COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Huard, 2013 ONCA 650

DATE: 20131029

DOCKET: C52019

MacFarland, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shane Huard

Appellant

Brian H. Greenspan and Jill D. Makepeace, for the appellant

John McInnes, for the respondent

Heard: June 27, 2013

On appeal from the conviction entered by The Honourable Bruce G. Thomas of the Superior Court of Justice, sitting with a jury, on February 11, 2010.

Watt J.A.:

[1] Three crack users in Windsor had a plan. It was a simple plan. Set up a drug deal. Show up at the designated place, at the appropriate time. Rip off the dealer. Grab the crack cocaine. Run.

[2] A problem developed in the execution of the plan. The dealer was not alone. A fight started. One of the crack users got stabbed. All three left empty-handed.

[3] Two days later, two men approached another drug dealer on a street corner. This time, a shot was fired. The dealer died. The two men fled.

[4] Within days of the shooting, two men[^1] were arrested for killing the drug dealer. One of them was Richard Zoldi, the man who had been stabbed when the rip-off failed. The second was Shane Huard (the appellant), another man involved in the original incident.

[5] Zoldi and the appellant were jointly indicted, but tried separately. One jury convicted Zoldi of second degree murder. Another convicted the appellant of first degree murder.

[6] The appellant contends that the final instructions of the judge who presided at his trial were inadequate and unbalanced in favour of the Crown. He also submits that his conviction of first degree murder, as an aider or abettor, offends s. 7 of the Charter because the shooter, Zoldi, was only convicted of second degree murder.

[7] At the conclusion of the appellant’s oral argument, we dismissed the appeal for reasons to be provided later. These reasons explain why we rejected the grounds of appeal advanced by Mr. Greenspan on the appellant’s behalf.

THE BACKGROUND FACTS

[8] A brief canvass of some features of the evidence adduced at trial provides an appropriate context in which to examine the complaints about the inadequacy and imbalance in the charge to the jury.

[9] The principal issues contested at trial were the identity of the persons involved in the shooting of the deceased and the extent of the appellant’s liability if he were found to be a party to the shooter’s crime.

The Stabbing of Richard Zoldi

[10] On August 24, 2006, the appellant, Richard Zoldi, and Derek Cleary were together at a crack house in Windsor. Zoldi, using Cleary’s phone and pretending to be Cleary, called T.K., a crack dealer from whom Cleary had previously purchased drugs. Zoldi, as Cleary, told T.K. he wanted to buy some drugs. The true purpose of the three men was to rip-off T.K.

[11] When Cleary, Zoldi, and the appellant arrived at the pre-arranged location, a parking lot, they discovered that T.K. had brought another man, Patrick Morris, with him. Cleary got into the car. When shown the drugs, Cleary admitted that he had no money to pay for his “purchase”. The appellant then got into the back seat and asked to see the drugs. He was rebuffed. A fight began. Morris stabbed Zoldi in the shoulder. The appellant pursued T.K. and Morris but they entered their car and drove away.

[12] Zoldi, the appellant, and Cleary left the parking lot in a taxi.

The Threat

[13] Immediately after the planned rip-off had failed, Zoldi telephoned T.K. and threatened him, along with his associates, with retribution for the stabbing. Zoldi told T.K. that he (Zoldi) knew the restaurant premises from which T.K. and his cohorts may have carried on their trafficking business. Zoldi thought Troy Hutchinson, who worked at the restaurant, was associated with T.K. in the trafficking business.

The Gun

[14] In August 2006, Thomas Bradley got a gun to protect himself from others whom he thought had robbed him twice. The gun was a Browning semi-automatic pistol.

[15] Shortly after he got the gun, Bradley loaned it to Robert Gravel because Gravel was concerned that he might be robbed of his prescribed narcotics. Gravel lived across the hall from the appellant.

[16] Late in the evening of August 24, 2006, the same day that Zoldi was stabbed, Gravel noticed some activity around the appellant’s apartment.

[17] The next day, Gravel came over to the appellant’s apartment to report what he had seen the previous evening. He offered to help the appellant in the event that any trouble arose and showed the appellant his handgun. Gravel left the gun in the appellant’s apartment for a short time while he returned to his own apartment after his girlfriend called him.

[18] When Gravel returned to the appellant’s apartment, he didn’t see the gun he had left there. Gravel asked about the gun. The appellant and another man, Zoldi, who was also there, told Gravel that the gun was under the cushions on the couch. Gravel looked under the cushions but found no gun. The appellant and Zoldi insisted that the gun was under the cushions.

[19] Minutes later, the appellant and Zoldi left the apartment. Zoldi carried a plastic bag in his hand. The bag was bulging with something that appeared to be soft. Gravel went back to his apartment. He never found his gun.

The Set-up

[20] Zoldi and the appellant arrived at a local crack house during the afternoon of August 26, 2006. There, along with others, they smoked crack. Among the others at the crack house that afternoon was Susan Sladic. The dealer from whom Sladic often bought her drugs was Troy Hutchinson, a man who worked at the same restaurant as T.K.

[21] According to Sladic, Zoldi produced a gun and made it apparent to everyone in the crack house. Later, Zoldi told Sladic to set up a drug deal with Hutchinson so that they (Zoldi and the appellant) could rip Hutchinson off. The appellant had said the same thing to Sladic earlier in the evening. Sladic reluctantly agreed, called Hutchinson from the crack house, and set up the “buy” at one of their usual sites, a parking lot in a residential area.

[22] After Zoldi spoke to Sladic in the washroom at the crack house, Zoldi and the appellant were alone in the bathroom for about 5 to 10 minutes.

[23] Zoldi, Sladic, and the appellant left the crack house in a car driven by a fourth person, a person whom Zoldi had known for a couple of years. Sladic was to be dropped off at the intersection of Ford and Reginald, a place near where the drug deal with Hutchinson was to take place. Several times during the trip, the appellant said to Sladic, “you ain’t seen nothing, so don’t say nothing”.

[24] Hutchinson was a no-show. Sladic telephoned him. The meeting site was changed to the corner of Ford and Reginald. Sladic was picked up in a car and returned to the crack house.

The Shooting

[25] Troy Hutchinson left his girlfriend’s apartment around midnight on August 26, 2006. As Hutchinson stood on a street corner, he was approached by two white men who walked out of a driveway. One of the men shot Hutchinson. After the shooting, Hutchinson’s assailants punched and kicked him as he lay on the sidewalk.

[26] Several persons witnessed different aspects of the activities that preceded, accompanied, and followed the shooting of Troy Hutchinson. No one identified either assailant. The general descriptions the various witnesses provided of the persons involved and their clothing were not entirely consistent.

[27] Emergency assistance arrived at 12:39 a.m. on August 27, 2006. Hutchinson was fully conscious, but refused to identify his attackers. He did mention a robbery. Police found $300 in cash but no wallet when they searched Hutchinson’s clothing.

The Cause of Death

[28] Troy Hutchinson died of blood loss caused by a bullet that had passed through his liver and right kidney before lodging in his spine. He may also have suffered some blunt force trauma although Hutchinson’s size (he weighed over 300 pounds) and skin colour (Hutchinson was black) inhibited an affirmative conclusion about trauma.

The Forensic Evidence

[29] Police found a .22 calibre semi-automatic pistol in a backyard not far from the place where Hutchinson had been shot to death. The magazine contained six unfired cartridges. A single fired cartridge remained in the gun because the defective ejection mechanism had failed to eject it on firing. The fired cartridge could have been removed manually by racking the gun and then reloading it to fire another shot.

[30] Investigators found no ejected fired cartridges at the scene of the shooting. Ballistic experts could not identify the weapon found nearby as the gun that fired the fatal bullet because the fragments removed from Hutchinson were too damaged to permit an affirmative conclusion. There were some common characteristics observed on the bullet removed from Hutchinson and those fired from the recovered handgun. No fingerprints were detected on the gun.

[31] The day after the shooting, police found some clothing in a nearby yard. On a black T-shirt, analysts detected gunshot residue. Zoldi could not be excluded as the source of DNA found on the outside and inside of the black T-shirt. Another shirt found at the same time had insufficient DNA for comparison.

[32] The recovered firearm was a Browning .22 calibre semi-automatic pistol, the same model that Gravel had until it went missing in the appellant’s apartment the day before Troy Hutchinson was shot to death.

The Positions of the Parties at Trial

[33] The Crown contended that the appellant participated in a plan to rob and kill Hutchinson that was motivated by Zoldi’s desire for revenge because he had been stabbed by an associate of Hutchinson in the abortive rip-off days earlier. According to the Crown, the appellant took Gravel’s gun after Gravel returned to his own apartment for a few minutes. The appellant then gave the gun to Zoldi. The appellant and Zoldi went together to meet Hutchinson at Ford and Reginald, where Zoldi shot Hutchinson and both men beat him. The appellant planned to flee to Timmins after the shooting and attempted to flee from police when he was apprehended.

[34] Counsel for the appellant at trial advanced the argument that the Crown had failed to prove beyond a reasonable doubt that the appellant was at the corner of Ford and Reginald when Hutchinson was killed. None of the eyewitnesses identified him. No forensic evidence connected him to the scene. The witnesses called by the Crown to link the appellant to Zoldi’s plan for revenge, the gun, and his presence at the time and place of the killing were unreliable and could not satisfy the degree of proof required.

THE GROUNDS OF APPEAL

[35] The appellant advances two grounds of appeal.

[36] Mr. Greenspan says that the trial judge’s charge to the jury was inadequate and unbalanced in favour of the Crown. The defence position, he submits, was not put to the jury in such a way that the jury could appreciate its substance and how the evidence adduced at trial supported that position. Further, Mr. Greenspan urges, the appellant’s conviction of first degree murder as a party, an aider, or an abettor, offends s. 7 of the Charter because the principal, Zoldi, was convicted only of second degree murder.

Ground #1: Inadequate and Unbalanced Charge

[37] The jury at the appellant’s trial was required to consider and decide, at most, two issues. The first was whether the appellant was the man with Zoldi on the corner of Ford and Reginald when Zoldi shot Hutchinson to death. The second, reached only if the jury was satisfied beyond a reasonable doubt that the appellant was with Zoldi at the time of the shooting, was whether, and to what extent, the appellant’s conduct attracted criminal liability.

The Arguments on Appeal

[38] For the appellant, Mr. Greenspan asserts no error in the manner in which the trial judge instructed the jury on the first issue. The second issue, on the other hand, he says, is a different story. He makes four submissions with respect to this ground of appeal.

[39] Mr. Greenspan says that the manner in which the trial judge instructed the jury, in particular his reference to decision trees to explain the issues the jury was to decide, failed to leave the jury with an adequate appreciation of the position of the appellant on the issue of liability and the evidence that supported that position. The charge, including the discussion of the decision trees, contained no meaningful references to the position of the appellant or to the evidence that tended to support it. This omission was compounded by a serial recital of the evidence that supported the position of the Crown.

[40] Mr. Greenspan also argues that the trial judge failed to relate the evidence to the conduct and fault elements of which proof was required before the appellant could be found guilty, as an aider or an abettor, of any offence in play at trial – manslaughter, second degree murder, or first degree murder. The only evidence reviewed and related to those issues was the evidence upon which the Crown relied. The jury was left without any appreciation of the defence or how the position of the defence affected the jury’s determination of the adequacy of the Crown’s proof of the fault element for each offence on the basis of aiding or abetting.

[41] Mr. Greenspan contends that the trial judge failed to provide the jury with a more detailed caution about their treatment of competing inferences and the need for them to refrain from engaging in speculation. The jury was not reminded, as it should have been, that if it found that the evidence was as consistent with an intention to rob Hutchinson as it was with an intention to kill him, it could not find the appellant guilty of murder.

[42] As a final point, Mr. Greenspan says that the trial judge erred in failing to adequately instruct the jury about the limited use it could make of evidence of the appellant’s post-offence conduct. The jury should have been told that it could not use that evidence to determine the level of the appellant’s culpability if it first found that he was a participant in the unlawful killing of Hutchinson.

[43] For the respondent, Mr. McInnes begins his written submissions with two reminders about the genesis of the charge that is now said to be fatally defective for want of adequate instructions about the defence position.

[44] First, Mr. McInnes says, a statement outlining the position of the defence and the evidence trial counsel wanted to be marshalled in support of it was read to the jury by the trial judge, as trial counsel had submitted it for that very purpose.

[45] Second, Mr. McInnes continues, trial counsel for the appellant, a very experienced and capable criminal lawyer, made no objection to the substance or the form of the charge to the jury. Not in five days of pre-charge conferences that preceded delivery of the final product. Nor after the instructions had been given and a written copy distributed to the jury.

[46] Mr. McInnes invites our recollection of the extent of a trial judge’s obligation to review the substantial parts of the evidence, and to relate them to the position of the defence so that the jury appreciates the value and effect of the evidence. That obligation, he submits, does not extend to a regurgitation of all the evidence, much less to a duty to turn over every piece of circumstantial evidence to catalogue the inferences potentially available from it. The use of a decision tree does not elevate the trial judge’s obligation or make it different in kind.

[47] To the specific allegations of error or omission, Mr. McInnes responds that, read as a whole, the charge recited the critical features of the evidence, enjoined speculation and, in the case of the instructions about evidence of post-offence conduct, was cast in terms expressly approved by the appellant’s counsel at trial. The jury was left with an adequate understanding not only of the position of the appellant, but also about the evidence relied upon in support of that position.

The Governing Principles

[48] Several basic principles have a say in our decision in this case.

The Fundamental Requirements of a Jury Charge

[49] The function of a charge to the jury in a criminal case is to equip the decision-maker, the jury, to make a decision in accordance with the governing legal principles, not to tell the jury what decision to make.

[50] To fulfil its function, a jury charge must leave the jury with an understanding of:

i. the factual issues to be determined;

ii. the legal principles relating to the factual issues and the evidence adduced at trial;

iii. the positions of the parties; and

iv. the evidence relevant to the positions of the parties on the various issues.

R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at p. 386; R. v. Charles, 2011 ONCA 228, 270 C.C.C. (3d) 308, at para. 17; and R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 29.

The Structure of Jury Charges

[51] In jury charges, substance controls. Form, not so much. No particular approach or standard formula is compulsory. Provided the charge fulfills its purpose and satisfies its requirements, the manner in which it does so is of no great moment: MacKinnon, at p. 386. That said, an orderly or systematic approach to final instructions seems more likely to enhance a jury’s understanding of the precise nature of its task and how to discharge it by following a series of logical steps corresponding to the essential elements of the offence charged.

[52] In the absence of a mandatory overall structure for a jury charge or for a compulsory internal template, the controlling question for an appellate court in every case of alleged inadequacy in final jury instructions is whether the instructions, considered as a whole, satisfy the requirements of the authorities. The issue on appellate review is not whether another approach might have better equipped the jury to perform its task. For that might be said in almost every case with the infinite wisdom of hindsight. The standard is adequacy, not perfection.

The Obligation to Review and Relate Evidence

[53] It is well established that, except in cases in which it would be needless to do so, a trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury may appreciate the value and effect of that evidence and how the law is to be applied to the facts as it finds them: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-499; MacKinnon, at pp. 386-387; and R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 124.

[54] In the six decades that have passed since Azoulay was decided, appellate courts have considered the extent to which a trial judge must rehearse the evidence adduced at trial for the jury to fulfil the “substantial parts of the evidence” mandate of Azoulay. Several principles emerge.

[55] First, in final instructions, a trial judge is under no obligation to review all the evidence. The term “substantial” is a measure of substance and quality, not volume: Largie, at para. 125.

[56] Second, a review of the evidence does not mean a serial and undifferentiated recitation of large parts of the judge’s notes of the evidence of each or most of the witnesses who have testified at trial. The role of the trial judge is to decant and to simplify: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13; Largie, at para. 125. What is necessary are references to the evidence that are sufficient, in the context of the case and the entirety of the charge, to alert the jury to the specific parts of the evidence that are of significance to its decision on particular issues and to the positions of the parties on those issues: MacKinnon, at pp. 386-387. The degree of detail required is a variable, not a constant: Largie, at para. 125.

[57] Third, a trial judge is under no obligation to rehash each and every argument advanced by counsel. However, at bottom, the charge, read as a whole, must leave the jury with an adequate understanding of the evidence relied upon by the parties on the issues raised: MacKinnon, at p. 387.

[58] Fourth, non-direction on a matter of evidence, in other words, a failure to mention an item of evidence in final instructions, amounts to a reversible error only if the single item of evidence to which no reference has been made is the foundation of the defence advanced: Daley, at para. 55. Finally, when the position of the defence is that gaps in the circumstantial evidence adduced by the Crown fail to establish an accused’s guilt beyond a reasonable doubt, it is not incumbent upon the trial judge to recite those discrepancies in the charge, at least when counsel for the defence has outlined those discrepancies in his or her closing address: R. v. Ambrose; R. v. Hutchison, 1976 CanLII 201 (SCC), [1977] 2 S.C.R. 717, at pp. 725-726; MacKinnon, at p. 388; and John v. the Queen, 1970 CanLII 199 (SCC), [1971] S.C.R. 781, at pp. 791-792.

Modes of Participation

[59] The Criminal Code makes no distinction between principals and secondary parties in proof of guilt. Those who aid or abet another who commits a crime are as guilty as the person who actually commits it: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13. As a result, a person who provides a gun to another who shoots someone to death may be found guilty of the same offence as the person who pulls the trigger: Briscoe, at para. 13.

[60] The air of reality standard controls whether a particular basis of liability, whether a definition of an offence or a mode of participation, will be open for the trier of fact to consider. What is essential is that the trial record reveals some evidence on the basis of which a reasonable jury, acting judicially, could make the factual findings necessary to ground liability on the particular basis advanced. When the mode of participation relied upon to establish liability is aiding or abetting, the evidence at trial must be capable of sustaining a finding that more than one person was involved in the commission of the offence: R. v. Isaac, 1984 CanLII 130 (SCC), [1984] 1 S.C.R. 74, at p. 81; R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458; and Largie, at para. 141.

[61] The actus reus and mens rea of aiding and abetting are distinct from those of the principal offence: Briscoe, at para. 13. Both aiding and abetting require proof of two optional elements:

• conduct[^2]; and

• fault.

[62] The conduct element requires proof that the aider or abettor provided actual assistance to the principal by doing something that assisted the principal to commit the offence or encouraged the principal to do so. It is not enough that the conduct of the aider or abettor had the effect of helping or encouraging the principal or resulted in the principal’s committing the offence: Briscoe, at paras. 14-15.

[63] The fault element in aiding or abetting arises from the phrase “for the purpose of”, which is expressly stated in s. 21(1)(b) and is implied in s. 21(1)(c). The fault element includes both intent and knowledge. The aider or abettor must intend to help or encourage the principal to commit the offence and must know that the principal intends to commit that offence: Briscoe, at paras. 16-17. The aider or abettor need not share the intent of the principal to commit the offence: Briscoe, at para. 18.

[64] Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused’s liability for the specific offence as an aider or an abettor. Whether the aider or abettor is tried jointly with the principal, or, as here, separately, is of no moment – the principles governing the liability of the aider or abettor remain the same: Sparrow, at pp. 457-458.

The Use of Decision Trees

[65] A decision tree is a deliberation aid commonly used in jury trials in this province. It displays, in visual form, the various issues that the jury is or may be required to decide and the consequences of the decisions open to the jury on each issue for its further deliberations and final verdicts. The issues are put in the form of questions, in precisely the same terms as those questions appear in the charge. Each question reflects an essential element of the offence charged.

[66] Nothing is wrong and much is right about the use of decision trees as deliberation aids for jurors. They are especially helpful in trials that involve several counts, accused, and issues whether related to definitions of the offence, modes of participation, or defences advanced. But decision trees should not be conscripted to do the work assigned to others, like the charge to the jury. Decision trees are not and should not be transformed into substantive legal instructions.

Appellate Review of Jury Instructions

[67] In any review of the adequacy of jury instructions, we must not lose sight of the setting in which the charge is given. Several participants play a role in a criminal jury trial. The jury decides the facts. The judge determines the law. Counsel advance their positions and remind the jury about the evidence that supports those positions: Daley, at para. 28; Jacquard, at para. 33. The judge is not there to argue, inquire or examine, accuse or defend, or to make decisions on the facts or on the guilt or innocence of the person charged: Daley, at para. 28.

[68] Perfection is not the standard against which we are to evaluate the adequacy of jury instructions. The participants in a jury trial are entitled to a properly instructed jury, not a perfectly instructed jury: Daley, at para. 31; Jacquard, at para. 2; and R. v. Malott, 1998 CanLII 845 (SCC), [1998] 1 S.C.R. 123, at para. 15. Appellate courts take a functional approach to claims of inadequacy, testing the instructions as a whole against their ability to fulfil their intended purposes, not according to the extent to which they adhere to or depart from some predetermined formula or pattern: Jacquard, at para. 14; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p. 163; and John, at pp. 792-793.

[69] A jury charge must also be even-handed, the instructions fair and balanced. A jury charge should not be a partisan broadcast: Largie, at para. 127; and R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at paras. 117-118.

[70] The lack of an obligation on a trial judge to review all the evidence upon which an accused relies has implications for those who claim that the review in a particular case was inadequate.

[71] First, although a trial judge must give the jury a fair picture of the defence and provide sufficient references to the evidentiary support for it so that the jury can appreciate its value and effect, the trial judge is not required to paint in the details, to repeat or comment upon every argument advanced by counsel, or to catalogue the field of available inferences from each piece of circumstantial evidence: Daley, at para. 55; and R. v. Clayton-Wright (1948), 33 Cr. App. R. 22 (C.C.A.), at pp. 28-29.

[72] Second, the extent to which the evidence must be reviewed and related to the position of the defence is one of fairness: Daley, at para. 57. When the position of the defence is that the Crown’s case simply cannot satisfy the standard of proof required, it is debatable whether it is the obligation of the trial judge to embark on a serial review of the alleged inadequacies: R. v. Garon, 2009 ONCA 4, 240 C.C.C. (3d) 516, at paras. 82-83; and Ambroseand Hutchison, at pp. 725-726. As mentioned, the failure to put an individual item of evidence supportive of a defence to a jury is misdirection only if the item of evidence is the sole evidentiary support for the defence: Daley, at para. 55.

[73] Third, a trial judge is under no obligation to review every item of evidence adduced at trial: Azoulay, at p. 498; Daley, at para. 55. The obligation is to review the substantial features of the evidence and to relate that evidence to the critical issues in the case so that the jurors will appreciate the value and effect of the evidence: Azoulay, at pp. 497-498; Daley, at para. 54; and MacKinnon, at p. 385. Where the same evidence relates to more than one issue, there is no need to review the evidence twice, where once will do: Jacquard, at para. 14. It is of no moment whether the evidence is direct or circumstantial.

[74] Fourth, while failure to object to a jury charge on a ground said later to amount to error is not dispositive on appeal, the failure to object affords some evidence that trial counsel did not consider the charge incomplete or unfair as later alleged: Jacquard, at paras. 35-37. It is all the more so when counsel has had extensive opportunity to review drafts of proposed final instructions and ample time to offer suggestions for inclusions, deletions, and improvements to ensure appreciation of the case advanced.

The Principles Applied

[75] I would not give effect to this ground of appeal for several reasons.

[76] First, it is essential to recall the context in which this complaint of error arises.

[77] The defence advanced by very experienced counsel at trial, unsupported by the appellant’s own testimony or evidence from any witnesses called on his behalf, was that he was neither of the two men present when Hutchinson was shot and beaten at the corner of Ford and Reginald. The appellant took the position that the cumulative force of the case for the Crown fell short of the standard required to prove his presence at the killing ground, and thus, his participation in the unlawful homicide that occurred there. Not there. Not guilty.

[78] Experienced trial counsel made no complaint about the manner in which the defence position and the evidence supportive of it was left to the jury. Trial counsel drafted the position at the trial judge’s request and it was read to the jury in the precise terms in which it was drafted. In other words, the defence advanced and the supportive evidence was fully and fairly put to the jury, at least according to trial counsel.

[79] Further, the appellant advances no claim of error in the substance of what the trial judge told the jury about the basis upon which the appellant’s liability as an aider or an abettor in the offences of manslaughter, second degree murder, and first degree murder was to be decided.

[80] Second, it is important to remember the true nature of the appellant’s complaint. Reduced to its essentials, the complaint is that the trial judge failed to mention to the jury alternative inferences consistent with the position of the defence and available on the evidence adduced at trial. Put another way, the error alleged is of non-direction on items of evidence, more accurately, on competing inferences from evidence admitted at trial.

[81] In this case, the trial judge instructed the jury on the position of the defence and on the exculpatory inferences counsel suggested should be drawn from it. The closing address of defence counsel contained a similar recital in greater detail. The result was that the position of the defence and supportive evidence was fairly put in a case remarkable for its factual simplicity.

[82] Third, the submission that the charge was incomplete and unbalanced cannot be sustained in light of the conduct of the defence at trial. The pre-charge conference extended over five court days. Trial counsel was content with the use of the decision trees and the instructions given about them. He took no objection to the legal instructions or the evidentiary references. He made no objection after the charge had been delivered.

[83] In connection with the specific complaint about the instructions on the evidence of post-offence conduct, the charge does not reflect error. Nothing the trial judge said or did not say left or could have left the impression with the jurors that they could use this evidence to determine the level of the appellant’s culpability. Use was confined to the issue of participation, an inference jurors were told they could only draw if they rejected the appellant’s explanation that his flight was attributable to his possession of drugs.

[84] The claim of inadequacy and imbalance cannot be sustained.

Ground #2: The Conviction of First Degree Murder Offends s. 7 of the Charter

[85] The second ground of appeal enlists s. 7 of the Charter to displace the application of the principle established by the decision of the Supreme Court of Canada in R. v. Rémillard (1921), 1921 CanLII 584 (SCC), 62 S.C.R. 21, over 90 years ago. The submission invokes the disparity between the deprivation of liberty that follows a conviction of an aider or abettor of first degree murder and that which follows the conviction of the principal of second degree murder.

The Background

[86] A brief reference to the relevant findings, followed by a paraphrase of the positions of counsel and a summary of the governing legal principles provides an adequate foundation upon which to decide this issue.

[87] In the beginning, the appellant and Zoldi were jointly charged with first degree murder. They appeared together for a joint trial in the Superior Court of Justice. As the joint trial was about to begin, Zoldi’s then counsel applied to be removed as counsel of record. The order was made, along with an order severing Zoldi’s trial from the trial of the appellant.

[88] In part because of the potential application of s. 11(b) of the Charter, Crown counsel proceeded against the appellant first. Neither party called Zoldi as a witness at the appellant’s trial.

[89] Zoldi’s trial proceeded more than a year after the appellant had been convicted of first degree murder. Zoldi was convicted of second degree murder and sentenced to imprisonment for life. His parole ineligibility period was fixed at 13 years.

[90] The position of the Crown at both trials was that Zoldi was the shooter; the appellant, an aider or abettor.

The Positions of Counsel on Appeal

[91] For the appellant, Mr. Greenspan acknowledges that the decision in Rémillard establishes the principle that a party may be convicted of a more serious offence than the principal. But, he submits, this principle requires re-examination in light of the requirements of s. 7 of the Charter that demand that any deprivation of a person’s liberty interests comply with the principles of fundamental justice.

[92] Mr. Greenspan says that it is (or should be) a principle of fundamental justice that the less morally culpable should not be convicted of a greater (more serious offence or punished more severely than the more morally culpable. In this case, fundamental justice requires that the appellant’s conviction of first degree murder be vacated and a conviction of second degree murder or manslaughter be substituted.

[93] For the respondent, Mr. McInnes takes the position that no principle of fundamental justice is at work here. He acknowledges that the law disfavours what appear to be inconsistent verdicts, but, at the same time, it recognizes that prospect because separate trials may be ordered for those jointly indicted and separate trials enhance the likelihood of inconsistent verdicts.

[94] Mr. McInnes emphasizes that criminal liability is individual and falls to be determined according to the substantive and adjectival law that applies to individual accused. A principal may have a defence not available to an aider or an abettor. An aider’s or an abettor’s liability cannot be circumscribed by what another jury does later, on potentially different evidence and in accordance with different legal instructions. It would be unjust to permit the appellant to obtain a windfall because a different jury, trying a different accused, on different evidence, found him guilty of a lesser offence.

The Governing Principles

The Decision in Rémillard

[95] In Rémillard, the principal was tried first and convicted of manslaughter on an indictment that charged murder. At the subsequent trial of the alleged aider or abettor, defence counsel asked the trial judge to instruct the jury that the appellant could not be convicted of murder because the principal had only been convicted of manslaughter. The trial judge refused to do so. The appellant, the alleged aider or abettor, was convicted of murder.

[96] The Supreme Court of Canada unanimously held that the trial judge had not erred in leaving the charge of murder with the jury. Each judge gave separate reasons for judgment.

[97] The reasons of Mignault J. contain the most considered analysis of the issue and make three points:

i. the verdict of the first jury (manslaughter) is entirely irrelevant in the trial before the second jury;

ii. the verdict in the first trial is not res judicata; and

iii. the guilt of the aider or abettor cannot be measured against the guilt of the actual perpetrator because the Criminal Code makes all participants, principals, aiders, and abettors alike parties to and guilty of the offence.

Rémillard, at pp. 33-35.

[98] It is also worth notice that s. 23.1 of the Criminal Code makes it clear that an aider or abettor can be convicted of an offence even though the person aided or abetted cannot be convicted of the offence. Said in another way, conviction of the principal is not a condition precedent to, or in any way limitative of, the conviction of an aider, abettor, or other secondary party.

The Principles of Fundamental Justice

[99] The principles of fundamental justice lie in the basic tenets of our legal system: Reference re s. 94(2) of the Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 503. A mere common law rule does not suffice to constitute a principle of fundamental justice. What is required are principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice: Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at pp. 590-591, and 607. The principle must also be identified with enough precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 113.

The Principles Applied

[100] I would not give effect to this ground of appeal for several reasons.

[101] First, the decision in Rémillard makes it clear that an aider or abettor can be convicted of a more serious offence than the principal. Said somewhat differently, the culpability of the aider or abettor is not co-extensive with or limited by the liability of the principal.

[102] Second, the jury verdict in Zoldi’s case is only conclusive as between the Crown and Zoldi. The verdict is based on the evidence adduced at Zoldi’s trial and the legal principles in accordance with which his liability was determined there. The verdict is not an in rem determination of the legal character of the unlawful killing of Troy Hutchinson: Rémillard, at pp. 34-35.

[103] Third, to hold otherwise would be to ignore the effect of both sections 21 and 23.1 of the Criminal Code. Section 21 abolishes the distinction between principals and secondary participants: all are parties to the commission of an offence. Section 23.1 permits conviction of an aider or an abettor even if the principal cannot be convicted, as for example, where the principal is found not criminally responsible on account of mental disorder. Section 23.1 appears to represent a legislative determination that reinforces the individual nature of criminal liability, leaving the level of culpability of secondary participants at large, unbounded by decisions about the principal’s liability.

[104] Fourth, the principle for which the appellant contends would be of uncertain application. In this case, for example, it would require an ex post facto “correction” of a verdict untainted by error on the basis of an irrelevant consideration – the subsequent verdict of another jury in another trial.

[105] Finally, I am unable to fashion any principle of fundamental justice that would warrant the remedy sought by the appellant. The principle would be at odds with fundamental principles that criminal liability is individual, determined on the basis of evidence properly admissible against the person whose liability is at issue, and in accordance with the principles of law that govern that determination. Neither is the proposed principle compatible with an established principle of fundamental justice – res judicata.

CONCLUSION

[106] For these reasons, I would dismiss the appeal.

Released: October 29, 2013 (“J.MacF.”)

“David Watt J.A.”

“I agree. J. MacFarland J.A.”

“I agree. Gloria Epstein J.A.”

[^1]: A third person, Susan Sladic, was also charged, but the charge was withdrawn in return for her testimony. Sladic was a customer of the deceased who set up the “transaction” during which the deceased was killed.

[^2]: The term “conduct” includes omissions where there is a statutory or common law duty to act, as for example, the duty to provide necessaries of life imposed under s. 215(1) of the Criminal Code.