WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Salah, 2015 ONCA 23
DATE: 20150120
DOCKET: C46991, C47004 & C47882
Rosenberg[*], Watt and Strathy JJ.A.
BETWEEN
C46991
Her Majesty the Queen
Respondent
and
Ghassan Salah
Appellant
BETWEEN
C47004
Her Majesty the Queen
Respondent
and
Randy William Parish
Appellant
BETWEEN
C47882
Her Majesty the Queen
Respondent
and
Thomas J. McDowell
Appellant
Philip Campbell and Howard L. Krongold, for the appellant, Ghassan Salah
Michael W. Lacy, for the appellant, Randy William Parish
Michael Davies and Tyler Botten, for the appellant, Thomas J. McDowell
David Finley and Greg Skerkowski, for the respondent
Heard: May 6 & 7, 2014
On appeal from the conviction entered on June 24, 2006 by Justice Roydon J. Kealey of the Superior Court of Justice, sitting with a jury.
Watt J.A.:
[1] In the beginning, a message. In the end, a fire. And two dead children.
[2] Cindy Rodgers was the messenger. She told her friends and acquaintances Randy Parish was a paedophile. Randy Parish decided to silence Cindy Rodgers. Permanently. No messenger. No message. Cindy Rodgers would die in a fire in her home where she lived with her two young children.
[3] Randy Parish assembled a team to execute his plan. Two to set the fire. A third to act as a lookout. And an alibi for Randy Parish.
[4] The fire was set. The house burst into flames. But Cindy Rodgers escaped. She awakened neighbours to call 911. She ran back to her home. But the extent and intensity of the fire prevented her from re-entering the house. Her children were trapped. They died in the fire as she watched in helpless horror.
[5] The Crown’s theory was that Randy Parish, with Ghassan Salah’s assistance, hired Thomas McDowell and S.C. to set the fire. The intention was to kill Rodgers to prevent her from spreading further stories about his lifestyle as someone who had sexually assaulted a 10 year old boy, R.P., and cultivated a community of young men.
[6] S.C. pleaded guilty to second degree murder. His parole ineligibility was set at 23 years. He testified for the Crown and was an important witness in the cases against the three appellants, especially Parish and Salah. Relying on S.C.’s testimony, the Crown argued Parish and Salah knew Rodgers and her children were present when the fire was set, and that although McDowell did not know the children were present, he knew Rodgers would be. Salah helped organize the killing, especially by designing the instruments used to set the fire.
[7] None of the appellants testified or called evidence at trial. Parish and McDowell invited the jury to find them not guilty of first degree murder, but guilty of manslaughter. Salah sought an acquittal.
[8] Parish and Salah appeal their convictions of first degree murder. McDowell appeals his conviction of second degree murder and the period of parole ineligibility of 23 years. The appellants raise a number of grounds of appeal concerning the admissibility of evidence and the charge to the jury.
[9] For the following reasons, I would dismiss the appeals.
THE BACKGROUND
[10] In 2003, Rodgers allowed her son to sleep over at Parish’s home on several occasions. He lived in a one bedroom space. Parish also invited other young boys and young men over to play games, watch movies, and spend the night. He bought gifts and drugs for his male friends. Several of these young men had roles to play in the events in question, in particular Greg and Scott Brown (ages 16 and 17, respectively) and Chris Minichilli (age 18). Parish was 26 years old.
[11] Parish saw Cindy Rodgers frequently in the months prior to the fire. However, by January 2004, their relationship had deteriorated. R.P., a 10 year old boy, had told Rodgers Parish sexually assaulted him. Rodgers told many people about the assault and that Parish was a paedophile. There was little doubt Parish was angry about these comments; Rodgers had made the comments widely known. Parish and Rodgers had also resorted to threatening each other.
[12] By 2004, Parish had moved in with Salah and his partner, Karin Glaeser. After the fire, the police searched Parish’s home and found images described as young male pornography.
The Events before the Fire
[13] The events leading to the fire and the death of Rodgers’ two children began in the days prior to Friday, January 30, 2004. Prior to Monday, January 26, Parish and Salah both drove Sunfire automobiles. Parish’s was silver. Salah’s was green. On Monday, January 26, Parish used Salah’s credit card to rent a red Intrepid. Later that day, S.C. took possession of Parish’s silver Sunfire. S.C. testified he believed he would end up owning this car. Parish began driving the Intrepid.
[14] One of the crucial issues was whether a meeting took place at Salah’s house the evening of Tuesday, January 27. At trial, S.C. testified that he and the three appellants met at Salah’s house that night. He said Parish initially told them he wanted to scare Rodgers, but later said he did not want Rodgers to come out alive. The group settled on setting a fire, and according to S.C., Salah explained to S.C. and McDowell how to make bombs to set the fire: Molotov cocktails from wine bottles and plastic containers filled with gasoline. The fire was to be set on Friday, January 30, at 4:30 a.m. Parish said he would obtain the necessary supplies and S.C. and McDowell would set the fire. Parish would drive around to watch for police. Salah would park nearby on Richmond Road with his hood up. According to S.C., Parish promised S.C. and McDowell $7,000 each for their participation.
[15] S.C. also testified that McDowell asked about whether Rodgers’ children would be home the evening of the fire, and that Parish said they would not. Salah then drove McDowell and S.C. back to their homes. On the way, he stopped to show them the footpath leading to Rodgers’ home.
[16] On Wednesday, January 28, Parish, S.C., McDowell, and Minichilli met at a Tim Horton’s restaurant. S.C. testified that very little was discussed except that Parish agreed to pay $7,000 to each of S.C. and McDowell. Salah showed up later but nothing more was discussed about the fire.
[17] On Thursday, January 29, Parish and Salah went shopping for the various items needed to start the fire. Much of this evidence came from Minichilli, who was present during most of the trip. Among the things purchased were walkie-talkies, a hammer, ski masks, and four bottles of wine. Video surveillance and independent witnesses show Parish and Salah purchasing these items.
[18] Later, there was a dinner that included Parish and Salah, as well as Minichilli and Glaeser. Minichilli overheard Salah saying he and Glaeser were going to get new cars, paid for by Parish. At the end of the dinner, the four wine bottles were emptied and Parish left with the empty bottles. He and Minichilli met up with S.C. and McDowell at S.C.’s apartment. According to S.C., he and Parish moved a jerry can and windshield washer fluid bottles from the Intrepid to the silver Sunfire. Inside the apartment, Parish supplied S.C. and McDowell with the empty wine bottles, a hammer, ski masks, gloves, radios, a lighter, two knapsacks, and rags. Parish also gave S.C. $60 to buy gasoline and batteries. As he left, Parish reminded S.C. and McDowell to be up by 2:30 a.m. and of the promised monetary reward. S.C. and McDowell later went out and purchased gasoline and batteries. Danielle Davidson, S.C.’s common law partner, washed out the wine bottles.
[19] S.C. and McDowell bought enough gasoline to fill four wine bottles and two windshield washer fluid jugs. They parked near Rodgers’ home and approached the townhouse on foot carrying the wine bottles in a knapsack and the jugs in their hands.
[20] S.C. and McDowell woke up at 2:30 a.m. S.C. transferred the gasoline from the jerry can to the wine bottles and two windshield washer jugs. They stopped the wine bottles with rags. They parked near the footpath leading to Rodgers’ house. Salah pulled up in his vehicle and lifted his hood. He nodded towards S.C. and McDowell. On the way to Rodgers’ house, S.C. and McDowell saw someone coming up the hill. S.C. advised Salah on the walkie talkie. Salah told him to contact Parish. Parish advised them to carry on. S.C. and McDowell went down the footpath. S.C. smashed the front window with a hammer that fell on the floor of the townhouse. McDowell set the knapsacks on fire. He then threw one knapsack into the house and took off. S.C. did the same. The gasoline-filled windshield washer fluid jugs were left outside the house. S.C. and McDowell ran back to their vehicle. Salah was still in front of his car with the hood up. S.C. and McDowell arrived back at S.C.’s house and telephoned Parish to tell him it was done.
[21] Rodgers, who was asleep on the living room couch with her son, heard a large boom and saw that the blinds were on fire. She went next door to have her neighbour call the authorities. She then returned to her house but could not get in to rescue her two children. None of her neighbours could get into the house. Later, investigators found a hammer, the glass remnants of broken wine bottles, fabric from backpacks, and several areas containing gasoline. A witness from the Fire Marshall’s office found the fire was set with an incendiary device, a Molotov cocktail, thrown into the home.
The Events after the Fire
[22] Glaeser testified that when she woke up Friday morning Salah and Parish were at home. Salah drove her to work. He did not mention anything about car problems. He told her he and Parish had been at the house all night watching a movie. Salah said he had taken Parish’s car keys away because Parish had been drinking.
[23] S.C. testified that later on Friday he received a call from Parish. Parish was happy even though he revealed the two children had died. Parish told S.C. he lied when he said no children would be home the night of the fire.
[24] Glaeser testified that when Salah picked her up from work on Friday afternoon he told her about the fire, but swore neither he nor Parish had anything to do with it. Nevertheless, Salah said he and Glaeser were going to Toronto.
[25] Ultimately, it was decided that Salah and Parish would be the ones to go to Toronto. If approached by police, they asked Glaeser to say Parish was at his uncle’s in Montreal and Salah was visiting family in Windsor. They left for Toronto in the red Intrepid. While in Toronto, Parish telephoned a number of people to tell them he had gone to Montreal or Quebec City. He had also made such calls before the fire. The police contacted Glaeser on Saturday afternoon. As instructed, she lied about the whereabouts of Parish and Salah.
[26] Salah returned to Ottawa on Sunday morning after Glaeser told him the police were looking for him. Parish surrendered to police at a restaurant in Mississauga on Sunday evening. Police later searched the silver Sunfire. They found a jerry can with gasoline. They also found two walkie talkie radios in S.C.’s apartment.
The Appellants’ Statements to the Police
[27] Within two days of the fire, the police arrested S.C. and McDowell. When interviewed by investigators, each admitted to setting the fire at Rodgers’ townhouse by throwing burning knapsacks holding gasoline-filled wine bottles stoppered with rags through a broken window. Each implicated Parish as the mastermind behind the scheme, claiming he was motivated by a desire to get revenge on Cindy Rodgers for untrue allegations she had made against him.
[28] Parish and Salah each made statements to police. Parish denied involvement until his closing address, when his counsel admitted he was guilty of manslaughter. He had embarked on the scheme only to scare Rodgers. Salah admitted to having been present on Richmond Road with his hood up, but claimed he was having car trouble. He denied having anything to do with the fire.
[29] In his statement to police, McDowell admitted going to Rodgers’ house and receiving items on Thursday night, including radios, wine bottles, ski masks, a hammer, rags, and a lighter. McDowell said the fire was just to scare somebody and he did not know who the target was. Parish told him no children would be in the house. But he also admitted: “I don’t know if somebody was supposed to be there or if no one was supposed to be there.” McDowell attempted to plead guilty to manslaughter at the beginning of the trial. This plea was rejected by Crown counsel and the trial proceeded against McDowell for murder.
S.C.’s Various Statements
[30] Prior to trial, S.C. pleaded guilty to second degree murder and was sentenced to life imprisonment without eligibility for parole for 23 years. Largely on the basis of S.C.’s testimony, it was the Crown’s theory that McDowell was aware Rodgers was home and was going to be killed, and that Parish and Salah both knew Rodgers and the children were going to be home and would be killed.
[31] S.C. made three statements to the police, two before his preliminary inquiry with the three co-accused, and one after. He also testified at Davidson’s preliminary inquiry and at the trial of his co-accused. These statements reflect a shifting version of events.
[32] First, on January 31, 2004, the day after the fire was set, police interviewed S.C. He confessed his role. He said he met with Parish, McDowell, and Minichilli on the Wednesday evening before the fire at a Tim Horton’s restaurant. Parish told them he wanted to scare Rodgers by setting fire to her home, and that her children would not be present. Parish told them about his plan. S.C. made no mention of any meeting on Tuesday to discuss the fire. At trial, S.C. testified that this statement was full of lies.
[33] A few months later, on April 14, 2004, S.C.’s story changed. He asked to give a further statement to police. It was clear S.C. made this statement at Parish’s urging. They were in jail at the same location.
[34] S.C. said the plan was to light the knapsacks and simply leave them outside Rodgers’ home, but that he had panicked and dropped the incendiary inside the house. S.C. also said that Salah, whom he had not mentioned in his first statement, had planned the events and insisted on carrying them out, even when Parish tried to abort the plan at the last minute. At trial, S.C. testified this statement “pretty much was a lie.” He said Parish had convinced him that falsely implicating Salah as the mastermind might reduce S.C.’s own sentence if he was later convicted.
[35] On September 29, 2005, S.C. made his final statement to police. At this point, S.C. had gone through a preliminary inquiry with Parish, Salah, and McDowell, at which the Crown set out its theory and evidence. S.C. told police that Parish had said he intended to kill Rodgers, not just scare her. He also said Parish told S.C. and McDowell to throw the knapsacks “as far as possible” into Rodgers’ home. At trial, S.C. admitted that he made this statement in the hopes of getting some benefit for doing so.
[36] On February 6, 2006, after pleading guilty to second degree murder, S.C. testified at Davidson’s preliminary hearing. His testimony was largely consistent with his September 2005 police statement. He said Parish had directed him to throw the bags “towards the stairs” to prevent anyone from using the stairs or escaping the fire.
[37] Finally, S.C. testified at the appellants’ joint trial. The substance of his testimony is recounted throughout the above discussion of the events of late January 2004. S.C. conceded that when he made his September 2005 police statement he hoped that by doing so and agreeing to testify for the Crown he would benefit from either a plea to manslaughter or a reduction in his parole ineligibility following a murder conviction.
McDowell’s Position at Trial
[38] McDowell pleaded not guilty of first degree murder but guilty of manslaughter on both counts with which he was charged. Crown counsel refused to accept the pleas to manslaughter. The trial proceeded on two counts of first degree murder.
[39] McDowell did not testify at trial, nor was any evidence adduced on his behalf. His post-arrest statement was introduced as part of the Crown’s case.
[40] In his closing address, trial counsel for McDowell invited the jury to find McDowell guilty of manslaughter rather than first degree murder. The jury found McDowell guilty of two counts of second degree murder.
THE GROUNDS OF APPEAL
[41] The appellants raise various evidentiary issues and take issue with the trial judge’s charge to the jury. McDowell also appeals the 23-year period of parole ineligibility imposed by the trial judge. I would paraphrase the appellants’ grounds of appeal as follows. The trial judge erred by:
(1) admitting evidence related to Parish’s sexual assault of R.P., interest in young men, and gang activity;
(2) inadequately instructing the jury on the use that could properly be made of bad character evidence (i.e., the revenge and gang evidence);
(3) inadequately cautioning the jury in accordance with Vetrovec regarding S.C.’s evidence;
(4) inadequately instructing the jury on the proper use of prior consistent statements;
(5) inadequately reviewing the evidence and relating it to the legal issues;
(6) inadequately instructing the jury on the elements of unlawful object murder;
(7) inadequately instructing the jury on the proper use of evidence of post-offence conduct; and
(8) imposing a 23-year parole ineligibility period on McDowell.
Ground #1: The Admissibility of the Revenge and Gang Evidence
[42] Parish takes issue with the trial judge’s decisions on the admissibility of the evidence relating to his alleged sexual assault of R.P., interest in young men, and involvement in gang activity.
The Background
[43] The prosecution led three categories of evidence to support its theory that Parish planned to kill Cindy Rodgers: (i) evidence tending to prove Parish sexually assaulted R.P.; (ii) evidence tending to show Parish was interested in young men; and (iii) evidence tending to establish Parish was involved in gang activity.
[44] While most of the analysis of this evidence centres on Parish, the admissibility and use of the evidence was important to the co-appellants since it was part of the foundation of the case against all three appellants. The Crown sought to show Parish had not simply wished to scare Rodgers, but intended to kill her, and had enlisted McDowell, Salah, and S.C. for this purpose. The prosecution also sought to show Parish and Salah intended to cause the death of Rodgers’ two children, whom they knew would be present.
(i) Parish’s Sexual Assault of R.P.
[45] The prosecution led evidence that Parish had sexually assaulted 10 year old R.P. R.P. testified that on one occasion, when he slept at Parish’s home with Rodgers’ son, he slept in the same bed as Parish. He said he awoke to find Parish attempting to have R.P. masturbate him. R.P. broke off the encounter.
[46] Several weeks later, R.P. told Rodgers about the incident. The Crown led evidence that Rodgers had been talking broadly about this alleged misconduct, calling Parish a paedophile, and that Parish was aware she was doing so.
(ii) Parish’s Interest in Young Men
[47] The Crown also led evidence that Parish was spending time with other teenaged men. There was evidence Parish was spending considerable time with and money on these young men, but there were no allegations of sexual contact. He bought them gifts and drugs and had them over to play games, watch movies, and sleep over. The Crown also led evidence that Parish was in possession of photographs of nude young men.
(iii) Parish’s Involvement in Gang Activity
[48] Another facet of Parish’s alleged behaviour was his attempt to organize a gang called the Satan’s Republic Motorcycle Club, Ottawa. Parish purchased jackets and patches for the gang and claimed association with the Hell’s Angels. The Crown led this evidence to support a theory of first degree murder under s. 231(6.1) of the Criminal Code on the basis the murder was committed in connection with a criminal organization. According to S.C., the gang was conceived by Parish in October 2003. S.C. claimed to be a member. He said McDowell was thinking of joining but never did, and that he did not know Salah’s membership status. Although the evidence was admitted, the trial judge found there was no air of reality to this theory and it was not left with the jury.
The Arguments on Appeal
(i)Parish’s Sexual Assault of R.P.
[49] Parish does not contest the admissibility of some of the evidence concerning the sexual assault allegations. The alleged sexual assault was central to the Crown’s case. There was abundant evidence that the alleged assault and Rodgers’ discussion of it with people in the community, including people close to the appellant, were the basis for the attack on Rodgers’ home.
[50] The issue raised at trial, and again on appeal, was whether all the evidence concerning the sexual assault – namely, R.P.’s testimony that the sexual assault did in fact take place – was necessary.
[51] Parish submits the trial judge failed to properly weigh the probative value of this evidence against its extreme prejudicial impact. To support its theory, the Crown only needed to advance evidence tending to establish Rodgers had been spreading the sexual assault allegation. It was not necessary to lead R.P.’s testimony. This was especially so given the circumstances of the case (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 74): there was no question the arson was planned and deliberate; Parish admitted to having orchestrated the homicide; there was no evidence of self-defence or provocation; Parish never contested that he had motive; and there was other legitimate and less prejudicial evidence of motive and intention to kill. Parish contends deference need not be paid to the trial judge’s unreasonable decision to admit R.P.’s testimony regarding the alleged sexual assault.
[52] The respondent advances three arguments in support of its position that the trial judge did not err by refusing to give effect to the appellant’s position.
[53] First, if he knew the allegations were true, Parish would have been more angry with Rodgers, more fearful of becoming an outcast, and more concerned about potential criminal charges. The jury’s assessment of the intensity of Parish’s feelings may well have played a role in their determination of whether Parish had the requisite intent for murder.
[54] Second, permitting R.P. to testify did not have a drastic impact on the potential for prejudice. To the extent that there was a risk the jury would engage in a prohibited chain of reasoning on the basis that Parish had committed an act of sexual impropriety, the risk was already present on the evidence the defence conceded was admissible. The jury would have received evidence that R.P. had made these allegations and that Rodgers’ had made them widely known. Also, the risk of reasoning prejudice was limited given R.P.’s testimony was relatively brief and straightforward.
[55] Finally, a trial judge’s assessment of where the balance falls between probative value and prejudicial effect is entitled to substantial deference. This is so unless an appellant demonstrates the result of the analysis is unreasonable or undermined by a legal error or misapprehension of material evidence: R. v. Stubbs, 2013 ONCA 514,300 C.C.C. (3d) 181 (Ont. C.A.), at para. 58. Parish has not met this burden.
(ii)Parish’s Interest in Young Men
[56] Parish argues the Crown’s evidence that he was an abusive paedophile – including the allegedly pornographic images featuring young men, evidence establishing his association with young men in the community, and Rodgers’ opinion that Parish was secretly carrying on a predacious lifestyle – was not probative on the issue of animus, and therefore could only have been prejudicial.
[57] In addition to the deference argument already discussed, the respondent advances three further arguments.
[58] First, the evidence of Parish’s association with young men in the community and his possession of pornographic photographs of young men were capable of supporting an inference that Parish had a sexual interest in youthful males. As discussed, the truth of Rodgers’ allegation to this effect was properly before the jury as evidence of intent. Similarly, regardless of whether Parish had already or intended to act upon his desires, the disclosure of R.P.’s allegations put those relationships in jeopardy. The jury could have reasonably found Parish was motivated to harm Rodgers because she was threatening a number of relationships on which he had expended considerable time and money.
[59] Second, the risk of moral prejudice was limited. It is inherently unlikely the jury used this evidence to reason Parish was more likely to be guilty of murder. There is no logical connection or similarity between having a sexual interest in teenage males, or even committing an act of sexual abuse, and engaging in a murderous plan to firebomb someone’s house.
[60] Third, the teenagers Parish was spending time with were necessary witnesses quite apart from the issue of motive. They had direct evidence of the events leading to the fire. Their testimony was not an unnecessary distraction.
(iii)Parish’s Involvement in Gang Activity
[61] Parish argues that, in light of the trial judge’s conclusion there was no air of reality to the Crown’s theory the murders were committed in connection with a criminal organization, the evidence of Parish’s gang activity should have been excluded.
[62] The respondent disagrees. The gang evidence did not become irrelevant once the criminal organization theory was dismissed. The involvement of S.C., McDowell, and Salah could only be explained by their connection to Parish, the man with the motive. It was therefore vital for the jury to receive evidence of their association with Parish.
[63] The respondent also points out that the gang evidence was neither the subject of a pre-trial motion nor any objection on the basis of relevance or prejudice. In fact, the defence relied on this evidence as proof Parish tended to tell “tall tales” about his purported criminal activity.
The Governing Principles
[64] Evidence of motive is a kind or species of circumstantial evidence that invokes a prospectant chain of reasoning. The line of argument engaged is that the previous occurrence of an act, state of mind, or state of affairs justifies an inference that another act was done, or state of mind or affairs existed, at some time afterwards that is material to the proceedings: see Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983) § 43, at pp. 1138-1142. The circumstances that may serve as a motive for conduct, such as killing or arranging the killing of another, are innumerable.
[65] In a prosecution for unlawful homicide, for example murder, evidence of motive or animus is relevant to prove the identity of the killer and the state of mind that accompanied the killing: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 51, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 8; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 165.
[66] The term “motive” refers to an emotion or inner feeling like hate or greed, which is likely to lead to the doing of an act. The term is also used, however, to refer to external events, like allegations of sexual impropriety, which is likely to excite the emotions: R. v. Malone (1984), 1984 CanLII 3480 (ON CA), 11 C.C.C. (3d) 34 (Ont. C.A.), at p. 43, leave to appeal to S.C.C. refused, [1984] S.C.C.A. No. 272. It is open to the Crown to adduce evidence that shows or tends to show the intensity and permanence of a motive since this may enhance the probability that the person with the motive acted in accordance with it.
The Principles Applied
(i) Parish’s Sexual Assault of R.P.
[67] I see no error by the trial judge in admitting this evidence, which was central to understanding the case.
[68] It was for the trial judge to measure the probative value of the evidence against its prejudicial effect. It was open to him to find the evidence of the sexual assault relevant and necessary for the jury to understand the issues in the case, especially the scope of the motive allegation. The Crown was alleging Parish intended to kill Rodgers and her children. The jury needed to understand why Parish was threatening Rodgers and the depth of his animosity. The scope and depth of that inference depended upon the nature of the evidence in support.
[69] The evidence did not go further than what was required to inform the jury of Parish’s motive for the actions he later took: R. v. Walker (1994), 1994 CanLII 8725 (ON CA), 90 C.C.C. (3d) 144 (Ont. C.A.). The trial judge mitigated the risk of moral prejudice by warning the jury not to rely upon this evidence for the prohibited purpose of reasoning that Parish’s interest in young children made it more likely that he intended to kill the deceased: R. v. Gratton; R. v. Weaver (1995), 1995 CanLII 1890 (ON CA), 101 C.C.C. (3d) 479 (Ont. C.A.); R. v. Merz (1999), 1999 CanLII 1647 (ON CA), 46 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 240. The risk of reasoning prejudice was low given the nature of the evidence. R.P.’s testimony was relatively brief and directed to the central issue: the reason for the fire.
(ii) Parish’s Interest in Young Men
[70] It was important for the prosecution to develop, if it could, the reason for Parish’s acts. As indicated, the Crown sought to prove Parish not only intended to frighten Rodgers, a matter no longer in issue by the end of the case, but intended to kill her and her children in an act of vengeance to put an end to her allegations.
[71] To that end, much of the evidence from these young men was admissible; it accounted for the events in the week before the fire and showed Parish and Salah engaged in purchasing and assembling the instruments later used to set the fire. Parish’s involvement with these young men was thus primarily admissible to establish his involvement in planning the fire.
[72] The evidence was also admissible to show Parish’s motive. It was capable of supporting the inference that he was not simply interested in scaring Rodgers, but wanted to eliminate her from his life so he could pursue his lifestyle, which centred around his involvement with young men. I consider the photographs of young men later found in Parish’s possession to fall within the same category. They could assist the jury in assessing the veracity of Rodgers’ allegations, and therefore the extent to which the allegations threatened Parish’s chosen lifestyle.
(iii) Parish’s Involvement in Gang Activity
[73] In my view, the gang evidence was admissible for at least two reasons. First, the evidence could have supported first degree murder under s. 231(6.1) of the Criminal Code. Second, the evidence was admissible to show the close association between Parish, S.C., and McDowell.
[74] Having considered the evidence, the trial judge found the evidence could not, on its own, support first degree murder under s. 231(6.1). The evidence was not admissible for that purpose and was never left to the jury to support first degree murder.
[75] However, that did not make the evidence inadmissible. It was important to the Crown’s case against Salah and McDowell for the jury to understand the nature of the association between the appellants and S.C. The gang evidence was admissible for the purpose of showing Parish intended to enlist the aid of his associates to implement his revenge plan. The evidence showed a very close relationship between Parish and S.C., and possibly McDowell.
[76] It is also of some importance that none of the appellants objected to the admissibility of this evidence at trial. Rather, they used it for their own purposes to show Parish was inclined to lie about his involvement in criminal activity. I can see no basis for interfering with the use of the gang activity evidence.
Ground #2: The Instruction on Bad Character Evidence
[77] Parish also challenges the trial judge’s jury charge regarding the proper use of bad character evidence as it related to Parish’s alleged sexual assault of R.P., interest in young men, and involvement in gang activity.
The Charge to the Jury
[78] The trial judge explicitly instructed the jury regarding the evidence of Parish’s prior discreditable conduct, or “bad character”. Such an instruction was made at the commencement of the trial, by way of mid-trial instruction, and also in the final jury charge. In the final charge, the jury was told:
[T]he evidence you have heard in relation to Mr. Parish’s alleged sexual proclivity and other bad character evidence relating to him cannot be used for the purpose of determining his guilt on the basis that he is a person of bad character and, therefore, more likely to have committed the offence with which he is charged. If you think about it, such reasoning is obviously flawed.
[79] The trial judge continued by telling the jury it was “impermissible” for them to adopt such a line of reasoning, even if they believed Parish sexually assaulted R.P. The trial judge reiterated this point by directing the jury to “resist any inclination to conclude that he’s guilty because he is the type of person, given his background, likely to have committed the murders with which he is charged. That would be improper reasoning.” The trial judge concluded his comments on the issue with the following:
The Crown must prove its case by evidence which implicates Mr. Parish in the murders and satisfies you beyond a reasonable doubt that he’s guilty. It would be wrong if you jumped to the conclusion that he did these things because of the bad character evidence you’ve heard. To assure Mr. Parish a fair trial, you must resist such impermissible reasoning. I repeat, the evidence to which I have referred was admitted and may be used by you only to decide whether a motive has been established by the Crown against Mr. Parish.
The Arguments on Appeal
[80] Parish advances three complaints regarding the trial judge’s jury instruction on the revenge and gang evidence.
[81] First, Parish submits the trial judge’s instructions were inadequate to inform the jury it could not use the revenge or gang evidence to conclude Parish was guilty because he was the type of person likely to commit the murders with which he was charged.
[82] Parish acknowledges the trial judge warned the jury against convicting the appellant because of his lifestyle and interests. However, Parish contends it would have been impossible for the jury to distinguish this instruction from the Crown’s theory, which as framed by the trial judge himself, was that it was precisely because of his lifestyle and interests that Parish wanted Rodgers dead.
[83] Although evidence of an accused’s prior bad acts directed at the victim of an offence are admissible to prove motive without any limiting instruction (R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at paras. 36-40; R. v. Krugel (2000), 2000 CanLII 5660 (ON CA), 143 C.C.C. (3d) 367, at paras. 82-85; Merz, at paras. 57-59), these are not the circumstances of this case. The bad character evidence adduced did not involve Rodgers or her children.
[84] Second, as already discussed, Parish argues the gang evidence should have been excluded once the trial judge concluded there was no air of reality to the theory that the murders were committed in connection with a criminal organization. Alternatively, Parish argues the trial judge should have given a strong limiting charge.
[85] Third, Parish argues the trial judge perpetuated the Crown’s erroneous characterization of Parish’s interests and the photographs found at his home as “paedophilic”. Absent expert opinion speaking to the application of this specialized label, the use of such language was improper and highly prejudicial.
[86] The respondent disagrees on all fronts. The trial judge dealt with the evidence properly. Where bad character evidence is relevant to motive, as it was in this case, the trial judge is not required to provide a limiting instruction to the jury warning them against the improper use of this evidence. This principle is not limited to cases where the bad character evidence relates specifically to the victim: R. v. Holtam, 2002 BCCA 339, 165 C.C.C. (3d) 502, at paras. 44-45, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 310. Similarly, there was no need to instruct the jury about s. 231(6.1) solely for the purpose of telling the jurors the gang evidence had no value for the purpose of establishing the murders were connected to a criminal organization.
[87] In any event, the trial judge provided the jury with a strongly worded limiting instruction on bad character evidence. This instruction was directed towards all the bad character evidence. The trial judge specifically told the jury this evidence could not be used for the purpose of determining his guilt on the basis that he is a person of bad character and therefore more likely to have committed the offences. The trial judge also directed the jury that evidence of motive alone is insufficient to prove guilt beyond a reasonable doubt. Together, these instructions ensured the jury would not give improper weight or consideration to the bad character evidence.
The Governing Principles
[88] Where bad character evidence is relevant to motive the trial judge is not required to provide a limiting instruction to the jury warning them against the improper use of this evidence: Jackson, at para. 59; Krugel, at paras. 82-85; Merz, at paras. 57-59. Although these casesmay be interpreted as suggesting this principle is limited to cases where the evidence of prior bad acts is directed at the victim of the offence in question, the more recent pronouncement of this principle in Holtam suggests no such limitation applies: paras. 44-45.
The Principles Applied
[89] Even though it was unnecessary to give a limiting instruction in this case, the trial judge did so regarding the use of the revenge and gang evidence. He instructed the jury that evidence of Parish’s lifestyle was not admitted to show he was a person of bad character and therefore more likely to have committed the offences. He told the jury the use of the evidence for that purpose was “obviously flawed”. Rather, the evidence was admitted to show Parish had a motive to engage in the actions alleged by the Crown “and for that limited purpose only.” The trial judge expressly referred to the sexual assault of R.P. and said it was impermissible to conclude that, because of his lifestyle, Parish was guilty of the charges against him.
[90] Nor was it improper to use the word “paedophile”. It was not unfair to categorize the material in this sense. The materials were exhibits in the case. It was for the jury to characterize the evidence.
Ground #3: The Vetrovec Caution on S.C.’s Evidence
[91] Parish, Salah, and McDowell advance several arguments challenging the adequacy of the trial judge’s Vetrovec caution regarding S.C.’s evidence.
The Background
[92] Prior to trial, in the interests of somewhat mitigating his penalty, S.C. pleaded guilty to second degree murder and agreed to testify for the Crown against his co-accused. He was sentenced to life imprisonment with parole ineligibility for 23 years. As mentioned, S.C.’s police statements and testimony at trial reflect a shifting version of events. S.C.’s testimony at trial was largely consistent with his September 29, 2005 statement. He gave this statement after the preliminary inquiry, at which the Crown had revealed its theory of the case and its evidence. At trial, S.C. admitted to giving the September 2005 statement and testifying at trial in the hopes that doing so would lessen his penalty.
The Charge to the Jury
[93] The trial judge explicitly warned the jury with respect to S.C.’s evidence. He explained:
[S.C.] was originally also charged along with those before you. Common sense will tell you that there is good reason to look at his evidence with the greatest care and caution. Although it is not absolutely necessary for you, in law, to do so, I suggest that you may wish to have some confirmation as to the testimony [S.C.] has given from somebody or something, other than his own evidence standing entirely on its own.
[94] The trial judge continued by telling the jury it may be dangerous for them to rely on S.C.’s evidence in deciding whether the Crown had proven its case beyond a reasonable doubt.
[95] The trial judge did not give an exhaustive list of the type of evidence that could be considered confirmatory. Rather, he left it for the jury to look for confirmatory evidence. He warned the jury in these terms:
You may find that there is some evidence in this case that confirms or supports parts of [S.C.’s] testimony. It’s for you to say and for you to determine how much such testimony affects whether and to what extent you will believe or rely upon the evidence in question in arriving at your verdict. However, without in any way purporting to intrude on your absolute discretion in this respect, the evidence to which I am about to refer may illustrate the kind of testimony that you may find confirmatory or comforting; it may help you, it may not. It is for you to say, and I repeat, that my suggestions here, since they deal with matters of evidence must be ignored by you unless they accord with your own view of the evidence, because this is your exclusive area of jurisdiction. You must follow your oath and decide the questions relating to the evidence as you see them, and ignore anything which doesn’t concur with your views in this regard.
The following is not all, but I suggest may be some confirmation to you:
[96] The trial judge then provided a list of examples of evidence the jury could find confirmatory of S.C.’s evidence. One of the examples listed was McDowell’s police statement regarding his activities and those of S.C. on Thursday and early Friday, the day of the fire.
[97] Finally, the trial judge made it clear that each of the appellants’ out-of-court statements were only admissible against the person who had made the statement:
Some is common to all, some is not. Some, for example the out-of-court statements made to the police, are only available against the accused who made the statement, and cannot be used against their co-accused. Be careful not to overlap or apply evidence restricted to one accused against another. It is best, in my view to consider each accused as if they were being tried alone.
The Arguments on Appeal
[98] The appellants contend the trial judge’s instructions did not accord with the requirements set out in R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, and subsequent cases, especially R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 246. The appellants advance four specific arguments.
[99] First, the trial judge failed to explain why the evidence was subject to special scrutiny. Beyond being charged along with the appellants, there were other reasons to be careful about relying upon S.C.’s evidence. He had provided several different statements, falsely implicated Salah in the April 14, 2004 statement, shown a willingness to lie, and pleaded guilty to obtain some advantage in his sentence.
[100] Second, the trial judge failed to properly address the danger of acting upon this evidence. The trial judge’s instruction ought to have used the word “should” rather than “may” in discussing whether it was dangerous to rely on S.C.’s evidence and the need for confirmatory evidence. However, trial counsel for the appellants made no objection to the jury charge on either basis.
[101] Third, the trial judge failed to properly describe the evidence the jury could look to as confirmatory of S.C.’s evidence. The jury charge did not instruct the jury that to be confirmatory, the independent evidence must touch on an important aspect of the witness’ testimony.
[102] Finally, Parish and Salah submit the jury charge reflects the legal error articulated in R. v. Perciballi (2001), 2001 CanLII 13394 (ON CA), 154 C.C.C. (3d) 481, affirmed 2002 SCC 51.
[103] In his jury address, Crown counsel invited the jury to use McDowell’s confession as corroborative of the aspects of S.C.’s testimony that incriminated Parish and Salah. The trial judge’s jury charge specifically instructed the jury in accordance with the Crown’s invitation.
[104] Parish and Salah submit McDowell’s out-of-court statement was only capable of confirming S.C.’s testimony regarding McDowell’s involvement, not that of the other co-accused. The trial judge erred by failing to make clear that the portions of McDowell’s statement referenced in the Crown’s jury address and the trial judge’s jury charge could not be used to confirm S.C.’s evidence impugning Parish and Salah. They could only be used to evaluate McDowell’s credibility.
[105] The respondent Crown draws attention to the absence of any objections by the appellants’ trial counsel to the wording of the caution, the list of confirmatory evidence, or the use that could be made of McDowell’s police statement. The respondent also answers each of the appellants’ specific arguments.
[106] First, the Crown urges that by the end of the case, the jury was clearly aware of the reasons S.C.’s evidence was subject to special scrutiny. The trial judge instructed the jury that S.C.’s prior status as a co-accused gave the jury “good reason to look at his evidence with the greatest care and caution.” Later in the charge, when the trial judge reviewed the positions of the defence at great length, he alerted the jury to the other reasons for special scrutiny. There is no merit to the argument that the trial judge’s review of the defence positions does not count. R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 97, makes clear that the sufficiency of a Vetrovec caution cannot reasonably be assessed by an isolated review of the “Vetrovecwarning” part of the charge. The appellants’ submissions run counter the well-known functional approach in R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314. The same issues were also addressed during the three cross-examinations of S.C. and the three closing addresses, all of which focused on S.C.’s credibility.
[107] Second, the Crown contends that considerable deference is owed to the trial judge’s determination of how to best frame the Vetrovec caution. “Considerable restraint” should be exercised before giving effect to a submission that a Vetrovecwarning was not strong enough: R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 211 C.C.C. (3d) 199 (Ont. C.A.), at paras. 80-81. The trial judge did not exceed his discretion by using the word “may”, and it is inconceivable the verdict would have been different had it been so varied. The jury was told they “should” closely scrutinize what S.C. said and to seek confirmatory evidence.
[108] Third, the Crown submits the trial judge’s instruction regarding confirmatory evidence was not inadequate. The jury’s common sense, combined with the list of potentially confirmatory evidence provided by the trial judge – all of which related to important parts of S.C.’s testimony – was sufficient to make clear the type of evidence capable of corroborating S.C.’s testimony.
[109] Finally, the Crown argues the jury charge does not reflect the alleged Perciballi error. The trial judge told the jury to deliberate separately with respect to each accused, and instructed them on to how to go about doing so. He explicitly said that “out of court statements made to police, are only available against the accused who made the statement, and cannot be used against their co-accused.” Moreover, in light of R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, which limits the reach of Perciballi, the Crown’s reference to McDowell’s statement as confirmatory of S.C. was entirely appropriate.
The Governing Principles
[110] Among the four essential elements of a Vetrovec caution is an explanation for the jury about why the evidence of the tainted witness is subject to special scrutiny: Khela,at para. 37. The instruction should ensure the jury understands the reasons that underlie the need for special scrutiny: R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14; Sauvé, at para. 85. What is required is that the judge identify for the jury the characteristics of the witness that bring his credibility into serious question. That said, an exhaustive explanation of how a specific characteristic might enable a witness to upset the fact-finding process is not required: Smith, at para. 14.
[111] A second essential element in a Vetrovec instruction is a caution to the jury that it is dangerous to convict on the unconfirmed evidence of the tainted witness, although the jury is entitled to do so if it is satisfied the evidence of the tainted witness is true: Khela, at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19. The language used in conveying the extent of the danger of placing indiscriminate reliance on the evidence of a tainted witness is very much a matter for the trial judge’s discretion. Qualifiers such as “may” and “should”, rather than mandatory terms like “is” and “would be”, are unlikely to amount to error in the face of the implications arising from the use of the term “dangerous”: R. v. Kostyk, 2014 ONCA 447, 312 C.C.C. (3d) 101, at paras. 73-74.
[112] It is also worth reminder that a jury charge does not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of the trial judge’s charge encompasses consideration of the addresses of counsel which may fill gaps in the charge: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. Further, the failure of experienced counsel to register a complaint about an aspect of the charge that later forms a ground of appeal may be indicative of the seriousness of the alleged violation. Daley, at para. 58. It is all the more so when counsel have received a copy of the proposed charge in advance of delivery and make no complaint about the completeness of the instruction.
[113] Finally, it is necessary to address the law concerning the alleged Perciballi error. In Perciballi, a majority of this court concluded that, out of fairness to an accused who cannot cross-examine his or her co-accused, out-of-court statements made by one co-accused cannot be used as evidence against other co-accused undergoing a joint trial: Perciballi, at paras. 76, 84-85. However, the potentially expansive implications of Perciballi have been constrained by the Supreme Court in Rojas, at paras. 24-25. Justice Charron acknowledged that the underlying logic of Perciballi could arguably be extended in the manner suggested by the appellants in this case, but ultimately held the reach of Perciballi to be more limited:
It is in my respectful view, it is one thing for a jury to be expressly directed, as was done in Perciballi, to consider an out-of-court statement admissible only as against one accused in reaching its decision concerning the other. Such a direction would result in an impermissible use of the out-of-court statement. It is quite another matter, however, for the jury’s assessment of the overall credibility of the witness to be influenced in some way by the totality of the evidence that they have heard, including evidence relating solely to one co-accused. The latter is inevitable, given the intangible nature of any credibility assessment.
The Principles Applied
[114] I am satisfied the trial judge’s Vetrovec instruction does not reflect reversible legal error. As mentioned, appellate review of a Vetrovecwarning should focus on whether the caution has served its purpose – to warn jurors of the danger of relying on an unsavoury witness’ testimony without being comforted by some other evidence that the witness was telling the truth: Khela, at para. 13. The sufficiency of the caution is not to be measured against a standard of perfection: Khela, at para. 56; Smith, at para. 2. With this in mind, I address each of the appellants’ Vetrovec-related arguments in turn.
[115] First, I do not find the trial judge’s limited discussion of why S.C.’s statements deserved special scrutiny reflects legal error. The trial judge explained that, because S.C. was originally charged with the appellants, there was “good reason” to look at his evidence with the greatest care and caution. Although I agree the trial judge could have provided the jury with other reasons for being careful about relying on S.C.’s evidence, his failure to do so did not result in reversible error. It was self-evident and repeatedly expressed that S.C.’s evidence had to be approached with care for reasons other than that he had been a co-accused. The fact that he had given different versions of the events and pleaded guilty in the interests of somewhat mitigating his penalty was apparent to the jury. Without any special instruction the jury would have been well aware of the self-evident danger of acting on S.C.’s evidence.
[116] Of more significant concern is that the trial judge failed to say why the fact that S.C. had been charged as a co-accused was of special relevance to his credibility. It was not so much that he had been charged with the same offences, but that, based on his own evidence, he had knowledge about the circumstances he could manipulate to implicate the appellants. In particular, he had been involved in the meetings that led to the arson.
[117] However, this failure is not cause for appellate intervention. The Supreme Court was faced with a similar imperfection in Smith. The trial judge’s warning failed to explain to the jury why the evidence of a paid agent, who was an accomplice to the offence, deserved special scrutiny. Justice Fish held a more thorough explanation of the risk associated with the evidence of such a witness was not necessary to meet the standard that the jury understand the reasons for special scrutiny: Smith, at paras. 12-14.
[118] Second, the trial judge did not commit a reversible error by suggesting the jury “may” wish to have some confirmation of S.C.’s testimony and that it “may” be dangerous to rely on S.C.’s evidence.
[119] In Kostyk, at para. 73, in response to a similar argument, Blair J.A. wisely observed that “jurors are not chosen for their capacity as wordsmiths.” Justice Blair was unwilling to find the jury would have placed much importance on the use of the word “may”, as opposed to a more definitive qualifier: para. 73.
[120] I am similarly satisfied the trial judge’s warning was sufficiently clear in this respect. The charge singled S.C. out as someone whose evidence required special consideration. I am not convinced the trial judge’s use of the word “may” rather than “should” would have distracted the jury from the need to take special care in dealing with S.C.’s evidence.
[121] Third, I am not satisfied the trial judge’s instruction regarding confirmatory evidence reflects legal error. The trial judge’s list of examples was correct and would have given the jurors a clear indication of the types of evidence they could use to confirm S.C.’s evidence. In the words of Khela, at para. 47, the examples gave the jury “the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.” The trial judge referred the jury to evidence that was primarily focused on the events of the Thursday and early Friday. This evidence, such as Salah’s admission that he stopped his vehicle on Richmond Road at the time of the fire, was material and independent of S.C.’s evidence and highly cogent as to the veracity of S.C.’s account. The evidence was capable of giving comfort to the jury that S.C. could be trusted in his assertions that the appellants committed the offences. The nature of the examples also alerted the jury to the type of evidence necessary. Especially given any lack of objection by counsel, I cannot say it was necessary for the trial judge to be more explicit.
[122] Finally, the trial judge’s jury charge does not reflect the alleged Perciballi error. This case falls within the confines of Rojas, in which the Supreme Court held it is perfectly proper for the jury’s assessment of the overall credibility of one co-accused to be influenced by the totality of the evidence they have heard, including evidence relating to another co-accused: paras. 24-25.
[123] The portions of McDowell’s statement referenced in the Crown’s jury address related primarily to S.C.’s credibility as it affected McDowell’s implication in the offences. The portions of McDowell’s statement were not left to the jury as generally confirming S.C.’s evidence. Some portions that might have been taken as referring to all three appellants were minor and would not have affected the verdict in respect of Salah and Parish. In the circumstances, it was unnecessary for the trial judge to expressly direct the jury not to use these portions of Crown’s jury address.
[124] With respect to the trial judge’s own statements regarding McDowell’s statements, this was not a case like Perciballi, in which the trial judge instructed the jury it could use the contents of a co-accused’s statement against the other accused. The trial judge did not instruct the jury that McDowell’s statements were admissible against Salah and Parish. He made it clear that an out-of-court statement was only admissible against the person who made the statement.
[125] For these reasons, I do not give effect to the appellants’ ground of appeal impugning the trial judge’s Vetrovec caution.
Ground #4: The Instructions on Prior Consistent Statements
[126] Parish takes issue with the trial judge’s instruction regarding the proper use that could be made of S.C.’s January 31, 2004 statement to police.
The Background
[127] On January 31, 2004, S.C. told police Parish said he wanted to set fire to Rodgers’ house to scare her, and that the children would not be home. In his April 14, 2004 police statement, S.C. said Parish told him and McDowell to leave the knapsacks and gasoline-filled jugs outside Rodgers’ house, but that the plan was hatched by Salah, not Parish. Subsequently, on September 29, 2005, S.C. told police Parish had said he intended to kill Rodgers, not just scare her, and told them to throw the knapsacks as far into the house as possible.
[128] The parties agreed Crown counsel could play S.C.’s January 31, 2004 statement – which had both consistent and inconsistent aspects – to rebut the allegation made by McDowell’s counsel that S.C. had tailored his September 29, 2005 statement and courtroom testimony to fit with the Crown’s theory laid out at the preliminary inquiry.
The Charge to the Jury
[129] The trial judge specifically instructed the jury regarding S.C.’s January 31, 2004 statement. Both at the time of its admittance and in the final jury charge, the trial judge instructed the jury the statement was admitted “for the limited use and purpose of meeting the suggestion that what S.C. told the authorities in September 2005 was fabricated.” With respect to the legal principles regarding the proper use of prior consistent statements, the trial judge said “[g]enerally speaking, prior consistent statements are not admissible because they have no probative value, they would simply be bolstering a witness’s credibility.”
The Arguments on Appeal
[130] Parish submits the trial judge failed to adequately direct the jury as to the use to be made of the January 31, 2004 statement to police. The appellant makes two arguments in this respect.
[131] First, the trial judge’s response to a mid-trial jury question regarding the proper use of the statement failed to explicitly state the statement was admitted for the limited purpose of rebutting the allegation of recent fabrication and could not be used as evidence. The trial judge also should have cautioned the jury against using some of the police officer’s comments as evidence.
[132] Second, the trial judge further confused the issue in a later mid-trial instruction on the approach to prior inconsistent statements. He erroneously told the jury that prior consistency may be considered as strengthening the credibility or reliability of the particular witness.
[133] The respondent disagrees. The trial judge instructed the jury, several times, on the limited use to be made of the portions of S.C.’s first statement that were consistent with his trial testimony. When the trial judge first ruled on the admissibility of S.C.’s January 31 video statement, he told the jury this was being done to address the allegation of recent fabrication. When the jury asked for clarification of the videotape’s role in the trial, the trial judge gave more detailed instructions to this effect. He emphasized that prior consistent statements are not admissible to bolster a witness’ credibility, but that it was permitted in this case to meet the suggestion of recent fabrication. At various points throughout the final jury charge, the trial judge reiterated these instructions.
[134] Although the trial judge did unfortunately tell the jury that prior consistency can strengthen the credibility or reliability of a particular witness, in the context of the other instructions and given the character of this statement as a fleeting aside, this mistake occasioned no substantial wrong or miscarriage of justice.
[135] Taken as a whole, the trial judge’s instructions were sufficient to convey to the jurors that they were not entitled to find S.C.’s testimony was more likely true because he had said similar things before.
The Governing Principles
[136] As a general rule, limiting instructions are required where prior consistent statements have been admitted to rebut a claim of recent fabrication. These instructions explain to the jury that consistency is not the same as accuracy and that the prior statement can only be used to rebut the allegation of recent fabrication, not to support the fact at issue or the general reliability of the witness: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 42. However, the rule that generally requires limiting instructions is not unyielding. Exceptions exist, including in cases in which the defence relies on the prior statement: Ellard, at para. 43.
The Principles Applied
[137] There can be no allegation the trial judge erred in admitting the entire statement. The appellants wanted the statement admitted.
[138] I am also satisfied the trial judge sufficiently directed the jury as to the use to be made of the January 31 statement. He instructed the jury that prior consistent statements were not admissible because “they simply have no probative value, they would simply be bolstering a witness’s credibility.” The trial judge went on to explain that S.C.’s prior statement was admissible for use in assessing his credibility in determining whether or not the suggestion of fabrication was well-founded. This was an accurate way of conveying the use to be made of the statement. Such a direction was made at various points throughout the trial, including at the time the trial judge decided to admit the January 31 video statement, in answer to the mid-trial jury question regarding the use to be made of the statement, and throughout the final jury charge.
[139] The trial judge did, however, make one error. During a mid-trial instruction devoted primarily to prior inconsistent statements, he instructed the jury that prior consistency may be considered as strengthening the credibility or reliability of the particular witness. In my view, this brief remark was overtaken by other correct instructions as to the proper use to be made of the prior consistent statements, especially in the charge to the jury. As well, before this incorrect instruction, the trial judge had instructed the jury as to the correct use of prior consistent statements. I am satisfied the jury would have understood the correct use of S.C.’s first statement and would not have used it as substantive evidence, but merely to deal with the allegation of recent fabrication.
Ground #5: The Review of the Evidence and its Relation to the Legal Issues
[140] The appellants take issue with the trial judge’s decision not to conduct an independent, thorough review of the evidence in his charge to the jury. The appellants also make the related complaint that the trial judge failed to adequately relate the evidence to the important legal issues, in particular, the issue of intent.
The Charge to the Jury
[141] In his charge to the jury, the trial judge did not give an independent complete summary of the evidence of each witness. Rather, he gave an inventory of the witnesses as a “memory aid to assist you if you haven’t, you know, to assist you in sort of trying to identify areas of evidence in your deliberations.” The trial judge adopted this method because of the lengthy and detailed jury addresses by counsel and because the jurors had been taking notes. Later, the trial judge gave lengthy summaries of the Crown and defence cases as they had been produced by counsel.
The Arguments on Appeal
[142] The appellants submit the trial judge erred by failing to provide an adequate and balanced judicial summary of the evidence relevant to the positions taken by the parties on the live issues. More was required than the “executive summary” approach taken by the trial judge. The jury’s note-taking and counsel’s jury addresses were not sufficient substitutes.
[143] In particular, Parish contends that in light of his admission to manslaughter, which substantially narrowed the case to the issue of intent, the trial judge was obliged to summarize the evidence relevant to intent and relate it to this key issue. Without guidance, prejudicial directions were left with the jury, unchecked. A similar argument is advanced by McDowell respecting his objection to the instruction on unlawful object murder.
[144] The respondent disagrees. The adequacy of the trial judge’s charge must be determined by reference to both the charge as a whole and the case as a whole. Jury instructions are to be tested against their ability to fulfill the purposes for which they are given, not by reference to whether any particular approach or formula has been used: R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at paras. 140-145. The trial judge’s decision to provide a quick inventory of the witnesses during the “review of the evidence” portion of the charge was appropriate given the extent to which the issues had been narrowed and the fact that neither Parish, McDowell, nor Salah adduced any evidence. No objection was taken to the trial judge’s approach.
[145] The trial judge continued by providing a detailed summary of the appellants’ theories and the evidence on which they relied. Through this review, he effectively directed the jury’s attention to the portions of S.C.’s evidence that, according to the appellants, were questionable. At the end of the day, the trial judge’s charge sufficiently reviewed the evidence and related it to the critical issues.
The Governing Principles
[146] The principles governing the review of the evidence in a jury charge are well settled. Except where it would be unnecessary, the judge should review the substantial parts of the evidence and give the jury the theory of the defence so they may appreciate the value and effect of the evidence and how the law is to be applied to the facts: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498.
[147] Generally speaking, trial judges comply with this duty by setting out a summary of the evidence of the significant witnesses, relating the evidence to the important issues, and summarizing the positions of the defence and the Crown.
[148] However, no single approach is required by the judgments of either this court or the Supreme Court of Canada. In Jacquard, Lamer C.J. held that restating the same evidence on different issues does not improve the charge. Rather, it can confound the issues and make the charge less perfect rather than more so: para. 16. At paragraph 32, he offered important guidance to trial courts, suggesting they focus on a functional approach to applying the facts to the law:
An accused is entitled to a jury that understands how the evidence relates to the legal issues. This demands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given. Using such a functional approach, I find added support for the conclusion that the jurors were properly instructed in this case. Let me explain.
[149] In determining the sufficiency of the jury charge, especially as it applies to the review of the evidence, the court must consider the positions taken at trial. As Lamer C.J. said at paragraph 38:
Nevertheless, defence counsel’s failure to comment at the trial is worthy of consideration. In Thériault v. The Queen, 1981 CanLII 180 (SCC), [1981] 1 S.C.R. 336, although I dissented on unrelated grounds, Dickson J. (as he then was) expressed the proper view at pp. 343-44: “[a]lthough by no means determinative, it is not irrelevant that counsel for the accused did not comment, at the conclusion of the charge, upon the failure of the trial judge to direct the attention of the jury to the evidence”. In my opinion, defence counsel's failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.
[150] Finally, at paragraphs 62 and 63, Lamer C.J. summarized his position in this way:
As I discussed at the outset of my reasons, appellate courts must adopt a functional approach to reviewing jury charges. The purpose of such review is to ensure that juries are properly -- not perfectly -- instructed.
Using such an approach, I have no trouble in concluding that the jury in this case properly understood not only the legal issues at trial, but also how the evidence related to those issues, and in particular to the appellant's defence and to each aspect of the relevant offences. To the extent that the trial judge erred in his “consciousness of guilt” instructions, I have found that no substantial wrong or miscarriage of justice occurred. The appeal should be dismissed.
[151] Similarly, in R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 29, this court summarized the meaning of “a review of the evidence” as follows:
By a review of the evidence, I do not mean a lengthy regurgitation of large parts of the trial judge’s notes of the testimony of various witnesses. I mean references to the evidence which are sufficient in the context of the case and the entirety of the charge to alert the jury to the particular parts of the evidence which are significant to particular issues and to the positions taken by the parties on those issues.
The Principles Applied
[152] I would reject this ground of appeal.
[153] The objections by the appellants come to this. Notwithstanding that the jury was provided with several days of submissions by counsel, instructions on critical legal aspects of the case, a review of the critical aspects of the evidence relating to S.C., a brief list of the evidence, and then a complete review of the positions of the defence, the jury should have been provided with a further review of the evidence.
[154] That was not required in this case.
[155] At the conclusion of the case the jury had a full understanding of the relevant facts as they applied to the legal issues. There is no legal requirement for the judge to repeat the facts a second time when the charge as a whole lays out the relevant factual issues for the jury. This was not a case where the jury was unfamiliar with the defence position on each of the relevant issues. They were set out partially in the trial judge’s directions and more thoroughly in his review of the defence theories. A lengthy independent review of all the evidence was not required for the trial judge to meet the requirements set out in Jacquard.
[156] Ultimately, the trial judge’s approach, which was not objected to by trial counsel, was sufficient, when considered in the context of the circumstances of the case and the entirety of the charge, to alert the jury to the parts of the evidence significant to particular issues and the parties’ positions on those issues: MacKinnon, at para. 29.
Ground #6: The Instructions on Unlawful Object Murder
[157] The appellant McDowell advances several arguments challenging the adequacy of the trial judge’s instructions on unlawful object murder as defined in s. 229(c) of the Criminal Code.
The Background
[158] S.C. testified at trial that he and the appellants had a meeting on the Tuesday before the fire. Parish initially said he wanted to scare Cindy Rodgers, but later in the meeting said he wanted to kill her. Parish outlined the supplies required to set the fire – wine bottles, gasoline, rags, and containers of windshield washer fluid.
[159] During the meeting, McDowell asked whether Rodgers’ children would be in the house since it was a school night. Parish guaranteed no children would be present but did not explain where the children would be or how he knew they would be absent.
The Charge to the Jury
[160] After extensive pre-charge discussions, the trial judge left the jury with all three definitions of murder in s. 229 of the Criminal Code. No objection is taken to the instructions on s. 229(a) or s. 229(b) or on first degree murder under s. 231(2). The trial judge made it clear that murder under s. 229(c) could not serve as a basis for planned and deliberate first degree murder under s. 231(2).
[161] The trial judge began his instructions on the definition of murder in s. 229(c) with an incomplete paraphrase of the provision. The paraphrase omitted any reference to the concluding proviso: “notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.”
[162] The trial judge also erroneously described the first essential element in the definition as an “unlawful objective”. He explained:
And there are the following elements which must be established beyond a reasonable doubt: 1) Was the act of fire-bombing Cindy Rodgers’ residence done to achieve an unlawful objective? The unlawful objectives here, of course, must be something other than some act directed to kill or cause bodily harm in relation to Cindy Rodgers, which is what is dealt with in section 229(a) and (b). If you conclude that the fire-bombing was to simply destroy or damage her home or threaten or intimidate her, so she would not report the incident between Randy Parish and R.P. to the police, then this section is applicable.
[163] After a brief reference to “setting the fire” (i.e., arson) as satisfying the “anything” to which s. 229(c) refers, the trial judge described several “unlawful acts” and concluded:
Therefore, if you’re satisfied beyond a reasonable doubt that the accused had either of these as their objective in doing what they did, then the first element would be proven.
[164] The trial judge then instructed the jury on the second element in s. 229(c) – subjective foresight of death – in these terms:
Second element: Did the accused have the subjective foresight that their act (the fire-bombing) was likely to cause death? Again, the issue of intent must be considered, that is, can you say they must have realized what they were doing could likely cause death? Consider the whole of the evidence as it relates to each accused to determine the question. The same considerations as to intent you made under section 229(a) and (b) apply. Can it be said that anyone of the accused, doing what was done here, did not know that death would likely be caused by their conduct? It is for you to decide.
But if convinced beyond a reasonable doubt in this regard, and on the first element, then you may find that what occurred was murder under section 229(c).
[165] The trial judge concluded his instructions on s. 229(c) by explaining that, unlike ss. 229(a) and 229(b), s. 229(c) could not serve as the murder predicate for planned and deliberate first degree murder under s. 231(2). The trial judge explained:
Under section 229(c), the acts involved are indirect in the sense that what is done is for some unlawful objective other than death, but death results; and though unintended, the perpetrators were aware that what they were doing could likely cause death. Therefore, while an unintentional death is murder, if the prerequisites of section 229(c) are proven beyond a reasonable doubt, nonetheless it is illogical to find that one could plan and deliberate an unintended occurrence.
[166] The trial judge then explained what constituted manslaughter, a verdict advanced by trial counsel for Parish and McDowell in their closing addresses. The trial judge said:
Manslaughter. Obviously, if you have found the accused guilty of first or second degree murder, you’ll not need to consider what I’m about to say. As you heard as well, Thomas McDowell and Randy Parish acknowledged being guilty of manslaughter. So if you have not found them guilty of murder, you’ll abide by their concession and record their convictions for manslaughter.
In law, manslaughter is culpable homicide. Homicide is committed by anyone who directly or indirectly causes the death of a human being.
Therefore, manslaughter is established provided the Crown proves that an accused caused death by an unlawful act. For an act or omission to be found a cause of death, it must be at least a contributing cause, something that is beyond trifling or minor in nature. It must not be something that somebody does later that results in the accused’s act or omission no longer being a contributing cause of the death.
[167] The only objection to the charge raised at trial was made by the Crown, who argued the trial judge failed to adequately distinguish between the foresight requirements in murder under s. 229(c) and manslaughter. The trial judge declined to recall the jury.
The Arguments on Appeal
[168] The appellant McDowell submits the trial judge made four errors in his instructions on unlawful object murder. These errors, he submits, require a new trial for McDowell on a charge of second degree murder.
[169] First, McDowell contends the trial judge misdirected the jury on the fault element in s. 229(c) by stating this element was proven if the jury was satisfied the appellant knew death could follow from the dangerous act of setting the fire. At best, this instruction, which comingled “could” and “would”, was confusing.
[170] Second, McDowell says the trial judge failed to both define “likely” as it appears in s. 229(c) and warn the jury not to reason back from the actual result of the fire – the deaths of two children – to find the essential knowledge or foresight element proven – that the appellant knew his setting the fire was likely to cause someone’s death.
[171] Third, McDowell urges the trial judge erred in failing to distinguish between the fault elements in murder under s. 229(c) and unlawful act manslaughter. This instruction was especially important if the jury was to conclude or have a reasonable doubt whether McDowell intended to cause anyone’s death.
[172] Finally, echoing the stand-alone ground of appeal advanced by Parish and Salah regarding the adequacy of the trial judge’s review of the evidence, McDowell argues the trial judge erred by failing to review the substantial parts of the evidence and relate it to the fault element under s. 229(c). The trial judge made conclusory statements on the issue rather than leaving the inference-drawing to jurors, where it belonged.
[173] In response, the Crown points out that these complaints are advanced for the first time in this court. Trial counsel were provided written copies of the proposed instructions in advance of delivery. McDowell’s counsel made no objection on any issue raised here. He was equally silent after the instructions were given. The legitimacy of these complaints should be adjudged accordingly.
[174] The respondent also has an answer for each of McDowell’s four complaints with the trial judge’s jury instruction on unlawful object murder.
[175] First, the respondent says the jury received proper instructions on the fault element in s. 229(c). Although the trial judge may have misspoken on occasion – by saying “could” when he meant “would” – the predominant use of “would”, coupled with the invariable inclusion of “likely”, a term that refers to a probability not a mere possibility, would have left the jury in no doubt about what the Crown had to prove.
[176] Second, the respondent contends the trial judge did not need to define the term “likely” for the jury. “Likely” is a word of common every day speech and is used in that sense in s. 229(c). Absent any request for a definition or other clarification, an elaboration on its meaning was unnecessary.
[177] Third, the respondent continues, the evidence adduced and the positions advanced at trial rendered elaboration on the fault element in unlawful act manslaughter unnecessary. The fault element in unlawful act manslaughter is objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, in the context of the dangerous act. It is not objective foreseeability of the riskof death. In any event, the jury found subjective foreseeability of the likelihood of death. Accordingly, failure to instruct on objective foreseeability of the risk of bodily harm made no difference to the result.
[178] Finally, the respondent denies the inadequacy of the trial judge’s evidentiary review in relation to the live issue framed by s. 229(c): foresight of the likelihood of death.
The Governing Principles
[179] Determination of this ground of appeal requires examination of the essential elements of unlawful object murder under s. 229(c).
[180] Section 229(c) consists of three essential elements:
i. an unlawful object;
ii. a dangerous act; and
iii. knowledge or foresight.
See R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 125.
(i) Unlawful Object
[181] The “unlawful object” in s. 229(c) refers to what an accused sets out to do, in other words, his purpose or goal. Said somewhat differently, an unlawful object is the end an accused seeks to achieve: R. v. Shand, 2011 ONCA 5, 266 C.C.C. (3d) 137, at para. 128, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 270; Roks, at para. 126.
[182] The “unlawful object” element reflects two criteria.
[183] First, the unlawful object must be conduct which, if prosecuted fully by the accused, would amount to a serious crime, that is, an indictable offence requiring mens rea: Shand, at para. 127; Roks, at para. 126; R. v. Vasil, 1981 CanLII 46 (SCC), [1981] 1 S.C.R. 469, at p. 490; R. v. Meiler (1999), 1999 CanLII 3728 (ON CA), 136 C.C.C. (3d) 11 (Ont. C.A.), at para. 49.
[184] Second, the unlawful object must be distinct from and not merge with the dangerous act. It must be something other than the harm foreseen as a consequence of the conduct that constitutes the dangerous act: Roks, at para. 127; Shand, at para. 136; Meiler, at para. 48. Accordingly, an unlawful object within s. 229(c) must be something other than to cause the death of the victim or bodily harm to the victim the accused knows is likely to cause the victim’s death: Shand, at para. 188; Roks, at para. 126.
(ii) Dangerous Act
[185] The dangerous act requirement arises from the statutory language, “does anything…and thereby causes death to a human being”. There are also two criteria within the dangerous act element.
[186] First, the dangerous act must be clearly identified and done in furtherance of the unlawful object: Roks, at para. 129. The dangerous act is often, but need not be, an offence in itself: Roks, at para. 129; Shand, at para. 145; Vasil, at pp. 482-483.
[187] Second, the dangerous act must be a discrete act, or series of closely related acts, that results in the death of another person. A general course of conduct with a loose or tenuous connection to the killing does not qualify as a dangerous act for the purposes of s. 229(c): Roks, at para. 130; Shand, at para. 136.
(iii) Knowledge or foresight
[188] The fault element in s. 229(c) – knowledge or foresight – is linked to the dangerous act. It requires proof of an accused’s knowledge of the consequences of the dangerous act. The knowledge to be proven is of a specific consequence – the death of a human being – to a specified degree of certainty – the likelihood of another’s death: Roks, at para 131; Meiler, at paras. 58, 61.
[189] To prove an accused knew death of a human being was a likely consequence of his or her conduct, the Crown may rely on direct evidence, circumstantial evidence, or both kinds of evidence in combination: Roks, at para. 133. A trier of fact may infer a state of mind – such as intention, foresight or knowledge – from the doing of an act or a closely related series of acts. Knowledge or foresight of the likely consequences of conduct can be inferred from the natural and probable consequences of that conduct: Roks, at paras. 136-137.
[190] In s. 229(c), the term “likely” refers to the probability of the specific consequence following from the dangerous act. An accused must foresee the consequence – the death of a human being – as a probable, not merely possible, consequence of the dangerous act. Proof the accused was aware of the risk, possibility, danger, or chance somebody would die as a consequence of the dangerous act is not enough to establish the fault element: Roks, at para. 134; Shand, at paras. 153, 209; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p. 155. The term “likely” is used in its natural every day sense. In most cases it will be unnecessary to define “likely” for the jury: R. v. Edelenbos (2004), 2004 CanLII 875 (ON CA), 187 C.C.C. (3d) 465 (Ont. C.A.), at paras. 17-18, 20.
[191] A final point about s. 229(c) is apt. In determining the adequacy of the Crown’s proof of the fault element, a trier of fact should not reason backwards from the fact somebody died to infer the accused knew the likelihood of such a consequence when he or she committed the dangerous act: Shand, at para. 210; Roks, at para. 135.
The Principles Applied
[192] Despite some misstatements in the instructions on one of the essential elements of unlawful object murder under s. 229(c), I would not give effect to any of the specific complaints that comprise this ground of appeal.
[193] As we saw earlier, three essential elements comprise unlawful object murder under s. 229(c): see, Roks, at para. 125. McDowell takes no issue with the description of and instructions on the unlawful object and dangerous act requirements. His submissions focus exclusively on the instructions relating to the knowledge or foresight component.
[194] As discussed, the knowledge or foresight component has to do with the consequences of the dangerous act – the death of a human being – and the appellant’s knowledge of the likelihood of that occurrence. Provided the appellant knew his dangerous act was likely to cause death to any human being, it was of no moment that he wanted to achieve his unlawful object without causing death or bodily harm to anybody.
[195] The link between the dangerous act and the knowledge or foresight element makes it important not to lose sight of the dangerous act involved in this case. McDowell and S.C. approached Rodgers’ residence with four wine bottles and two windshield washer jugs, all of which were full of gasoline. McDowell knew, or at the very least had good reason to believe, Cindy Rodgers was home. It was the middle of the night during the school year. McDowell broke the window with a hammer. He and S.C. threw two blazing knapsacks containing the gasoline-filled wine bottles into the main floor of the townhouse. They left the gasoline-filled windshield washer jugs immediately outside the front window before running away from the intense fire they had started.
[196] The appellant’s first complaint is that the trial judge erred by twice instructing the jury that the knowledge or foresight requirement was proven if the appellant knew his conduct “could likely” cause the death of another person. I reject this submission for three reasons.
[197] First, the trial judge’s use of “could” never stood alone. It always immediately preceded the adverb “likely”. Admittedly, “could”, on its own, connotes a possibility of a consequence, rather than a probability. But the addition of “likely” – an adverb meaning “probably” or “in all probability” – makes it unlikely the knowledge requirement was resolved on a basis less rigorous than demanded by s. 229(c).
[198] Second, on several occasions the trial judge properly instructed the jury that the Crown was required to prove McDowell knew setting the fire would likely cause the death of a human being. As a whole, the instructions also made it clear that knowledge of the possibility or chance someone might die was not enough to establish guilt.
[199] Finally, an inference of knowledge that an occupant of the premises was likely to die from the fire is almost irresistible when the circumstances of McDowell’s conduct are considered. He was fortunate the trial judge neither directed the jury’s attention to the common sense inference of knowledge that could be drawn from the predictable consequences of his conduct, nor referred to the concluding words of s. 229(c): “notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.”
[200] The appellant’s second complaint targets the trial judge’s failure to both define “likely” in connection with the knowledge or foresight requirement and instruct the jury not to reason back from the fire’s consequences. I do not give effect to this ground of appeal for four reasons.
[201] First, the adverb “likely” is a word of every day usage. Its meaning is well within the ken of today’s jurors. In s. 229(c), “likely” is not a term of art. Its meaning is no different than in every day speech. It requires no explanation.
[202] Second, this argument is not new. It has been rejected before. In the absence of some difficulty in understanding its meaning, no further elaboration is required: Shand, at paras. 208-209; Edelenbos, at paras. 17-18, 20.
[203] Third, although authorities support the appellant’s contention that such retrospectant use of circumstantial evidence is not permissible (Roks, at para. 135; Shand, at para. 210), none suggests failure to provide such an instruction constitutes non-direction amounting to misdirection. Further, absent the proposed instruction, the likelihood of impermissible retrospectant reasoning seems remote in light of the underlying dangerous act that made the inference of knowledge almost irresistible.
[204] Finally, as with the other specific complaints about the adequacy of the instructions on unlawful object murder under s. 229(c), trial counsel did not object to the charge on the basis the trial judge failed to define “likely” in the context of s. 229(c). Nor did trial counsel object to the absence of an instruction on the impermissibility of reasoning back from the deaths of the children to establish knowledge or foresight of such a consequence. No such objection was made when counsel received the draft of the proposed instructions, nor after the instructions were given. Failure to object is not, of course, fatal where a wrongly omitted instruction was legally required. But that is not this case.
[205] McDowell’s third specific complaint regarding the s. 229(c) jury instruction fastens on the trial judge’s failure to distinguish between the fault elements in unlawful object murder and unlawful act manslaughter.
[206] On his arraignment at trial, McDowell pleaded guilty of manslaughter, but not guilty of first degree murder. The plea was ineffectual because the Crown withheld consent. However, defence counsel conceded in his jury address that McDowell was guilty of manslaughter. He invited the jury to render a verdict of not guilty of first degree murder, but guilty of manslaughter, on both counts.
[207] The trial judge instructed the jury accordingly. He left manslaughter to the jury in the event they were not satisfied beyond a reasonable doubt that Crown counsel had proven murder. However, he did not specify the fault element in unlawful act manslaughter: objective foresight of the risk of bodily harm that is more than trivial or transitory, in the context of a dangerous act: R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 18.
[208] It may have been better, for the sake of completeness, for the trial judge to have explained the fault element in unlawful act manslaughter. But perfection is not the standard required in jury instructions. Trial counsel pitched manslaughter to the jury on the basis that murder under s. 229(c) was not proven beyond a reasonable doubt. A more extended discussion of the fault element in manslaughter was not required in the circumstances.
[209] Moreover, such an instruction would have been of no consequence. The jury found the appellant guilty of second degree murder. If, as the parties agree, liability was established under s. 229(c), the jury concluded subjective knowledge of the likelihood of death was established beyond a reasonable doubt.
[210] McDowell’s final specific complaint regarding the s. 229(c) jury instruction is that the trial judge erred by failing to review the substantial parts of the evidence and relate it to the fault element in murder under s. 229(c).
[211] For the reasons already discussed regarding the appellants’ fifth ground of appeal, I do not agree. The trial judge’s approach was sufficient, when considered in the context of the circumstances of the case and the entirety of the charge, to alert the jury to the parts of the evidence significant to the fault element of unlawful object murder and the parties’ positions on this issue.
Ground #7: The Instructions on Post-offence Conduct
[212] Parish and Salah complain about the trial judge’s instructions on the manner in which the jurors were entitled to use evidence of post-offence conduct in reaching their verdict.
The Background
[213] The principal source of the post-offence conduct evidence was Karin Glaeser, Salah’s girlfriend. She testified about what Salah and Parish did and said after they learned the fire had killed Cindy Rodgers’ two children, but not their target, Cindy Rodgers. The men left Ottawa together and drove to Toronto. They later returned to Ottawa, where arrests followed shortly thereafter. They instructed Glaeser to provide a benign explanation for their whereabouts if questioned by police.
[214] When Glaeser testified as a Crown witness, neither Parish nor Salah had acknowledged any culpability for the deaths of Cindy Rodgers’ children. In his police statement, Salah said his presence near Rodgers’ home when the fire was set was purely coincidental, attributable to car trouble. Salah persisted in his denial throughout trial. His counsel invited the jury to acquit Salah on the basis that he had not participated in planning the fire. Parish maintained his position until his counsel addressed the jury and invited the jurors to find him guilty of two counts of manslaughter.
[215] As I have noted, the trial judge gave counsel written copies of his proposed instructions in advance of their delivery. He invited submissions on the correctness and completeness of those proposed instructions. Trial counsel for the appellants neither offered suggestions for improvement nor complained about the correctness or completeness of the post-offence conduct instructions. Nor, for that matter, did the Crown.
The Charge to the Jury
[216] The trial judge opened his instructions about the evidence of post-offence conduct in these terms:
Evidence about what Randy Parish, Ghassan Salah and Tom McDowell said or did after the offence was committed may help you decide whether they were persons who committed the crime: may help, may not. What someone said or did after an offence may indicate that they spoke or acted in a way, which according to human experience and logic is consistent with the conduct of someone who committed the offence and inconsistent with the conduct of someone who did not do so.
On the other hand, there may be an explanation for what Randy Parish, Ghassan Salah said and did which would not suggest participation in the crime in question.
[217] After describing Glaeser’s evidence and pointing out the need for a preliminary finding that the conduct occurred, the trial judge continued:
On the other hand, if you find Ghassan Salah and Randy Parish did say and do what Ms. Glaeser has told you about, you will then determine whether this was because either Parish or Salah was conscious of having committed the offences with which they are charged, or did so for some other reason. In any event, be careful not to immediately conclude what they did or said was because they were conscious of having committed the murders.
In determining the reasons for Randy Parish and Salah’s statements and conduct after the fire, consider all the evidence, particularly the importance of evidence that offers other explanations for their words or actions. Was it because Randy Parish felt the police would not believe him? Did Ghassan Salah accompany Randy Parish to take care of him? You must not use this after-the-fact evidence against Salah or Parish in helping you decide their guilt unless you reject their explanations for so acting or speaking.
If you do not or cannot find that they said and did the things involved because they were conscious of having done what is alleged against them, then you must not use the evidence in deciding that they committed the offences. However, should you conclude that what they did and said was because they were conscious of having done what the Crown alleges against them, then you may consider this evidence, together with all the other evidence, in reaching your verdict.
The Arguments on Appeal
[218] Parish submits the trial judge erred by failing to give a “no probative value” instruction prohibiting the jury from using the evidence of post-offence conduct to determine the level of the appellant’s culpability. Parish acknowledged he was guilty of manslaughter but denied committing either second or first degree murder. He contends the post-offence conduct evidence had no probative value on the legal character of the unlawful killing. The jury should have been told, in express terms, not to use this evidence to infer Parish committed murder (of either degree) rather than manslaughter. To make matters worse, the charge expressly authorized the jury to use this evidence “in reaching your verdict” or in proving the accused committed “the offence with which they are charged”.
[219] Salah adopts Parish’s submissions regarding the omission of the “no probative value” instruction and points to a further error. He says the trial judge twice repeated the instructions found by this court in R. v. Hall (2010), 2010 ONCA 724, 263 C.C.C. (3d) 5 (Ont. C.A.), leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 499,to reflect error. That instruction, according to Hall, invites the jury to jump directly to the issue of guilt as a precondition to deciding the use to make of the evidence of post-offence conduct.
[220] The respondent emphasizes the cautionary nature of the trial judge’s instruction on evidence of post-offence conduct. The instruction identified the evidence to which it related, emphasized the preliminary findings necessary for the jury to make any use of the evidence, and made it clear that even if the jury made the necessary preliminary findings, they need not find the evidence helpful in reaching their verdict. The trial judge left this evidence as simply an item of evidence the jury may or may not find helpful in coming to its decision.
[221] Regarding Parish’s argument, the respondent points out that there is no universal rule that denies the relevance of post-offence conduct evidence to determining the level of an accused’s culpability. Each case depends on its facts. Here, the evidence was relevant to the level of culpability and an instruction denying that relevance would have been wrong. And, even if a no probative value instruction was appropriate, its absence made no difference here.
[222] As for the Hall error, the respondent contends that here, as in Hall, the error is not fatal. The trial judge made it clear that before making any preliminary finding about the post-offence conduct, the jury was required to consider the alternative explanations advanced for that conduct. They were to consider each person charged separately. The evidence of post-offence conduct was left, not as conclusive evidence of guilt, but as a piece of the evidentiary matrix to be considered with the rest of the evidence in deciding whether the Crown had proven Parish’s and Salah’s guilt beyond a reasonable doubt.
The Governing Principles
[223] Evidence of post-offence conduct is a kind of circumstantial evidence. The trier of fact is asked to infer the existence of some fact in issue from an accused’s post-offence conduct: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 19-21; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.), at paras. 24-31; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 33; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 22, 31, 105, 132.
[224] The relevance of circumstantial evidence may be established by any of three lines of argument or modes of reasoning:
i. prospectant;
ii. concomitant; and
iii. retrospectant.
See, Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983), § 43, at pp. 1138-1142.
[225] Evidence of post-offence conduct invokes retrospectant reasoning. A trier of fact is invited to reason from the subsequent occurrence of an act, state of mind, or state of affairs that a prior act was done, or a state of mind or state of affairs existed, at a material time in the past: Wigmore on Evidence, § 43, at pp. 1138-1142.
[226] The principles that govern the admissibility of evidence of post-offence conduct are no different than those that determine whether other items of circumstantial evidence are admissible in a criminal trial. The controlling principle is relevance: White (1998), at para. 23; White (2011), at para. 22. Assessing the relevance of post-offence conduct evidence requires a case-specific analysis based on human experience and common sense: Figueroa, at para. 33; White (1998), at para. 26; White (2011), at paras. 38, 42, 105. It depends on the nature of that conduct, what is sought to be inferred from it, the positions of the parties, and the totality of the evidence adduced at trial: R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99, at para. 56, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 150; Figueroa, at paras. 33-35. Relevance and prefabricated rules are strangers: R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at paras. 78-79.
[227] Items of circumstantial evidence may give rise to more than one reasonable inference. This does not call for their exclusion. The threshold of relevance is met provided the evidence can reasonably show the fact sought to be inferred is slightly more probable than it would be without the evidence: Figueroa, at para. 34. Sometimes, evidence of post-offence conduct will help establish:
i. an accused participated in the commission of an offence;
ii. an accused’s conduct was culpable, for example, not done in lawful self-defence;
iii. an accused was criminally responsible for his conduct; or
iv. an accused had a particular state of mind at the time of his conduct.
[228] Accordingly, evidence of post-offence conduct is, in some cases, relevant to proving an accused’s culpability, either directly or by negating a defence, justification, or excuse that would render the conduct non-culpable. In some of these cases, such evidence will also support an inference about the level of the accused’s culpability: White (2011), at para. 42. In other cases, it will not: White (2011), at paras. 28, 41-42; White (1998), at para. 23;Stiers, at para. 55; Figueroa, at para. 35; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at pp.145-146; R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 53.
[229] As with any item of evidence of limited relevance, and thus admissibility, where evidence of post-offence conduct is capable of supporting one inference Crown counsel asks the jury to draw, such as culpability, but incapable of supporting another, such as the level or legal character of that culpability, the trial judge must instruct the jury about the permitted and prohibited use of the evidence: Figueroa, at para. 35; White (1998), at paras. 26, 28; Arcangioli, at pp. 145-146; White (2011), at para. 37.
[230] In Hall, decided more than four years after the trial judge charged the jury in this case, the relevant portion of the charge was as follows:
If you do not or cannot find that Carl Hall did or said those things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or helping you decide that Carl Hall committed the offence charged. On the other hand, if you find that anything Carl Hall did or said afterwards was because he was conscious of having done what is alleged against him, you may consider this evidence together with all of the other evidence in reaching your verdict.
[231] The argument advanced on appeal in Hall and the court’s response to it are captured in paras. 142-143:
The appellant submits that this wording invited the jury to engage in the tautological reasoning that the Supreme Court disapproved of in White, namely, requiring them to determine whether the appellant was conscious that he committed the offence before they could use the post-offence conduct evidence to decide if he committed the offence.
We share this concern. This instruction directed the jury to decide whether the appellant engaged in the post-offence conduct because he was conscious that he committed the offence. The jury was thus invited to jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence: that is, conducting the deliberation process backwards as described in White, albeit not beyond a reasonable doubt as in that case. [Emphasis in original.]
[232] TheHallcourt, at para. 145, suggested a correct instruction could be in these terms:
Whether Mr. Hall’s statements to Crystal, either at the Wesley Center or in Midland, are attempts by him to conceal his role in the murder is for you to decide. Remember that you must look at this matter in light of all the evidence and it is on a consideration of all the evidence that you decide whether the Crown has proven his guilt beyond a reasonable doubt.
Nevertheless, the court in Hallwas clear that, on its own, the faulty instruction was insufficient to constitute reversible error: Hall, at para. 146.
The Principles Applied
[233] I would not give effect to this ground of appeal.
[234] Any assessment of the adequacy of jury instructions on post-offence conduct evidence requires an understanding of the nature of that evidence and its role in proof of the Crown’s case.
[235] In this case, the evidence of post-offence conduct consisted of flight and a concocted explanation for the whereabouts of Parish and Salah. Both occurred after the principals learned Cindy Rodgers had survived the fire, but that her two children had died in the blaze. Salah denied any culpable participation and sought acquittals on both counts. In his jury address, counsel for Parish invited the jury to find Parish guilty of two counts of manslaughter.
[236] To the extent that participation remained a live issue for Salah at the end of the trial, the evidence of his joint flight with Parish, shortly after learning of the survival of Cindy Rodgers and the deaths of her children, tended to support an inference of his involvement with Parish in the conduct that led to those deaths. On the other hand, the evidence of post-offence conduct could not sustain an inference regarding the nature of Parish’s or Salah’s participation or their state of mind at the relevant time. It follows that the trial judge should have instructed the jury that the evidence of post-offence conduct could not reasonably assist them in determining the level of Parish’s or Salah’s culpability: Figueroa, at para. 35; White (1998), at para. 28; Arcangioli, at pp. 145-146. The trial judge erred in failing to do so.
[237] When the dust settled at the end of the trial, however, the evidence against Parish was overwhelming. The whole scheme was his idea. Cindy Rodgers had maligned him. And Cindy Rodgers would pay. Dearly. Her house would be fire-bombed. Supplies were purchased. Arsonists recruited. Instructions given. The time and date set. And Parish himself would have an alibi. The evidence of post-offence conduct was a drop in the bucket in the case against Parish. A limiting instruction would have made no difference.
[238] Nor would a limiting instruction have benefited Salah. The critical issues were the nature and extent of his participation in the fire-bombing plan and the extent of his knowledge about the occupancy of Rodgers’ home the evening the fire-bombing was to take place. The critical evidence on this issue was the evidence of Salah’s participation in the planning meetings, his role in the execution of the plan (as a look out and alibi for Parish), and his knowledge of the time and manner of the execution of the plan. Early morning. A school night. A desire to silence Cindy Rodgers.
[239] The evidence of post-offence conduct did not occupy a place of prominence in the case against Salah. The instructions given never assigned it any influence on the controverted issues. Counsel, equipped with a copy of the proposed instructions and given the opportunity to challenge them, not only before but also after delivery, made no complaint. And with good reason: nothing turned on it.
[240] As for the Hall error, recall that, standing on its own, the flaw identified was held not to constitute a reversible error: Hall, at para. 146. Nor does it rise to any greater level of significance here.
[241] The Hall court held the instruction invited the jury to “jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-conduct evidence”: para. 143.
[242] Whatever criticism may be levelled at the instruction in Hall, I would not characterize it as an instruction that invites the jury to jump directly to the issue of guilt. The instruction apprises the jury that there is a condition precedent to the use of evidence of post-offence conduct, as the Supreme Court of Canada noted in Arcangioli. This is not new. For example, to utilise out-of-court statements by or attributed to an accused, a jury must first find the statement was made. The ultimate finding relates to conduct: “conscious of having done what is alleged against him”. Conduct and guilt are not synonymous. The instruction simply attaches a condition precedent to jury use of the evidence: a condition precedent that links what occurred later to what happened before. All this is to say that if Hall survives White (2011), the Hall error caused no prejudice to Salah or Parish.
[243] In my view, this ground of appeal fails.
Ground #8: The Sentence Appeal of Thomas McDowell
[244] McDowell appeals the 23-year period of parole ineligibility imposed by the trial judge on each conviction of second degree murder. The periods of parole ineligibility, as well as the sentences of life imprisonment, are to be served concurrently.
[245] Under s. 745.4 of the Criminal Code, a sentencing judge must consider four factors in determining the number of years’ imprisonment an offender convicted of second degree murder must serve before he or she is eligible for parole. The factors are:
i. the character of the offender;
ii. the nature of the offence;
iii. the circumstances surrounding the commission of the offence; and
iv. any jury recommendation about parole eligibility.
[246] Some additional information about McDowell and the jury’s recommendation about parole ineligibility is essential to complete the background from which the claims of error emerge.
The Character of Thomas McDowell
[247] McDowell was 26 years old when he set fire to Cindy Rodgers’ townhouse. He is now 36. Early in life, he was diagnosed with ADHD and prescribed medication. Despite accommodations made for him in the public education system, McDowell never graduated from secondary school. His literacy level is below average.
[248] McDowell is a first offender. Unmarried, he is the father of three children from two prior relationships. He lacks any special skills or job-related training. His employment has been sporadic. His involvement in setting the fire was secured by a promised financial reward from Parish.
[249] In an interview with the probation officer who prepared the Pre-sentence Report for use at the sentencing hearing, McDowell tended to minimize his role in the offence of which he was convicted. He expressed no remorse about the tragic consequences of the fire he set.
The Jury Recommendation
[250] Eight jurors recommended McDowell not be eligible for parole until serving 25 years of his sentence. Four jurors made no recommendation.
The Positions of the Parties at Trial
[251] At the sentencing hearing, trial counsel for McDowell submitted that the period of parole ineligibility should be set between 12 and 15 years.
[252] Counsel for the Crown at trial invited the trial judge to fix the period of parole ineligibility between 23 and 25 years.
The Reasons for Sentence
[253] The trial judge referred to the nature of the appellant’s offence and the circumstances surrounding its commission as “horrific in the extreme.” Two innocent children were killed, burned to death as their mother watched in horror.
[254] McDowell set the fire, along with S.C., for money promised to him by Parish. The fire was planned, and the plan executed while the appellant was sober. His moral culpability was no less than that of S.C. whose parole ineligibility was fixed at 23 years, despite pleading guilty of two counts of second degree murder before trial and testifying as a Crown witness.
[255] The trial judge concluded the jury’s recommendation was to be given “considerable deference unless there are compelling reasons to do otherwise.” The jurors represented the community. They had sat through several weeks of evidence and were well equipped to make an informed recommendation about parole eligibility. After noting the length of the trial proceedings and the nature of the evidence received at trial, the trial judge concluded:
There is no doubt in my mind that the collective knowledge and wisdom of this jury captured every conceivable dimension of the factual context within which these crimes were committed. They would have understood each of the accused, the reasons for their participation and fully appreciated their degree of moral culpability insofar as it would be possible for anyone to so comprehend. It is highly unlikely that your academic and employment background, which I received last week during the sentencing hearing, would have changed the jury’s recommendation as to parole ineligibility.
Therefore, taking into account all of the aforesaid I fix the period of parole ineligibility at twenty-three years.
The Arguments on Appeal
[256] McDowell says the trial judge made three mistakes in determining the period of parole ineligibility. He argues that whether viewed individually or cumulatively, these errors warrant a significant reduction in the period of parole ineligibility.
[257] First, McDowell contends the trial judge erred in equating his moral culpability with that of S.C. The appellant was convicted of murder under s. 229(c), for which the fault element requires proof he knew or foresaw the likelihood somebody would die in the fire he deliberately set. S.C.’s moral culpability was greater. Whether determined under s. 229(a) or s. 229(b), at the very least, S.C. intended to cause bodily harm to someone he knew would likely kill that person and was reckless with whether that person lived or died. This difference in moral culpability, McDowell says, required a distinction between McDowell and S.C. in the period of parole ineligibility.
[258] Second, McDowell argues the trial judge attached undue weight to the jury’s recommendations regarding parole ineligibility. The recommendation is only one factor for the trial judge to consider. Its elevation to near-dispositive status was an error in principle.
[259] Finally, McDowell submits the trial judge failed to assign adequate weight to McDowell’s circumstances, in particular, his education and employment background.
[260] The respondent urges dismissal of the sentence appeal. The trial judge made no error in principle, assigned appropriate weight to each of the statutory factors, and ordered a period of parole ineligibility within the appropriate range for this offence and offender in these circumstances.
[261] At the outset, the respondent reminds us that a trial judge’s decision on the period of parole ineligibility is entitled to deference in this court. Absent an error in principle, a failure to consider relevant evidence, a misapplication of the evidence adduced, or the imposition of an unfit period of parole ineligibility, the period fixed by the trial judge ought not to be disturbed.
[262] The respondent says the trial judge made no error in principle. An increase in the period of parole ineligibility from the statutory minimum of ten years does not require “unusual circumstances”. Denunciation and deterrence were paramount. The trial judge considered McDowell’s modest academic and employment history and decided, correctly, that these factors, neither individually nor cumulatively, warranted a lesser period of parole ineligibility than that which he established. This is all the more so considering McDowell expressed no remorse and attempted to minimize his role in the underlying conduct.
[263] According to the respondent, the trial judge did not overemphasize the importance or influence of the jury’s recommendation about parole ineligibility. The judge took the recommendation into account, along with the other statutory factors, and assigned it appropriate weight.
[264] The respondent submits the period of parole ineligibility set by the trial judge gives effect to the principles of proportionality and parity. A careful analysis unearths no meaningful difference in moral culpability between S.C. and McDowell. Each was motivated by financial gain. Each participated in the underlying plan and its execution. The fault elements in ss. 229(a)(ii), 229(b) and 229(c) differ only slightly and afford no meaningful distinction in moral culpability. And McDowell lacks the mitigating influences of a guilty plea and testimony for the Crown.
The Governing Principles
[265] The alleged parole ineligibility errors warrant brief reference to four basic principles.
[266] First, a decision establishing a period of parole ineligibility on a conviction of second degree murder is a “sentence” within s. 673 for the purposes of Part XXI of the Criminal Code. As a sentence, the general sentencing principles contained in Part XXIII apply to a parole ineligibility decision under s. 745.4. Those principles include the objectives of denunciation and deterrence: R. v. Pelletier, 2004 BCCA 264, 186 C.C.C. (3d) 1, at para. 14, aff’d 2003 SCC 2, [2003] S.C.J. No. 2; R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 9.
[267] In addition, as with all sentences, the period of parole ineligibility is entitled to deference from appellate courts. Absent an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 44; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 90-91; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 69-71.
[268] Second, the fundamental principle of sentencing – that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – applies to parole ineligibility decisions. Likewise, the proportionality principle of s. 718.2(b) requires parole ineligibility orders to be similar to such orders imposed on similar offenders, for similar offences, committed in similar circumstances. The operative term is “similar”, not “identical”.
[269] Third, an increase in the period of parole ineligibility from the statutory minimum does not require proof of “unusual” circumstances: Shropshire, at paras. 26-27, 31-33.
[270] Finally, under s. 745.4, a jury recommendation about the period of parole ineligibility is a factor the sentencing judge is to consider in setting the period of parole ineligibility. No more. No less.
[271] When Parliament assigns certain sentencing objectives or factors a controlling place, it uses specific language to make its intention plain, as it has done, for example, in ss. 718.01 and 718.02 with the objectives of denunciation and deterrence. Section 745.4 contains no ranking or ordering of factors. None is primus inter partes. Some are not more equal or important than others. The jury’s recommendation is not the controlling factor. This is for good reason.
[272] For one, jury instructions regarding parole ineligibility recommendations are notorious for their brevity and lack of detail. The statutory question is read, and usually repeated. Each juror receives a written copy of the question, which makes no reference to any factors the jurors are to consider in deciding whether to make a recommendation. The instruction itself will usually refer to the factors the trial judge is to consider, but without elaboration. The jurors get no instruction about the relevant sentencing objectives and principles, like parity and proportionality. Trial judges do not acquaint jurors with the sentencing ranges or principles emerging from appellate precedent.
[273] Further, the evidence given at trial only apprises the jury of the nature of the offence, the circumstances surrounding its commission, and, in varying degrees, the character of the accused. Accordingly, for the purposes of sentencing, the picture is incomplete, especially as it relates to the “character of the offender” factor under s. 745.4. The accused may not have testified. Prior convictions and other extrinsic misconduct not resulting in conviction, but relevant to the character of the offender, are not disclosed.
[274] Finally, a jury’s finding of guilt represents the unanimous decision of the jury. This is not so for parole ineligibility recommendations. Deliberations are invariably brief. The recommendation need not be unanimous. Each juror’s task is to decide whether to make a recommendation and, if so, what recommendation to make. The decision is individual, not collective. Twelve jurors. Twelve individual decisions. Recommendations only. Consideration is required. But not deference any more than slavish adherence: McKnight, at para. 55.
The Principles Applied
[275] I would not reduce the period of parole ineligibility imposed by the trial judge. This is so despite the trial judge’s overemphasis on the influence of the jury’s recommendation.
[276] First, I address the complaint that the trial judge failed to consider the difference in moral culpability between S.C. and McDowell, and thus erred in fixing McDowell’s period of parole ineligibility at 23 years, the same as that established for S.C.
[277] The parties agree McDowell’s conviction was grounded on the definition of murder in s. 229(c) of the Criminal Code: unlawful object murder. The trial judge left McDowell’s liability to be determined on this basis. Further, it seems unlikely, on the evidence adduced at trial regarding McDowell’s role in setting the fire, that the jury would have found McDowell to have committed murder under either s. 229(a) or s. 229(b), but not a planned and deliberate first degree murder.
[278] To convict McDowell of second degree murder under s. 229(c), the jury must have found that in pursuit of an unlawful object, McDowell set the fire (a dangerous act) with the actual knowledge that somebody would likely die in the fire he set. Nothing less than proof of actual subjective knowledge of the likelihood that somebody would die in the fire was sufficient to prove the fault element under s. 229(c).
[279] S.C. pleaded guilty to second degree murder before trial. In the proceedings against him, Crown counsel did not indicate to the presiding judge the definition of murder in s. 229 upon which the Crown relied to establish S.C.’s liability. The factual summary read into the record in support of S.C.’s guilty plea was sufficient to establish liability under any definition of murder in s. 229.
[280] The fault elements in ss. 229(a) and (b) include an intention to cause another’s death, or the intention to cause another bodily harm that the accused knows is likely to cause another’s death coupled with recklessness as to whether the victim lives or dies. These fault elements vary so little as to be indistinguishable from one another: R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at p. 1089; Cooper, at p. 155. Recklessness is merely an afterthought since the Crown must prove, as an alternative to intent to cause death, the intent to cause grievous bodily harm the accused knew was likely to cause death. By definition, such a person has been reckless with whether death ensues or not: Nygaard, at pp. 1087-1088; Cooper, at pp. 154-155.
[281] Leaving recklessness aside, the fault element in s. 229(a)(ii) requires proof of intention (to cause bodily harm) and knowledge (that the bodily harm will likely cause death). Under s. 229(c), knowledge the dangerous act will likely cause death is also an essential component of the fault element. An intention to cause bodily harm of a grievous nature forms no part of the fault element in s. 229(c). Indeed, liability can be established even though an accused “desires to effect his [unlawful] object without causing death or bodily harm to any human being”. But, under s. 229(c), the unlawful object must be an indictable offence that requires proof of mens rea and the dangerous act must be one the accused knows is likely to kill.
[282] Much like the distinction between the definitions of murder in ss. 229(a)(i) and 229(a)(ii), which are also found in s. 229(b), the discrepancy in moral culpability between the fault element in ss. 229(a)(ii) and 229(c) is not so great, on its own, to warrant a distinction in the period of parole ineligibility between McDowell and S.C.
[283] The second error advanced by McDowell is that the trial judge placed too much emphasis on the jury’s recommendation in fixing the period of parole ineligibility. Eight jurors, two-thirds of the jury, recommended a parole ineligibility period of 25 years. The remaining four jurors made no recommendation. The trial judge held the jury recommendation was entitled to “considerable deference”.
[284] As discussed, s. 745.4 does not rank or otherwise distinguish among the factors relevant to determining the term of parole ineligibility. Nor are jurors comprehensively instructed on the relevant legal principles or necessarily apprised of the relevant factual matrix. Therefore, to accord “considerable deference” to a jury’s recommendation about parole ineligibility mischaracterizes, or at least fails to appreciate or properly evaluate, the nature of a jury recommendation. I am satisfied the trial judge overemphasized the jury recommendation in making his parole ineligibility decision.
[285] The third error alleged by McDowell is that the trial judge failed to take into account his circumstances, in particular, his educational and employment background, in fixing the period of parole ineligibility.
[286] The trial judge acknowledged receipt of the information about McDowell’s academic and employment background. He expressed the view that knowledge of this information would have been “highly unlikely” to change the jury’s recommendations about parole ineligibility.
[287] This conclusion does not amount to either an error in principle or failure to consider relevant evidence. McDowell’s academic and employment background were relevant to his character and rehabilitative prospects. However, they were not, on their own, sufficient to render the 23-year parole ineligibility period unfit. This is especially so when balanced against McDowell’s lack of remorse and attempts to minimize his role in the conduct that caused the deaths of two innocent children.
[288] In conclusion, despite the trial judge’s overemphasis on the jury’s recommendation, I am not persuaded the period of parole ineligibility fixed by the trial judge reflects error. Like S.C., McDowell set fire to an occupied townhouse in the middle of the night. Even assuming S.C.’s guilt was established based on s. 229(a) or s. 229(b) of the Criminal Code, the difference in moral culpability between S.C. and McDowell is but slight: Shand, at para. 186. S.C. had the advantage of two mitigating factors: he pled guilty and he testified for the Crown. The appellant had the advantage of neither.
[289] I would not interfere with the period of parole ineligibility fixed by the trial judge.
CONCLUSION
[290] For these reasons, I would dismiss the appeals.
Released: January 20, 2015 (DW)
“David Watt J.A.”
“I agree G.R. Strathy J.A.”
[*] Rosenberg J.A. took no part in the reasons for judgment.