COURT OF APPEAL FOR ONTARIO

CITATION: R. v. White, 2014 ONCA 64

DATE: 20140124

DOCKET: C51993

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omari White

Appellant

Jill Presser and Lucy Saunders, for the appellant

Frank Au, for the respondent

Heard: June 19-21, 2013

On appeal from the conviction for first degree murder entered by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury on June 26, 2009.

Simmons J.A.:

A. OVERVIEW

[1] On a Friday afternoon in late September 2007, Omari White and some friends were partying outside the home of Mekeela Lye celebrating White’s 18th birthday. At around 4:00 p.m., White and three of his friends noticed 16 year-old Akila Badhanage walking down the street wearing headphones. The four young men decided to rob Akila – so, they followed him as he walked down a catwalk that connected Lye’s subdivision to an adjacent street near the northwest corner of a busy intersection.

[2] A witness at a bus stop at the southwest corner of the intersection saw Akila come running out of the catwalk toward a bus stop on the northwest corner. A young man, later identified as one of White’s accomplices, Jamal Johnson, caught up with Akila, grabbed him around the chest from behind and held him in a bear hug. Two to three seconds later, as Akila struggled with his arms to free himself, White ran up from behind and made two jabbing motions towards Akila’s chest.

[3] Within a couple of seconds after Akila was stabbed, White’s two other friends, Eric Robinson and another young man, caught up to White and Johnson. Almost immediately, White, Johnson and Robinson fled back down the catwalk to Lye’s house. In the meantime, Akila managed to get to the bus shelter on the northwest corner where he collapsed. He was taken to hospital and pronounced dead of a single stab wound to the chest.

[4] Back at Lye’s house, White told Lye that he stabbed the victim because the young man was “wiling out” and yelling, “I don’t have it”.[1] Later that night, White explained to Lye that he got “heated up” because, just the day before, White had robbed another kid and come away with only $20. White also told Lye he did not intend to kill the victim; he only meant to poke him.

[5] White, Johnson and Robinson were arrested a couple of weeks after the stabbing. They were charged and tried together for first degree murder. The fourth young man was arrested in 2008 and tried separately.

[6] At their joint trial, the Crown alleged first degree murder against White, Johnson and Robinson under s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, claiming that Akila’s death was caused in the course of an actual or attempted unlawful confinement.

[7] The Crown theorized that the four young men accosted Akila in the catwalk and demanded money or property from him. Akila refused. In the course of this confrontation, White produced a knife and cut Akila on the finger. When Akila resisted and ran, the four young men chased after him to exact retribution. Johnson caught and restrained Akila in a bear hug. White then stabbed Akila with such force that he left a bruise on Akila’s chest. The Crown submitted that, depending on their role in the events, each young man was a party to first degree murder under ss. 21(1)(a), 21(1)(b) or 21(2) of the Criminal Code.

[8] At the close of the Crown’s case, each of White, Johnson and Robinson applied for a directed verdict of not guilty on the charge of first degree murder. Robinson argued that he had not played an essential, substantial or integral role in the killing as required under R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306. All three young men claimed that a finding of unlawful confinement was not available on the evidence. Robinson also applied for a directed verdict of not guilty on the included offence of second degree murder. Apart from granting Robinson’s request for a directed verdict of not guilty on the charge of first degree murder, the trial judge dismissed the applications.

[9] None of White, Johnson or Robinson called evidence at the trial. In their closing addresses to the jury, counsel for all three young men invited the jury to convict their clients of manslaughter but acquit them of any form of murder. After deliberating for less than 24 hours, the jury found White and Johnson guilty of first degree murder and found Robinson guilty of second degree murder.

[10] We heard White’s, Robinson’s and Johnson’s conviction appeals together. These reasons address White’s appeal only. I address Johnson’s and Robinson’s appeals in separate reasons.

[11] White raises three main issues on appeal:

i) the trial judge erred in holding that White was an adult on the day of his 18th birthday and that the Superior Court had jurisdiction to try him for an offence committed on that date;

ii) the trial judge erred in leaving unlawful confinement with the jury as a basis for finding first degree murder and also erred in his instructions to the jury on that issue, with the result that the finding of first degree murder is an unreasonable verdict;

iii) the trial judge made a series of errors that overemphasized inculpatory evidence and underemphasized exculpatory evidence, which had the cumulative effect of removing consideration of White’s defence from the jury. These alleged errors consisted of:

• when setting out the Crown’s position, misstating Lye’s evidence by saying that White told her he “killed” (as opposed to stabbed) the youth because he robbed another student the day before and only got $20;

• admitting evidence of White’s prior discreditable conduct and failing to properly instruct the jury concerning the use of this evidence;

• admitting evidence of Akila’s good character; and

• instructing the jury that the accuseds’ after-the-fact statements could be used in assessing their level of culpability.

[12] In addition to these alleged errors, in oral argument, White also adopted the submissions of Johnson and Robinson concerning other alleged errors made by the trial judge:

• incorporating into the jury charge a statement of the Crown’s position that responded to the defence closings;

• failing to give a W.(D.) instruction concerning potentially exculpatory evidence; and

• failing to admit evidence of an intercepted communication between Robinson and a jailhouse informant for the truth of its content vis-à-vis Johnson and White.

[13] White’s counsel did not make oral submissions on the jurisdiction issue and we did not call on the Crown to address it. In our view, s. 30 of the Interpretation Act, R.S.C. 1985, c. I-21[2], makes it clear that a person turns 18[3] on the commencement of the 18th anniversary of the person’s birth. The cases the appellant relies on to argue otherwise relate to previous provisions that set out a different rule.[4] In the light of our conclusion about s. 30 of the Interpretation Act, s. 16 of the Youth Criminal Justice Act, S.C. 2002, c.1, has no application. That section gives a youth justice court jurisdiction only where it has not been proven that an accused person had attained 18 years of age when an offence was committed. Applying s. 30 of the Interpretation Act to the facts of this case, we are satisfied that White was 18 when the offence was committed and that the trial judge was correct in holding that the Superior Court had jurisdiction to try him.

[14] For the reasons that follow, I would dismiss White’s remaining grounds of appeal. However, before turning to my reasons, I pause to emphasize that these reasons address White’s grounds of appeal, both as advanced by him and as adopted from Johnson and Robinson, as they relate to White only.

B. background

(1) Events leading up to the stabbing

[15] Four witnesses gave important evidence concerning the events leading up to the stabbing, which occurred on September 28, 2007.

(a) Four young men follow Akila into the catwalk

[16] A high school girl who knew Akila saw him walking down the street toward the catwalk in the vicinity of Lye’s home as a friend was driving her and some other friends home from school. It was just before 4:00 p.m. She described Akila as walking normally and wearing headphones. As her friend pulled into a driveway adjacent to Lye’s home, she noticed four black men sitting outside the house. She saw them get up and saw one pull a hood over his face. After that, the men rushed toward the catwalk. About three or four minutes later, she saw the men run out of the catwalk, then slow down and start to walk. When asked if she thought the men would have caught up with Akila as they went toward the catwalk, she said, “I think so.”

[17] A Bell technician working in the vicinity of Lye’s house noticed a group of young black men “hanging out” outside her house. At about 4:00 p.m., the technician was in his truck, logging on to his computer. He noticed what he thought to be a “white person” carrying a knapsack walking by at a “normal” speed towards the catwalk. While working on his computer, he heard a “muffled yell”. When he looked up, he saw four men who had been at Lye’s house running towards the catwalk. At that time, the person who had walked by him earlier was already in the catwalk. The technician agreed that, given their relative rates of speed, the four men would likely have caught up with the passerby. A few minutes later, some people “blew right by” the technician.

(b) A witness sees a group of men in the catwalk

[18] A school board employee who walks through the catwalk on a daily basis after getting off the bus, encountered a group of four to six males shortly before 4:00 p.m. when she was about halfway through the catwalk. Because she felt uncomfortable, she just took a quick look and only saw the face of one of the young men. She heard the young men talking and thought they had Caribbean accents. The men were walking in “one or twos” and cleared a path for her to pass. Once she passed the group, she heard their voices getting louder, but they were too far away for her to hear what they were saying.

[19] In cross-examination, the school board employee said nothing that the males did caused her to sense trouble. However, she explained that she tried to walk out of the catwalk as quickly as she could because it was unusual to see that many people together in the catwalk at that time of day.

(c) Akila emerges from the catwalk followed by the bear hug and the stabbing

[20] Brad Pollock was standing at a bus stop at the southwest corner of the intersection adjacent to Lye’s subdivision shortly before 4:00 p.m. He was looking north, waiting for a bus to arrive, when he saw “one Indian fellow running down from the catwalk” leading to the northwest corner of the intersection. Then he saw “a black guy come.” The black guy grabbed Akila tightly around the chest with two arms. Within two or three seconds another black guy came around from the right side and jabbed Akila two times in the heart/chest area. Pollock testified that “it looked like it was a stabbing motion”, but he did not actually see a knife from where he was standing.

[21] Pollock clarified that Akila was “running”, not “jogging.” He explained that after the black guy grabbed Akila around the chest, Akila “was, like, trying to, like, with his arms he was trying to get out of it.”

[22] About two or three seconds after the jabbing motion, Pollock saw two other black guys come running out of the catwalk. Almost immediately, the four guys “all took off up – down the path towards the townhouses.” They were running fast.

[23] Pollock did not hear any conversation between the “grabber” and the “jabber” or between them and Akila.

(2) Events back at Lye’s house

[24] Immediately following the stabbing, White, Johnson and Robinson returned to Lye’s basement apartment. In her testimony, Lye described them as frantic. She heard one or both of Johnson and Robinson berating White, calling him stupid, and saying: “What the fuck? Why did you do that? When did you do that?” White washed his knife in the bathroom and said he had stabbed “a youth”. Lye asked him why he did it. He did not answer at that time. Lye said he was just angry. Later White told her he stabbed the victim because the victim was “wiling out” (which she thought meant getting loud or rowdy). White also said the youth yelled, “I don’t have it.” According to White, when he stabbed the youth, the knife got stuck, so he let go of it and it fell to the ground.

(3) Lye’s first statement to the police

[25] Less than five minutes (about two to three minutes) after they arrived, White, Johnson and Robinson left Lye’s apartment. Shortly thereafter, the police arrived and took Lye to the station for questioning. In her initial statement to the police, Lye told them White, Johnson and Robinson had not been at her house. Instead she made up the names of some people who had not been present.

(4) Discussion at Johnson’s house on the evening of the stabbing

[26] Lye testified that later the same evening, she met White, Johnson and Robinson at Johnson’s house. She told them about her police interview and that the victim of the stabbing had died. She said all were concerned and trying to decide what they should say to the police. She said you could see the remorse in White’s face. He turned black, blue and green and looked sick to his stomach.

[27] While Lye was at Johnson’s house, she asked White why he was “heated up”. He said he had robbed a kid the day before near Sandalwood Heights Secondary School and he only got $20. Lye did not understand him to be saying he killed Akila because he was angry that he only got $20 the day before. White also said he did not intend to kill the victim; he only meant to poke him. She understood this to mean he only intended to injure the victim a little.

(5) Lye’s second statement to the police

[28] The day after the stabbing, Lye made a second statement to the police in which she maintained the same story she had told police the evening before.

(6) Lye’s third statement to the police

[29] Lye made a third statement to the police on October 5, 2007 in which she provided the police with details of what had happened on the day of the stabbing consistent with her evidence at trial. At trial, she testified that she told the police the truth on this occasion because she felt the situation was becoming too stressful, she felt guilty about what happened to the victim, and because she did not want the incident to affect her ability to get custody of her daughter.

(7) Robinson’s statement to the police

[30] On September 30, 2007, after hearing that the police were looking for him for breaching his bail conditions (because he was living with Lye and not with his surety), Robinson turned himself in. During a lengthy interview, Robinson provided himself with a false alibi involving his surety. Throughout the interview he denied any knowledge of, or participation in, the stabbing. However, he offered to provide the police with assistance in gaining information about who was responsible for the stabbing and told police that he knew White carried a knife in his pocket. He also said that he did not know whether White was present on the day of the stabbing or if White was responsible for the stabbing.

(8) Robinson’s intercepted statement

[31] On February 5, 2008, police intercepted a lengthy conversation between Robinson and a jailhouse informant (Robinson’s cellmate where he was detained) who agreed to wear a body-pack. During the conversation, Robinson provided the informant with his version of the events of September 28, 2007, including the following information[5]:

• while sitting outside Lye’s house celebrating White’s birthday, White, Johnson and Robinson saw a youth walk by their location. White and Johnson followed after the youth to see what he had on him;

• Robinson eventually went to see what White and Johnson were doing. By the time he caught up with them, they were running back towards Lye’s house. White was saying, “I shanked him, I shanked him”;

• even though Johnson went with White, Johnson “didn’t do nothing”;

• Robinson was not present when White stabbed the youth and did not see it happen;

• Robinson had no idea that White was going to stab the youth. He asked White what he was thinking and why he did it. According to Robinson, White told him that he never intended to kill the kid, but only intended to poke him so that the kid would know he was serious. White became angry when the youth refused to tell him what he had on him and because the youth would not listen. Robinson told White that that was no reason to stab the youth and they could have simply “give him a box or something” instead of stabbing him;

• Robinson, Johnson and White learned the youth had died while watching the news at Johnson’s house. White started to panic and Robinson could tell from White’s face that he never intended for it to happen.

(9) Forensic evidence

[32] Following the stabbing, Dr. Jacqueline Parai performed an autopsy on Akila. She determined that the cause of death was a single penetrating stab wound to the chest, which caused injury to the left lung and pulmonary artery. The wound was 2.2 centimetres in length and approximately 7 centimetres deep.

[33] Dr. Parai described red discolouration around the stab wound as a bruise likely associated with the stabbing. She said bruises in general are caused by a blunt object impacting the body or by the body impacting a blunt object. In response to a hypothetical question from the Crown, she said this particular injury could have occurred as a result of a hand or fist surrounding the handle of a knife impacting the skin.

[34] Dr. Parai also observed a small 0.5 centimetre cut on Akila’s right fourth fingertip. She described it as a cutting wound that could have been caused by a knife. In her opinion, although not a typical defensive wound, it was a recent injury that likely happened around the time of death. She could not say how the cut was inflicted, but agreed that it could be consistent with a person holding his arms outstretched in front with his palms facing forward.

[35] In cross-examination by Johnson’s counsel, Dr. Parai agreed that when a knife penetrates the human body, unless it hits bone or cartilage, the greatest resistance the knife will encounter is from the skin and not the organs, muscle, fat tissue or anything else. Once the skin is penetrated, the other tissues penetrate easily. Dr. Parai also confirmed that, in Akila’s case, the knife did not hit a rib.

[36] In cross-examination by White’s counsel, Dr. Parai acknowledged that while she had agreed that a clenched fist around a knife could have caused the bruising around the knife wound, she was not in a position to say that is what occurred. She reiterated that a bruise can be caused by a person’s body hitting something or something hitting a person’s body. In her view, a bear hug with steady, broadly applied force would not typically cause bruising.

[37] Investigators found no physical or forensic evidence of a struggle in the catwalk. The evidence revealed that the catwalk was approximately 50 metres long, two metres wide and fenced on both sides.

(10) Prior discreditable conduct evidence

[38] In addition to Lye’s evidence of White’s statement to her that he committed a robbery the day before the stabbing, the trial judge permitted the Crown to lead evidence of a reported robbery, allegedly committed by White and others (not White’s accomplices in the stabbing), that took place near Sandalwood Heights Secondary School on September 27, 2007, the day before the stabbing.

[39] Navdeep Fervaha (one of the complainants in the prior robbery) and some friends were walking to school after lunch when they were confronted by a group of four black males. They were told to empty their pockets. Fervaha refused and one of the men (not alleged to be White) came at him with a concealed blade and started stabbing him and punching him in his chest with the blade. When Fervaha still did not empty his pockets, another man (alleged to be White) took his iPod and $20 from his pocket.

[40] According to Fervaha, the male who took his stuff was 17-18 years old, black, 5’9”, thin build, braided hair, black hoodie, black pants, red bandana, gold removable grill, and light skin tone.

[41] Fervaha testified that he was hit about eight times by the individual with the knife. This left “poke marks” on his chest that bled a little bit. He did not have to be hospitalized for his injuries. He described the knife as a blade, about an inch long, that the individual concealed between his index and middle fingers.

[42] A police crime analyst testified that this incident was one of only two robberies reported in Brampton that day.

C. constructive first degree murder under s. 231(5)(e)

(1) Relevant statutory provisions

[43] As has been observed on many occasions, s. 231(5)(e) of the Criminal Code does not create a distinct substantive offence but rather an aggravated form of murder. The jury must determine whether the aggravating circumstances exist to warrant the mandatory penalty for first degree murder of life imprisonment without eligibility for parole for 25 years: R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 53.

[44] The relevant portions of s. 231(5)(e) read as follows:

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement).

[45] The relevant portions of s. 279(2) of the Criminal Code read as follows:

279(2) Every one who, without lawful authority, confines, imprisons, or forcibly seizes another person is guilty of

(a) an indictable offence …

(2) General principles relating to s. 231(5)(e)

[46] In the recent decision of this court in R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, Watt J.A. provided a helpful summary of the law relating to constructive first degree murder premised on unlawful confinement.

[47] As Watt J.A. noted, the elements of first degree murder that the Crown must establish under s. 231(5)(e) of the Criminal Code are set out in R. v. Harbottle at p. 325:

i. that the accused unlawfully confined or attempted to unlawfully confine the victim or another person;

ii. that the accused murdered the victim;

iii. that the accused participated in the murder of the victim in such a way that the accused was the substantial cause of the victim’s death;

iv. that no intervening act of somebody else resulted in the accused no longer being substantially connected to the victim’s death; and

v. that the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim’s death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events.

[48] Watt J.A., at para. 45, summarized the essential elements of constructive first degree murder under s. 231(5)(e) as follows:

i. predicate offence;

ii. murder;

iii. substantial cause;

iv. no intervening act; and

v. same transaction.

[49] Concerning the predicate offence requirement, Watt J.A. noted that it can involve either the offence of unlawful confinement or the preliminary crime of attempted unlawful confinement.

[50] Citing R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 723, Watt J.A. said, at para. 46:

Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another.

[51] Further, citing R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24, Watt J.A. noted that the authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined.

[52] In addition, although unlawful confinement is a continuing offence, it is an offence that is complete when the victim is restrained against his or her will: Parris, at para. 47. The purpose of the confinement is irrelevant: R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), at para. 107.

[53] Watt J.A. noted that for the purpose of invoking s. 231(5)(e) through satisfaction of the "predicate offence" requirement, it is immaterial that the unlawful confinement of the victim has not been completed. The provision is invoked equally where an accused attempts to unlawfully confine the victim or another person.

[54] Concerning the “same transaction” requirement, Watt J.A. noted that to satisfy s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts, that is to say, the act of confinement and the act of killing must not be one and the same: Pritchard, at para. 27; and Kimberley, at para. 108.

[55] However, the murder and the predicate offence – unlawful confinement – must be linked together, both temporarily and causally, in circumstances that make the entire course of conduct a single transaction: Pritchard, at para. 35. The essential temporal-causal connection requirement is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides an accused with a position of power that he or she chooses to exploit to murder the victim: Pritchard, at para. 35.

[56] In the analysis section of his reasons in Parris, starting at para. 56, Watt J.A. rejected an argument by one of the appellants that the trial judge failed to make it sufficiently clear to the jury that the unlawful confinement and the murder must be distinct acts and further erred in failing to instruct the jury that the confinement had to extend for a “significant” period of time to engage s. 231(5)(e).

[57] Concerning the distinct acts issue, Watt J.A. said, at para. 57, that “‘[t]he distinct act’ requirement demands only that the confinement be distinct and independent from the act of killing”.[6]

[58] As for the significant period of time argument, Watt J.A. noted that the trial judge had explained to the jury that unlawful confinement was "an unlawful restriction on liberty for some period of time". He went on to observe that the word “significant” as it appears in the phrase “any significant period of time” at para. 24 of Pritchard appears to be “used synonymously with ‘confinement not limited to what was integral to the particular act of killing’.”

[59] In the context of a case where he was satisfied that the trial judge had adequately instructed the jury on the requirement that the unlawful confinement constitute a distinct criminal act, Watt J.A. concluded that use of the phrase “significant period of time” was not necessary to make that requirement clear. He said:

Neither Harbottle nor Pritchard requires the inclusion of "significant" or its functional equivalent for the purpose of jury instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur.

[60] In addition to the principles identified by Watt J.A. in Parris, it should also be noted that the application of physical bindings is not required to constitute an unlawful confinement: see e.g. R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at p. 473.

D. The Directed Verdict Applications

[61] As I have said, at the close of the Crown’s case, each of White, Johnson and Robinson applied for a directed verdict of not guilty on the charge of first degree murder; Robinson also moved for a directed verdict of not guilty on the included offence of second degree murder.

[62] On the directed verdict applications, the trial judge ruled that while there was evidence that White and Johnson had played an essential, substantial or integral role in the killing as required to support a conviction for first degree murder under Harbottle by stabbing and holding Akila, no such evidence of an active physical role in the killing existed vis-à-vis Robinson. He therefore granted Robinson’s directed verdict application on the first degree murder charge.

[63] White and Johnson argued that there was no evidence capable of supporting a finding of an unlawful confinement in the catwalk, and that, in the absence of such evidence, the bear hug standing alone could not support a finding of first degree murder under s. 231(5)(e) because it was subsumed in the killing and did not constitute a distinct criminal act.

[64] The trial judge ruled that the bear hug was a discrete criminal act from the killing and could support a finding of first degree murder. He pointed out that Akila was “running for his life, caught from behind, immobilized and essentially rendered defenceless.” He noted Pollock’s evidence that Akila’s arms were being held tightly when he was stabbed. Considered in context, the two to three seconds that elapsed between the grabbing and the stabbing was long enough for the jury to conclude that a discrete criminal act had occurred. In the trial judge’s view, two to three seconds was long enough for White “to realize that he was stabbing a person who was being dominated and was defenceless” and it was also long enough for Johnson to realize “he was dominating a person who was about to be stabbed.”

[65] The trial judge also found that the evidence of the events leading up to the bear hug was capable of supporting a finding of actual or attempted unlawful confinement. In his view, the evidence could support a finding that an altercation had occurred in the catwalk and that during that altercation White used his knife to accost Akila and cut him on the fingertip. Moreover, following the altercation, Akila was chased and the chasing culminated in the bear hug.

[66] The trial judge therefore dismissed White’s and Johnson’s directed verdict applications on the first degree murder charge. He also dismissed Robinson’s directed verdict application on the second degree murder charge.

E. analysis

(1) Did the trial judge err in leaving unlawful confinement with the jury as a basis for finding first degree murder? If not, did the trial judge err in his instructions on this issue?

(a) White’s position on appeal

[67] In oral argument, White focussed his submissions on this ground of appeal.

[68] White submits that, at trial, the Crown took the position that the jury could find that the accused unlawfully confined or attempted to unlawfully confine Akila at either of two possible moments: during an initial attempted robbery at knifepoint in the catwalk; or when Johnson held Akila in a bear hug. White argues that a verdict of first degree murder was not available based on either incident.

[69] White therefore submits that the trial judge erred both in leaving first degree murder premised on unlawful confinement with the jury and that the verdict of first degree murder premised on unlawful confinement was unreasonable.

[70] Concerning the catwalk incident, White submits that the evidence about what happened in the catwalk was entirely circumstantial and was not capable of supporting a finding that an attempted robbery at knifepoint as alleged by the Crown had occurred. Nor was it capable of supporting a finding of any form of actual or attempted unlawful confinement in the catwalk. Rather, White submits, the evidence was equally compatible with a finding of a simple attempted robbery.

[71] Not all robberies involve the level of violence or domination required to support a finding of actual or attempted unlawful confinement. In the absence of any evidence to support a finding of an actual or attempted unlawful confinement in the catwalk, the trial judge erred in leaving the issue with the jury and a finding of first degree murder based on actual or attempted unlawful confinement in the catwalk is unreasonable.

[72] In support of this position, White relies on Pritchard, at para. 26, where Binnie J. referred to various authorities that indicate that not all robberies amount to an unlawful confinement:

Although every robbery involves an element of violence or threatened violence, the level of violence does not always occasion confinement of the significant duration required to satisfy s. 279(2). Not all robberies involve domination of the victim. Thus, not all robbery-murders will satisfy s. 231(5)(e). [Citations omitted.]

[73] According to White, although the Crown’s theory that White accosted Akila with a knife in the catwalk and cut him on the finger was a possibility, it was no more likely than other possibilities. For example, it was possible that the four young men made a simple demand for money or property in the catwalk, that the demand caused Akila to run, that the four young men chased Akila to rob him and that Akila’s finger was cut by one of two jabbing motions Pollock observed while Akila was being held in a bear hug. It was equally possible that Akila simply became suspicious, that he broke and ran from the four young men and that the “wiling out” White described occurred immediately prior to the stabbing.

[74] White submits that although the latter two scenarios may reveal an attempted robbery, the fact that Akila was able to run away belies any suggestion of an actual or attempted unlawful confinement. Moreover, because the evidence concerning what happened in the catwalk was equally compatible with a finding of a simple attempted robbery, it could not support a finding on a proof beyond a reasonable doubt standard of an actual or attempted unlawful confinement. Evidence of a simple attempted robbery does not, without more, amount to evidence of an actual or attempted unlawful confinement.

[75] In the alternative, White submits that if the events in the catwalk could constitute an actual or attempted unlawful confinement, the trial judge erred by failing to give the jury the tools they needed to distinguish between a simple attempted robbery and an attempted robbery that also included an actual or attempted unlawful confinement.

[76] As for the bear hug incident, White maintains his position at trial that in the absence of evidence of an unlawful confinement in the catwalk, the bear hug standing alone could not constitute an actual or attempted unlawful confinement because it was consumed in the murder and was not a distinct criminal act. Put another way, White contends that, given that no evidence existed that the bear hug was a distinct criminal act from the killing, first degree murder based on the bear hug should not have been left with the jury and a finding of first degree murder based on the bear hug is unreasonable.

[77] Again in the alternative, White submits that even if the bear hug was capable of amounting to a distinct criminal act, the trial judge committed reversible error by failing to instruct the jury that, to convict of first degree murder, it was necessary that they find that the bear hug constituted a discrete criminal act, distinct from the killing.

(b) Discussion

[78] I would not accept these submissions.

(i) The trial judge did not err in his directed verdict ruling and a first degree murder verdict premised on actual or attempted unlawful confinement is not unreasonable

[79] I would not accept White’s position that the trial judge erred in his directed verdict ruling and that the first degree murder verdict premised on unlawful confinement is unreasonable. I say that for four reasons.

I. The trial judge did not give the jury a stark choice between finding an actual or attempted unlawful confinement based either on an attempted robbery at knifepoint in the catwalk or on the bear hug

[80] On my review of the record, the trial judge did not give the jury a stark choice between finding an actual or attempted unlawful confinement based either on an attempted robbery at knifepoint in the catwalk or on the bear hug.

[81] Rather, both the Crown and the trial judge invited the jury to find an actual or attempted unlawful confinement based on at least any one of the following three scenarios: i) an attempted robbery at knifepoint in the catwalk followed by a chase; ii) some interaction or contact in the catwalk followed by a chase; or iii) the bear hug.

[82] The trial judge summarized the Crown’s position, in part, at

pp. 142-3 of his charge:

It is the Crown’s position that the offence of unlawful confinement or an attempt to confine Akila occurred within the catwalk, while the defendants chased him from the catwalk and at the point when he was finally captured by Jamal Johnson. [Emphasis added.]

[83] The trial judge also made it clear, at p. 88 of his charge, that if the young men chased Akila with a view to restraining him following some interaction in the catwalk, that conduct would go beyond mere preparation to unlawfully confine and constitute an attempted unlawful confinement:

The conduct alleged in this case to constitute an attempt to unlawfully confine is that [Akila] was confronted in the walkway, he refused to stop and/or hand over property, he ran and then was chased with a view to stopping and restraining him before he got to the public bus stop and intersection area. I am required to determine whether these acts as a question of law, would constitute mere preparation to commit the offence of unlawful confinement or whether they would constitute an attempt as that is defined in law, and in that regard, I instruct you that proof beyond a reasonable doubt of the conduct I have just described is proof of an attempt to unlawfully confine.

But you, the judges of the facts, decide if the conduct I have just described has been proven beyond a reasonable doubt.

[84] To find that the verdict of first degree murder was reasonable, it is necessary that only one of these routes was available: R. v. Biniaris, 2000 SCC 15, at para. 47. In my view, the evidence at trial was capable of supporting a finding of actual or attempted unlawful confinement against White based on any one of those three scenarios.

II. The evidence was capable of supporting a finding of an actual or attempted unlawful confinement based on an inference of an attempted robbery at knifepoint in the catwalk followed by a chase

[85] Contrary to White’s submissions that a finding of an attempted robbery at knifepoint in the catwalk was not available on a reasonable doubt standard, in my view, the evidence at trial was capable of supporting such a finding against White. [7]

[86] In his ruling on the directed verdict application, the trial judge summarized much of the evidence that was capable of supporting this finding. The evidence he relied on consisted of the following:

• the evidence of the high school girl and the Bell technician that, given the relative speeds at which they were walking, Akila and the young men who followed him “would likely have intersected in the catwalk”;

• the evidence that while the catwalk was secluded, it led to a busy intersection, making an effort to stop Akila in the catwalk in order to rob him more likely;

• Lye’s evidence of White’s statement that the youth was “wiling out” and saying he “wouldn’t give it up”, creating an inference of an attempted robbery in the catwalk following which Akila ran away;

• the evidence that Akila suffered a sharp-edged injury to the fourth finger on his right hand and the evidence that his arms were being held when the bear hug was applied, creating an inference that Akila suffered this injury in the catwalk[8];

• the evidence that the four young men were running after Akila from the catwalk, suggesting an intention to catch him and stop him before he got to the intersection.

[87] In addition to this evidence, Pollock testified that the stabbing occurred within two to three seconds of the grabbing and that he heard no conversation between the grabber and the stabber and Akila. This evidence supported the likelihood that the youth’s “wiling out” and refusal to give up his stuff happened in the catwalk.

[88] Moreover, Lye’s evidence of White’s explanation that he was “heated up” because he only got $20 in a robbery the day before supported the likelihood that White became incensed at Akila’s resistance and pulled a knife in the catwalk in an effort to compel compliance.

[89] Taking account of the totality of this evidence, in my view, it was open to the jury to draw the following inferences that would support a finding of at least an attempted unlawful confinement in the catwalk by means of an attempted robbery at knifepoint:

• in response to Akila’s lack of compliance with the four young men’s demands for money or property, White brandished a knife to compel his compliance;

• Akila continued to resist and somehow broke free and ran away; and

• the four young men pursued Akila with the intention of catching him and restraining him before he reached the busy intersection.

[90] As I will explain in the next section, on the facts of this case, in my view, the chase itself constituted an attempted unlawful confinement.

III. The evidence was capable of supporting a finding of an attempted unlawful confinement based on an inference of some interaction or contact in the catwalk followed by a chase

[91] According to White, absent an attempted robbery at knifepoint in the catwalk, the fact that Akila was able to run away from the four young men belies the possibility of an actual or attempted unlawful confinement. Whatever interaction or contact may have occurred in the catwalk, Akila was successful in running away. The four young men were not able to exercise any restraint or control over him. For the same reason, the chase itself could not constitute an actual or attempted unlawful confinement. In any event, the four young men were chasing Akila only to rob him.

[92] I would not accept these submissions. It is well-established that the essence of an attempt is the intention to commit the completed offence: see, for example, R. v. Cline, 1956 CanLII 150 (ON CA), [1956] O.R. 539 (C.A.); The Queen v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225.[9] In addition, the accused must engage in some conduct going beyond mere preparation that constitutes an attempt to commit the offence.

[93] In the case of attempted unlawful confinement, the necessary mens rea consists of the accused’s intention to physically restrain or direct the victim contrary to the victim’s wishes, thereby depriving the victim of his ability to move from one place to another based on his or her own inclination and desire.

[94] On the particular facts of this case, in my view, the essentially uncontested evidence that the four young men pursued and eventually captured Akila fully demonstrated the elements of at least an attempted unlawful confinement.

[95] The catwalk was about two metres wide and fenced on both sides. Accordingly, while being chased, Akila was unable to run in any direction but down the catwalk.

[96] The evidence also reveals that, after pursuing Akila, Johnson caught up with him, grabbed him in a bear hug from behind and continued to restrain him even as he struggled to break free.

[97] Particularly in the context of the physical layout of the catwalk, the four-on-one chase, by its very nature, is at least some evidence of an intention to confine Akila. Moreover, Johnson’s eventual capture of Akila demonstrates a clear intention to confine him and restrict his freedom of movement contrary to his wishes. Johnson’s persistence in restraining Akila, even as Akila moved his arms to try and break free, reinforces the presence of an intention to dominate and confine him.

[98] White relies on the fact that he, Johnson and Robinson acknowledged by their counsels’ closing addresses that their intention in chasing Akila was to rob him. According to White, evidence of confinement merely incidental to an attempted robbery does not constitute evidence of an unlawful confinement that would elevate murder to first degree murder.

[99] I would reject this submission. As Watt J.A. noted in Parris, this court held, at para. 107 of Kimberley, that the purpose of an unlawful confinement is irrelevant.

[100] On the facts of this case, the bear hug in particular demonstrates that, in pursuing Akila, the four young men intended to capture and restrain him. Their purpose in doing so is irrelevant. Further, as I will discuss in a later section, it was unnecessary that the trial judge distinguish, in his instructions to the jury, between robbery and an unlawful confinement.

IV. The evidence was capable of supporting a finding that the bear hug was a distinct criminal act

[101] On appeal, in support of his position that the trial judge erred in his directed verdict application and that the first degree murder verdict against him was unreasonable, White maintained his position at trial that the bear hug could not support a finding of an actual or attempted unlawful confinement that would elevate murder to first degree murder.

[102] To elevate murder to first degree murder, the unlawful confinement and the killing must constitute distinct criminal acts; that is to say, the act of confinement and the killing must not be one and the same: Parris at para. 53, citing Pritchard, at para. 27 and Kimberley, at para. 108.

[103] Relying largely on R. v. Sandhu, 2005 CanLII 51461 (Ont. S.C.), White maintains that the bear hug was co-extensive with the killing and could not constitute a distinct criminal act.

[104] I disagree. In my view, the bear hug was not only capable of constituting a distinct criminal act, on the facts of this case, it was patently a distinct criminal act. I say that for three reasons.

[105] First, as noted by Watt J.A. at para. 57 of Parris, “‘[t]he distinct act’ requirement demands only that the confinement be distinct and independent from the act of killing”.

[106] Here, Johnson grabbed and restrained Akila about two to three seconds prior to the stabbing. Notably, the grabbing and the bear hug were the culmination of a pursuit of Akila. Both the grabbing and the bear hug prevented Akila from making good his escape.

[107] Although the grabbing facilitated the stabbing, on these facts, the grabbing and restraint were independent of, rather than part of, the stabbing. By means of the bear hug, Johnson dominated Akila and rendered him defenceless as Akila attempted to escape. It was only after Johnson restrained and controlled Akila that White proceeded to stab him. In these circumstances, in my view, the bear hug and the killing were patently distinct criminal acts.

[108] Second, in my view, this case is clearly distinguishable from Sandhu.

[109] In Sandhu, the victim was swarmed by eight to twelve members of a rival gang in a parking lot. One accused, Banwait, brandished a hammer. Another accused, Matharu, held a pipe.[10] The victim backed away from them but was struck on the back of the head with a two-by-four wielded by a third accused, who some witnesses described as Sandhu. Banwait then hit the victim on the jaw with the hammer and others beat and kicked him. The victim died from his injuries. The entire attack took between 30 to 45 seconds. Banwait, Matharu and Sandhu were all charged with first degree murder under, among other sections, s. 231(5)(e) of the Criminal Code.

[110] On a directed verdict application in Sandhu, Trafford J. held that s. 231(5)(e) did not apply. He found that the surrounding of the deceased and the attack on him were “one and the same”. He said it was not a case like Kimberley where the victim was attacked in one location, dragged to another location and attacked again. Rather, it was “a continuous assault … that, in some respects, included the surrounding of the deceased.”

[111] Whereas Sandhu involved a swarming in which the actions of all accused constituted one continuous assault on the victim, in this case, the victim – Akila – attempted to escape. The unlawful confinement occurred not by means of an assault that constituted part of the killing – rather, the actual or attempted unlawful confinement occurred by means of the pursuit and capture of Akila that prevented his escape. But for Johnson’s capture and restraint of him, Akila may well have escaped. Further, as I have explained, the bear hug was an act of domination that rendered Akila helpless to defend himself from White’s attack.

[112] Third, I return to the point that the bear hug was the culmination of earlier acts of actual or attempted unlawful confinement—in particular, the chase arising from some interaction or contact in the catwalk. In my view, the chase could not properly be said to be consumed in or co-extensive with the killing – nor was that argued in the court below or on appeal. If that were so, forcing a victim downstairs (as in Parris), or moving a victim 27 feet from an elevator (as in Kimberley), would equally not constitute distinct criminal acts.

(ii) The trial judge did not err in failing to distinguish unlawful confinement from robbery in his instructions to the jury

[113] I would reject White’s argument that Pritchard made it necessary for the trial judge to distinguish unlawful confinement from robbery in his instructions to the jury. On the contrary, as I read Pritchard, it stands at least in part for the proposition that it is unnecessary to instruct a jury that they must distinguish between the offences of robbery and unlawful confinement when deciding a charge of constructive first degree murder arising from an unlawful confinement alleged to have occurred during a robbery-murder or attempted robbery-murder. Rather, the issues to be determined under s. 231(5)(e) are: i) whether an actual or attempted unlawful confinement took place; and ii) if it did, whether it was distinct from the killing.

[114] I rely for these conclusions on paras. 27 and 28 of Pritchard, where Binnie J. said:

Thus, the issue under s. 231(5)(e) is not whether there was confinement independent of the act of robbery but whether there was unlawful confinement distinct and independent from the act of killing.

Proof of robbery does not by itself trigger s. 231(5), but nor does proof of robbery bar or alter its application. If the offence of unlawful confinement has been established, the fact the confinement was made even worse by an act of robbery will not assist the accused. [Emphasis in original.]

[115] I also rely on paras. 30 and 32-35 of Pritchard, in which Binnie J. made and summarized his conclusion that, to support a finding of guilt under s. 231(5)(e), it is unnecessary to find unlawful confinement distinct from a robbery or any other non-predicate offence committed by an accused while committing a constructive first degree murder under s. 231(5)(e). He summarized his conclusion, at para. 35:

Summary of the Proper Interpretation of Section 231(5)(e)

The jurisprudence therefore establishes that second degree murder will be elevated to first degree murder where the murder and the predicate offence (in this case unlawful confinement) are linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction. The temporal-causal connection is established where the unlawful confinement creates a "continuing illegal domination of the victim" that provides the accused with a position of power which he or she chooses to exploit to murder the victim. If this is established the fact that along the way other offences are committed is no bar to the application of s. 231(5). [Citations omitted; emphasis added.]

[116] Finally, I rely on para. 39 of Pritchard, in which Binnie J. said that the portion of the trial judge’s charge to the jury in that case, instructing the jury that the Crown must establish unlawful confinement that was not “an integral part of the robbery”, was favourable to the accused. Binnie J. reached that conclusion because the trial judge’s instructions “suggested that confinement ‘integral to the robbery’ as well as confinement ‘integral’ to the killing would not trigger s. 231(5)(e).”

(iii) The jury would inevitably have found an actual or attempted unlawful confinement that amounted to a discrete criminal act

[117] As noted by Watt J.A. at para. 53 of Parris, to satisfy the “same transaction” requirement of s. 231(5)(e), the confinement and the killing must constitute distinct criminal acts.

[118] Relying on R. v. Menard, 2009 BCCA 462, 281 B.C.A.C. 14, at paras. 37-46, White submits that the trial judge committed reversible error by failing to instruct the jury about the requirement that the confinement and the killing constitute distinct criminal acts.

[119] This instruction was not requested at trial. Although I agree that it might have been preferable had the trial judge given such an instruction, I am satisfied that the jury would inevitably have found an actual or attempted unlawful confinement constituting a distinct criminal act in the circumstances of this case.

[120] As I have said, on the facts of this case, the bear hug was the culmination of earlier acts of actual or attempted unlawful confinement arising from interaction or contact in the catwalk and the subsequent chase. The evidence of the chase, in particular, was essentially uncontested[11] and, as I have said, demonstrated the elements of an attempted unlawful confinement. No one has argued either here or in the court below that the chase was not a distinct criminal act. And for the reasons I have explained, in my view, the bear hug was also patently a distinct criminal act.

[121] In oral submissions at the appeal hearing, White also argued that the bear hug could be viewed as part of the mechanism of the killing. White asserted that, on one interpretation of the evidence, the knife penetrated Akila’s chest, at least in part, because Akila was struggling. Even assuming that was a possibility, in my view, it remained inevitable that the jury would have found an attempted unlawful confinement constituting a distinct criminal act based on the chase.

[122] In the end, I see no realistic basis on which the jury could have concluded that the acts of actual or attempted unlawful confinement that occurred in this case were consumed in the killing.

(2) Did the trial judge, by a cumulative series of errors, effectively remove from the jury consideration of White’s defence?

(a) Did the trial judge err by misstating the evidence?

[123] At p. 139 of his charge, the trial judge misstated the evidence and the Crown’s position when he said that White explained to Lye why he “killed” the youth when Lye’s evidence was that White explained why he “stabbed” the youth. Moreover, in his summary, the trial judge combined White’s explanation for being heated up with his explanation for stabbing Akila:

It is the Crown’s position that anger is not a defence to murder. [White] told [Lye] that he killed Akila because:

a) The boy wouldn’t give up his stuff and was “wiling out”; and

b) He had robbed another student the day before and had only got $20.

[124] White maintains this was a significant error because White also told Lye that he did not intend to kill the youth, he only intended to poke him. She understood this to mean he only meant to cause slight injury – and that these events amounted to a robbery that went horribly wrong. According to White, by misstating the evidence in this way, the trial judge not only overemphasized the inculpatory aspects of the evidence, he also underemphasized the exculpatory evidence.

[125] I would not accept the submission that this amounted to a serious error. The trial judge stated the evidence correctly only two pages later at pp. 140-1 of his charge i.e., he said that White explained that he “stabbed” the youth because the youth wouldn’t give up his stuff and was wiling out. Further, at p. 147, the trial judge referred to the exculpatory evidence when setting out Johnson’s position:

It is the defence position that not even Omari White intended to kill Akila. He intended only to “poke” him, to inflict injury but not death; and did not intend for the knife to penetrate the ribcage and cause the damage it did.

[126] As is customary, the trial judge instructed the jury to rely on their recollection of the evidence as opposed to his summary or that of counsel. In my view, the passage White relies on was an obvious example of a trial judge misspeaking and would not have caused any prejudice to White.

(b) Did the trial judge err by admitting evidence of White’s prior discreditable conduct and by failing to properly instruct the jury concerning the use of this evidence?

[127] As I explained earlier, the trial judge allowed the Crown to introduce evidence concerning White’s participation in a robbery near Sandalwood Heights Secondary School on September 27, 2007, the day before Akila’s murder. The evidence came from three sources:

• Mekeela Lye, who testified that White told her he got “heated up” because he had robbed a kid near Sandalwood Heights the day before and only came away with $20;

• Navdeep Fervaha, who testified that he was a student at Sandalwood Heights and that on September 27, 2007, he was robbed at knifepoint by four black males; and

• A police crime analyst, who testified that on September 27, 2007, Peel Regional Police received reports of only two robberies in Brampton, one of which was at Sandalwood Heights Secondary School.

[128] The Crown argued, and the trial judge accepted, that this evidence was relevant to White’s motive for robbing Akila, as well as to his state of mind at the time of the robbery. The Crown argued that the evidence also tended to support a finding that there was an attempted robbery, with a knife, in the catwalk. Finally, the Crown argued that the evidence of the September 27 robbery supported Lye’s credibility.

[129] White makes three submissions about this discreditable conduct evidence.

[130] First, he says the evidence was not admissible on the issue of motive and that the trial judge erred in his probative value/prejudicial effect analysis.

[131] Although White acknowledges that the evidence may have demonstrated a motive to obtain cash, he says the fact that he had a motive to obtain cash was not probative of any issue at the trial. More importantly, he says anger at obtaining too little cash the day before did not demonstrate a motive to kill. Drawing that inference is simply too great a leap in logic.

[132] As for the probative value/prejudicial effect analysis, according to White, overall the discreditable conduct evidence had little probative value. It did not assist on the question of motive. While it provided some circumstantial evidence that Akila was accosted as part of a robbery, the evidence suggesting that White acted as he did because Akila would not give up his stuff was far more powerful evidence on that point. The question of whether White initiated the robbery was irrelevant to the issues at the trial and an abundance of other evidence existed concerning his involvement.

[133] Further, White submits that the evidence of Fervaha and the crime analyst should not have been admitted to support Lye’s credibility because the defence did not challenge Lye’s credibility. White also claims that the material differences between the September 27 and 28 robberies undermined the probative value of Fervaha’s evidence.

[134] As for prejudice, White maintains that the Fervaha evidence created a strong likelihood of moral prejudice because it invited an inference that White engaged in robberies at knifepoint on a daily basis. Further, that evidence created the potential for a significant distraction to the jury in terms of deciding whether White had threatened Akila with a knife.

[135] Second, and in the alternative, White adopts Johnson’s and Robinson’s submission that the trial judge erred by failing to correct the trial Crown’s suggestion in his closing that the jury could use the fact of the prior robbery to draw an inference that White brandished a knife in the catwalk. The appellants submit that the trial judge compounded this error by repeating that suggestion when setting out the Crown’s position in his charge.

[136] Third, White submits that the trial judge erred by failing to give a proper limiting instruction concerning the use of the September 27, 2007 robbery evidence and further erred by failing to instruct the jury of its potential exculpatory use in demonstrating White’s understanding that being “poked” in the chest with a knife would not lead to significant harm.

[137] I would not accept these submissions.

(i) The trial judge did not err in admitting the prior discreditable conduct evidence

[138] I see no merit in White’s claim that the trial judge erred in admitting the evidence of prior discreditable conduct. Although presumptively inadmissible for policy reasons, discreditable conduct evidence is exceptionally admissible where its probative value in relation to a live issue at trial outweighs its potential for prejudice: R. v. Handy, [2002] S.C.R. 908, at para. 55; R. v. K.(C.P.) (2002), 2002 CanLII 23599 (ON CA), 62 O.R. (3d) 487, 171 C.C.C. (3d) 173 (C.A.), at para. 30. In this case, the probative value of the evidence lay, not in the similarities between the two events, but rather in the probative value of the evidence to live issues at the trial.

[139] As the trial judge noted, White’s statement to Lye about the September 27, 2007 robbery demonstrated his motive to obtain cash and explained why the four young men initially followed Akila into the catwalk. Because no concessions had been made when the Crown brought the discreditable conduct application, it was open to the trial judge to admit Lye’s evidence as demonstrating that motive.

[140] More importantly however, White’s statement to Lye explained his angry state of mind when Akila resisted his efforts to obtain money or property. And White’s explanation for his angry state of mind was, in turn, closely linked to his explanation for stabbing Akila. Standing alone, the fact that Akila was resisting was hardly a reason for stabbing him. However, when combined with White’s frustration over the small return he obtained the day before, White’s explanation for the stabbing becomes clearer. White’s anger escalated as it did because he was upset over what happened the day before.

[141] Considered in this way, Lye’s evidence of White’s prior discreditable conduct supported the likelihood that White formed an intention to inflict grievous injury when Akila decided to flee. It also supported the likelihood that White pulled a knife when Akila resisted his efforts to obtain money or property.

[142] Further, although White asserts on appeal that the Fervaha/crime analyst evidence should not have been admitted because defence counsel did not challenge Lye’s credibility, White’s trial counsel declined to confirm that White would not challenge her evidence if White testified. In any event, as the trial judge noted, Lye’s credibility remained very much in issue because of her prior inconsistent statements to the police.

[143] Finally, and most importantly, once Lye testified, White’s counsel at trial not only asked that the Fervaha evidence be led, he also declined an offer by the Crown that any reference to the use of the knife be omitted from Fervaha’s evidence.

[144] In these circumstances, if Lye’s evidence about White’s explanation for his angry state of mind was properly admissible, White’s position at trial precludes any challenge on appeal to the admissibility of the Fervaha/crime analyst evidence. Having made the tactical decision at trial that the knife evidence should be led, it is not open to White to complain about it now if the Lye evidence is admissible. Since the Lye evidence had significant probative value and since the prejudice White relies on flows primarily from the knife evidence his counsel insisted be admitted, I see no error in the trial judge’s decision to admit the discreditable conduct evidence.

(ii) The trial judge did not commit reversible error in failing to correct the Crown’s suggestion that the September 27 robbery could lead to an inference about the September 28 robbery

[145] On their appeals, Robinson and Johnson contend that the trial Crown invited the jury to engage in prohibited propensity reasoning when he asked the jury to draw an inference that White pulled a knife on September 28, 2007, because that is what he saw happen on September 27, 2007. Further, Johnson and Robinson say that, in his charge to the jury, the trial judge not only failed to correct this error, he compounded it by repeating the Crown’s position. White adopts these submissions.

[146] On several occasions in his closing address to the jury, the trial Crown suggested that the September 27 robbery supported the likelihood that an attempted robbery occurred in the catwalk. For example, he said:

Well, was there an attempt to rob [Akila] in the catwalk? … You might think of what Omari White is alleged to have done the day before. You know, like one of his accomplices is poking at poor Navdeep Fervaha and saying, here, give up, give up your stuff and the person we allege was Omari White goes through his pockets and pulls out all the stuff. Was that happening to [Akila] at the point where he was stabbed? No.

[Y]ou may well conclude that the injury to the hand happened in the catwalk…. Remember the boy the day before was getting poked in the chest. A little bit of violence might go a long way to show compliance, but not with Akila, because he ran for it.

…I ask you to hold Omari White to his word on this point, the kid was whilin’ out, he was resisting … like Navdeep Fervaha the day before … isn’t it reasonable to conclude that you’re going to carry a knife for the robbery, and somebody is resisting you, that’s when you pull out the knife?

[White], in my submission was angry at the victim. This boy resisted and he wouldn’t give up his property. Mekeela Lye asked him why he was so heated up and angry and he said that’s why he stabbed the boy, White told her of his robbery the day before … all he got was $20 and that was a waste of time. And then what happens the very next day? …Akila’s not only just doesn’t have enough money, he’s actually resisting and not giving it up. I submit that made him angrier still. Navdeep Fervaha wasn’t rich enough for Omari White, and [Akila] wasn’t compliant enough.

[147] In his instructions to the jury, the trial judge reiterated these comments in setting out the Crown’s position when he said, for example:

If [Akila] resisted the initial attempts to rob him in the catwalk … isn’t it reasonable to infer that the knife would be pulled then, for all to see, to ensure the boy’s compliance? Recall, this is what occurred the day before when Navdeep Fervaha was robbed.

If Akila initially resisted like White says he did, why wouldn’t he produce his knife to intimidate him into submission? We know that [White] had witnessed the success of this approach the day before when Navdeep Fervaha resisted initial demands for his property. However, unlike Fervaha, Akila refused to fall victim to the robbery…

[148] I agree that it might have been preferable had the trial Crown not made the simple comparisons about what happened on September 27 to invite the jury to find that is what happened on September 28 without making any link to White’s angry state of mind. It might also have been preferable had the trial judge not repeated such comparisons.

[149] However, as I have said, White’s explanation for his angry state of mind on September 28 provided context for his explanation for stabbing Akila – and thus supported inferences not only about his identity and intent in stabbing Akila, but also about the likelihood that he pulled a knife in the catwalk when Akila initially resisted his requests for money or property.

[150] Thus, while it may not have been appropriate for the trial Crown to invite the jury to make inferences about the events of September 28 based simply on the events of September 27, it was certainly open to the trial Crown to point to White’s anger arising from the events of September 27, and to ask the jury draw an inference about what happened on September 28 based on that anger. In my view, that is the essence of what the trial Crown was saying in the fourth example from the trial Crown’s closing address excerpted above.

[151] Moreover, viewed in the context of the evidence and submissions as a whole, I see no realistic possibility that the jury arrived at their verdict because of some form of prohibited propensity reasoning – as opposed to relying on common sense and White’s angry state of mind.

[152] An inference that White likely drew his knife in response to Akila resisting and refusing to give up his stuff was available as a matter of common sense without any reference to what had happened the day before. White’s own evidence about his angry state of mind arising from the events of the day before made that inference compelling. In the context of that evidence, as well as a lengthy Crown closing and a detailed charge, I reject the possibility that the Crown’s isolated suggestions could reasonably have affected the jury’s verdict.

(iii) The trial judge did not commit reversible error in his instructions on prior discreditable conduct

[153] White makes three complaints about the trial judge’s instructions to the jury on prior discreditable conduct: i) he failed to include the September 27 robbery in his limiting instruction about discreditable conduct evidence; ii) he failed to instruct the jury that they could find that White was not the perpetrator of the Fervaha robbery; and iii) he failed to instruct the jury that the Fervaha evidence had an exculpatory use.

[154] None of these objections was raised at trial; nor is there any indication that defence counsel at trial included the third point in their statements of their position, which they provided to the trial judge for incorporation into his jury charge.[12]

[155] In any event, even though the trial judge did not include the September 27 robbery in his description of the bad character evidence led at trial, in my view, it would have been obvious to the jury from the trial judge’s limiting instruction, that they were not entitled to find White guilty of murder or manslaughter because he was involved in a robbery the day before or to punish him for that robbery.

[156] In describing the bad character evidence in his limiting instruction, the trial judge said, “[i]f and to the extent you believe the evidence in this case, such as [several examples given] reflects bad character” (emphasis added). The trial judge’s use of the phrase “such as” would have made it clear to the jury that he was not giving them an exhaustive list of the bad character evidence about which he was instructing them.

[157] As for failing to instruct the jury that they could find White was not the perpetrator of the September 27 robbery, such an instruction would have undermined the defence’s reliance on that evidence to suggest White did not have the mens rea for murder.

[158] Finally, as for failing to instruct the jury that Fervaha’s evidence had an exculpatory use, I am not persuaded that this omission amounted to a reversible error. I say this for three reasons.

[159] First, in his closing address to the jury, Johnson’s counsel identified the exculpatory use of the evidence when he told the jury the bad character evidence actually helped White because it demonstrated what was going on his mind. Johnson’s counsel asked the jury to infer that, in stabbing Akila, White was simply attempting to emulate what he had seen the day before – the use of a knife to compel compliance without causing serious injury. No one suggested to the jury that they could not use Fervaha’s evidence for this exculpatory purpose.

[160] Second, the centrepiece of the defence position concerning White’s intent was Lye’s evidence of his statement that he did not intend to kill Akila, he only meant to poke him. In his instructions to the jury, the trial judge described the defence position accurately.

[161] Although the trial judge could have referred to Fervaha’s evidence of the knife attack in his summary of the defence position, his failure to do so was not a significant omission. Fervaha’s evidence that the victim of the knife attack the day before suffered no serious injuries was but one piece of evidence the defence relied on in support of their position. Moreover, White’s counsel did not refer to this evidence specifically in his closing.

[162] Third, in my view, the Fervaha evidence was not particularly helpful to White because the details of his actions on September 28 bore little resemblance to what happened the day before. Fervaha described the knife used in the Sandalwood Heights robbery as a one-inch blade, which the attacker concealed between his index and middle fingers and used to poke Fervaha in the chest. By contrast, based on Dr. Parai’s evidence, it was open to the jury to find that White stabbed Akila with a knife that was about seven centimetres long and that he used so much force that the impact of his hand around the handle of knife caused a bruise when it struck Akila’s chest. In addition, although Johnson’s counsel suggested that White was simply attempting to emulate what he had seen the day before, in his statement to Lye, White did not say that was what he was doing.

(c) Did the trial judge err by admitting evidence of Akila’s good character?

[163] During pre-trial motions, the trial judge became aware that the Crown intended to lead evidence at trial that Akila was an honours student who planned to attend the University of Waterloo to study engineering and that he held a part-time job at Tim Hortons. The trial judge raised an issue concerning whether this evidence was presumptively inadmissible good character evidence. Although the Crown did not concede that the evidence was good character evidence, it brought an application to introduce what the trial judge called evidence of biographical information.

[164] It appears that this evidence came from two sources. In his intercepted statement to the jailhouse informant, Robinson acknowledged that he had become aware that Akila was an honours student and that Akila was on his way to work when he was stabbed. In addition, Akila’s teachers and friends could attest to his part-time job and his future plans.

[165] On the pre-trial application, the Crown argued that Robinson’s knowledge of Akila’s good character was a motive for Robinson to minimize his involvement in the stabbing in his statement because – even among criminals – killing a hard-working innocent young boy is particularly heinous.

[166] The trial judge ruled that the Crown was not entitled to lead evidence that Akila was an honours student planning to attend university from Akila’s teachers or classmates. However, he permitted the references in Robinson’s statements to be introduced. In that regard, he said that the references in Robinson’s statement were “the best evidence” of his knowledge of the victim’s good character, and that when his statement was introduced “that belief on the part of Mr. Robinson will be before the jury.” Further, the trial judge ruled that other witnesses would be entitled, as part of the narrative, to testify about any statement Akila may have made about heading to work at Tim Hortons.[13]

[167] On appeal, White contends that the trial judge erred in admitting what he maintains was good character evidence. He says the evidence had no probative value.

[168] White submits that, in order to find Robinson was minimizing his role in the stabbing, the jury would have to first determine his role. Thus, the good character evidence invited circular reasoning.

[169] In addition, White contends that the Crown’s argument improperly required the court to take judicial notice that criminals consider particular crimes to be particularly heinous.

[170] In contrast, White claims that the prejudicial effect of the good character evidence was significant. Evidence that Akila was hard-working and university bound undoubtedly invited sympathy from the jury. Moreover, evidence of Akila’s good character inevitably highlighted the bad character of the four young men involved in his killing.

[171] I would not accept these submissions. In my view, the trial judge was correct in treating the evidence the Crown sought to adduce as presumptively inadmissible. In general, evidence concerning a victim’s good character is irrelevant to the issues at a criminal trial and carries with it the potential to evoke sympathy from the jury. Nonetheless, on the particular facts of this case, I conclude that it was open to the trial judge to admit the limited evidence about Akila that he ruled admissible.

[172] Robinson’s knowledge about Akila’s character was relevant to a live issue at trial: the credibility of his (Robinson’s) description of his role in the stabbing. In his closing address to the jury, the Crown invited the jury to find that Robinson minimized his role in the stabbing. The Crown described the nature of the crime – the senseless murder of a 16-year-old honour student just walking to school from his job – as a good reason why Robinson would not to want to take credit for it.

[173] The Crown’s submission did not invite circular reasoning. The jury did not have to determine Robinson’s role in the killing to rely on the challenged evidence. Rather, the good character evidence was simply a factor for the jury to consider in assessing the credibility of Robinson’s assertions. As in all cases, the trial judge instructed the jury that they must make their decision based on an impartial assessment of the evidence and without sympathy, prejudice or fear.

[174] Further, the submission did not require judicial notice about beliefs held by criminals. The jailhouse informant disclosed his view of the offence in the intercepted communication. In any event, the Crown’s submission relied for its force on common sense rather than on any form of improper judicial notice about the beliefs held by criminals.

[175] Finally, the fact that Akila was on his way to work when he was stabbed was properly – and inevitably – admitted as part of the narrative. This is because a friend of Akila’s testified that Akila asked to come to the friend’s house after school so he would not have to go home before going to work. The friend then described the approximate route Akila would have to take to go to work.

(d) Did the trial judge err by instructing the jury that the accuseds’ after-the-fact statements could be used in assessing their level of culpability?

[176] Lye gave evidence that, following the stabbing, White told her he did not intend to kill Akila, he only meant to poke him. In his closing address to the jury, the Crown suggested that, in making this statement, White was deliberately attempting to minimize his liability for killing Akila.

[177] On appeal, White contends that, in his instructions to the jury, the trial judge told the jury incorrectly that they could use a finding that the accused minimized their liability deliberately as a basis for concluding they were guilty of murder.

[178] White submits that the trial judge’s instruction was prejudicial to him for three reasons. First, there was no evidence that he deliberately minimized his liability or lied in his statement to Lye. The trial judge therefore erred in failing to distinguish among the accused in instructing the jury about after-the-fact lies and minimizations. Second, the instruction invited circular reasoning by asking the jury to find that White knew he was guilty of murder and then to use that finding to conclude he was guilty of murder. Third, the trial judge’s instruction effectively required the jury to accept White’s statement as truthful to acquit him of murder.

[179] I would not accept these submissions. To address this ground of appeal, it is important to look at what the trial judge actually said.

[180] In the section of his instructions addressing the general principles applicable in all criminal cases, the trial judge instructed the jury that after-the-fact conduct was relevant only to their consideration of manslaughter and was not relevant to “distinguishing between liability for manslaughter as opposed to first or second degree murder.” The trial judge explained that this was because after-the-fact conduct, such as disposing of knives or fabricating a story to tell the police, was “equally consistent with the accused having committed manslaughter as it [was] with first or second degree murder.”

[181] Later, after hearing mid-charge submissions from counsel, the trial judge instructed the jury that they could use lies or material omissions in after-the-fact statements to assess the sincerity of the young men’s assertions that they lacked the intent to commit murder. The trial judge said:

[Earlier] I instructed you that you may not use the after the fact conduct of the accused, such as the hiding of knives or the concocting [of] lies, as evidence of their guilt for murder as distinct from their guilt of manslaughter, and that instruction still stands.

However, I instruct you that you may use any evidence of the defendants’ lies or material omissions in considering how sincere the defendants’ assertions were to others that they lacked the intent to commit murder. In this way, any evidence that suggests that the defendants were minimizing their roles in the killing of [Akila] especially between September 28 and 30, may be used by you to consider any argument that the defendants were sincere in their comments to others that they lacked the state of mind to commit murder.

[182] In relation to White, Dr. Parai’s evidence, in particular, significantly undermined White’s claim that he only meant to poke Akila. Her evidence that the bruising around the stab wound could have been caused by a closed fist around the handle of the knife suggested that White stabbed Akila with considerable force – enough force that his closed fist struck Akila as part of the stabbing motion – and enough force that the impact of his closed fist caused a bruise.

[183] In relation to White, the trial judge’s follow-up instruction did not mean that the jury could use White’s statement to Lye as evidence that White was conscious of having committed murder. Rather, the instruction meant that if the jury found White stabbed Akila with considerable force they could use that finding to conclude that, in his statement to Lye, he was minimizing his actions – a factor they could use in assessing the credibility of his assertion he did not intend to kill Akila. I see no error in this instruction. It did not mean the jury had to believe White’s assertion in order to find him not guilty of murder.

(3) White’s grounds of appeal adopted from Johnson and Robinson

(a) Did the trial judge err by incorporating into the jury charge a statement of the Crown’s position that responded to the defence closings?

[184] Because none of the defendants called evidence at trial, the Crown addressed the jury first. The trial judge requested that all counsel provide him with a written summary of their positions to assist him in preparing his statement of their positions in his charge. At the request of the trial Crown, he permitted the Crown to submit its summary of the Crown’s position after all three defence counsel completed their closing addresses. Johnson and Robinson argue that this procedure improperly allowed the Crown to alter the position taken in its closing address and, in effect, to reply to the defence closings.

[185] Most significantly, Johnson and Robinson say that, in contrast to the position taken in the Crown’s closing, the Crown was permitted to submit, in the statement of its position incorporated into the trial judge’s charge, that Akila’s finger could have been cut either in the catwalk or at the time Akila was stabbed in the chest. They claim that this change in position prejudiced their defence. White adopts this submission.

[186] I would not accept this submission. Although I agree that permitting the Crown to expand on its position after hearing the defence closing address should be discouraged, on the facts of this case, I am not persuaded that the trial judge committed any error.

[187] Preparation of the jury charge is the trial judge’s responsibility. In carrying out that responsibility, the trial judge is required to describe all routes of liability arising from the evidence at trial and all available defences, whether relied on by a particular party or not: R. v. Pickton, 2010 SCC 32, at para. 22. In carrying out this responsibility, the trial judge is entitled, and indeed wise, to seek input from all parties concerning how best to instruct the jury.

[188] In this case, it was undoubtedly open to the jury, based on the evidence adduced at trial, to find that Akila’s finger was cut either in the catwalk or at the time of the stabbing – and to find White guilty of first degree murder in either case. Although the summaries of counsel’s positions do not form part of the appeal record, the trial judge’s comments demonstrate that he reviewed and edited those summaries before including them in his charge.

[189] In the circumstances, I see no basis for holding that White was prejudiced by the procedure adopted in this case.

(b) Did the trial judge err by failing to give a W.(D.) instruction concerning potentially exculpatory evidence?

[190] Johnson and Robinson argue that the trial judge erred by failing to give a W.(D.)[14] instruction concerning potentially exculpatory evidence given by them. In particular, Johnson and Robinson argue that the charge failed to convey the concept that if the jury was left with a reasonable doubt arising from exculpatory evidence, they were required to acquit the particular accused.

[191] White adopts this submission and, in particular, points to Lye’s evidence of his statement that he did not intend to kill the victim, he only intended to poke him, as requiring a W.(D.) charge.

[192] I would not accept this submission. No such instruction was requested at trial. In this case, the trial judge provided trial counsel with a draft, and subsequent redrafts, of his charge. Trial counsel made submissions to the trial judge concerning the content before, during and after the charge.

[193] Although not determinative, the failure to object in this context is an indication that trial counsel were satisfied the trial judge’s instructions to the jury were adequate to convey the jury’s obligation to acquit in the event the jury was left with a reasonable doubt arising from the evidence or absence of evidence – including the evidence of exculpatory statements made by the accused.

[194] I agree that that the trial judge adequately conveyed to the jury their obligation to acquit in the event they had a reasonable doubt.

[195] The trial judge’s standard instructions on proof beyond a reasonable doubt included the instruction that if, at the end of the case, the jury was not sure that an accused had committed an offence, the jury should find that accused not guilty.

[196] In addition to the standard instructions, the trial judge gave the jury the following special instruction concerning statements of the accused, indicating that, in determining whether they had a reasonable doubt, the jury was required to consider anything in such statements that might help an accused in his defence, even if the jury could not decide whether the accused had made the statement in question:

Let me now turn to the subject of out of court utterances, or statements by the accused persons.

Some or all of the statements may help the accused person in his defence. You must consider those remarks that may help the accused person, along with all the other evidence, unless you are satisfied he did not make them. In other words, you must consider all the remarks that might help the accused person even if you cannot decide whether he said them.

If you decide that the accused person made a remark that may help him in his defence, or if you cannot decide whether he made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about the accused person’s guilt.

[197] Although not in the form of a W.(D.) instruction, when considered in combination with the standard proof beyond a reasonable doubt instruction, this instruction was adequate to convey to the jury that they were required to acquit an accused if an exculpatory statement left them with a reasonable doubt about the accused’s guilt.

(c) Did the trial judge err by failing to admit evidence of the intercepted communication between Robinson and a jailhouse informant for the truth of its contents vis-à-vis Johnson and White?

[198] At the conclusion of the Crown’s case, Johnson moved for a severance so he could call White (and potentially Robinson) as witnesses. The trial judge denied this request. Following the trial judge’s ruling, and after he had elected to call no evidence, Johnson applied at the pre-charge conference to have Robinson’s statement to the jailhouse informant admitted for the truth of its contents vis-à-vis him based on the principled exception to the hearsay rule. White supported Johnson’s request and asked for similar relief.[15]

[199] The trial judge refused the application, holding that the Crown was prejudiced by the timing of the application and that, in any event, Robinson’s statement did not meet the reliability requirement for admission under the principled exception to the hearsay rule.

[200] In particular, the trial judge found that Robinson’s statement was highly unreliable because it conflicted in material respects with the evidence of independent witnesses; that Robinson had a motive to disassociate himself from the robbery and minimize the involvement of Johnson; and that this was not a case in which cross-examination of Robinson would add little to the process.

[201] On appeal, Johnson submits that the trial judge erred in finding that the Crown was prejudiced by the timing of the application and also erred in his reliability analysis. Concerning the latter, Johnson says the trial judge was wrong in holding that Robinson’s statement conflicted in material ways with the evidence of independent witnesses. None of the Crown’s witnesses saw a confrontation or attempted robbery in the catwalk; the Crown led no forensic evidence of such a confrontation; and none of the high school student, the Bell technician or the school board employee saw any of the four young men with a knife.

[202] Moreover, given that the Crown was entitled to lead evidence of Robinson’s statement, it must have satisfied some minimum threshold of reliability. The Crown was relying on portions of Robinson’s statement for the truth of their contents – and on other portions to attack his credibility. Having denied severance, the trial judge should have permitted Johnson to rely on the statement for the truth of its content. White adopts this submission.

[203] I would not accept these arguments. I acknowledge that it may have been possible for the trial judge to have addressed the Crown’s concerns about prejudice in other ways.[16] However, I am not persuaded that the trial judge erred in his reliability analysis. Moreover, even if the trial judge should have permitted Johnson and White to rely on Robinson’s intercepted communication for the truth of its contents based on applying a more relaxed standard of admissibility for the defence, I am not persuaded that White was prejudiced by any such error.

[204] Concerning the trial judge’s reliability analysis, the fact that Robinson was speaking to a cellmate (with whom he had no particular history of friendship) was hardly a hallmark of reliability. Moreover, there can be no doubt that Robinson had a motive to minimize at least his own involvement in the crime. His counsel acknowledged that in his closing address to the jury.

[205] In any event, I see no prejudice to White by the failure to admit Robinson’s intercepted communication for the truth of its contents for his benefit. The potentially exculpatory after-the-fact statements and conduct of White that were referred to in the intercepted communication were before the jury in Lye’s evidence. The fact that White had said he did not mean to kill the youth and that he turned various colours when he learned Akila had died was not really in issue. Rather, what was in issue was the significance of those statements. Robinson’s intercepted communication did not assist in resolving that question.

[206] I would not give effect to this ground of appeal.

F. Disposition

[207] Based on the foregoing reasons, I would dismiss the appeal.

Released:

“JAN 24 2014” “Janet Simmons J.A.”

“JL” “I agree John Laskin J.A.”

“I agree E.A. Cronk J.A.”

[1] In my reasons concerning the Johnson and Robinson appeals, I explain that the trial and the appeal hearing proceeded on the basis that White made this statement to Lye at Lye’s basement apartment. However, on my review of the record, Lye’s evidence is ambiguous concerning whether White made the statement at Lye’s house or, later, at Johnson’s house.

[2] Section 30 of the English and French versions of the Interpretation Act read as follows:

30. A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person’s birth.

31. En cas de mention d’un âge, il faut entendre le nombre d’années atteint à l’anniversaire correspondant à zéro heure.

[3] Section 2 of the Youth Criminal Justice Act defines “young person” as a person who is “12 years old or older, but less than 18 years old.”

[4] Section 3(1) of the Criminal Code R.S.C. 1970, c. C-34, was repealed in 1982, by S.C. 1980-81-82-83, c. 125, s.2. It provided as follows:

3(1) For the purposes of this Act a person shall be deemed to have been of a given age when the anniversary of his birthday, the number of which corresponds to that age, is fully completed, and until then to have been under that age.

[5] The informant did not testify at trial. Counsel at trial agreed that his evidence could be given through his handler.

[6] In Parris, the victim was removed from the main floor of a house to the basement where he was eventually killed.

[7] As I explain in my reasons relating to Johnson and Robinson, in my view, some of this evidence was not admissible against them.

[8] Pollock gave evidence about the bear hug and the location of Akila’s arms through a combination of description, demonstration and comment on the Crown’s demonstration. The jury was in the best position to interpret this evidence.

[9] In Cline, this court observed, at para. 26: “whereas in most crime it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt the mens rea is of primary importance and the actus reus is the necessary element.”

Later, at para. 34, this court stated: “[t]here must be mens rea and also an actus reus to constitute a criminal attempt, but the criminality of misconduct lies mainly in the intention of the accused.”

Similarly, in Ancio, the Supreme Court recognized that “because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent.”

[10] The details concerning the specifics of Banwait’s and Matharu’s participation do not appear in the ruling on the directed verdict application, but are culled from other decisions.

[11] A main plank in the defence position at trial was that the four young men pursued Akila from the catwalk, not as the Crown maintained, in an effort to exact retribution on him or to kill him, but rather in an effort to rob him. However, as is noted in Parris, the purpose of an unlawful confinement is irrelevant.

[12] The statements of counsels’ positions as submitted to the trial judge are not included in the appeal record. However, defence counsel did not raise any issue at trial about the trial judge omitting reference to the use of a knife on September 27, 2007 from his summary of their positions.

[13] Despite the trial judge’s ruling, the Crown elicited evidence from Akila’s girlfriend that he worked at Tim Hortons. In response to a question from the Crown about why Akila was working at the coffee shop, the same witness volunteered that Akila told her he planned to go to Waterloo and that he was saving for university. The Crown later explained that he anticipated that the witness would say Akila told her he was saving money for school and that he had instructed her not to say Akila was planning to go to the University of Waterloo.

[14] R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[15] Relevant portions of Robinson’s intercepted statement to the jailhouse informant are summarized at para. 31 of these reasons.

[16] For example, by requiring Johnson and White to re-open if they wanted the intercepted communication used for their benefit; or by giving the Crown a right of reply to the defence closings.