury that Pechaluk’s own testimony of what she said to Sousa and Brooks was admissible at step one. The Crown contends that it cannot be disputed that Pechaluk’s own evidence about what she said to Sousa and Brooks about the plan to murder Hoy was admissible at step one of the Carter instruction.

[110] The charge to the jury is not entirely clear on this point. However, considering the charge as a whole, I agree with the appellant’s submission that the trial judge told the jury that the evidence of Sousa and Brooks about statements made to them by Pechaluk concerning the plan could be considered when determining whether the plan existed. The instruction is perhaps most clearly put in the passage in which the trial judge is explaining the various uses of the testimony of Sousa and Brooks. Included in those potential uses was the following:

It [the evidence of Sousa and Brooks] may help you consider whether there was a plan to murder Dennis and mislead the police, and whether Ashleigh [Pechaluk] was part of that plan.

[111] In Carter, at p. 947, the court, in describing step one of the Carter instruction, indicated that the jury must consider “all of the evidence” when deciding whether the Crown had proved the existence of the alleged agreement beyond a reasonable doubt: see also Bogiatzis at paras. 19, 57. “All of the evidence” must refer to evidence properly admissible under the rules of evidence. Those rules begin with the primary command of relevance. Evidence that as a matter of logic and human experience makes the existence of the conspiracy more likely is relevant to prove the existence of the conspiracy unless excluded by some specific rule.

[112] Evidence offered to prove the existence of the alleged agreement will not often engage the hearsay rule. Generally, at the step one inquiry, testimony of things said and done by alleged conspirators is tendered not for its truth, but as circumstantial evidence of the existence of the agreement. The admissibility of the evidence depends on whether as a matter of logic and human experience an inference of the existence of the agreement is available from the evidence considered in its totality. Admissibility on the question of the existence of the agreement does not depend on whether the evidence consists of acts and declarations in furtherance of the conspiracy: see David Paciocco & Lee Stuesser, The Law of Evidence, 6th ed. (Toronto, Irwin Law, 2011), at pp. 156-58; R. v. Smith; R. v. James, 2007 NSCA 19, 216 C.C.C. (3d) 490 at paras. 187-91, paras. 235-38.

[113] Evidence that, during the development of the alleged plan to murder Hoy, Pechaluk spoke to friends several times about the plan, discussed the reasons for the need to kill Hoy, the feasibility of the plan, the means that might be used to kill Hoy, and sought input about the plan from at least one of those friends (Sousa), would, as a matter of common sense and human experience, support the inference that a plan existed. That evidence was properly considered at step one of the Carter instruction.[^8]

[114] Before leaving the appellant’s submissions directed at step one of the Carter direction, I would add that I see no possibility that any inadequacy in the step one instruction could have prejudiced the appellant. The existence of the plan was not a live issue at trial. Participation in the plan by the appellant was the issue. That participation is addressed at steps two and three of the Carter direction.

(ii) Step Three

[115] The trial judge’s instructions at step three, the “in furtherance” instruction, are challenged in one respect. The trial judge told the jury that it was open to them to conclude that Pechaluk’s statements to Sousa prior to Hoy’s murder about the plan to murder Hoy were made in furtherance of that plan and, therefore, were potentially admissible at stage three of the Carter direction to prove the appellant’s participation in the plan beyond a reasonable doubt. I do not understand the appellant to take issue with the content of that instruction. Rather, the appellant argues that on a reasonable interpretation, the statements to Sousa could not be seen as being in furtherance of the plan to kill Hoy, but were instead a narrative of Pechaluk’s discussions with the appellant.

[116] It is ultimately up to the jury to determine whether an act or a statement of a co-conspirator is said or done in furtherance of the alleged conspiracy: R. v. Mota (1979), 1979 CanLII 2966 (ON CA), 46 C.C.C. (2d) 273 at para. 27 (Ont. C.A.). The evidence must, however, be reasonably capable of that interpretation before it can be properly left with the jury as potentially an act or declaration in furtherance of the conspiracy.

[117] I agree with the Crown’s submission that it was open to the jury to view Pechaluk’s conversations with Sousa as an attempt by Pechaluk to advance the plan to kill Hoy by using Sousa as a sounding board to test out various possible schemes and obtain feedback. For example, the conversation about drugs that might cause a heart attack could reasonably be understood as Pechaluk seeking information from her friend about the means she could use to kill Hoy. That kind of inquiry clearly seeks to further the plan to murder Hoy.

[118] Although the argument that the conversations between Pechaluk and Sousa were in furtherance of the plan to murder Hoy does not seem to be a particularly strong one, there was enough in the evidence to raise a legitimate question for the jury. I doubt, however, that the evidence of what Pechaluk said to Sousa ultimately played any significant role in the jury’s determination of whether the appellant was a participant in the plan to murder Hoy. There was, quite frankly, an abundance of evidence on that issue beginning with Pechaluk’s testimony about her conversations with the appellant and ending with the appellant’s conduct during the 911 call and her immediate and detailed recital of the “intruder” story when first questioned by the police.

(iii) The caution to not conflate step one and step three of the Carter direction

[119] The appellant submits that the trial judge should have “put the jury on high alert” that a finding of the existence of the agreement did not establish membership in the agreement. Counsel acknowledges that the trial judge did provide a caution, but argues that it was insufficient.

[120] The trial judge, after instructing the jury on step one in the Carter direction and indicating she was now moving on to the question of the appellant’s participation in the agreement, said to the jury:

Now, when you get to consider the participation of Nicola Puddicombe, potential participation of Nicola Puddicombe, be careful here. Just because you have found that there was a common unlawful design does not mean automatically that Nicola Puddicombe was a part of it. You must go on to determine if based on her only [own] actions and statements that she was probably a participant in the plan. …

[121] As with any caution, other language may have been used that would perhaps have given added emphasis to the caution. I have suggested alternative language in Appendix A that has the benefit of explaining to the jury how it is that a finding at step one does not determine the finding at step three. I think that explanation adds to the effectiveness of the caution.

[122] The question on appeal is, however, the adequacy of the caution and not whether a better caution could have been given. This caution was adequate. It made clear to the jury that proof of the existence of the plan to murder Hoy was different from proof of the appellant’s participation in that plan. The jury were cautioned that a finding of the plan did not compel a finding of the appellant’s participation in the plan.

V

the other grounds of appeal

A. the instruction on post-offence conduct

[123] In the part of her instructions described as addressing “conduct after the offence”, the trial judge left three pieces of evidence with the jury as potentially inculpatory evidence. The appellant submits that none could reasonably bear any inculpatory inference. She also submits that the trial judge failed to give the jury a mandatory “clear, sharp warning” about the dangers of drawing inculpatory inferences from post-offence conduct. I will first examine the inferences available from the three pieces of evidence left with the jury as after the offence conduct. I will then consider the alleged failure to give a proper warning about that evidence.

(i) The post-offence conduct referred to by the trial judge

[124] The appellant’s speedy, determined and dishonest attempts to secure Hoy’s pension benefits within days of his death could, in my view, support the Crown’s contention that the appellant had a financial motive to participate in Hoy’s murder. To the extent that it fortified the Crown’s case on motive, the evidence supported an inculpatory inference.

[125] Similarly, the appellant’s statements to her former friend Edie Pearce about her feelings toward Hoy could support the Crown’s contention that the appellant hated Hoy and wanted him out of her life at the time of his death. Evidence of animus toward the victim supports an inference of involvement in the murder.

[126] Finally, the evidence of the appellant’s solicitous treatment of Pechaluk’s family while Pechaluk was in custody and before the appellant was charged could support the inference that the appellant was trying to preserve Pechaluk’s loyalty at a time when Pechaluk had taken full responsibility for the crime in an attempt to protect the appellant. The appellant’s treatment of Pechaluk’s family offered some support for the Crown’s claim that the appellant was anxious that Pechaluk continue to hide the appellant’s role in the murder.

[127] The inferences relied on by the Crown and summarized above were not the only inferences available on the evidence referred to by the trial judge. They were, however, reasonably available inferences and were, therefore, properly left with the jury.

(ii) The instructions to the jury

[128] The trial judge’s instructions did sound a cautionary note properly associated with the drawing of inculpatory inferences from post-offence conduct. The trial judge told the jury that it must look at the entirety of the relevant evidence, especially for explanations of post-offence conduct that were inconsistent with guilt. She said:

You must not use this evidence about what she did or said afterwards in deciding or helping you decide that she committed the offence unless you reject any other explanation for it. Then and only then can you consider this evidence together with all the other evidence in reaching your verdict.

[129] The trial judge’s caution was appropriate and adequate. I would dismiss this ground of appeal.

B. the trial judge’s instruction that the appellant was potentially liable as the perpetrator of the murder

[130] The Crown never suggested that the appellant wielded the axe that struck the fatal blows. On the Crown’s theory, the appellant was liable as an aider, abetter or counsellor of the murder actually perpetrated by Pechaluk. The appellant submits that given the Crown’s position, the trial judge erred in leaving with the jury the possibility that the appellant was guilty of murder as the perpetrator.

[131] A trial judge, in determining the bases upon which potential liability should be explained to the jury, will pay careful attention to the position advanced by the Crown. Ultimately, however, it is the evidence that must dictate the bases of potential liability that must be left with the jury. If this jury believed Pechaluk’s evidence without qualification, the only reasonable inference would have been that the appellant, acting on her own, murdered Hoy before going to Pechaluk’s bedroom on the second occasion that evening. On this view of Pechaluk’s evidence, the appellant was the perpetrator of the murder and her liability was not that of an aider, abetter or counsellor.

[132] The trial judge properly left this basis of liability with the jury in the following passage from her charge:

As I have told you, you can believe some, none or all of a witness’s testimony. It is therefore possible that you will believe Ashleigh Pechaluk’s testimony that Nicky [the appellant] planned the murder and that when Nicky came to her room around 10:30 the night of the murder to see if Ashleigh was ready, and Ashleigh said, “no, I’ll never be ready”, that Ashleigh went back to her room, smoked a joint and went to sleep only to be woken up about two hours and a bit later by Nicky, because Dennis was now dead.

If you believe this evidence, it is open to you to conclude that Nicky Puddicombe killed Dennis.

C. the party liability instruction

[133] The trial judge defined aiding, abetting and counselling for the jury and reviewed the evidence relevant to each mode of criminal participation. In doing so, the trial judge distinguished between conduct that could constitute aiding, abetting or counselling, e.g. formulating and participating in a plan to murder Hoy and mislead the police, and conduct that provided evidence of aiding and abetting, e.g. the appellant’s conversation with the 911 operator and her statement to the police when they arrived at the murder scene.

[134] Contrary to the appellant’s submission, the trial judge did not suggest that the appellant’s conduct after the homicide could constitute aiding or abetting. Rather, the trial judge told the jury that evidence of what the appellant did after the homicide could provide evidence that she had aided or abetted the murder by agreeing to and participating in a plan formulated with Pechaluk to murder Hoy and mislead the police. The instructions were correct in law.

[135] Nor do I see any error in the trial judge’s instructions with respect to abetting. On the evidence, the jury could find that the appellant encouraged Pechaluk to murder Hoy by leading Pechaluk to believe that Hoy was abusing the appellant and that the appellant could be safe and with Pechaluk only if Hoy was killed. This kind of persuasive manipulation is clearly a form of encouragement and, therefore, constitutes abetting under s. 21(1)(b).

[136] The trial judge also correctly instructed the jury that in assessing the Crown’s contention that the appellant manipulated Pechaluk into agreeing to murder Hoy, the jury should consider the entirety of the evidence relevant to the formation and development of the relationship between the appellant and Pechaluk. That evidence stretched back several months before Hoy’s murder and properly included the evidence surrounding the appellant’s trip to Las Vegas and Pechaluk’s reaction to the appellant’s description of the manner in which she was being mistreated by Hoy while in Las Vegas.

[137] I also cannot agree with the submission that the Crown’s theory that the appellant encouraged Pechaluk to murder Hoy with stories of Hoy’s abuse had viability only if Hoy was not abusing the appellant. From the perspective of the Crown’s case, the evidence of Hoy’s alleged abuse of the appellant was important because of its effect on Pechaluk and not its ultimate truth. There was cogent evidence that Pechaluk was obsessed with the appellant, firmly believed that Hoy was abusing the appellant, wanted to protect the appellant from Hoy, and feared Hoy. This volatile emotional mix gave credence to the Crown’s contention that the appellant played on these concerns in persuading Pechaluk to murder Hoy.

[138] Finally, the appellant submits that the trial judge’s review of the evidence pertaining to Hoy’s abuse of the appellant was skewed in favour of the Crown. I see no merit in this submission. There was no evidence from any source other than the appellant that Hoy was physically abusive. It is true that two witnesses did indicate he could become angry with the appellant. The trial judge did not refer to this evidence. In my view, her failure to do so has no impact on the correctness or fairness of the jury instruction.

VI

conclusion

[139] I would dismiss the appeal.

RELEASED:

“AUG 07 2013” “Doherty J.A.”

“DD” “I agree M. Rosenberg J.A.”

“I agree Janet Simmons J.A.”

“I agree M. Tulloch J.A.”

APPENDIX A

TWO-PERSON CONSPIRACY:

JURY CAUTION IF ONLY ONE PERSON IS CHARGED

[1] The Crown must establish two things beyond a reasonable doubt to prove Mr. A’s guilt.

• First, the Crown must prove beyond a reasonable doubt that the agreement alleged existed.

• If the Crown proves beyond a reasonable doubt that the agreement existed, the Crown must then prove beyond a reasonable doubt that the accused, Mr. A, entered into or joined that agreement.

[2] The existence of the agreement and Mr. A’s membership in the agreement are two separate questions and must be addressed separately by you in the manner that I will describe.

[3] The indictment alleges that only A and B agreed with each other. It might occur to you that logic would say that if you are satisfied beyond a reasonable doubt that the agreement between A and B existed, it must follow that both A and B entered into the agreement.

[4] Whatever logic might say to you, that is not the law. It is not the law because as I will explain to you, the evidence you are entitled to consider on the first question, that is, whether the agreement alleged existed, and the evidence you are entitled to consider on the second question, that is, whether Mr. A entered into or joined that agreement, may be quite different. You could come to different answers to the two questions because you may be considering different evidence when answering each question.

[5] I stress that you cannot simply jump from the conclusion that the agreement existed to the conclusion that the Crown has proved beyond a reasonable doubt that Mr. A entered into or joined in that agreement with B.

• Armstrong J.A. did not participate in the decision.

[^1]: In his factum, counsel also challenged two evidentiary rulings made by the trial judge. Those grounds of appeal were, however, abandoned in oral argument.

[^2]: Beauregard J.A. agreed with Tyndale J.A. that the trial judge’s directions as to the applicability of the co-conspirator exception to the hearsay rule were flawed and he agreed that the curative proviso should be applied. Beauregard J.A. did not refer to Carter. LeBel J.A. in dissent would have allowed the appeal. He opined that the Carter instruction had to be “modified” in cases alleging a two-person conspiracy. LeBel J.A. identified the relevant error as the failure to make it clear to the jury that the reasonable doubt standard applied to the question of whether the Crown had established the existence of the agreement. This error does not seem to me to arise from the Carter instruction.

[^3]: The premise of this argument seems unsound to me. For example, if six members of the jury decided that one accused had conspired with the unindicted co-conspirator and the other six members of the jury decided that the second accused had conspired with the unindicted co-conspirator, the jury would be satisfied beyond a reasonable doubt that the conspiracy existed, but would not be satisfied beyond a reasonable doubt that either accused was a member of the conspiracy.

[^4]: Dickson C.J.C., for the majority, at para. 50, expressly agreed with McIntyre J. on the issues addressed by him other than the question of whether the appellant was wrongly excluded from his trial.

[^5]: Even Tyndale J.A., at p. 349, did not regard the applicability of the Carter instruction as essential to his analysis. In his view, apart entirely from the applicability of that instruction, the trial judge’s instructions on conspiracy were wrong in law.

[^6]: For example, on the facts of this case, the trial judge could have modified the usual instruction by using the word “plan” throughout the instructions rather than the words “conspiracy” or “common design”. The use of the word “plan” implies no assumption about the number of people involved.

[^7]: For a summary of the approaches developed in other jurisdictions, see Keith Spencer, “The Common Enterprise Exception to the Hearsay Rule” (2007) 11 Int’l J. Evidence & Proof 106.

[^8]: The facts of this case do not require a determination of whether a statement by one co-conspirator after the termination or completion of the conspiracy, but referable to its existence, for example a confession, would be admissible at step one of the Carter instruction as evidence of the existence of the agreement. The admissibility of that kind of after-the-fact narrative statement would depend on what inference, if any, could be legitimately drawn concerning the existence of the agreement from the making of that statement. In Barrow, the Supreme Court of Canada appears to have assumed the admissibility of that kind of evidence at step one of the Carter analysis: see also Bogiatzis at para. 25 and R. v. Viandante at paras. 46-47.