COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Figueroa, 2016 ONCA 645
DATE: 20160829
DOCKET: C53601 & C53939
Pepall, Tulloch and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Cristian Figueroa
Appellant
AND BETWEEN
Her Majesty the Queen
Respondent
and
Fabian Loayza-Penaloza
Appellant
Brian Snell, for the appellant Cristian Figueroa
Joseph S. Wilkinson and Deepa Negandhi, for the appellant Fabian Loayza-Penaloza
John Corelli, for the respondent
Heard: June 16 and 17, 2016
On appeal from the convictions entered on June 11, 2010 by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury.
Pardu J.A.:
[1] Fabian Loayza-Penaloza and Cristian Figueroa planned to break into a home in Mississauga. While they were at the house, the housekeeper, Jocelyn Dulnuan, was strangled to death. Both men were charged with first degree murder under s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] At trial, Mr. Loayza-Penaloza said he had nothing to do with the killing, but was sitting outside in his van when it happened. In contrast, Mr. Figueroa said he unexpectedly came upon Mr. Loayza-Penaloza in the basement, in the act of killing the deceased. The Crown argued the killing was a two-man job, and that both were guilty of first degree murder on the basis that the death was caused while they committed or attempted to commit the offence of unlawful confinement.
[3] Both accused were convicted of first degree murder, and both appeal from their convictions. The grounds of appeal primarily relate to the evidence of one of the witnesses and the trial judge’s instructions to the jury.
[4] For the reasons that follow, I would dismiss the appeal.
A. BACKGROUND
[5] The killing occurred on October 1, 2007. The deceased was found late that afternoon in her basement bedroom, close to a basement kitchen. She was bound with two different sets of ligatures. The first was a copper wire around her neck, knotted at the front and continuing down and around her left wrist. The loop around her left wrist was loose and had enough space for her right wrist, which was free. The wire used to strangle her was similar to wire stored in a basement storage room. The second ligature consisted of a jacket, which was tied in a double knot around her ankles.
[6] The ligature around her neck was very tight, compressing her neck to a diameter of 9.5 centimetres. A ligature of this tension would have cut off the supply of blood and oxygen to the brain, resulting in unconsciousness within seconds and death within a “small number of minutes.”
[7] Mr. Figueroa’s DNA was found underneath her fingernails. There was a six mm laceration on one of the deceased’s fingers, and some injuries to her mouth.
[8] Traces of blood were found on the carpet going from the deceased’s bedroom door to where she was found. There were also traces of blood in the kitchen area, and evidence of an attempt to clean up blood there.
[9] There was no DNA evidence linking Mr. Loayza-Penaloza to the crime. However, he knew the house well, having worked as a painter for the homeowners for about five years. He knew the deceased. He last worked at the home on the Friday before the Monday killing.
B. The Crown’s case
[10] The appellants were arrested in December 2011 and charged with first degree murder under s. 231(5)(e) of the Criminal Code, which reads:
Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(e) section 279 (kidnapping and forcible confinement)[.]
[11] The Crown’s theory of the case was that the appellants had planned a break-in at the home where the deceased lived and worked. The deceased was unlawfully confined and then murdered “to eliminate the serious risk she had become” in the burglary when she saw and recognized Mr. Loayza-Penaloza. The Crown’s submission at trial was that both appellants were guilty of first degree murder, regardless of who strangled the deceased, because they helped each other in the killing.
[12] The appellants disputed this theory of events. Each appellant testified at trial with a different version of the break-in and the killing.
C. The evidence of Mr. Loayza-Penaloza
[13] Mr. Loayza-Penaloza began contemplating breaking into the home several months before the killing. He had gone to the backyard with his ex-wife to discuss ways to get into the home and avoid security cameras. He planned the break and enter with Mr. Figueroa.
[14] On October 1, 2007, the appellants drove to the house in a white van. Mr. Loayza-Penaloza expected that the homeowner would be away, out of town. When they got to the home, they noticed men working in the garage. They drove away and went to a payphone and called the home twice, to verify no one was home. No one answered and they returned to the home.
[15] According to Mr. Loayza-Penaloza, the plan was for him to wait in the van in front of the gate to the driveway while Mr. Figueroa went to look at the house and see if a window had been left open. Mr. Loayza-Penaloza said he watched as Mr. Figueroa walked up to the front door, wearing sunglasses and a baseball hat, and carrying a clipboard. The deceased let him into the house.
[16] After a call from Mr. Figueroa, Mr. Loayza-Penaloza opened the gate and drove the van to the house and went inside. He saw that Mr. Figueroa had collected items in bags by the front door. Mr. Loayza-Penaloza asked about the deceased and Mr. Figueroa told him he had tied her up and left her in her room.
[17] Mr. Figueroa became upset when he saw that the van was parked facing the house. He went outside, backed the van toward the front door and came back with a crow bar. Mr. Loayza-Penaloza directed him to the safe in the upstairs bedroom, but stayed outside in the hall as a lookout. Mr. Figueroa emerged with a safe. The appellant loaded the bags in the van and Mr. Figueroa put the safe in the van.
[18] Mr. Figueroa ultimately opened the safe in the back of the van. Mr. Loayza-Penaloza said he got about $5000 from the safe, which they threw into a canal north of Toronto.
[19] According to Mr. Loayza-Penaloza, he did not learn about the death of the deceased until several days after the murder. As far as he knew, Mr. Figueroa had tied her up and left her in a room. He confronted Mr. Figueroa and learned some details about how Mr. Figueroa had killed the deceased, which he then discussed with his ex-wife, Sylvia Chiriboga.
D. The evidence of Mr. Figueroa
[20] Mr. Figueroa testified that Mr. Loayza-Penaloza approached him for help with the break and enter because of his expertise in cracking safes. He said as they approached the house on October 1, they telephoned twice to make sure no one was home. He said Mr. Loayza-Penaloza opened the front door with a key, and showed him where the safe was located in the master bedroom. He said Mr. Loayza-Penaloza then left the room. Mr. Figueroa said he pried the safe out of the wall and carried it down the stairs, intending to load it in the van.
[21] He then went looking for Mr. Loayza-Penaloza, who had told Mr. Figueroa he was going to the basement. Downstairs, he heard noises and came upon Mr. Loayza-Penaloza standing behind the deceased, strangling her with a wire. He said he yelled at Mr. Loayza-Penaloza to stop and tried to pull his hands away from the deceased’s neck. The deceased had her fingers inside the wire, trying to get loose. Mr. Figueroa was facing the deceased and saw her face change colour: blue, purple and red. She reached out to grab him by the face and put her hands around the back of his neck.
[22] Because she let go of the ligature around her neck to reach for Mr. Figueroa, Mr. Loayza-Penaloza was able to continue with the strangulation and the deceased quickly lost consciousness. She collapsed into Mr. Figueroa’s arms. He laid her gently on the floor, believing she was dead. He asked Mr. Loayza-Penaloza why he had killed her and was told the deceased had called Mr. Loayza-Penaloza by name and surprised him.
[23] After the murder, Mr. Figueroa loaded some bags and the safe in the back of the vehicle. Eventually, Mr. Figueroa was able to open the safe. The appellants each received about $40,000 from inside.
[24] Both of the appellants continued to communicate with each other, and work with each other, after the killing.
E. Grounds of appeal
[25] The appellants argue that the trial judge made errors in admitting evidence and in charging the jury. Mr. Figueroa also submits that the conduct of the Crown made the trial unfair. Generally, the grounds of appeal may be grouped as follows:
- The evidence of Sylvia Chiriboga.
- Party liability.
- Jury instruction about lies to police.
- Unfair Crown comments.
- Jury instructions on included offences.
(1) Sylvia Chiriboga
[26] One of the Crown’s witnesses at trial was Sylvia Chiriboga. Ms. Chiriboga was Mr. Loayza-Penaloza’s ex-wife, but the couple lived together as a family at the time of the killing. The Crown called her as a witness to prove that Mr. Loayza-Penaloza had given her information which would have been known only to the killer.
[27] Police interviewed her on December 18, 2007, the same day Mr. Loayza-Penaloza was arrested, and the day after Mr. Figueroa was arrested. She told police she dreamed her ex-husband had participated in the murder. She described Mr. Loayza-Penaloza as having done the following things in the dream:
- He drove his white van to the house.
- They went in the front door.
- He tied up the housekeeper, who was scared, and put something in her mouth.
[28] At trial, she admitted she lied to police about dreaming about the murder. Rather, she said the details in the fabricated dream were told to her by Mr. Loayza-Penaloza, who also told her that Mr. Figueroa had done these things.
[29] Ms. Chiriboga testified that she invented the dream involving her ex-husband in the homicide because she was angry with him at the time. She said at trial that her ex-husband told her Mr. Figueroa had given him these details of the homicide.
[30] She testified at trial that she fabricated or speculated about some of the details in her dream, such as that the deceased had taken a bad punch from Mr. Loayza-Penaloza, and that the deceased had been shot.
[31] She also testified that during a jail visit after arrest, Mr. Loayza-Penaloza passed her a note saying that Mr. Figueroa punched, strangled and tied up the deceased, and that he had put something in her mouth and left her in her room with the door closed. Mr. Loayza-Penaloza denied killing the deceased during that visit.
[32] She testified at trial that Mr. Loayza-Penaloza told her he parked inside the garage. This contradicted his police statements and trial testimony that he waited outside the gates and then parked in front of the house. She testified further that Mr. Loayza-Penaloza told her the deceased’s body was left in her bedroom with the door closed. The Crown argued this was significant, as Mr. Loayza-Penaloza knew the house well, and Mr. Figueroa would not have known it was her bedroom. She testified that Mr. Loayza-Penaloza told her the deceased sustained a bad punch, and that something was placed in her mouth. All of this information she said Mr. Loayza-Penaloza told her had been provided to him by Mr. Figueroa, who was the killer.
[33] An agreed statement of facts filed at trial confirmed that there had been no information released to the public about the deceased having been tied up, possibly punched, or left in her room.
(a) Arguments
[34] Both appellants argue that the trial judge erred in his treatment of the evidence of Sylvia Chiriboga.
[35] Mr. Loayza-Penaloza argues that the trial judge erred in three respects relating to the Chiriboga evidence. He says that the trial judge should not have admitted the Chiriboga evidence; it was irrelevant, and more prejudicial than probative. He also says that the trial judge ought to have instructed the jury that it should first determine on the balance of probabilities whether Mr. Loayza-Penaloza made the prior statements to Ms. Chiriboga, and only if it concluded the statements were made could it consider the evidence that Ms. Chiriboga was able to tell the police information about the commission of the offence. Finally, he says that the trial judge should not have given a Vetrovec warning in relation to Ms. Chiriboga’s evidence.
[36] Mr. Figueroa argues that the trial judge erred in failing to treat the “dream” evidence as tantamount to a confession by Mr. Loayza-Penaloza to his ex-wife. He says that the trial judge should have instructed the jury that they could use this as evidence supporting Mr. Figueroa’s innocence.
(b) Analysis
(i) Admissibility of the Chiriboga evidence
[37] Statements by an accused person demonstrating information which would only be known to a person who committed a crime are relevant and admissible. They are not admitted for the truth of their contents but to show the accused person’s knowledge of the information. Here, the statement of Mr. Loayza-Penaloza reported by Ms. Chiriboga in her police statement was not admitted to establish that the deceased was in fact tied up, but to show that Mr. Loayza-Penaloza knew that she had been tied up. This, along with other evidence, could establish complicity in the crime, although it was also open to the jury to consider the possibility that Mr. Loayza-Penaloza knew the details of the killing because he heard them from Mr. Figueroa.
[38] This evidence is presumptively admissible for the purpose for which it was tendered. There was no application by Mr. Loayza-Penaloza to exclude it on the ground that its prejudicial effect exceeded its probative value.
[39] Further, statements by an accused person that he did something different from what he testifies to at trial may be used to undermine his credibility. Here, Mr. Loayza-Penaloza testified at trial that he stayed in the van outside the gate until he got a call from Mr. Figueroa, and pulled into the driveway. According to Ms. Chiriboga, he told her he parked in the garage.
(ii) Jury instruction
[40] As an alternative argument, Mr. Loayza-Penaloza submits that the trial judge should have instructed the jury that they could only use statements made by him to his ex-wife if they first found on the balance of probabilities that those statements were made.
[41] There was no need to add this level of complexity to this jury charge. Mr. Loayza-Penaloza admitted making statements describing the details of the killing to his ex-wife, except for the statement attributed to him that he parked the van in the garage. In his direction concerning out of court statements, the trial judge told the jury it had to decide whether it believed the accused person made the statement or any part of it in deciding the case against the accused. Nor was it necessary for the trial judge to make a preliminary, threshold determination that the statement was made, given Mr. Loayza-Penaloza’s admission that it was.
(iii) The Vetrovec warning
[42] Ms. Chiriboga was charged with perjury following her testimony at the preliminary inquiry. The trial judge reminded the jury that she admitted lying to police and while giving evidence at the preliminary inquiry. He instructed the jury as follows:
Common sense tells you that, in light of these circumstances, there is good reason to look at her evidence with the greatest care and caution. You are entitled to rely upon her evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for you to do so. Accordingly, you should look for some confirmation of her evidence from somebody or something other than Ms. Chiriboga before you rely upon her evidence in deciding whether Crown counsel has proven the case against the persons charge beyond a reasonable doubt. And again, to be confirmatory, the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of Ms. Chiriboga’s evidence.
[43] Mr. Loayza-Penaloza submits that Ms. Chiriboga’s evidence should not have attracted this Vetrovec warning, because a Vetrovec warning should not be applied to exculpatory evidence and her evidence was exculpatory.
[44] In fact, Ms. Chiriboga was a mixed witness. Significant aspects of her evidence incriminated Mr. Loayza-Penaloza, including her evidence that he told her the deceased had been tied up and placed in her bedroom. He told Ms. Chiriboga of the plan to break into the home and that he was at the home with Mr. Figueroa at the time of the killing. Ms. Chiriboga also testified at length about Mr. Loayza-Penaloza’s statements to her that Mr. Figueroa was responsible for the killing.
[45] While the trial judge told the jury to approach Ms. Chiriboga’s evidence with caution in assessing whether the Crown had proven Mr. Loayza-Penaloza’s guilt beyond a reasonable doubt, he also advised the jury that prior statements by an accused person could raise a doubt about his guilt, even if they were not sure he made those statements:
Some or all of the statements may help the accused person in his defence. You must consider those remarks that may help the accused person, along with all of the other evidence, unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help the accused person even if you cannot decide whether he said them.
If you decide that the accused person made a remark that may help him in his defence, or if you cannot decide whether he made it, then you’ll consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about the accused person’s guilt.
[46] All parties had advance written copies of the charge. No one took exception to the trial judge’s exercise of discretion to give a Vetrovec warning in respect of the incriminatory aspects of her evidence.
[47] As observed by MacPherson J.A. in R. v. Gelle, 2009 ONCA 262, 244 C.C.C. (3d) 129, whether or not to give a Vetrovec warning is “very much within the discretion of the trial judge”. Where there is a foundation for the judge’s exercise of discretion, as there was in this case, appellate courts should not interfere. Further, although the absence of an objection is not conclusive, it is an important consideration in this context. This ground of appeal cannot succeed.
(iv) Use of the Chiriboga evidence to exculpate Mr. Figueroa
[48] Counsel for Mr. Figueroa submits that while the trial judge was correct to tell the jury that it could not use any out of court statements by Mr. Loayza-Penaloza against Mr. Figueroa, he should have told the jury that it could consider those out of court statements if they helped Mr. Figueroa. In particular, he submits that the jury should have been able to consider the possibility that Ms. Chiriboga lied to police on December 18, 2007 when she told them she had a dream about the murder, but that she was truthful when, during that interview, she implicated her ex-husband in the killing, and that Mr. Loayza-Penaloza must have confessed his involvement in the murder to her.
[49] At trial, counsel for Mr. Figueroa asked the trial judge for a midtrial instruction that her anticipated evidence that Mr. Loayza-Penaloza told her that Mr. Figueroa strangled and punched the deceased was not admissible for the truth of its contents and that it was inadmissible against Mr. Figueroa. The trial judge agreed, and instructed the jury:
So anything you decide that Mr. Loayza-Penaloza said to this witness is only evidence concerning Mr. Loayza-Penaloza and you must not consider anything that Mr. Loayza-Penaloza said to a witness in reaching your verdict on Mr. Figueroa even if it describes what Mr. Figueroa said or did.
So the comments that she related that came from Mr. Loayza-Penaloza she says and related to Mr. Figueroa are not evidence to consider against Mr. Figueroa
[50] A final instruction, to which no objection was given, was in similar terms:
During the trial, I told you about a special rule that applies when someone testifies about something that one of the persons on trial said outside the courtroom. You may only use anything you find one person on trial said outside the courtroom for a limited purpose in deciding this case.
Anything you find a person charged said to or in the presence of a witness or did outside the court room, even if it describes what the other accused person on trial said or did, is only evidence concerning the person who said it. You must not consider it in deciding the case of anyone other than the person who said it.
[51] In his submissions to the jury, counsel for Mr. Figueroa characterized the dream statement as a report by Ms. Chiriboga of a confession by Mr. Loayza-Penaloza to the murder:
So on December 18 Sylvia [Chiriboga] attempted somehow to minimize her husband’s actions by saying it was a dream. But here in court she admitted there was no dream. And the information she told the police in her very first interview was the truth and the truth came from Fabian… Common sense should tell you that when a wife changes her story 466 days later to say that it actually wasn’t her husband but in fact it was Christian that attacked, tied and murdered Ms. Dulnuan that she is simply lying to protect her husband.
Does it make sense that she would keep Christian’s involvement in each one of these steps a secret but at the same time tell the police that her husband was responsible for each and every piece of violence inflicted on Ms. Dulnuan? Ms. Chiriboga is clear, and she says that she got all of the information that she gave to the police on December 18th from Fabian. That means that sometime after the murder and before he was arrested on December 18th that Fabian had confessed to Ms. Chiriboga in one of those rare moments couples share when they are alone and baring their souls to one another. Fabian confessed everything to his wife.
[52] There are two obstacles to the use proposed by Mr. Figueroa of this evidence. Firstly, he is proposing to use an inferred out of court statement by Ms. Chiriboga for the truth of its content, i.e. that her ex-husband confessed to her. This version was not adopted by her in her trial testimony. Accordingly, Mr. Figueroa’s submission amounts to a suggestion that an alleged prior inconsistent statement by Ms. Chiriboga could be used for its truth. I do not accept that this was proffered as non-hearsay on the same basis as the Crown sought admission of details of the murder.
[53] Secondly, this submission is foreclosed for the same reasons as expressed in R. v. Waite, 2014 SCC 17, [2014] 1 S.C.R. 341, at paras. 3-4:
The general rule is that out‑of‑court statements by a party may be adduced as evidence of their truth by an opposite party. But, as the trial judge instructed the jury, statements admitted on that basis may in general be used only in deciding the case of the accused who made the statements. The trial judge gave this standard instruction with the express agreement of trial counsel. She did not err in doing so. The appellant’s counsel at trial did not seek to adduce the co-accused’s out‑of‑court statements for their truth as part of the appellant’s case under the principled approach to the hearsay rule or on any other basis.
There appears to be nothing that would have prevented the appellant from attempting to have these statements considered for their truth under the principled approach to the hearsay rule. However, no such attempt was made here. There was, therefore, no basis raised for the judge to give the instruction now sought. We note that R. v. Edwards, 2004 BCCA 558, 205 B.C.A.C. 42, in which one accused adduced in evidence as part of his case an inculpatory out-of-court statement by a co-accused, gives rise to different issues which we do not have to address here.[^1] [Footnote added.]
(c) Conclusion
[54] Overall, there was something for everyone in Ms. Chiriboga’s evidence. It was in Mr. Figueroa’s interest to support the Crown’s position that her evidence showed Mr. Loayza-Penaloza was complicit in the crime, with the proviso that her evidence could not be used against him. It was open to Mr. Figueroa to suggest to the jury, as did the Crown, that they should infer that Mr. Loayza-Penaloza was the killer because of his knowledge of the details of the crime. Mr. Loayza-Penaloza was probably not unhappy to have her repeated statements saying he had no involvement in the killing put before the jury. In the end, it did not matter whether Mr. Loayza-Penaloza knew the details of the killing from Mr. Figueroa or from personal participation in the killing. Both of them were at the house at the time of the killing and the jury must have accepted the Crown’s argument that this was a two-person job.
(2) Party liability
(a) Aiding under s. 21(1)(b)
[55] Mr. Loayza-Penaloza argues that the trial judge erred in leaving party liability as an aider under s. 21(1) (b) with the jury. Mr. Loayza-Penaloza says that it was accepted that both appellants tried to make sure no one was home during the break in by calling the house twice beforehand. He submits that what took place in the house was a surprise to him, and that sitting in his van in the driveway could not be construed as doing anything to assist the commission of the murder. As such, he says that the trial judge erred in leaving party liability as an aider under s. 21(1)(b) with the jury.
[56] I reject this submission. There was other evidence enabling the trial judge to leave this basis for liability with the jury. Just the fact of the two different ligatures – one, a jacket knotted around the deceased’s legs, and the other, the wire around her neck and wrist – would have allowed a jury to infer that two individuals, the appellants, participated in the attack. Mr. Loayza-Penaloza was familiar with the house. The jury could have inferred that he got the wire used to kill the deceased from the storeroom. They could also, for reasons I will explain, have inferred from his many lies to police that he participated in the killing.
(b) Party liability under s. 21(2)
[57] Section 21(2) of the Criminal Code provides for common purpose party liability as follows:
Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[58] Both parties argue that the trial judge erred in leaving common purpose party liability to the jury. They submit that there was no air of reality to this kind of criminal responsibility on the evidence. They further submit that, in any event, the trial judge did not adequately relate the evidence to this issue.
[59] Mr. Figueroa submits that if the jury accepted his evidence that he thought the house was empty there was no basis for it to conclude that he knew that a murder was likely to occur until he came upon Mr. Loayza-Penaloza in the act of strangling the deceased. He says the trial judge ought to have specifically dealt with the issue of when the knowledge had to arise in this case to attract the possibility of common purpose party liability.
[60] Mr. Loayza-Penaloza submits that while he was sitting in the van, there was no basis upon which anyone could find that he knew Mr. Figueroa was likely to kill. If the jury concluded he was neither principal nor aider, there was no realistic fact situation that could give rise to common purpose party liability.
(i) The jury instruction on common purpose party liability
[61] In his charge, the trial judge explained to the jury that a person may become a party to an offence in a number of ways. He instructed the jury that three forms of liability applied to this case: liability as a principal, under s. 21(1)(a) of the Criminal Code; liability as an aider, under s. 21(1)(b); and common purpose liability under s. 21(2). The trial judge began with a general instruction on each of these forms of liability. He also pointed out that in convicting an accused, the jurors need not agree on the same basis for liability, as long as they were each satisfied that an appellant was a party to a particular offence in one of the three ways described.
[62] Regarding s. 21(2), the basis for liability with which the appellants take issue, the trial judge instructed the jury that an accused may be liable if three elements are proven:
- The accused agreed with another person to commit an offence. Here, there was agreement that Mr. Figueroa and Mr. Loayza-Penaloza had agreed to break into the home and steal.
- A different offence was committed by the other person in the course of carrying out the original offence. Here, there was no doubt that an unlawful killing occurred while the appellants were at the house to commit the original agreed-upon break and enter.
- The accused knew that the other crime was a probable consequence of carrying out the break and enter. It is this third requirement – knowledge of the other crime – that forms the basis of the appellants’ arguments on this ground of appeal.
[63] The trial judge discussed the knowledge requirement separately for each of the offences in issue: manslaughter, second degree murder, and first degree murder through the connection with unlawful confinement.
[64] For manslaughter, the trial judge defined the knowledge requirement as proof that the non-strangler knew, or that a reasonable person in the circumstances of the non-strangler would have known, that there was a likelihood that the strangler would cause bodily harm that was not minor or trifling in carrying out the common intention to break into the home and steal.
[65] He then reviewed the evidence relating to this potential knowledge:
With respect to what Mr. Loayza-Penaloza was actually aware of, consider the evidence relating to his knowledge of the fact that someone might be in the residence and just not answering the phone, and his later knowledge that Ms. Dulnuan had answered the doorbell so that she might see or otherwise come into contact with any person entering into the house and attempting to steal. Mr. Loayza-Penaloza had the ability to call Mr. Figueroa and on his own evidence was content to proceed knowing that Mr. Figueroa was there at least to steal watches. And on Mr. Figueroa’s evidence they were there together from the outset to steal multiple safes. Consider Mr. Loayza-Penaloza’s awareness of the risk that Ms. Dulnuan, who he knew to be young and apparently fit, would fight back and have to be forcefully restrained or subdued. Depending on your assessment of the evidence you may find that he knew going in that they were there to steal a safe which would take some time and be noisy which would increase the risk of detection and the need to restrain or subdue Ms. Dulnuan should she happen to be there. Consider the fact that Mr. Loayza-Penaloza was known to the [residents of the] household and other workers.
With respect to what Mr. Figueroa was actually aware of, consider the evidence relating to his knowledge of the fact that someone might be in the residence and that he might see or otherwise come into contact with any person by entering into the house and attempting to steal. Consider the evidence of Mr. Loayza-Penaloza that Mr. Figueroa was let in by Ms. Dulnuan. Consider his evidence [that] he never saw her. Consider Mr. Figueroa’s evidence that he did hear someone enter, voices, and then the door open again and that this might indicate the presence of someone inside the house. Consider his knowledge that Mr. Loayza-Penaloza was known by the… family and workers. Consider his awareness of the risk that anyone in the house would fight back and have to be forcefully restrained or subdued. Mr. Figueroa admits that he knew going in that they were there to steal safes which would take some time and be noisy which would increase the risk of detection and the need to restrain or subdue who might be there.
[66] Next, the trial judge discussed party liability under s. 21(2) for second degree murder. He indicated that, in order to establish that the non-strangler was guilty of murder, the Crown had to prove that the non-strangler actually knew that the other party to the original agreement, the strangler, would probably commit murder in carrying out their original agreement. To explain this more clearly, he gave the jury a concrete example:
A simple illustration may help you to understand better how this basis of proving a person’s guilt works.
A and B agree to rob a store. A’s role is to enter the store and hold up the manager. B’s role is to drive the getaway car. A and B drive to the store. A enters. B stays in the car outside. The motor of the car is running. A demands money from the manager. The manager resists A’s demands. A picks up an ashtray and beats the manager to death. A runs out of the store. A and B drive away. Both are later charged with second degree murder.
A and B agreed to commit robbery and to help each other to do so. In carrying out their original or plan, A has committed another offence: he unlawfully killed the manager.
A is the person who unlawfully killed the manager. A’s crime will be second degree murder if Crown counsel can prove beyond a reasonable doubt that A meant to kill the manager, or meant to cause him bodily harm that A knew would likely kill him and didn’t care whether the manager died or not.
For B to be guilty of second degree in these circumstances, Crown counsel will have to prove beyond a reasonable doubt that B actually knew that it was likely that A, in carrying out their original agreement or plan to rob the manager, would intentionally kill the manager or intentionally cause the manager bodily harm that A knew would likely kill him and that he didn’t care whether the manager died or not.
[67] He summarized again some of the relevant evidence about knowledge:
[T]he evidence that may be relevant to whether the accused acting in common purpose with the strangler knew that the strangler would probably commit murder in carrying out the agreement to steal would include, first of all, in the case of Mr. Figueroa, evidence as to his knowledge that Mr. Loayza-Penaloza was well known to Ms. Dulnuan and could be easily identified by her; knowledge on hearing voices that there was somebody in the mansion; knowledge that Mr. Loayza-Penaloza was going to investigate or otherwise that he might encounter Ms. Dulnuan or someone else known to him and knowledge that the safe contained valuable items. In the case of Mr. Loayza-Penaloza, the evidence as to his knowledge that Mr. Figueroa was entering the home for a criminal purpose; and knowledge that Ms. Dulnuan was or might be there; and knowledge on hearing voices that there was someone in the mansion; and knowledge that Mr. Figueroa was going to investigate or that he might encounter Ms. Dulnuan or someone else; and knowledge that the safe contained valuable items.
[68] Finally, the trial judge turned to first degree murder. He first directed the jury to determine whether the Crown had proven beyond a reasonable doubt that the accused they were considering did something that was an essential, substantial and integral part of the killing. Essential, substantial and integral, he told the jury, meant that the accused actively participated in the killing of the deceased. It was not enough to prove that the accused was present for the killing or that he played some minor role in the events.
[69] The trial judge explained that to establish first degree murder, the Crown also had to prove beyond a reasonable doubt that the accused that the jury was considering committed or attempted to commit unlawful confinement as a principal, an aider, or a common purpose participant. After explaining the elements of unlawful confinement and the conduct alleged to constitute unlawful confinement in this case, he told the jury that the knowledge requirement for the person acting with the common purpose is that that person intended that the victim be unlawfully confined. Having defined the elements of the offences and given examples of some evidence that would be relevant to the issue of knowledge under s. 21(2), the trial judge went on to fairly and exhaustively summarize the evidence of each of the appellants and the other witnesses. He put the positions of each of the Crown and the two appellants to the jury, as provided by counsel, which fully outlined the evidence each relied upon, and the arguments as to the findings the jury should make.
(ii) Analysis
[70] The trial judge accurately related the law of common purpose liability and fairly put the evidence favouring the appellants to the jury on this point for each of manslaughter, second degree murder and first degree murder.
[71] In R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, Rosenberg J.A. discussed the application of common purpose liability in circumstances very similar to the present case. Two individuals broke into the deceased’s home and accused each other of having shot the deceased. The individuals were charged with first degree murder under s. 231(5), as the appellants were here.
[72] In Rosenberg J.A.’s view, an accused could be convicted for first degree murder under s. 231(5) based on a s. 21(2) common purpose, so long as the Crown was able to prove that the accused’s participation was a substantial cause of the victim’s death, as required by R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, at pp. 323-324, and the other elements of s. 231(5) were met.
[73] In getting to second degree murder, it is possible that some of the jurors may have thought an appellant was a principal, some may have thought he was an aider, and others may have thought he was party to a common unlawful purpose and foresaw that murder by the other was likely.
[74] It is clear from the convictions for first degree murder, however, that the jurors concluded that each accused actively participated in the killing. The trial judge was clear in his instruction that to convict on first degree murder, the jury had to find that the accused did something that was an “essential, substantial and integral part” of the killing.
[75] Given the manner in which this case unfolded, the position of the Crown, and the conviction for first degree murder, there is no chance that the jury convicted Mr. Loayza-Penaloza of murder because he agreed to a break and enter but was simply sitting in his van while the killing occurred. Similarly, there is no chance that the jury convicted Mr. Figueroa because he unexpectedly came across Mr. Loayza-Penaloza in the act of strangling the deceased.
[76] On the evidence in this case, the trial judge did not err in leaving common purpose liability to the jury. Two of the elements of common purpose liability – the agreement to commit one crime, and the occurrence of the other – were not in dispute. The real issue related to knowledge on the part of the non-strangler, a matter about which the jury could draw inferences from the evidence. The likelihood that another offence would be committed in the course of carrying out the break and enter and theft depended on the jury’s assessment of the knowledge of the appellants as to what would happen if they were surprised or encountered another person while carrying out the original crime. By way of example, there was evidence that a short time before the murder, Mr. Figueroa spoke to a Mr. Rodrigues about breaking into a home and tying up a Chinese woman. A jury might conclude from this that unlawful confinement was part of the plan, and infer knowledge that unlawful confinement would probably be committed in the course of the break and enter.
[77] I do not accept the argument of Mr. Loayza-Penaloza that the jury would necessarily have rejected principal and aider liability before getting to common purpose liability, and that at that stage there was nothing left upon which common purpose liability could rest. Some jurors might have gone the route of common purpose liability to find that an accused was at least guilty of manslaughter, for example.
(3) Lies to police
[78] Mr. Loayza-Penaloza lied repeatedly to police during three interviews before he was arrested. He submits that since he ultimately admitted culpability for the break and enter, his lies to police had no probative value and that the trial judge should not have permitted them to be used for any purpose. The Crown takes the position that the lies were out of all proportion to the level of culpability admitted, and therefore relevant to assist in determination of whether Mr. Loayza-Penaloza was a party to manslaughter.
(a) Mr. Loayza-Penaloza’s statements to police
[79] In interviews on October 10 and 26, 2007, Mr. Loayza-Penaloza denied being at the home on the day of the murder. When confronted with his cell phone records after the second interview he gave a different account, and said Mr. Figueroa told him to lie to police. Mr. Loayza-Penaloza testified at trial that he finally began to tell some of the truth to police on December 18, 2007, when he admitted taking Mr. Figueroa to the home and described the events of that day in a way generally consistent with his trial testimony – albeit only 90% of the truth, according to him. He did not tell police that Mr. Figueroa told him he had strangled the deceased and denied that Mr. Figueroa told him how he killed the deceased. Even after admitting participation in the break and enter to the police, he denied knowing that Mr. Figueroa had strangled the deceased, contrary to his evidence at trial.
(b) The jury instruction
[80] The trial judge restricted use of the lies to the determination as to whether Mr. Loayza-Penaloza was a party to manslaughter. He told the jury that they could not use this evidence to determine whether first or second degree murder had been proven.
[81] The trial judge instructed the jury following the model set out in Watt's Manual of Criminal Jury Instructions. He pointed out that people sometimes lie for innocent reasons, such as “panic, embarrassment, fear of being falsely accused or because they have committed a criminal act other than the offence charged.” He told the jury they could consider whether Mr. Loayza-Penaloza lied because he was conscious of having committed a serious criminal offence such as manslaughter. He pointed out Mr. Loayza-Penaloza’s explanation for the lies, such as that he was scared, that he had been peripherally involved in the events leading to the deceased’s death, and that Mr. Figueroa had threatened him. He told the jury they could not use the lies to help them decide that the accused was conscious of having participated in manslaughter unless they rejected any other explanation for the lies.
(c) Analysis
[82] The appellant’s lies to the police were post-offence conduct from which the jury could draw reasonable factual inferences. In R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, Doherty J.A. indicated, at para. 33:
As with any kind of circumstantial evidence, the inferences to be drawn from post-offence conduct will depend on the nature of the conduct, the fact that is sought to be inferred from that conduct, the position of the parties, and the totality of the evidence. Inference drawing is situation-specific and is not amenable to a set of preset rules that categorize certain kinds of post-offence conduct as always relevant to, or never relevant to, a particular fact in issue.
[83] In R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, the accused admitted involvement in a robbery but denied involvement in a killing. Identity of the killer was in issue at the trial. The court confirmed that “as a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act” (para. 27). It held that a “no probative value” instruction was appropriate only in limited circumstances, such as where the accused admits the physical act of the offence but denies a specific level of culpability.
[84] The court also confirmed that a “no probative value” instruction is not required “where the accused has denied any involvement in the facts underlying the charge at issue and has sought to explain his or her actions by reference to some unrelated culpable act.” In such situations, it falls to the jury “to decide whether the evidence of post-offence conduct can be attributed to one culpable act rather than another.”
[85] On this record, the trial judge did not err in leaving open to the jury the possibility of inferring consciousness of having participated in manslaughter from Mr. Loayza-Penaloza’s lies to police, when considered with all of the evidence. Mr. Loayza-Penaloza’s evidence was that he lied to police to cover up his involvement in a break and enter. It was open to the jury to reject that evidence, because Mr. Loayza-Penaloza continued to lie even after admitting participation in the break and enter.
(4) Crown cross-examination and address to the jury
[86] Mr. Figueroa submits that comments by the Crown during cross-examination and during submissions to the jury made his trial unfair, particularly where they invited the jury to conclude that he had tailored his evidence to fit with what had already been heard by the jury at trial.
[87] He points to excerpts of his cross-examination by the Crown:
Q: So you went from the three car garage stairs direct to the kitchen?
A: Yes.
Q: And you arrived at a time that suits your evidence perfectly. And I’m going to suggest something. You arrived just in time for her to scratch you before she goes unconscious, correct?
A: She didn’t scratch me. She tried to hang on me.
Q: Okay. And you arrive just in – just a little late to stop him killing her, correct?
A: Yes.
Q: So you arrive at a perfect time for you.
A: I wouldn’t say was a perfect time for me, it was the worst of my life.
Q: The two of you stole three [computers], correct? Correct?
A: There’s three computers, yes.
Q: How many did you sell? Pick a number.
A: Two.
Q: Two. Where’s the other one?
A: I told them, is in Ecuador.
Q: You sent it to Ecuador?
A: Yes.
Q: Did you send the dead girl’s computer to Ecuador?
A: I don’t know. I just don’t know how to use those things. I took one of them. It was the white one.
Q: Did you dare sell the dead girl’s computer? [Emphases added.]
[88] He also highlights parts of the Crown’s submissions to the jury:
Another way, to get right to the truth zone easy, you take Christian’s implausible rescuer story – no, no, not implausible, his ridiculous rescuer story, and you just change it a hair.
How are you going to save somebody without even touching them? And you say, how could a guy be so stupid in his evidence? Because to lie you’ve got to remember the truth, the lie and the difference.
He’s inventing an arrival within seconds. And that’s what happens when you start messing with the truth. The truth bites you because people like you can see that that is just too convenient, too coincidental, too much of a chance, and along with the rescuer story, is absolutely unbelievable.
And here’s what I urge you to do, when you’re looking at evidence, look at the whole package because this belongs in with the rescuer story, the timing. It’s not, not just what he doesn’t do, it’s when he gets there. And both are fakes. Both are big outrageous lies, and they are an insult to the actual truth of what happened, namely, that he was hands-on involved in the murder of Jocelyn.
And now you have a clear picture of two men guilty of first degree murder beyond a reasonable doubt. Like drowning men, they have reached out that last remaining life jacket to take it for themselves. Each one wants that life jacket. Neither one deserves it. [Emphases added.]
(a) Relevant legal principles
[89] Hourigan J.A. recently summarized the jurisprudence governing assessment of Crown cross-examination which is close to the line in R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at paras. 22-25. He explained that in considering whether the manner of cross-examination resulted in a miscarriage of justice, “the appellate court must draw the line between conduct that is merely improper and conduct that compromises trial fairness. Only the latter will justify ordering a new trial.”
[90] He acknowledged that this line is not easily drawn, particularly in cases that turn on the credibility of Crown and defence witnesses, and noted that “respect for the administration of justice is not enhanced where the courts appear to condone improper conduct.” On the other hand, effective cross-examination of an accused serves the truth-finding function, and Crown counsel is entitled – and sometimes expected – to conduct a vigorous cross-examination of an accused.
[91] Justice Hourigan cited Doherty J.A.’s description, in R. v. R. (A.J.) (1994), 1994 CanLII 3447 (ON CA), 20 O.R. (3d) 405 (C.A.), at p. 412, of the role of an appellate court in addressing this issue:
There are, however, well-established limits on cross- examination. Some apply to all witnesses, others only to the accused. Isolated transgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross-examination of an accused are, however, a very different matter. As the improprieties mount, the cross-examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross-examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene. [Citations omitted.]
[92] The court also observed that the failure of defence counsel to object at trial to the impugned cross-examination is a relevant consideration, but the lack of an objection does not immunize the cross-examination from appellate scrutiny.
[93] Finally, the court concluded:
[I]mproper cross-examination does not necessarily lead to appellate intervention. In determining whether the cross-examination at issue resulted in a miscarriage of justice, the appellate court must look at the overall effect of the improper questions in the context of the full cross-examination and the entire trial. [Citations omitted.]
[94] These principles apply with equal force to closing submissions by the Crown.
(b) Analysis
[95] I begin by noting that there is nothing wrong with the Crown suggesting to an accused witness that he is lying. Nor is there anything wrong with assertive cross-examination that forcefully challenges the accused’s version of events or suggests it is improbable or invented. It is wrong, however, to turn the exercise of the accused’s constitutional right to disclosure or to be present at his trial into an incriminatory trap (see R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170).
[96] Of the excerpts referred to us, I see nothing particularly improper about the cross-examination or submissions, except for one. While they are examples of forceful advocacy, vigorous challenge was to be expected given that one or both of the accused had to be lying. However, the last example crossed the line because it suggested that because the accused were present at their trial, they must have tailored their evidence.
[97] However, I am not persuaded that in the overall context of the trial as a whole that it made the trial unfair. The comment contained a peripheral reference to Mr. Figueroa. No objection was made by defence counsel. The trial judge did not intervene, and was in a position to assess the impact of the comment on the fairness of the trial. Each appellant also vigorously accused the other of lying. The comments by the Crown would have had little impact in these circumstances.
(5) Included offences and other arguments
[98] Mr. Loayza-Penaloza does not pursue the other arguments advanced in his factum, such as the argument that the trial judge erred in failing to leave break and enter to the jury as a lesser included offence in murder. He also concedes that his argument about an error in the jury charge on manslaughter need not be addressed if he is unsuccessful in his other grounds relating to party liability, as he has been.
F. disposition
[99] For these reasons, the appeals are dismissed.
Released: August 29, 2016 “SEP”
“G. Pardu J.A.”
“I agree S.E. Pepall J.A.”
“I agree M. Tulloch J.A.”
[^1]: Unlike R. v. Edwards, evidence tending to establish guilt of one of the appellants in R. v. Waite did not tend to exonerate the other.