COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cadeddu, 2013 ONCA 729

DATE: 20131204

DOCKET: C55147 & C54351

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Cadeddu and Douglas Seaton

Appellants

Joshua D. Frost, for the appellant, John Cadeddu

Frances S. Brennan, for the appellant, Douglas Seaton

Shawn Porter, for the respondent

Heard: July 18, 2013

On appeal from the convictions entered on June 9, 2011 and from the sentences imposed on August 11, 2011 by Justice C. Anne Tucker of the Superior Court of Justice, sitting with a jury.

Strathy J.A.:

A. introduction

[1] In the early morning hours of March 15, 2008, 75-year-old Harry Anger was brutally beaten with a baseball bat,[^1] while in bed at his home in Port Colborne. The violence of the beating left blood spattered on the walls and ceiling of his bedroom. He received life-threating head injuries. The doctors kept him alive by putting him in a coma to reduce swelling on his brain caused by internal bleeding.

[2] Anger partially recovered from his injuries. He was, however, left with impaired balance and memory problems. He had no memory at all of the attack and could not identify his assailant(s).

[3] The crime scene yielded no clues as to the identity of the perpetrator(s). There were no signs of forced entry to the house. No rooms other than the bedroom were disturbed, and the intruder(s) left no fingerprints or other forensic evidence. The victim’s wallet, rings, notepad and cell phone were missing. The weapon used to inflict the beating was never found.

[4] The police investigations quickly focused on the appellants, John Cadeddu and Douglas Seaton, each of whom was related to Anger and had a motive to harm him. The police discovered that Anger’s credit cards had been used at a gas bar in Grimsby, Ontario, in the early morning hours of March 15, 2008. Later that morning, an attempt had been made to withdraw cash at an ATM in Grimsby using one of Anger’s credit cards. That afternoon, one of Anger’s cards had been used at another gas station and at a Beer Store in London, Ontario.

[5] Video surveillance at the ATM showed Cadeddu and Seaton attempting to withdraw cash from the machine. Surveillance at the Beer Store showed Cadeddu buying two cases of beer.

[6] After being questioned by police, the appellants were jointly charged with attempted murder, break and enter, aggravated assault, theft under $5000, and using three stolen credit cards.

[7] The Crown’s theory was that Cadeddu and Seaton were either joint principals or that one had aided or abetted the other. At trial, Cadeddu and Seaton ran a “cutthroat defence”, with each denying responsibility for the crimes and pointing blame at the other. They admitted driving to Port Colborne in Seaton’s truck, along with Seaton’s wife, but Seaton testified that he and his wife had gone to a donut shop while Cadeddu went to Anger’s house. Cadeddu, on the other hand, testified that he had been asleep in the back of the truck when Seaton went into the house.

[8] Both were convicted on all counts, except attempted murder, and were sentenced to eight years in the penitentiary, less credit for time served.

[9] Cadeddu appeals his convictions, claiming, among other things, that the trial judge did not properly instruct the jury on party liability. Specifically, he says the trial judge gave a flawed and incomplete instruction on liability as a participant in a common unlawful purpose under s. 21(2) of the Code. Seaton has abandoned his conviction appeal, but seeks leave to appeal his sentence.

[10] For the reasons that follow, I agree that the trial judge’s instructions on party liability were deficient. The curative proviso does not apply in the circumstances, because it cannot be said that a properly instructed jury would necessarily have arrived at the same verdict. I would therefore allow Cadeddu’s conviction appeal and order a new trial. I would grant Seaton leave to appeal his sentence, but dismiss the appeal.

B. Factual Background

[11] As I would order a new trial, I will outline only the evidence necessary to understand the position of the Crown and the appellants and to give context for the trial judge’s instruction on party liability.

[12] Cadeddu was married to Anger’s step-granddaughter. At one time, Cadeddu and Anger had a good relationship, but it deteriorated as a result of a dispute over $60,000 that Cadeddu believed Anger owed him. On a previous occasion, Cadeddu had called Anger a “fucking low life, a piece of shit” and told him that if he did not get his money within a week, he would be back, “mark [his] words”.

[13] The police heard of this incident and interviewed Cadeddu on March 16, 2008, the day after Anger was beaten. Cadeddu denied any involvement in the assault. He said that he had never been to Anger’s home and had no idea where he lived. He told the police that he had been at his own home in London, Ontario, on the night Anger was beaten.

[14] There was also bad blood between Anger and Seaton, who was Anger’s step-grandson. Anger held a mortgage on Seaton’s home and their formerly close relationship had become acrimonious due to a dispute over the mortgage.

[15] On March 19, 2008, after obtaining the video evidence, the police went to Seaton’s house to speak to him. When they knocked on the front door, he escaped out the back. His wife told the police that he was not at home, but the police found him hiding in the back yard. At the preliminary hearing, he testified that he ran because he thought there were criminals breaking down his front door. At trial, he admitted that he was running from the police.

[16] The police arrested both Cadeddu and Seaton on March 19, 2008.

[17] Seaton gave a statement to the police in which he admitted driving with Cadeddu to Port Colborne on the night in question. He said he parked his truck a short distance from Anger’s house. Cadeddu got out and returned about ten minutes later. Cadeddu told him that he had given Anger “a little scare”. He had one of Anger’s credit cards with him.

[18] Seaton gave a second statement on April 1, 2008. He told the police that Cadeddu had told him that he was going to give Anger a little scare and that he had given Anger a little slap.

[19] Both Seaton and Cadeddu testified at their joint trial. Their testimonies were essentially mirror images. Each denied going into Anger’s house, and implicated the other. Both admitted travelling to Port Colborne late that night, along with Seaton’s wife, but each said it was the other’s idea to go to Anger’s home and that it was the other who entered the residence.

[20] Seaton testified that he and his wife drove to Port Colborne with Cadeddu because Cadeddu wanted to speak to Anger about the money he thought he was owed. He claimed that he slept most of the way and woke in Port Colborne when Cadeddu got out of the truck. He said that he pointed out Anger’s house to Cadeddu and told him where the bedroom was located. He and his wife, he said, then went to a nearby Tim Hortons. When they returned a short time later to pick Cadeddu up, he said that he had given Anger “a little scare and just like a little cuff.” Seaton denied that he went into Anger’s house.

[21] Seaton said Cadeddu told him that Anger had given him the credit cards so that he would have some money until Anger was able to see him about the debt. He claimed that when he later found out about Anger being injured, Cadeddu, who was also there, was “grinning”. He asked Cadeddu about it and Cadeddu did not say anything.

[22] Seaton’s wife confirmed that her husband was passed out in the car during most of the trip to Port Colborne and corroborated his evidence that they had gone to Tim Hortons while Cadeddu left the car for a short time. She claimed that Cadeddu admitted hitting Anger on the head and knee with a baseball bat.

[23] Cadeddu, on the other hand, testified Seaton had told him that he was concerned about Anger’s mortgage on his house and that he wanted to go to Anger’s house to get the mortgage papers. Cadeddu claimed Seaton had told him that Anger would not be home that night. He said that Seaton had a key to Anger’s house. Cadeddu claimed he went along just because he wanted to go for a road trip. He said he was taking prescription pain medicine at the time, and he had been drinking throughout the evening and continued to drink beer in the car on the trip to Port Colborne. He would sleep for a while, wake up and have a drink, and then sleep some more. He said that at some point he heard Seaton say “That’s Harry’s [Anger’s] house.” He looked up, but did not see Anger’s car. He went back to sleep and did not see Seaton or his wife get out of the truck. He denied committing any of the offences.

[24] There was evidence that Seaton kept a baseball bat in his truck and that Cadeddu was aware of that fact. The baseball bat was not found in the truck when Seaton was arrested on March 19, 2008, and it was never located. There was also evidence that Seaton and his wife at one time had a key to Anger’s home, though a number of people had keys to it.

[25] There were numerous inconsistencies in the appellants’ evidence, not only as between the evidence of the Seatons and Cadeddu, but also internal inconsistencies in each witness’s evidence and inconsistencies between their trial evidence and the statements they had given to the police on previous occasions.

[26] With that background, I turn first to Cadeddu’s appeal of his convictions.

C. CADEDDU’S CONVICTION APPEAL

[27] Cadeddu asserts that the trial judge made several errors in her instructions to the jury. In my view, the dispositive issue is the trial judge’s instruction concerning party liability.[^2]

(a) The Trial Judge’s Charge and the Jury’s Question

[28] Party liability is set out in s. 21 of the Code. That section provides:

(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[29] In this case, although not initially requested to do so by either the Crown or the defence, the trial judge gave an instruction on common unlawful purpose (s. 21(2)) in addition to instructing the jury on liability as a principal (s. 21(a)) and aiding (s. 21(b)) and abetting (s. 21(c)). The common purpose instruction was repeated in answer to a question from the jury.

[30] For the reasons that follow, I would find that the instruction under s. 21(2) was incomplete and misleading. I would also find that the proviso in s. 686 of the Code does not apply. I would accordingly allow Cadeddu’s appeal from his convictions and would order a new trial for Cadeddu. In the circumstances, it is unnecessary to consider the other grounds of appeal.

[31] In the pre-charge discussions, Crown counsel asked the trial judge to instruct the jury on liability as joint principals under s. 21(1)(a) of the Code and on aiding and abetting under s. 21(1)(b) and (c). At that time, the Crown stated that he was not requesting an instruction on common unlawful purpose under s. 21(2). The defence made no request for a s. 21(2) instruction, and it was clearly not in their interests to do so.

[32] After reviewing basic information about jurors’ duties, different forms of evidence given in the trial and the testimony and statements of the two accused, the trial judge gave an introductory instruction about modes of participation. Instead of starting with an explanation of the concept of principals, she began with a definition of aiding and abetting. She said:

A person also commits an offence, if he does anything or fails to do anything, that it is his duty to do so [sic], for the purpose of helping another person to commit the offence. Anyone who actively encourages someone else to commit an offence is just as guilty of an offence as the person who actually commits it.

[33] While this starting point may have been somewhat confusing for the jury, the problem was soon rectified by a standard instruction describing the concepts of principals and joint principals, and of aiding and abetting.

[34] Then, although not asked to do so by either the Crown or the defence, the trial judge gave an instruction concerning common unlawful purpose under s. 21(2) of the Code. The instruction she gave was as follows:

A person may also commit an offence by being involved with another person in a common unlawful purpose. If anyone in the group commits an offence, in carrying out their original common unlawful purpose, any other member of the group who knew, or should have known, that the events [sic] would likely be committed by someone in the group carrying out the original purpose, is guilty of the offence the other person actually commits.

[35] This instruction did little more than paraphrase s. 21(2). As I explain more fully below, a proper instruction under s. 21(2) requires an explanation of the three elements of that mode of liability – agreement, offence, and knowledge – and must relate the evidence to those elements. The instruction in this case did neither. This made it incomplete and misleading. It was incomplete because it did not explain the elements of this form of liability or the evidence to be considered in relation to each element. It was misleading because it did not explain that the offence committed must be different from the original common unlawful purpose.

[36] The balance of the charge contained a thorough and effective summary of the elements of the offences, a review of the relevant legal principles and a summary of the evidence and the parties’ positions. However, the trial judge said nothing more on the subject of common unlawful purpose liability. In particular, she did not review any of the elements of that mode of participation and did not explain how the evidence the jury had heard could be related to those elements.

[37] The trial judge’s instructions in relation to each count were structured in an “and/or” fashion in relation to each accused. For example, on the count of breaking and entering and committing aggravated assault, the instruction was:

For you to find Doug Seaton and/or John Cadeddu guilty of breaking, entering and committing aggravated assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt. One, that Doug Seaton and/or John Cadeddu broke into a place. Two, that Doug Seaton and/or John Cadeddu entered a place. Three, that Doug Seaton and/or John Cadeddu committed aggravated assault in the place.

[38] The trial judge went on to explain the Crown’s burden of proof beyond a reasonable doubt in relation to each element of the offence.

[39] Immediately after the charge had been completed, the Crown and defence each requested that the trial judge clarify one aspect of her instructions, unrelated to this appeal. The trial judge agreed and did so in a very brief re-instruction. There were no other objections to the instructions and, in particular, no objection was taken to the instruction concerning s. 21(2) or any of the other issues raised on this appeal.

[40] Shortly after the jury had begun their deliberations, they asked two questions. They first asked the trial judge to explain once again the difference between attempted murder and aggravated assault. The second question related to modes of participation. The jury asked:

Also, can you please re-explain the concept of principal and party?

[41] The trial judge invited submissions from counsel on this issue and proposed that she repeat the instruction on “Different Modes of Participation (Thatcher Instruction - Final 100-B),” contained in David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at pp. 248-29.[^3] However, Wattcautions in a footnote, at p. 248, that “[t]hese instructions should only be given where there is evidence that provides an air of reality to a submission that alternate routes to liability are available in the case” (emphasis in original). In discussing this instruction with counsel, the trial judge asked whether a common unlawful purpose instruction was required. She said:

I even wonder about [the common unlawful purpose instruction contained in para. 5 of Watt Final 100-B], when it’s talking about the common purpose thing; that again gets rather confusing. It starts to sound like there is a bigger conspiracy rather than a party thing.

[42] The Crown, however, requested that the instruction be given. In answer to the trial judge’s suggestion that the instruction could be omitted, Crown counsel stated:

Well save and except Your Honour, as you know, the Crown’s theory is that this is a common joint enterprise.

As noted above, the Crown had not requested an instruction on s. 21(2) in the pre-charge conference, but the trial judge had nevertheless given the instruction.

[43] The defence did not object to the Crown’s request. The trial judge gave the following additional instruction to the jury:

I am going to deal with principals and parties first. I am going to read you what I read you before, with a few additions, so it will help you to understand. Under our law, a person may participate in an offence and be guilty of it in different ways. A person may commit an offence by personally doing everything necessary to commit the offence, either alone or along with someone else who participates in the same way. We call that person a principal. A person may also commit an offence by helping another person to commit that offence. This help may be doing something for the purpose of helping the other person to commit the offence. We often refer to that person as a party.

A person may commit an offence by encouraging another person to commit that offence. That, again, would be someone we would call a party. A person may also commit an offence by being involved with it in a common unlawful purpose. If any of the group commits an offence in carrying out the original common unlawful purpose, any other member of that group who knew or should have known that the offence would likely be committed by someone in the group carrying out the original purpose, is guilty of the offence that the other person actually commits.

A person who commits an offence, if he does anything for the purpose of helping another person commit the offence; anyone who actively encourages someone else to commit an offence, is as guilty of the offence as the person who actually commits it. So the person who commits it is the principal; anyone who otherwise is involved and encourages it in the way I’ve just described, we refer to as a party.

Anyone have any questions further on that? That explains it? [Emphasis added.]

[44] The re-charge on common unlawful purpose, emphasized above, was in substantially the same language as the original charge.

[45] Neither the Crown nor the defence objected to this re-instruction after it was given.

(b) Positions of the Parties

[46] Cadeddu now submits that the charge and the re-charge on s. 21(2) were flawed because: (a) they failed to explain the elements of liability under that mode of participation; and (b) they failed to explain that the offence with which the accused is charged must be differentfrom the offence initially agreed upon and being carried out by the parties.

[47] Cadeddu says that the trial judge gave the jury a route to liability – common unlawful purpose – that neither party had requested during the pre-charge conference. Having introduced the concept in skeletal form, the trial judge failed to put flesh on the bones by explaining the elements of that route and by relating the evidence to those elements. He submits that by essentially repeating the instruction in her re-charge in answer to the jury’s question, the trial judge compounded the deficiency in the original charge. In the result, Cadeddu claims, the jury was left with an incomplete and confusing instruction.

[48] The Crown acknowledges that these instructions were deficient because they did not explain the elements required for that mode of participation. The Crown also acknowledges that the trial judge did not define the original “unlawful purpose” for the jury, nor did she identify the actual offence committed or explain that this offence must be different from the original unlawful purpose. The Crown also agrees that these omissions are rendered more significant because they were repeated in the response to the jury’s question.

[49] The Crown submits, however, that this is an appropriate case in which to apply the proviso under s. 686 of the Code. It submits that the jury would inevitably have convicted Cadeddu, if had they had been given the correct instruction.

(c) Principles of Party Liability

[50] Section 21 of the Code is set out at para. 28, above. Subsection 21(1) deals with principals, aiding and abetting. Subsection 21(2) imposes a broader liability. It applies where one person commits an offence beyond the one with which the parties had originally planned to assist one another. It imposes liability on the other person if that person knew or ought to have known that the offence committed would be a probable consequence of carrying out the original common unlawful purpose. The Supreme Court explained in R. v. Logan, [1990] 2 S.C.R. 731, at p. 746, that the objective of s. 21(2) “is to deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose.”

[51] The distinctions between ss. 21(1) and 21(2) were described by Watt J.A. in R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 459, at paras. 39-43:

Persons who participate in the offence actually committed, whether as a principal, an aider or an abettor, have their liability determined under s. 21(1).

Section 21(2) extends liability for crime in two respects. The first has to do with the persons whose participation in an unlawful enterprise may attract liability. And the second relates to the offence for which participants in an unlawful criminal enterprise may be held liable: R. v. Simpson, [1988] 1 S.C.R. 3, at p. 15; R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 CanLII 1804 (ON CA), 50 C.C.C. (2d) 406 (Ont. C.A.), at p. 409; R. v. Howard and Trudel (1983), 1983 CanLII 3507 (ON CA), 3 C.C.C. (3d) 399 (Ont. C.A.), at p. 408.

The persons to whom s. 21(2) extends liability are those whose participation in the offence actually committed would not be captured by s. 21(1). These persons have participated in a prior unlawful enterprise with others and either knew or, in most cases at least, should have known that one (or more) of the other participants in the original enterprise would likely commit the offence charged in pursuing their original purpose.

The offence to which s. 21(2) extends liability is not the original “unlawful purpose” to which the subsection refers. The “offence” of s. 21(2) is a different crime, one that a participant in the original “unlawful purpose” commits in carrying out that original purpose. And so it is that we sometimes say that s. 21(2) extends liability to those engaged in one unlawful purpose to incidental or collateral crimes: crimes committed by any participant (in the original purpose) in carrying out the original purpose that the other knew or should have known would likely be committed in pursuing the original purpose.

Under s. 21(2), the liability of a party to a common unlawful purpose for an incidental crime committed by another participant requires proof of the party's participation in the original unlawful purpose, the commission of the incidental crime by another participant and the required degree of foresight of the likelihood that the incidental crime will be committed. Consistent with general principle, each of these essential elements, earlier described as “agreement”, “offence” and “knowledge”, must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. What we require is some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 83; R. v. Isaac, [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. [Emphasis in original.]

[52] This passage makes the important point that the scope of s. 21(2) is broader than s. 21(1). It extends liability to those who would not be found responsible as aiders or abettors and it extends responsibility for offences other than the offence in which they participated, if they had the requisite degree of foresight in respect of the commission of the offence charged: R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 62, per Rosenberg J.A., referring to R. v. Jackson (1991), 1991 CanLII 11739 (ON CA), 68 C.C.C. (3d) 385 (Ont. C.A.), at p. 421.

[53] As noted in Simon, at para. 43, there are three elements of liability under s. 21(2):

(a) agreement: participation of the party in a common unlawful purpose;

(b) offence: commission of an incidental and different crime by another participant; and

(c) knowledge: foreseeability of the likelihood of the incidental crime being committed.

A trial judge instructing a jury on this route to liability is required to explain these elements.

[54] I will review each of these elements and discuss the instruction the jury should have been given with respect to each. Before doing so, it is worth noting that the wording of s. 21(2) is – on its face – ambiguous. The “unlawful purpose” could refer either to the offence with which the accused is charged or to a different offence. The Supreme Court identified this ambiguity in R v. Simpson, [1988] 1 S.C.R. 3, at p. 11. Justice McIntyre, who gave the judgment of the court, clarified that the unlawful purpose must be different from the offence charged. He stated, at p. 15:

While acknowledging that the words of s. 21 of the Criminal Code could be read to support either contention… I am of the opinion that … the unlawful purpose mentioned in s. 21(2) must be different from the offence which is actually charged. The "unlawful purpose" and "the offence" committed in the course of the pursuit of the unlawful purpose are different. The two subsections of s. 21 deal with different circumstances. Subsection (1) applies to make everyone a party to an offence who commits it or who aids and abets in its commission. Subsection (2) covers the case where, in the absence of aiding and abetting, a person may become a party to an offence committed by another which he knew or ought to have known was a probable consequence of carrying out an unlawful purpose in common with the actual perpetrator. [Citations omitted.]

[55] As I have noted, the Crown concedes that this distinction was not explained to the jury.

(i) Agreement

[56] The foundational element of s. 21(2) is an agreement between a principal and a party (or parties) to carry out an unlawful purpose. An unlawful purpose is one that is contrary to the Code. The unlawful purpose must be shared by all parties, and it must be different from the offence ultimately committed.

[57] A party to an offence under s. 21(2) does not need to share the same motives or desires as the principal. As Lamer C.J. stated in R. v. Hibbert, [1995] 2 S.C.R. 973, at para. 42, the parties only need to have in mind the same unlawful goal, because to require “a mutuality of motives and desires between the party and the principal” would unduly restrict Parliament’s intention in enacting the offence. Moreover, the agreement or common intention does not need to be formed in advance; it can arise at the time the offence is being committed: R. v. Vang (1999), 1999 CanLII 2310 (ON CA), 118 O.A.C. 75, at para. 24, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 203. For instance, in Vang, this court found that even though the assault was commenced by only one party, once the accused joined the attack, they engaged in a common purpose to assault the complainant and to assist each other in carrying it out (at para. 25).

[58] The trial judge is required to instruct the jury that they must be satisfied, beyond a reasonable doubt, that the accused and the other participant(s) agreed to carry out a common unlawful purpose and to help each other to do so. They must be referred to the evidence they can consider in determining whether there was such an agreement.

(ii) Offence

[59] One party to the common unlawful purpose must commit an offence that was not the offence intended by the parties, but is nonetheless related to the original unlawful purpose. The ultimate offence can, however, be very closely related to the common intent. For instance, as this court recently noted in R. v. McDonald, 2013 ONCA 442, 306 O.A.C. 250, at para. 21, the common purpose can be assault and the ultimate offence can be aggravated assault. In addition, once there is evidence that two or more accused acted in concert, s. 21(2) can apply even if it is unclear which of the accused actually committed the offence (i.e. which was the principal): R. v. Wood (1989), 1989 CanLII 7193 (ON CA), 33 O.A.C. 260, at para. 61, leave to appeal to S.C.C. refused, [1990] S.C.C.A. No. 73.

[60] The jury must be instructed that in the course of carrying out their original agreement, a participant who was part of the original agreement, but not the accused, committed a different offence in carrying out the original agreement. It must be made clear to the jury that the offence committed is one that the members of the original agreement did not set out to commit, but one that took place in the course of carrying out their original agreement or plan.

(iii) Knowledge

[61] Generally, a person will be liable under s. 21(2) if he or she knew or ought to have known that the offence committed by the principal was a probable consequence of their unlawful agreement. As Watt notes,at p. 258, to determine what the person actually knew about the likelihood of another participant in the original unlawful plan committing the offence, the finder of fact must look to the “words, and conduct before, at the time and after” the offence. When assessing foreseeability, the standard is that of a reasonable person in the same circumstances.

[62] The trial judge must instruct the jury that the requisite knowledge can be established either by showing that the accused actually knew that the offence would probably be committed in carrying out the original agreement or that a reasonable person in the circumstances would know that one of the participants in the original agreement would probably commit the offence in carrying out the original agreement.[^4]

(d) Instructing the Jury on s. 21(2)

[63] It is well-settled that a jury in a criminal case must be properly instructed, not perfectly instructed: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, atpara. 69; R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 2.However, a trial judge is required to give a legally adequate instruction: McDonald, at para. 39. The jury must be instructed concerning (a) the factual issues to be resolved; (b) the law to be applied; (c) the positions of the parties; and (d) the evidence relevant to the issues and to the positions of the parties: R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at pp. 385-86.

[64] When there is an air of reality to liability under s. 21(2), the trial judge is required to explain the three elements of that basis of liability, and what the Crown must prove in relation to each of those elements. He or she must also review the evidence the jury may consider in relation to those elements in determining whether that route to liability has been established. As Lauwers J.A. noted in McDonald,at para. 39:

In the circumstances of this case, especially in light of the complexity of the facts, the number of participants in the fight, and the Crown's emphasis on “common purpose” in its jury address, once the trial judge raised the prospect of a “joint criminal enterprise” route to liability, he was obliged to provide a legally adequate jury instruction on s. 21(2). To ground a conviction on the basis of common purpose, the jury was required to find the three elements of the offence: (1) an agreement to carry out an unlawful purpose, (2) the existence of a second offence, and (3) the requisite degree of knowledge that another participant would commit that second offence.

[65] In this case, the trial judge gave an introductory instruction on different modes of participation that appears to have been taken from Watt, at p. 247,[^5] but she may have overlooked a footnote that the instruction should only be given where alternative bases of liability should be left to the jury and that inapplicable paragraphs should be deleted. As well, in both the instruction and the re-instruction, the trial judge omitted reference to the requirement that the offence committed must be different from the original unlawful purpose. This difference is highlighted in Watt, at pp. 247-48, “Notes on Use” of the instruction on common unlawful purpose:

A brief caution is appropriate in connection with … the instruction on s. 21(2) of the Criminal Code…

[Section] 21(2) only applies where the “unlawful purpose” mentioned in the subsection and the offence committed are different. … Unlike s. 21(1), which makes everyone a party to an offence who, alone or together with another, commits that offence or helps or encourages another who commits it, s. 21(2) makes [the accused] a party to an offence committed by another person that [the accused] knew or ought to have known was a probable consequence of carrying out an unlawful purpose with the actual perpetrator.

Section 21(2) cannot be invoked when two or more parties agree to commit an offence, then proceed to commit the very offence on which they have agreed. Trial judge must be vigilant to ensure that the reach of s. 21(2) does not exceed its grasp. [Citations omitted; emphasis in original.]

[66] The description of common unlawful purpose given in this case was abstract, and provided the jury with little more than could be gleaned from a reading of s. 21(2). The trial judge did not (1) describe the original unlawful purpose (break and enter); (2) explain that for Cadeddu to be guilty under s. 21(2), Seaton had to commit a different offence (aggravated assault); and (3) explain that Cadeddu had to have the requisite degree of knowledge or foresight concerning the assault. Nor did the trial judge relate the evidence to the elements of the offence or explain what findings the jury was required to make before liability under s. 21(2) could arise.

[67] As the Crown acknowledges, the deficiency was amplified because it was repeated in answer to the jury’s question. As Cory J. stated in R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 530, questions from the jury require comprehensive and correct responses:

There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided.

[68] The additional instruction was given to the jury in response to an issue that was troubling them. The answer was incomplete and unhelpful. It was the last thing the jury heard before they resumed their deliberations.

[69] The circumstances here are similar to those in R. v. Quinn, 2009 ONCA 817, [2009] O.J. No. 817. In Quinn, the appellant, who was tried alone, was charged with various offences arising out of a home invasion. The Crown’s case was that the appellant was an escort who had been invited into the complainant’s home. It was alleged that once inside the home, she had unlocked the door to permit the principals to enter the house. Once they entered, they beat the complainant, ransacked the premises, and made off with various items, followed shortly thereafter by the appellant. The trial judge explained that the appellant’s liability could be established on the basis of “aiding” and “common purpose” and explained the requirements of each in general terms, without any reference to the elements of the specific offences charged. This was apparently done because there was agreement that the principals (who were not on trial) had committed the offences.

[70] This court held that the instruction was insufficient: Quinn, at paras. 9-13. As in this case, the trial judge did not describe the elements of the offences charged, did not tie the common purpose to the specific offences charged, and did not explain that the common unlawful purpose must be different from the offence charged. Each also “commingl[ed]” the discussions of aiding and abetting with common purpose liability. In Quinn, this court ordered a new trial. See also R. v. King (1974), 1974 CanLII 1546 (ON CA), 18 C.C.C. (2d) 193 (Ont. C.A.), at pp. 197-98.

[71] The failure of counsel to object to the trial judge’s charge is not a bar to an appeal based on misdirection, but it is a factor to be taken into account: Jacquard, at paras. 37-38. The accused is entitled to a properly instructed jury. Defence counsel’s failure to object does not, in the circumstances of this case, preclude an appeal on misdirection.

[72] I conclude that in light of the deficiencies in the charge, Cadeddu is entitled to a new trial unless the proviso applies.

(e) The Effect of the Curative Proviso

[73] Section 686(1)(b)(iii) of the Code provides that an appellate court may dismiss a conviction appeal despite a legal error if the Crown satisfies the court that “no substantial wrong or miscarriage of justice has occurred”: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 48. The rationale for the proviso is the public interest in “avoiding the cost and delay of retrials where a properly instructed jury at a retrial would inevitably reach the same verdict”: R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 22.

[74] In R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, the Supreme Court confirmed that the curative proviso can be applied in two circumstances. The burden is on the Crown to demonstrate which category applies. The first category applies to an error “so harmless or minor that it could not have had any impact on the verdict” (at para. 34). The rationale is that “it would detract from society’s perception of trial fairness and the proper administration of justice if errors such as these could too readily lead to an acquittal or a new trial” (at para. 35).

[75] The second category is reserved for “serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain” (at para. 34). When any other verdict would be impossible, “depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction”: at para. 36, citing R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916.

[76] The Crown’s burden to establish the proviso applies is high due to “the difficult task for an appellate court of evaluating the strength of the Crown's case retroactively, without the benefit of hearing the witnesses' testimony and experiencing the trial as it unfolded”: Van, at para. 36. Accordingly, any measure of doubt regarding the strength of the Crown’s case must be resolved in favour of the accused: Sarrazin, at para. 28.

[77] The error in this case must necessarily fall into the second category because, as the Crown has acknowledged, it was not a trivial error. Thus, the appeal must be allowed unless the Crown can demonstrate that the evidence was so overwhelming the verdict would necessarily have been the same, even if the jury had received proper instructions on s. 21(2) of the Code. I must resolve any doubt about the strength of the Crown’s case in favour of Cadeddu.

[78] I am unable to find that a properly instructed jury would necessarily have arrived at the same verdict. As I have noted, liability under s. 21(2) is wider than under s. 21(1).

[79] It is possible that a jury properly instructed on s. 21(2) could have convicted the appellant on the basis that: the original common unlawful purpose was break and enter, or break and enter and commit assault; Seaton broke and entered the house and committed an aggravated assault on Anger with a baseball bat; and Cadeddu should have reasonably foreseen that Seaton would likely commit an aggravated assault in the course of carrying out their original purpose.

[80] Of course, as with all jury verdicts, I cannot know the jury’s reasoning process, or the extent to which it was influenced by the trial judge’s instruction on s. 21(2). There was no explanation of the concepts of agreement, offence and knowledge and no attempt to relate the evidence to each element. Nor can I know what evidence they accepted or rejected in convicting the appellant on any particular count.

[81] Nonetheless, I must consider the jury’s possible analysis in light of the instructions and the evidence. On the basis of the trial judge’s instruction, the jury could have convicted Cadeddu of aggravated assault without the third element for liability under s. 21(2) being made out. That is, they could have convicted him even if they believed his evidence or it raised a reasonable doubt about whether he was asleep in the car and did not know that Seaton had taken the baseball bat into the house.

[82] I also cannot conclude that the evidence was so overwhelming that the jury would necessarily have convicted Cadeddu if given a proper instruction under s. 21(2). The evidence was not overwhelming that Cadeddu knew that Seaton had taken the bat into the house.

[83] Therefore, while it was possible for the jury to convict Cadeddu had they followed the correct reasoning process, I cannot say that they did. The jury might well have acquitted Cadeddu, had they been properly instructed.

[84] Nor can I conclude that the trial judge’s W.D. instruction provides the necessary assurance that the jury would have convicted Cadeddu had they been properly instructed on liability under s. 21(2). The lack of clarity of that instruction, coupled with the “and/or” instruction on each offence, could have led the jury to believe that they could convict Cadeddu simply because he was a participant in the original venture.

[85] As a consequence, the incomplete instruction on common unlawful purpose makes it impossible to say that the outcome would necessarily have been the same, had the jury been properly instructed. I would therefore allow Cadeddu’s conviction appeal and order a new trial.

[86] I turn now to Seaton’s sentence appeal.

D. SEATON’S SENTENCE APPEAL

(a) The Trial Judge’s Reasons for Sentence

[87] As noted above, the trial judge sentenced Seaton to a prison term of eight years, with credit for seventy days of time served. The trial judge considered the following:

(a) The circumstances of the offence: The victim, who was Seaton’s grandfather, was beaten in his home, in the night, with a bat. He sustained injuries that could have killed him. Those injuries continue to cause him pain and forced him to sell his business because they left him unable to manage it. He lost his motivation and faith in people.

(b) The circumstances of the offender: Seaton was 36 years old at the time of sentencing. He was married and had four children, the youngest born after his arrest. He had a minor (and dated) criminal record, to which the trial judge attached little weight. He was described as a good worker, husband and father and there were some seventeen reference letters that described him in glowing terms. He admitted to a drinking problem, but professed a desire to address it; he had not consumed alcohol since the offence. Although he expressed remorse for his actions on the evening in question, he did not accept responsibility for the offence.

(c) Aggravating and mitigating factors: The trial judge referred to the fact that the victim’s injuries were serious and permanent, almost fatal, and were caused by a weapon. The case was a home invasion, which was the result of planning and deliberation. The victim was elderly and vulnerable. His injuries had “lasting, permanent, physical, emotional, and financial effects”. The appellants had driven for over two hours to get to the victim’s home in the middle of the night, and entry to the home may have been obtained with a key given to the Seatons by the victim. Seaton had been to the house before, discussed the layout with Cadeddu and told him where Anger’s bedroom was located.

(d) Seaton’s culpability: The trial judge rejected Seaton’s submission that he had a lesser role in the offences and that he therefore deserved a shorter sentence than Cadeddu. She held that the jury convicted both men and that it was impossible to say whether they convicted as joint principals or one as a principal and the other as a party. She noted that Seaton’s vehicle was used to transport them to the scene and it was driven by Seaton’s pregnant wife. Seaton was aware that they were meeting with Anger that night and that harm might come to him. He had a key to Anger’s home and he was familiar with the layout. He took no steps to assist his grandfather once he knew that he may have been harmed. After the attack, Seaton benefitted from the use of the victim’s credit cards.

(e) Sentencing principles: The trial judge concluded that the primary sentencing principles in this case were denunciation and general deterrence, “because of the underlying belief in our society that a man’s home is his castle and that we must never become vigilantes.”

(f) Sentencing ranges: The Crown characterized the case as a home invasion and suggested that the range was generally between four or five years and up to 15 years, with a life sentence available. It argued that a sentence of more than 10 years was required, suggesting 13 years was appropriate. Seaton submitted that a sentence of between 2 years less a day and 3 years was appropriate, based on his lesser culpability, his strong references and his positive pre-sentence report.

[88] In the result, the trial judge concluded, for all the reasons given, and especially that the assault was a home invasion involving an elderly victim, that a sentence of eight years’ imprisonment was appropriate.

(b) Submissions on Appeal

[89] Seaton’s submission in this court is that he should have received a shorter sentence than Cadeddu for two reasons. First, he says that having acknowledged that the jury’s route to conviction was not clear, the trial judge had to reach her own conclusions on the relative degree of culpability between the two accused and that she made no finding that Seaton wielded the weapon or inflicted harm on the victim. Therefore, Seaton submits, the trial judge implicitly concluded that he was an aider and that his culpability was less. Second, he says that in view of his less serious criminal record, when compared to Cadeddu’s, his sentence should have been less. Sentencing both men to the same term of imprisonment failed to reflect the significant community support received by Seaton and Cadeddu’s more serious, albeit dated, criminal record.

[90] In response, the Crown submits that this case falls well within the range for home invasion cases referred to by this court in R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), at paras. 16-24, which generally call for a “stiff penitentiary sentence.” The trial judge expressly rejected the submission that Seaton’s culpability was less and found that both men played an equal role in the offence. Seaton used his personal knowledge of the layout of the victim’s home to facilitate the commission of the offence. He knew that his grandfather had been harmed and did nothing to assist him. Instead, he profited from the use of his credit cards. The victim in this case suffered lasting physical, economic and emotional consequences.

(c) Disposition as to Sentence

[91] In my view, the sentence imposed on Seaton by the trial judge reflects no error in principle and is well within the range of sentences in the case of a home invasion in which the accused inflicts serious harm. The trial judge did not misapprehend the evidence or fail to consider relevant evidence. She gave appropriate consideration to the several aggravating factors and to the mitigating factors, which were few. The trial judge’s conclusion that Seaton and Cadeddu were equally culpable was open to her: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15.

[92] While Cadeddu’s more serious criminal antecedents may have warranted a departure from the principle of parity and a longer sentence for him, I consider Seaton’s sentence fit, having regard to all the relevant factors, including his less serious, and dated, criminal record.

E. CONCLUSION

[93] For the foregoing reasons, I would allow Cadeddu’s appeal, quash his conviction and order a new trial.

[94] I would grant Seaton leave to appeal his sentence, but dismiss the appeal.

Released: December 4, 2013 (“JL”)

“G.R. Strathy J.A.”

“I agree John Laskin J.A.”

“I agree E.E. Gillese J.A.”

[^1]: While the expert evidence described it as a “long cylindrical object”, counsel acknowledge that it was a baseball bat.

[^2]: The appellant also submitted that the trial judge: (a) failed to instruct the jury that they must acquit both accused if they could not determine which one had committed the offence; (b) failed to give an instruction concerning propensity reasoning; and (c) failed to give an instruction limiting the jury’s use of prejudicial hearsay evidence.

[^3]: This instruction is based on R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652.

[^4]: There is an exception to this objective standard in the case of murder. For constitutional reasons, a party cannot be convicted of murder on the grounds that they ought to have known that murder would be a probable consequence of their common unlawful plan with the principal. As Rosenberg J.A. recently affirmed in Ferrari, at para. 61, the party must have known that the principal offender would probably commit murder: see also Logan, at pp. 744-745. Where the principal is convicted of murder, a party under s. 21(2) can be convicted of manslaughter.

[^5]: Final 100-A, Parties (Introductory Instruction), para. 5.