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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..
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. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Devitt, 2016 ONCA 871
DATE: 20161118
DOCKET: C61419
MacPherson, Blair and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Gary Donald Devitt
Appellant
Robert J. McGowan, for the appellant
Chris Chorney, for the respondent
Heard: November 15, 2016
On appeal from a conviction entered on January 23, 2014 and the sentence imposed on February 26, 2015 by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting without a jury.
By the Court:
[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of two counts of sexual assault causing bodily harm and single counts of breach of a recognizance and counselling murder, an offence that was not committed. He appeals his conviction of counselling murder only.
[2] The trial judge considered a sentence of nine years was fit for the conviction of counselling murder. After taking into account the time spent in pre-disposition custody, which the trial judge calculated at four years, he imposed a sentence of five years for the counselling murder conviction. The appellant seeks leave to appeal that sentence. He does not take issue with the sentence imposed in respect of the other convictions – three years – or the decision that those sentences be served consecutively to the sentence for counselling murder.
The Appeal from Conviction
[3] The essence of the case against the appellant on the count of counselling murder is that he approached a fellow inmate, whom he invited into the yard at Brockville Jail, and solicited him, on a promise of payment of money, to kill the complainant in the sexual assault counts, the same person with whom the appellant had communicated in breach of his recognizance, so that she could not testify against him. The parties did not conclude an agreement about how the killing was to be carried out at this time.
[4] The putative killer, a career criminal who had spent the better part of three decades in jail, testified about the appellant’s plan. The complainant was to die of a drug overdose while the appellant was still in jail. An overdose would look accidental. The killer was to be paid $50,000 when the charges against the appellant were withdrawn. The money would be obtained by the appellant on release by remortgaging his home.
[5] The putative killer said he would think about it. His thoughts soon crystallized. He contacted jail authorities, then the police. He offered himself as a police agent. He sought some concessions, but received none. On two separate occasions, about a month apart, he and the appellant had discussions about the plan. The discussions were recorded. On the second occasion, the appellant drew a map of the complainant’s residence and pointed out the best time and place to enter. The appellant insisted that he did not want the complainant’s death “to come back” on him.
[6] The appellant, who did not testify at trial, advances two grounds of appeal against conviction. He says that the trial judge erred:
i. in finding that the appellant “proactively” engaged in the conversation about killing the complainant in the Brockville Jail yard and further erred in relying on mere discussions in the recorded conversations as corroboration of the discussion in the yard; and
ii. in misapprehending and erroneously relying upon the evidence of the later discussions as confirmatory of the evidence of the unsavoury prosecution witness, the putative killer.
[7] We would not give effect to either ground of appeal.
[8] Counselling by procuring or inciting another to commit an offence does not require that the inciter originate or initiate the transaction. Counselling the commission of an offence that is not committed is an inchoate or preliminary crime complete when the solicitation occurs even if the person incited rejects the solicitation or merely feigns assent: R. v. Root, 2008 ONCA 869, at paras. 85-86. Proactivity of the counsellor is not an essential element of the offence.
[9] In this case, the trial judge’s findings with respect to the unrecorded discussion in the yard at the Brockville Jail established the essential elements of the counselling offence. These findings were open to the trial judge to make on the evidence of the principal witness for the Crown. The trial judge was fully cognizant of the need for caution in approaching and relying upon this evidence. It was his call to make.
[10] Further, we are not persuaded that the trial judge misapprehended or erred in considering as confirmatory of the evidence of the putative killer portions of the conversations surreptitiously recorded later in the Brockville Jail. It is worthy of reminder that neither a Vetrovec self-instruction nor confirmatory evidence are conditions precedent to reliance on the evidence of a tainted witness: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 24; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37.
[11] The appellant emphasizes the lack of “proactive” discussion during the intercepted conversations and points to the failure of the appellant to do any of the several things necessary to implement the plan. Failure to provide a surety to assist the putative killer in obtaining bail. Recruiting others to assist. Getting drugs or money for their purchase to kill the complainant. Mortgaging his house to pay the putative killer for the job. All these things, the appellant says, show that the whole scheme was the work of the putative killer who entrapped the appellant for his own purposes.
[12] The submission fails in large measure because the trial judge found, as he was entitled to do, that the offence was complete when the appellant and putative killer met, at the appellant’s invitation, in the yard at the Brockville Jail. The preliminary or inchoate crime of counselling is not unravelled because some of the details remain to be worked out. Entrapment involves official instigation of crime, not conduct after the offence is complete.
[13] The appeal from conviction is dismissed.
The Appeal from Sentence
[14] The appellant also seeks leave to appeal the sentence imposed on the conviction of counselling, a sentence of imprisonment of nine years reduced to five years as a result of credit awarded for pre-disposition custody.
[15] The appellant says that the sentence imposed is too long and thus unfit. It fails to take into account the appellant’s “lack of engagement” and thus is disproportionate to his moral blameworthiness. A more apt range of sentence, consonant with the principle of proportionality, would be a term of imprisonment of one to three years.
[16] The appellant is a mature recidivist. He is now 61 years of age. His prior convictions, separated by more than a decade from these offences, included offences of significant violence that attracted a sentence for a then first-offender of six years in the penitentiary. In an assessment completed for prospective dangerous offender proceedings, the appellant was described as a low to moderate risk to reoffend. On the other hand, as the examining psychiatrist pointed out, the offences of which the appellant stands convicted did occur and included offences of serious violence.
[17] The precedents reveal a substantial range of sentence for an offence – counselling to commit murder – that is not of commonplace occurrence. The disparity among the precedents and the breadth of the sentencing range is scarcely remarkable for an offence that attracts no minimum punishment and a maximum punishment of imprisonment for life.
[18] A significant aggravating factor in this case, as the trial judge pointed out, is that the person whose death was counselled was the complainant, for all practical purposes the case for the Crown, in the offences with which the appellant was charged. As the complainant and a witness for the Crown, she was a justice system participant, a person deserving of the law’s protection. In these circumstances, the trial judge was right to emphasize denunciation and deterrence in his sentencing decision.
[19] The sentence imposed on the conviction of counselling murder is substantial. This is as it should be. We cannot say, however, that the sentence offends the cardinal principle of proportionality or is in any other way unfit.
[20] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.
Released: November 18, 2016 (JCM)
“J.C. MacPherson J.A.”
“R.A. Blair J.A.”
“David Watt J.A.”