Court of Appeal for Ontario

Date: October 15, 2019

Docket: C61319 and C62272

Justices: Brown, Roberts and Zarnett JJ.A.

Between

Her Majesty the Queen

Respondent

and

Fadi Saleh

Appellant

Counsel:

Marie Henein and Kenneth Grad, for the appellant

Michael Bernstein, for the respondent

Heard: April 23 and 24, 2019

On appeal from the conviction entered on November 14, 2015 by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I. A. OVERVIEW

[1] The appellant, Fadi Saleh, was found guilty by a jury of the first degree murder of Hussein El-Hajj Hassan following a seven-week trial. It was his second trial on the first degree murder charge; in 2013 this court overturned Saleh's prior conviction for first degree murder: R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431 ("Saleh 2013").

[2] Hassan sold cocaine for a living in Ottawa and Eastern Ontario. Two of his suppliers were Rafei Ebrekdjian, who lived in Toronto, and Saleh, who lived in the Capital Region. Saleh acted as a middleman between Hassan and Ebrekdjian.

[3] The Crown's theory was that at some point in 2004, Hassan decided to cut Saleh out of the sales chain by going directly to Ebrekdjian to purchase drugs, in retaliation for which Saleh orchestrated Hassan's murder in August 2004.

[4] Central to the Crown's case was the evidence of Mark Yegin, who testified that he witnessed Saleh and Shant Esrabian shoot Hassan in a secluded, rural area west of Ottawa. In Saleh 2013, Watt J.A. commented on "the manifest unreliability of Yegin" who "was charged with the same murder" and "had a substantial motive to assign blame to others": at para. 91.

[5] Saleh's grounds of appeal all concern the trial judge's charge: the paths to liability for first degree murder that she left with the jury; the legal adequacy of her cautions pursuant to Vetrovec v. The Queen, [1982] 1 S.C.R. 811; and her failure to instruct the jury on the use they could make of a jail-cell conversation between Saleh and Ebrekdjian.

[6] For the reasons that follow, I would allow the appeal, set aside the conviction, and direct a new trial on the charge of first degree murder.

B. THE EVENTS LEADING UP TO SALEH'S RE-TRIAL

Hassan's disappearance and the police investigation

[7] On August 19, 2004, Hassan travelled from Ottawa to Toronto to meet Ebrekdjian to purchase cocaine. Upon his return to Ottawa, Hassan told his business partner, Johnny Geagea, that he had advanced $170,000 directly to Ebrekdjian and would receive the drugs on August 21. Hassan also told his wife, Soumia Labrouki, that he had advanced a total of $570,000 to Ebrekdjian but had yet to receive any cocaine.

[8] Hassan went missing on Friday, August 20, 2004. He had told his wife, Geagea, and others that he was going to Cornwall from Ottawa that evening with Mark Yegin to meet up with Paul Porter, a Hell's Angels member, and Paul Nassif, another individual who worked in the Cornwall cocaine business, to discuss distribution problems Hassan was encountering in Cornwall. Hassan told Geagea that Yegin had set up the meeting. The plan for the night of August 20 was for Hassan and Yegin to pick up Porter, who lived just west of Ottawa, and then go to meet Nassif.

[9] Hassan's cousins, Abbas Hage-Hassan and Habib, were also planning to make the trip; Abbas and Habib were to travel in one car and Hassan and Yegin in another. They would all meet up at Nassif's house.

[10] Hassan and Abbas left the house of a mutual friend, Marwan Sablani, in separate cars at around 7:30 p.m. Hassan told Abbas that he would pick up Yegin, who lived in an apartment used by Hassan as a stash house, and then drive to Cornwall. While on the road, Hassan called his wife just before 8 p.m. and Nassif at 8:11 p.m. He told Nassif that he was going to be a little late.

[11] Abbas and Habib arrived at Nassif's house around 8:45 p.m., but Hassan never showed up. Abbas and Nassif tried to reach Hassan by phone. Eventually, Sablani reached Yegin, who said that he did not know where Hassan was and that the meeting had been cancelled.

[12] Labrouki reported her husband missing on August 22, 2004.

[13] A few days later, Labrouki and Abbas met with Saleh and Ebrekdjian. When they asked Ebrekdjian what had happened to Hassan and the $570,000 Hassan had given him, Ebrekdjian responded that Hassan had sent someone to pick up the drugs from him in Toronto on August 21 and Hassan actually owed Ebrekdjian an additional $80,000. While Saleh offered to help find Hassan, he said that Hassan was not a good man and "doesn't respect the rules of … selling drugs." Saleh also asked Hassan's wife not to mention his name to the police.

[14] Yegin provided a videotaped statement to the police on September 14, 2004. He told them that he had not gone to Cornwall with Hassan on August 20. Instead, he went to Saleh's house and then to the casino in Gatineau.

[15] The police installed wiretaps targeting Yegin, Ebrekdjian, Saleh, and Esrabian, who had a business relationship with Saleh in narcotics trafficking.

[16] In May 2005, Saleh gave a statement to the police. He confirmed that he had been good friends with Hassan, but denied ever having had a business relationship with him. Saleh said that on the night of August 20, 2004, he had been at a casino in Gatineau with Yegin, Esrabian, and someone named George Santos, and that he had no idea what had happened to Hassan.

[17] On June 27, 2005, Yegin, Esrabian, Ebrekdjian, and Saleh were arrested for the murder of Hassan.

[18] Yegin accepted a police offer of "use immunity" and provided a sworn videotaped statement. In it he said that: Saleh had killed Hassan on August 20 by shooting him in the head; Saleh was the sole shooter; and Saleh had used two different guns.

[19] On June 28, 2005, Yegin led the police to Hassan's body, which was buried in a wooded area off Highway 417, west of Ottawa. Yegin was released, as was Ebrekdjian, who was not charged.

[20] The next day the police conducted a search of the vicinity where Hassan was buried and found three .45 calibre shell casings.

[21] In the face of this evidence, Yegin changed his story, now claiming that Esrabian had shot Hassan twice, following which Saleh fired one bullet into Hassan's head. Following this statement, the police re-arrested Yegin and charged him with first degree murder.

The earlier trials

[22] Yegin, Saleh, and Esrabian were all committed to trial.

[23] Esrabian's trial was held in 2008. Yegin refused to testify at that trial despite having testified at Esrabian's preliminary inquiry. Yegin was cited for contempt of court and sentenced to three years' incarceration, reduced by credit for pre-sentence custody. Esrabian was convicted of first degree murder by a jury; his appeal from conviction was dismissed: R. v. Esrabian, 2013 ONCA 761, 308 C.C.C. (3d) 362, leave to appeal refused, [2014] S.C.C.A. No. 293.

[24] Yegin's jury trial for first degree murder was held in late 2008. He was acquitted.

[25] At Saleh's first trial in early 2010, Yegin refused to testify, was again held in contempt of court, and sentenced to four additional years in jail. The Crown relied on the evidence that Yegin had provided at Saleh's preliminary inquiry. Saleh was convicted.

[26] This court overturned Saleh's conviction and ordered a new trial, in part because the trial judge did not instruct himself properly on permitting Yegin's preliminary hearing testimony to be introduced into evidence.

[27] Saleh's re-trial was held in late 2015. The jury convicted him of first degree murder.

C. ISSUES ON APPEAL

[28] On this appeal, Saleh's overarching submission is that the trial judge's charge set out unduly complicated routes to liability. Two results follow from the trial judge's approach according to Saleh. First, the charge obscured the real question in the case, which Saleh contends tracked that framed by this court in Esrabian, at para. 26: (i) was the shooting in furtherance of an agreement to kill Hassan? and, if so, (ii) was Saleh part of that agreement?

[29] Second, the trial judge left with the jury two routes to culpability not available on the evidence: (i) Saleh fired one of the shots that killed Hassan; and (ii) liability under s. 231(5)(e) where the predicate offence was the kidnapping of Hassan.

[30] More specifically, Saleh advances five separate grounds of appeal:

(i) The trial judge erred by inviting the jury to speculate that Saleh shot Hassan and thereby caused one of the two fatal wounds in the absence of any evidence to support such a theory;

(ii) The trial judge erred by leaving the theory of party liability for first degree murder with the jury and incorrectly instructed the jury on the issue;

(iii) The trial judge erred by leaving with the jury first degree murder under Criminal Code s. 231(5)(e) based on the predicate offence of kidnapping Hassan;

(iv) The trial judge erred in her Vetrovec instruction by (a) allowing the jury to consider hearsay evidence as potentially confirmatory of Ebrekdjian's account of events, and (b) failing to instruct the jury that confirmatory evidence had to be material to Saleh's participation in the killing; and

(v) The trial judge erred by failing to instruct the jury that no adverse inference could be taken from Saleh explaining to Ebrekdjian during a jail-cell conversation that he did not have to speak to the police.

II

[31] As the first three grounds of appeal concern the trial judge's instructions on alternative routes to liability for first degree murder, I will address these grounds together. It is first necessary to review some of the evidence in more detail.

A. THE EVIDENCE AT SALEH'S RE-TRIAL

[32] At Saleh's re-trial, the jury heard evidence from Yegin, Geagea, and Ebrekdjian. Esrabian did not testify. Saleh did not testify in his defence.

Yegin

[33] In August 2015, prior to the trial, Yegin had been admitted into the witness protection program upon his agreement to testify at Saleh's re-trial. In order to remain in the program, he was required to give evidence at the trial. Yegin was the only witness who gave direct evidence about the killing.

[34] Yegin testified that he had no idea that Hassan was going to be killed on August 20, 2004. His understanding of the plan for that evening was that Hassan would meet with Porter to straighten out problems with rival drug dealers in Cornwall. The meeting was Saleh's idea. Yegin spoke to Hassan to see if he was interested in the meeting. Hassan was.

[35] According to Yegin, earlier on August 20 he was at Saleh's residence in Gatineau hanging out with Esrabian and Saleh. Yegin then left and went back to his apartment, where Hassan joined him at around 8 p.m. Hassan and Yegin then left for Porter's residence, which was located west of Ottawa, in a Jeep that Yegin had borrowed from Esrabian. Yegin was the driver.

[36] Hassan and Yegin drove west on Highway 417. After passing the Bayshore area, they saw Saleh drive by using Yegin's car. According to Yegin, Saleh made a hand motion directing Yegin to follow his car. Hassan expressed surprise at seeing Saleh. Yegin testified that he thought Hassan knew Saleh would be coming to the meeting with Porter.

[37] The two cars exited the highway at Panmure Road and eventually drove to the end of a street. According to Yegin, when he arrived at the dead end, Saleh's car was facing towards Yegin's approaching Jeep, with its headlights on. Saleh was out of the car walking on the road. Yegin parked the Jeep about 30 feet from Saleh's car. Saleh walked over to the Jeep. Yegin rolled down the window. Saleh came to the window and told Hassan that he wanted to talk to him.

[38] Hassan got out of the Jeep. He and Saleh began to argue in Arabic. Yegin remained in the Jeep.

[39] While still seated in the Jeep, Yegin looked to his left, turned around, and saw Esrabian. Yegin had not seen Esrabian leave the other car.

[40] During his testimony, Yegin drew a sketch of his recollection of who stood where at the time of the shooting. It was marked as Exhibit 25 and is attached as Appendix A to these reasons. On his sketch, Yegin used an "O" to place Esrabian to the left of the Jeep, and an "X" to indicate where Saleh and Hassan were standing, having a heated discussion.

[41] Yegin testified that Esrabian then shot Hassan. At that time, Esrabian was about 10 feet away from Yegin and a similar distance from Hassan: "Very close. Like 10 feet."

[42] Hassan did not go down on the first shot. According to Yegin, Hassan's body jerked back, there was a second shot, and Hassan fell to the ground.

[43] Yegin testified that there was then a third shot, with Saleh shooting Hassan at close range in the head. Yegin saw Saleh take out his gun and shoot Hassan in the head: "[Hassan] was on the ground and I remember a gun pointed right at his head. I remember the blast, I remember seein' blood splattered on his head."

[44] During cross-examination, it was put to Yegin that at Saleh's preliminary inquiry Yegin had agreed with the question that he witnessed the bullet go into Hassan's head. The following exchange ensued at trial:

Q. All right. So you witnessed the bullet go into the head?

A. Sir, it's not like the movies where you see a-a-a.... When I saw – said that, I seen him shoot the gun. I seen blood splatter over his head. So my limited knowledge of that, he was shot in the head. Did I actually see the bullet go right into his skull, like fragments and everything? No. But I say that, 'cause he got.... He was shot at his head, and I just seen blood splatter all over. Okay? So I understand your point. Did I see the bullet go in the head? I did not see it, but I-I knew that the bullet went to his head, because there's blood splatter.

[45] When confronted with the pathologist's evidence that there was no wound to Hassan's head, Yegin remained steadfast that he had seen a shot to Hassan's head: "I can't argue with the path-pathologist. I know what I saw. I know there was a shot to the head, and there was blood splatter. I remember it like yesterday."

[46] When asked how many shots he heard fired, Yegin stated: "I wanna say three, but it could be more"; "There coulda been another shot."

[47] Yegin testified that Esrabian had used a .45 Taurus handgun to shoot Hassan. Yegin did not see which gun Saleh used, but that he remembered seeing the Taurus and a black revolver at Saleh's house after the killing.

[48] Yegin stated that after the shooting, Saleh came toward him and said "it had to be done." Saleh asked Yegin to help carry Hassan into the woods and dig a hole to bury the body. According to Yegin, by this time it was "kinda dark – like dusk".

[49] Yegin began to dig a grave with a shovel but testified that he "got too freaked out" and started to walk away. Saleh told him to meet up at his house. Yegin then left. At that point in time, Hassan had not been buried.

[50] On his way back to Saleh's house in Esrabian's Jeep, Yegin stopped at a gas station, disabled Hassan's cell phone and later disposed of it.

[51] According to Yegin, by the time he arrived back at Saleh's house, Saleh and Esrabian were already there. Another individual, Akram Sleiman, showed up with a knapsack filled with a large amount of money.

[52] Yegin testified that Saleh told everyone to change their clothes, which eventually were discarded. They then drove to Yegin's apartment, where Hassan had left his car. Yegin drove that car to another location in Ottawa. Yegin, Esrabian, and Saleh then went to the Gatineau casino to establish an alibi.

[53] According to Yegin, Saleh later told him that the motive for the killing was that Hassan had tried to purchase drugs directly from Ebrekdjian.

Geagea

[54] Geagea testified that as of the summer of 2004, he and Hassan were using Saleh for most of their drug purchases. Saleh, in turn, was sourcing his supply from Ebrekdjian.

[55] Several months before Hassan's disappearance, Geagea and Hassan went to Toronto to purchase drugs directly from Ebrekdjian. Geagea testified that Hassan later told him that Saleh found out they had gone directly to Ebrekdjian, prompting an argument.

[56] Geagea and Hassan had breakfast together on the morning of August 20, 2004. Hassan told Geagea that he had gone to Toronto to give Ebrekdjian $170,000 for additional cocaine and expected to receive the drugs the next day. Geagea told Hassan that he had heard there was a hit out on him. Geagea was uncertain from whom the threat emanated and acknowledged that Hassan owed money to various individuals.

Ebrekdjian

[57] Ebrekdjian testified that he had been supplying cocaine to Saleh, who in turn was selling to Hassan. According to Ebrekdjian, the money Saleh supplied continually came up short. When Hassan approached Ebrekdjian to purchase cocaine directly from him, Ebrekdjian told Saleh about it as a courtesy. The news upset Saleh.

[58] On August 19, 2004, Hassan dropped off $170,000 with Ebrekdjian in Toronto for the purchase of cocaine. When Ebrekdjian later counted the money, it was short. Ebrekdjian phoned Hassan, who said he would make up the shortfall later. Ebrekdjian then phoned Saleh and told him to take the money and return it to Hassan. Ebrekdjian testified that Saleh sent Sleiman to collect the money, which he did in the early morning of August 20. Ebrekdjian testified that he had no idea Hassan had been killed. Saleh had told him Hassan had gone to Lebanon.

The pathology evidence

[59] An autopsy was performed on Hassan's body on June 29, 2005. By the time of the trial the attending pathologist had retired, so Dr. Christopher Milroy, a forensic pathologist, provided evidence about the autopsy result based on his review of the file.

[60] Dr. Milroy testified that the autopsy disclosed "an apparent close-range gunshot to the upper anterior left chest," between the third and fourth ribs, which struck the pulmonary artery. He opined that he would expect a person suffering such a wound to collapse immediately. The bullet was still lodged in Hassan's body; it was extracted and sent for ballistics analysis.

[61] There was some blackening or soot staining in the chest wound. Soot staining is only observed when a bullet has been fired at close range. That led Dr. Milroy to conclude that it was a shot "from a close distance," "within inches."

[62] The autopsy revealed a second bullet wound to the right-upper abdomen, with the bullet going into the proximal abdominal aorta and likely exiting the body at the left flank. Dr. Milroy was "a bit more cautious about saying – about whether this one was close. It could well have been." In his view, the absence of blackening and soot staining for this wound indicated that the shot was not fired from within a few inches but was what pathologically is termed "distant or indeterminate." In reality, however, it could be something like two feet away.

[63] According to Dr. Milroy, both wounds were fatal; either would have caused death within minutes. Dr. Milroy could not tell which shot was fired first. They may have been fired in rapid succession.

[64] Hassan's skull was recovered intact. Fractures were observed, but Dr. Milroy opined that they were caused by significant blunt trauma applied after death. Dr. Milroy testified that there was no evidence of a bullet injury to Hassan's head, in terms of penetrating the skull. Notwithstanding the significant skull fractures, Dr. Milroy opined: "we can exclude either of those scenarios of a bullet having entered or crossed the head."

[65] As revealed by the following exchange, Crown counsel asked Dr. Milroy whether it was possible that a shot had been aimed at Hassan's head but failed to penetrate or perforate the skull, instead making contact with the side of the skin:

Q. From the information you have available to you that you've reviewed, what if anything can you say about the possibility of a shot being aimed towards the head, not penetrating or perforating the skull, but making contact with the side of the skin as it were?

A. Yes. So obviously a shot at the head may miss closely and then it can do any degree of damage to the skin, from just grazing the surface to actually lacerating the skin to actually lacerating the skin and just grazing the skull itself.

If it had lacerated the skin and grazed the skull, or just lacerated the skin, we would have expected to have seen some evidence for that. But a very superficial graze of the skin would be lost with the post-mortem changes. So what I would say is whilst it cannot be excluded, it also has to be fairly stated there is no evidence from the pathology point of view to support that.

[66] On cross-examination, Dr. Milroy repeated that from a pathology point of view, there was no evidence of a grazing shot to Hassan's head.

Ballistics evidence

[67] Another expert, Grant Veitch, provided an opinion about the bullet recovered from Hassan's body, three .45 calibre shell casings found at the crime scene, and a .45 calibre Heckler and Koch Model USP Tactical semi-automatic pistol found during a search of Ebrekdjian's home. Veitch concluded that:

(i) the bullet recovered from Hassan was a .45 calibre;

(ii) all three expended shell casings found at the scene were fired from the same gun;

(iii) the bullet recovered from Hassan could have come from the same or similar calibre and type of firearm as the shell casings; and

(iv) the expended shell casings and the recovered bullet were probably fired from a .45 calibre handgun, such as an Eagle Gun Apache Mark 2 Carbine or a Taurus Millennium .45 calibre, or similar model.

Cell phone evidence

[68] Finally, cell phone and tower records were adduced into evidence. They revealed that the cell phones of Hassan, Yegin, and Esrabian were all present near the scene of the crime on the evening of August 20. At the time, Saleh's cell phone was either out of battery, turned off, or out of range. A fourth phone, registered in the name of "Frank Machevelli," moved alongside the other phones throughout the evening of August 20 and may have belonged to Saleh. The Crown nevertheless argued that Yegin possessed this phone on the night of the killing. Yegin testified that it was "very common" for them to pass phones around.

B. FIRST GROUND OF APPEAL: LEAVING WITH THE JURY THE THEORY THAT SALEH CAUSED ONE OF THE FATAL WOUNDS

(i) HOW THE ISSUE AROSE AT THE RE-TRIAL

[69] In his opening, Crown counsel anticipated that the jury would be left with three routes by which Saleh could be found guilty of first degree murder: (i) he was present at the scene of the shooting, but was not necessarily the shooter; (ii) he was not present at the scene of the killing but was part of a plan to kill Hassan; or (iii) while not part of a plan to kill Hassan, Saleh was part of a scheme to lure Hassan to a remote location – kidnapping by fraud – knowing that Hassan's murder was a probable consequence of what would transpire.

[70] During the pre-charge conference, the trial judge asked Crown counsel to describe their theory about the cause of Hassan's death. The Crown identified a shot fired by Esrabian as the cause of Hassan's death and described Saleh as part of the plan to murder Hassan. The Crown alternatively characterized Saleh's conduct as giving rise to culpability for first degree murder either as an aider and abetter or a joint principal, even if Saleh was not the shooter or was not at the scene.

[71] In the early stages of the pre-charge conference, Crown counsel stated that "there is no evidence upon which we would urge the jury to find that [Saleh] physically or factually caused the death of … Hassan." Later in the conference, Crown counsel stated that Dr. Milroy's evidence did not completely foreclose the possibility of a grazing shot to the head, although the shot would not cause anything more than the marring of a fatally injured man. Yet, later, the Crown submitted that a possible scenario on the evidence was that Esrabian came up, as Yegin described, shot once, then shot twice more but missed, Saleh stood over Hassan, pulled the trigger, and the bullet went through Hassan's torso.

[72] The trial judge regarded that as "a perfectly legitimate scenario based on Mr. Yegin's evidence." In response to defence counsel's submission that there was no evidentiary anchor for the suggestion that Saleh shot Hassan in the chest, the trial judge stated:

[Y]ou keep coming back to that, and yet we have evidence from Dr. Milroy that the shot to the chest was a close-range shot. We have evidence from Yegin that the last shot was a close-range shot. The one and only shot fired by Mr. Saleh was a close-range shot. We only have one close-range shot. We have evidence from Yegin that the last shot, the shot that he says Mr. Saleh fired, was a close-range shot. He says it was to the head, but he could have been mistaken.

[73] Defence counsel contended that there was no way the jury could find that Saleh fired any fatal shot. Although Yegin was unwavering in his testimony that Saleh shot Hassan in the head, the pathologist testified that there was no bullet wound to the head. Accordingly, there was no evidentiary foundation for the jury to conclude that Yegin was mistaken on the placement of Saleh's shot. That would be "an unreasonable irrational position to take."

[74] In closing submissions to the jury, the Crown canvassed several modes of participation by Saleh. Crown counsel spent most of his closing advancing a theory of liability based on Saleh's presence at the scene of the killing, not firing a fatal shot, but operating as "the hub of the wheel, … the main orchestrator of the whole thing," the "boss," with Yegin and Esrabian acting as his subordinates. According to the Crown, Saleh orchestrated the plan to lure Hassan to a remote location near Panmure Road where the murder could be carried out undetected. When Yegin brought Hassan to the remote site, Saleh was there. Esrabian shot Hassan, as did Saleh. Although Saleh's shot to Hassan's head as described by Yegin did not cause his death, it was open to the jury to find that Saleh was responsible for one of the shots to Hassan's torso that did kill him. Saleh directed the cover-up of Hassan's murder. All that demonstrated a planned and deliberate murder, which made Saleh guilty of first-degree murder.

[75] The Crown also briefly canvassed with the jury a path to liability under which Saleh fired one of the fatal shots:

One path to Mr. Saleh being found guilty of first-degree murder is that he was a principal or party in the planned and deliberate murder of the victim. You'll be asked to examine whether he caused the death, whether the death was caused unlawfully, whether it was intentional, and whether it was planned and deliberate. You may find that Mr. Yegin is mixed up about the sequence of the shots or who's responsible for the particular shots, and in that regard, you may look at the evidence of Dr. Milroy who talks about distances between the – the – I guess the muzzle of the gun when it's discharged and the injuries observed to the victim, and it may be that you will come to the conclusion that Mr. Saleh is responsible for one of the shots to the torso.

[76] Finally, the Crown also offered the jury an alternative path to finding Saleh guilty of first-degree murder, submitting that the luring or tricking of Hassan under false pretences to go to the remote site constituted a kidnapping. Since Saleh knew "that the killing was a probable outcome of what happened that night, where it happens during the kidnapping, that too is a first-degree murder."

[77] In his closing, defence counsel took the position that Saleh did not plan or participate in the killing of Hassan: Saleh was not present when Hassan was killed; nor did he participate in any planning of Hassan's death. The only witness whom the Crown called who could place Saleh at the scene of the killing was Yegin, an admitted liar for whom the truth was "not a travelling companion." As the jury could not rely on Yegin, "so goes the Crown's case."

(ii) THE CHARGE

[78] In her charge, the trial judge instructed the jury that there was more than one way for the Crown to prove Saleh's guilt of first degree murder. First, they could convict Saleh of first degree murder if they were satisfied that he had committed a planned and deliberate murder of Hassan either as (i) a principal who shot Hassan and caused one of the two fatal wounds or (ii) as a person who "was otherwise an active participant in [Hassan's] killing" but "not a direct cause of his death". Alternatively, if they were satisfied that Saleh kidnapped Hassan with the intent to confine him against his will, the kidnapping and murder were part of the same series of events, and Saleh was an active participant in the killing of Hassan, liability for first degree murder would also be established.

[79] In the section of the charge dealing with whether Saleh caused Hassan's death, the trial judge noted Dr. Milroy's evidence that there was no shot into Hassan's head and no evidence from a pathology point of view that there was a grazing shot to the head. She reviewed Yegin's evidence about what he saw and heard, as well as the ballistics evidence. She concluded this section of her charge by stating;

If you are satisfied beyond a reasonable doubt that Fadi Saleh shot Hussein El-Hajj Hassan or was otherwise an active participant in his killing, you should find that the Crown has proven this element of the offence of murder. You would go to the next question.

[80] In a subsequent section dealing with whether Saleh had the state of mind required for murder, the trial judge again reviewed the evidence of Dr. Milroy and Yegin, reminding the jury that "the pathology evidence indicated there was no shot to Mr. Hassan's head." She continued: "If you have concluded that Mr. Saleh shot Hussein El-Hajj Hassan and thereby caused one of the two fatal wounds, you should have no difficulty finding beyond a reasonable doubt that he had the state of mind for murder."

(iii) THE PARTIES' POSITIONS ON APPEAL

[81] The crux of Saleh's submission on this ground of appeal is that the evidence could not support the conclusion that Saleh fired one of the fatal shots. First, the evidence of Yegin and the pathologist was "diametrically opposed" or "mutually exclusive." Even if the jury rejected Yegin's evidence that Saleh had shot Hassan in the head, there still needed to be some affirmative evidence that Saleh fired one of the shots to the body in order to leave this scenario with the jury.

[82] Saleh contends that where two versions of a particular event are diametrically opposed, usually there is no "air of reality" to a halfway scenario that arises on neither version. Therefore, the trial judge erred in providing an in-between scenario whereby both the pathologist and Yegin could be believed at the same time, when their evidence was mutually exclusive. Doing so called for the jury to speculate. While it is for the jury to choose among reasonable inferences available from the evidence, the jury cannot be invited to draw speculative inferences that do not flow from the presence or absence of evidence: R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 35; R. v. Pomeroy, 2008 ONCA 521, 91 O.R. (3d) 261, at para. 95. As well, the halfway scenario improperly allowed the Crown to call its own witness a liar and invite the jury to believe the very opposite of what the witness had said: R. v. Walker (1994), 18 O.R. (3d) 184 (C.A.), at pp. 197, 198-99.

[83] Finally, Saleh contends that the trial judge misapprehended the evidence, failing to appreciate that the pathologist and Yegin did not use the term "close range" in the same manner.

[84] The Crown disagrees, submitting that there was an evidentiary basis to support a reasonable inference that one of Hassan's fatal gunshot wounds was caused by a bullet fired by Saleh. The jury was not required to accept all of Yegin's evidence in determining whether there was an evidentiary basis supporting an inference that the appellant shot Hassan. Nor was the evidence of Dr. Milroy and Yegin "mutually exclusive." The trial judge did not invite the jury to speculate, as there was evidence to support a reasonable inference that one of Hassan's fatal gunshot wounds was inflicted by the appellant. The evidence showed that there was only one close range shot, which Esrabian could not have fired if the jury accepted Yegin's evidence that Esrabian fired when he was 10 feet away from Hassan.

(iv) ANALYSIS

[85] Saleh does not argue that allowing the jury to consider the scenario in which he fired one of the fatal shots resulted in procedural unfairness, nor does he take issue with the proposition that a trial judge has a duty to instruct the jury on all routes to liability that arise from the evidence, even if the Crown chooses not to rely on a particular route: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at paras. 19 and 27; R. v. Farrant, [1983] 1 S.C.R. 124, at p. 139.

[86] Instead, the essence of Saleh's argument is that the evidence of Yegin and the testimony of the pathologist are irreconcilable, leaving no air of reality to a "Saleh-as-fatal-shooter" route to culpability as a co-principal who actually committed the offence of murder: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 141, leave to appeal refused, [2011] S.C.C.A. No. 119.

[87] I am not persuaded by this argument. The evidence of the pathologist was that: (i) there were two fatal wounds, one to the upper-left chest that resulted from a shot "from a close distance" as there was some soot staining in the wound, and one to the right-upper abdomen shot from further away as there was no soot staining; and (ii) there was no bullet injury to Hassan's head.

[88] During his testimony, Yegin drew a sketch of his recollection of where Saleh and Esrabian were standing relative to Hassan at the time of the shooting: see Appendix A to these reasons. As the trial judge noted, on that evidence Esrabian was not close enough to fire a shot "from a close distance" – "inches" – that would cause the upper chest wound. Saleh was. On Yegin's evidence, one person – Saleh – was close enough to cause the upper chest wound, while another – Esrabian – was far enough away to cause the wound to the abdomen that lacked any soot stain. Viewed in that way, the evidence of Yegin and the pathologist was not mutually exclusive, and the scenario of Saleh-as-fatal-shooter was supported by some evidence and not speculative.

[89] Saleh contends, however, that such a scenario cannot account for Yegin's evidence that Saleh shot Hassan in the head, not the upper left chest. The evidence the jury heard from Yegin regarding what he saw Saleh do was that: (i) "I remember a gun pointed right at his head"; (ii) "I seen him shoot the gun. I seen blood splatter over his head. So my limited knowledge of that, he was shot in the head"; (iii) "I just seen blood splatter all over"; (iv) "Did I see the bullet go in the head? I did not see it, but I – I knew that the bullet went to his head, because there's blood splatter." In sum, Yegin testified that he saw Saleh point a gun at Hassan's head, shoot it, and while he did not see a bullet go into Hassan's skull, from the blood splatter that he did see Yegin concluded the bullet must have gone into Hassan's head.

[90] Based on her view of the evidence as a whole, the trial judge explained to counsel why she would leave the "Saleh-as-fatal-shooter" scenario for the jury's consideration:

I mean I may see things differently than Counsel do, but I think it is at least possible, based on the evidence, that the jury could accept some of Mr. Yegin's evidence, or find he's mistaken on this whole issue of the shot to the head and so on, and so forth, which we know never happened … That he could be mistaken, and that in fact the second shot to the chest was fired by Mr. Saleh. That's open for them to conclude …

[91] That assessment of the evidence was open to the trial judge. When taken as a whole, the evidence of the pathologist and the ballistics expert, on the one hand, and that of Yegin, on the other, was not diametrically opposed or mutually exclusive. The trial judge did not invite the jury to speculate. An inference that Saleh fired one of the fatal shots was one that could be reasonably and logically drawn from the group of facts established by the evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 530. The trial judge properly left to the jury the task of assessing a mode of participation in which Saleh fired a fatal shot, in light of the jury's assessment of the credibility of Yegin's narrative of events.

[92] Accordingly, I would reject this ground of appeal.

C. SECOND GROUND OF APPEAL: INSTRUCTIONS ON AIDING AND ABETTING

(i) THE ISSUES STATED

[93] At the pre-charge conference, the Crown submitted that if the jury concluded that Saleh was not the shooter, or had a reasonable doubt whether he was, then it remained open to find him guilty of first degree murder as an aider or abettor on the basis that the killing was his plan, which he facilitated through the fraud of luring Hassan out of Ottawa and providing a gun to Esrabian. The defence objected to leaving liability under Criminal Code ss. 21(1)(b) or (c) because "this fact pattern in my respectful submission really lends itself to the co-principals instruction, the legal causation component."

[94] In his factum, Saleh repeats his argument that it was an error to leave party liability under ss. 21(1) (b) or (c) with the jury. However, at the hearing, Saleh modified his position, acknowledging that party liability as a mode of participation for first degree murder could be left with the jury. The focus of his submission is now on the inadequacy of the trial judge's instructions.

[95] Saleh argues that the trial judge committed two errors in her instructions on secondary liability. First, she did not properly instruct the jury on the fault element for liability for a planned and deliberate murder as an aider or abettor: i.e., that the Crown had to prove that Saleh knew Esrabian intended to commit a planned and deliberate murder and intended to help him commit such a murder. The trial judge's repeated references to whether Saleh "was otherwise an active participant in the killings" did not adequately instruct the jury on the essential elements for planned and deliberate first degree murder as an aider or abettor. Second, the trial judge did not adequately instruct the jury on the essential features of the evidence that could inform its consideration of this path to liability.

[96] I shall consider each argument in turn.

(ii) FIRST ISSUE: DID THE TRIAL JUDGE FAIL TO INSTRUCT PROPERLY ON THE ELEMENTS OF PARTY LIABILITY?

Governing principles on secondary liability under Criminal Code ss. 21(1)(b) and (c)

[97] The trial judge left with the jury multiple paths to liability for first degree murder. As noted by LeBel J. in his concurring reasons in Pickton, "although the ultimate legal liability is the same for a principal or for an aider or abettor, the findings of fact necessary and the specific legal principles which apply to each are different": at para. 73. Accordingly, a trial judge's instructions must ensure that the jurors understand, for each route of liability, the issues of fact that require their decision, as well as the legal principles that govern and the essential features of the evidence that inform that decision: R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at para. 60.

[98] The actus reus and mens rea for aiding or abetting are distinct from those of the principal offence: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13. The act or omission relied upon must in fact aid or abet, and it must also have been done with the particular intention to facilitate or encourage the principal's commission of the offence, with knowledge that the principal intends to commit the crime: Briscoe, at paras. 14, 16-18; Pickton, at para. 76.

[99] To be found liable for first degree murder as an aider or abettor of a planned and deliberate murder, an accused must have knowledge that the murder was planned and deliberate; wilful blindness will satisfy the knowledge component of s. 21(1)(b) or (c): Briscoe, at paras. 17, 21, 25. In Almarales, this court described in more detail the mens rea element for first degree murder, at para. 70:

The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal's intention. An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. [Italics in original; underlining added; citations omitted.]

See also: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at paras. 88-89, leave to appeal refused, [2007] S.C.C.A. No. 258.

[100] In Almarales, this court described the trial judge's duty when instructing a jury about an accused's culpability for first degree murder by way of secondary participation: the jurors need to know the essential elements of murder, the basis upon which murder becomes first degree murder, the constituent elements of aiding and abetting and, most especially, the specific basis upon which the accused's liability as a secondary participant in first degree murder was to be decided: at paras. 76 and 81. Drawing a clear distinction between the legal basis for the perpetrator's liability and the basis of liability of the helper is important because the facts which the Crown must prove beyond a reasonable doubt differ depending upon whether liability flows as a perpetrator or as an aider: R. v. Josipovic, 2019 ONCA 633, at para. 48.

The charge on aiding or abetting

The general instructions

[101] Immediately before the section of her charge containing the instructions on "Homicide," the trial judge included a section on "Modes of Participation." She reminded the jury that where the evidence would permit a finding that Saleh committed first degree murder in more than one way, they did not "all have to agree that guilt has been proven in the same way" to find Saleh guilty of that offence: "As long as everyone agrees that Fadi Saleh committed the offence of first degree murder in one way or another, then [he] must be found guilty of that offence."

[102] The trial judge outlined the general principles regarding aiding and abetting, noting that "[a]iding relates to a specific offence." In dealing with the mental element for aiding, the trial judge instructed:

For intent, Crown counsel must prove that Fadi Saleh intended to help Shant Esrabian to commit the offence, although Crown counsel need not prove that Fadi Saleh desired the successful commission of the offence.

For knowledge, Crown counsel must prove that Fadi Saleh knew that Shant Esrabian intended to commit the offence, although Crown counsel need not prove that Fadi Saleh knew precisely how Shant Esrabian would commit the offence. Alternatively, Crown counsel must prove that Fadi Saleh was wilfully blind to Mr. Esrabian's intentions.

[103] The trial judge's instructions on the elements of abetting mirrored that for aiding. Saleh takes no issue with the accuracy of the general instructions on aiding and abetting.

The charge on "Homicide"

[104] The next part of the charge dealt with "Homicide." The trial judge organized the first section on planned and deliberate first degree murder by asking four questions: (i) Did Saleh cause Hassan's death? (ii) Did Saleh cause Hassan's death unlawfully? (iii) Did Saleh have the state of mind required for murder? and (iv) Was Saleh's murder of Hassan both planned and deliberate?

[105] Causation: In the first section concerning whether Saleh had caused Hassan's death, the trial judge stated:

It is for Crown counsel to prove beyond a reasonable doubt that Fadi Saleh was involved in the events alleged, either as a principal, an aider, or an abettor.

Where a criminal offence is committed by two or more persons, each may play a different part. If they are acting together as part of a joint plan or agreement to commit the offence, each may be found guilty of it. It is not necessary for you to find that Fadi Saleh acted alone for you to find that he caused Hussein El-Hajj's death. You may find that he acted in concert with another person or persons. It is sufficient if you are satisfied beyond a reasonable doubt, having considered all the evidence, that Fadi Saleh actively participated in the killing of Hussein El-Hajj Hassan. It is not sufficient that Fadi Saleh was merely present or took a minor role. [Emphasis added.]

[106] After reviewing the evidence from Yegin, the pathologist, and the ballistics expert, the trial judge instructed: "If you are satisfied beyond a reasonable doubt that Fadi Saleh shot Hussein El-Hajj Hassan or was otherwise an active participant in his killing, you should find that the Crown has proven this element of the offence of murder" (emphasis added).

[107] Unlawfully caused: The trial judge next gave a brief instruction on whether Saleh unlawfully caused Hassan's death. She concluded this section by stating: "If you have concluded beyond a reasonable doubt that Fadi Saleh directly caused Hussein El-Hajj Hassan's death or was otherwise an active participant in his killing, then you should have no difficulty finding that Mr. Saleh caused Mr. Hassan's death unlawfully."

[108] State of mind: The trial judge then turned to the question of whether Saleh had the state of mind required for murder. The trial judge largely instructed on the basis that Saleh was a principal/co-principal to a murder, telling the jury that the Crown was required to prove that Saleh either meant for Hassan to be killed or meant Hassan to be caused bodily harm that Saleh knew was likely to kill Hassan. The trial judge's ensuing review of the evidence was shaped by that legal instruction. However, towards the end of this part of her instructions, the trial judge stated:

If you have concluded that Mr. Saleh shot Hussein El-Hajj Hassan and thereby caused one of the two fatal wounds, you should have no difficulty finding beyond a reasonable doubt that he had the state of mind for murder.

However, if you have concluded that Fadi Saleh was an active participant, either as a principal or as a party in the killing of Hussein El-Hajj Hassan, but not a direct cause of his death, then you must consider whether Fadi Saleh knew what Shant Esrabian intended when he shot Hussein El-Hajj Hassan.

In assessing what Fadi Saleh knew, you may wish to consider the same evidence that you considered with respect to the first question regarding whether Fadi Saleh caused Mr. El-Hajj Hassan's death. You may also wish to consider the evidence of Mark Yegin that Mr. Saleh also had a loaded handgun with him, and shot Mr. El-Hajj Hassan at close range. [Emphasis added.]

[109] Planned and deliberate: The next question concerned whether Saleh's murder of Hassan was both planned and deliberate. Again, the instructions used language that described Saleh's liability in terms of a principal or co-principal. The instructions made no reference to Saleh's intention with respect to Esrabian's conduct or his knowledge regarding Esrabian's conduct or intention. The instructions concluded by the trial judge stating: "If you are satisfied beyond a reasonable doubt that the murder of Hussein El-Hajj Hassan was both planned and deliberate, you must find Fadi Saleh guilty of first degree murder."

[110] The trial judge provided each juror with a copy of her instructions so that they could follow the charge and refer to it during their deliberations.

[111] Decision Tree: As well, the trial judge provided the jury with a decision tree, which is attached as Appendix B to these reasons. The trial judge did not take the jury to the decision tree during her charge on the constituent elements of the offence. Instead, following that part of the charge and her description of the positions of the parties, the trial judge told the jury about the use they could make of the decision tree.

[112] As can be seen from Appendix B, the top half of the decision tree was designed to cover Saleh's liability as a co-principal or party, with the bottom half dealing with his liability on the basis of constructive murder. However, on its face the top half of the decision tree did not distinguish liability as a co-principal from that as a party.

Analysis

[113] Saleh submits that the trial judge fell into legal error by failing to instruct the jury properly on the fault element required to convict him as an aider or abettor for a planned and deliberate murder. He argues that a proper instruction required the trial judge to inform the jury that the Crown needed to prove that Saleh knew of Esrabian's intention to commit a planned and deliberate murder, either with actual knowledge of the plan or wilful blindness to it, and that he intended to help Esrabian to commit a planned and deliberate murder.

[114] Saleh's submission finds support on the face of the language used in the charge. The trial judge's instruction on the state of mind for murder was incomplete. She told the jury to consider "whether Fadi Saleh knew what Shant Esrabian intended when he shot Hussein El-Hajj Hassan" but omitted to instruct them that they also had to consider whether Saleh intended to help Esrabian to commit a murder.

[115] Her instructions on whether the murder was planned and deliberate did not make any reference to the required elements for liability as an aider or abettor: Saleh's knowledge that the principal, Esrabian, intended to commit a planned and deliberate murder and his intention to help Esrabian to commit a planned and deliberate murder.

[116] The Crown submits that, notwithstanding those omissions, the instructions were satisfactory when read as a whole, in light of the record and the decision of the Supreme Court of Canada in Pickton.

The charge as a whole

[117] The Crown first argues that in her section on "Modes of Participation," the trial judge properly instructed the jury on the general principles regarding aiding and abetting. Those instructions, when coupled with her review of the essential features of the relevant evidence, could not have led the jury into improper reasoning.

[118] I am not persuaded by this submission.

[119] While the general instructions in the "Modes of Participation" section of the charge correctly set out the elements for aiding or abetting, the subsequent instructions in the "state of mind" and "planned and deliberate" sections obscured the need to find proof of the elements of aiding or abetting: the act of assistance or encouragement, and the intention to assist or encourage a planned and deliberate first degree murder: R. v. Mendez, 2018 ONCA 354, at para. 9.

[120] While at the end of her instructions on "state of mind" the trial judge did direct the jury to consider whether Saleh knew what Esrabian intended when he shot Hassan, her instructions were deficient in several respects:

(i) they were confusing, in that they did not clearly distinguish liability as a principal from secondary participation: "If you have concluded that Fadi Saleh was an active participant, either as a principal or as a party in the killing of Hussein El-Hajj Hassan…";

(ii) they were incomplete in respect of the elements of party liability, not referring to the additional element of intention to help; and

(iii) this part of the instruction related to murder in general, not first degree murder. Without more, simply telling the jury that they must "consider whether Fadi Saleh knew what Shant Esrabian intended when he shot Hussein El-Hajj Hassan" was an inadequate instruction on Saleh's liability as a party to a first degree murder.

[121] The trial judge's instructions on "planned and deliberate" did not provide the "more," as they lacked any reference to the elements of liability as an aider or abettor. The observation by the Nova Scotia Court of Appeal in R. v. Kelsie, 2017 NSCA 89, 358 C.C.C. (3d) 75, at para. 88, rev'd 2019 SCC 17, 433 D.L.R. (4th) 260, applies equally here:

It is not sufficient for the trial judge to have charged on planning and deliberation as a principal and then, without the jury being told, assume that they would necessarily come to the conclusion that aiding first degree murder required the appellant to have knowledge of planning and deliberation by [the principal].

The use of "active participant"

[122] The Crown contended, in oral submissions, that the trial judge's use of the phrases "active participant in the killing" and "actively participated in the killing" were functionally adequate to instruct the jury on the issue of secondary, party participation. I do not accept this submission for several reasons.

[123] First, the trial judge did not use the term "active participant" in the first draft of the charge circulated to counsel. The term was inserted in a subsequent version after discussions with counsel at the pre-charge conference about the decision of the Supreme Court of Canada in Pickton.

[124] In Pickton, the accused, a pig farmer and butcher, was convicted of second degree murder in the killings of six women. The Crown maintained that Pickton actually shot or killed the women. The defence took the position that the Crown failed to prove that Pickton was the sole perpetrator and suggested the involvement of others, to the exclusion of Pickton.

[125] One issue on the appeal concerned whether the jury instructions on the alternate routes to liability were adequate. The trial judge had not instructed the jury on Pickton's potential liability based on acts of aiding or abetting. However, in instructions on "other suspects" and in an answer to a jury question, the trial judge spoke in terms of whether Pickton shot a victim or was otherwise an active participant or actively participated in her killing.

[126] The majority of the Supreme Court expressed the view that the trial judge "probably should have" instructed the jury on Pickton's potential liability for acts of aiding and abetting: at para. 33. However, in the specific circumstances of the case, the majority was not persuaded that the failure to give an instruction on aiding and abetting amounted to legal error. By requiring proof that Pickton actively participated in the killing of the victims, by acting either on his own or in concert with others, there was no risk that the jury might convict him on the basis of conduct that did not attract criminal liability for the murders: at para. 33. As the majority noted, realistically the case was about whether or not Pickton had actually killed the victims, having a physical role in the killings of the women: at paras. 11, 32. That being the case, the court noted, at para. 32:

Having regard to the nature of the evidence about Mr. Pickton's participation and to the charge as a whole, it is my view that the expressions "acted in concert with others" and "active participant in the killing" compendiously captured the alternative routes to liability that were realistically in issue in this trial.

[127] In concurring reasons, LeBel J. stated that the phrase "or was otherwise an active participant" did not adequately convey the causal requirement between Pickton's acts and the deaths of the victims for principal liability, but instead "impermissibly opened up the possibility of Pickton's having acted as an aider and abettor without any further instruction on that route of liability": at paras. 38, 79, 80. In his view, the phrases "active participation," "acting in concert," or "joint venture" did not, in and of themselves, adequately convey the law of party liability to a trier of fact, with the result that the trial judge erred by not providing the jury with a full instruction on aiding and abetting: at para. 38. The phrase "or was otherwise an active participant" in the killing did not adequately convey to the jury the law of parties as it arose on the evidence: para. 50. However, as there existed overwhelming evidence of Pickton's guilt and the error did not occasion a miscarriage of justice, LeBel J. applied the curative proviso: at paras. 39, 86-87.

[128] I do not read the majority's decision in Pickton as adopting a general principle that the phrase "active participation" operates in all cases as an adequate substitute for an express instruction on the elements of aiding or abetting. The majority's decision was inextricably tied to the evidence in that case, which showed that Pickton was "actively involved in the actual killing of the victims, either by acting alone or in concert with others": at para. 32. That case was about whether or not Pickton had actually killed the victims, with "active participation" denoting that he had played a physical role in the killings of the victim: at paras. 11 and 32. Accordingly, I do not see the majority decision in Pickton as sanctioning the deficiencies in the charge in this case on party liability.

[129] Second, in her charge the trial judge used the term "active participant" to cover both participation as a principal and participation as an aider or abettor, not as a synonym for the elements required to establish aiding or abetting.

[130] Third, this was not a case in which the identity of a shooter was uncertain. The Crown's theory was that Esrabian had fatally shot Hassan in Saleh's presence. If the jury was not satisfied beyond a reasonable doubt that Saleh also fired one of the fatal shots, then the second path to his liability lay as a helper to Esrabian, the known shooter on Yegin's evidence. Accordingly, charge language that might be acceptable where the jury is not able to identify the shooter beyond a reasonable doubt was not available in the present case: see the cases cited in Josipovic, at para. 51.

[131] Finally, any reliance on the term "active participant" as a substitute for express instructions on the elements of aiding or abetting runs up against the difficulty that in the "planned and deliberate" section of the charge, the term is not used at all. That part of the charge did not draw a distinction between Saleh's role as a principal, or as an aider or abettor.

[132] Accordingly, even reading the charge in a broad, functional manner, I am not persuaded that the jury would have understood that to convict Saleh of first degree murder on the basis of aiding or abetting a planned and deliberate murder, they had to be satisfied that the Crown had demonstrated that Saleh knew that Esrabian intended to commit a planned and deliberate murder.

[133] The Crown submits that while defence counsel objected to leaving party liability with the jury as an available mode of participation, he did not object to the language of the instructions actually given. In my view, that does not affect the legal adequacy of the charge. The trial judge's error on party liability goes directly to the mens rea requirement for an aider to a first degree murder. It was not a minor error. In such circumstances, trial counsel's failure to object does not excuse the seriousness of the misdirection: Kelsie (NSCA), at paras. 93-94.

[134] Some have described the line drawn in the case law between co-principals and aiders or abettors as "somewhat malleable": Steve Coughlan, Gerry Ferguson & Lee Seshagiri, Annual Review of Criminal Law 2010 (Toronto: Thomson Reuters, 2011), at p. 33. Nevertheless, the consistent direction of the jurisprudence of this court since Almarales has required a proper charge on the distinctive elements of the path to culpability as an aider or abettor: see, for example R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at paras. 34-39; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 193-198; Mendez, at para. 89; R. v. Zoldi, 2018 ONCA 384, 360 C.C.C. (3d) 476, at paras. 27-29, 34-51. On a review of the charge in this case as a whole, when considered together with the closing submissions of counsel, it cannot be said that the jury was properly informed of the legal principles which would have allowed them, as triers of fact, to consider evidence of Saleh's aid and encouragement to Esrabian, the sole shooter, as an alternative means of imposing liability for the first degree murder of Hassan.

[135] I conclude that the trial judge's instructions on party liability for first degree murder contained legal error. I will address the impact of this error after addressing Saleh's other grounds of appeal concerning the charge and the adequacy of the Vetrovec caution.

(iii) SECOND ISSUE: DID THE TRIAL JUDGE FAIL TO RELATE THE EVIDENCE TO LIABILITY AS AN AIDER OR ABETTOR?

[136] Saleh also submits that there was no evidence before the jury of planning and deliberation by Esrabian or that Esrabian had revealed his plan to Saleh. He further argues that the trial judge completely failed to relate any of the evidence to the question of his liability as an aider or abettor, rather than as a principal. I am not persuaded by the first part of this submission; I am persuaded by the second.

[137] As to the first part, the trial judge did refer to some evidence regarding Esrabian and his intention: (i) his presence at the scene of the shooting; (ii) his possession of a gun; (iii) firing shots towards Hassan; and (iv) the cellphone records about calls made on Esrabian's phone the day before and on the day of the killing. In its closing the Crown had submitted that the timing and location of calls recorded on Esrabian's cell phone records for the day before the killing supported the inference that Esrabian had dug the grave for Hassan's body the day before Hassan was killed.

[138] Moreover, it is open to the Crown to demonstrate that an aider knew the murder was planned and deliberate either through his own actual involvement in the planning and deliberation or through some other means: Almarales, at para. 70. The thrust of the Crown's submission at trial was that Saleh was "the hub of the wheel," the main orchestrator of the plan to kill Hassan, and was in charge of Esrabian, who was subordinate to him. Both the trial judge in her charge and the Crown in its closing reviewed at length the evidence that could demonstrate that the murder was planned and deliberate.

[139] However, regarding the second part of this submission, although the trial judge reviewed that evidence, she did not relate it to the elements required to prove Saleh's culpability, as an aider or abettor, for a planned and deliberate murder. Indeed, as mentioned, the "planned and deliberate" section of the charge lacked any treatment of the elements of aiding and abetting.

D. THIRD GROUND OF APPEAL: CRIMINAL CODE s. 231(5)(e) - KIDNAPPING

(i) ISSUE STATED

[141] After charging the jury on planned and deliberate first degree murder, the trial judge proceeded to instruct them on first degree murder pursuant to Criminal Code s. 231(5)(e):

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)[.]

The trial judge presented this route of liability as one available in the event the jury, or a juror, was not satisfied that Saleh was guilty of planned and deliberate murder, stating:

If you are satisfied beyond a reasonable doubt that Fadi Saleh caused the death of Hassan, did so unlawfully and that he had the state of mind required for murder, but you are not satisfied that Fadi Saleh committed a murder that was both planned and deliberate, then you must go on to consider the questions that follow. [Emphasis in written charge.]

[142] The trial judge then instructed the jury on a possible path to liability for first degree murder under Criminal Code s. 231(5)(e) on the basis that: (i) Saleh kidnapped Hassan with the intent to confine Hassan against his will; (ii) the kidnapping and murder of Hassan were part of the same series of events; and (iii) Saleh was an active participant in the killing of Hassan.

[143] Saleh submits that a route to liability under s. 231(5)(e) should not have been left with jury, arguing that there was no scenario on the evidence in which the jury could have a reasonable doubt about planning and deliberation but not also have had a reasonable doubt about constructive murder where the predicate offence was kidnapping. For a scenario under s. 231(5)(e) to have an air of reality, evidence was required to show that Hassan was kidnapped for a reason other than as part of a plan to kill him, yet there was no such evidence. The trial judge's conclusion that there was an air of reality to the scenario of kidnapping Hassan with the intent to threaten him was no more than an invitation to the jury to speculate. As well, Saleh submits that there was no evidence that Hassan was lured to the remote location to be threatened and that he, Saleh, knew murder was a possible consequence of kidnapping.

[144] On its part, the Crown argues that there was an air of reality to the scenario that Hassan was kidnapped for a reason other than to kill him. Although the Crown's theory was that this was a planned and premeditated murder, jurors are not bound by the positions and theories of the parties, and a trial judge has duty to instruct the jury on all routes of liability which arise from the evidence.

(ii) HOW THE ISSUE AROSE

[145] In his opening to the jury, Crown counsel identified constructive murder as a potential path to liability for first degree murder that the trial judge might leave for them in her instructions: see para. 69 above.

[146] At the start of the pre-charge conference, the trial judge marked for identification two drafts of jury instructions that she had shared with counsel. The first draft contained a section on constructive first degree murder. However, that section had been removed from the second draft because, according to the trial judge, "there was agreement that the constructive homicide should be removed." Evidently, in earlier written submissions Crown counsel had taken the position that "this is a planned and deliberate first degree or nothing."

[147] During the course of the pre-charge conference discussion on planned and deliberate murder, defence counsel stated that there would be an argument about Saleh's state of mind "as it connects to the compendium of facts of transporting Hassan" if the jury concluded that Saleh did not shoot Hassan. That prompted Crown counsel to submit that constructive murder should be put back into the charge.

[148] In turn, the trial judge, "thinking out loud" on the state of mind for murder, asked Crown counsel whether Saleh could "theoretically do everything that he did, but with only the understanding in his own mind that they were going to threaten and intimidate Mr. Hassan." Crown counsel responded: "Isn't that just speculative? I mean nobody said that."

[149] The trial judge did not think it was speculative, stating that the evidence of luring, the handgun, and the money pointed "equally to a plan to intimidate or threaten as it does to a plan to murder."

[150] Crown counsel ultimately took the position that if one option put before the jury was that Saleh was not part of a plan to kill Hassan and therefore should be acquitted of first degree murder but convicted of some lesser offence, then the jury should consider whether Saleh was part of a plan to lure Hassan to a remote location, knowing that a probable consequence would be a shooting. Crown counsel also advanced the argument that "if there is evidence of a motive and all these other things to support a planned killing, there is also evidence to support a planned kidnapping to threaten [Hassan]." The same body of evidence could support either route.

[151] Defence counsel argued that in the event the jury had a reasonable doubt about whether the murder was planned and deliberate, there was no other evidence available to the jury to find some other objective that would make Saleh's conduct first degree murder: "That's why kidnapping can't be allowed, and constructive murder can't be allowed, because there is no factual context for the objectives that would found kidnapping that would, in turn, found a 231(5) argument".

[152] The trial judge concluded that constructive murder under s. 231(5)(e) had to be left with the jury because there was

an air of reality to the idea that all of the events and the evidence that we have, the whole body of evidence that we have, could have been for the purpose of merely intimidating, threatening or assaulting. We don't know, and we will never know, but that possibility is not impossible … It has an air of reality, which means that the state of mind aspect has to go to the jury, but if the state of mind aspect has to go to jury, then by definition, we have to look at the concept of kidnapping, and kidnapping requires the movement of a person against his will from point A to point B – we clearly have that – for a specific purpose. The purpose in this case being forcible confinement.

[153] In the result, the trial judge divided her charge on s. 231(5)(e) into three questions: (i) Did Saleh kidnap Hassan and do so with the intent to confine Hassan against his will? (ii) Were the kidnapping and murder of Hassan part of the same series of events? (iii) Was Saleh an active participant in the killing of Hassan?

(iii) ANALYSIS

The governing principles

[154] In R v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 60, this court summarized the five essential elements for first degree murder under s. 231(5) as follows: (i) the accused committed or attempted to commit a listed underlying crime; (ii) the accused murdered the victim; (iii) the accused participated in the murder in such a manner that he was a substantial cause of the victim's death; (iv) no intervening act by somebody else resulted in the accused no longer being substantially connected to the victim's death; and (v) the underlying crime and the murder were part of the same transaction.

[155] In the present case, the predicate offence left by the trial judge with the jury was kidnapping. While that offence is not defined in the Criminal Code, the jurisprudence treats kidnapping as an aggravated form of unlawful confinement: McGregor, at para. 65. Kidnapping is a continuing offence, one that is complete in law when the victim is first apprehended and moved, but not complete in fact until the victim is freed: R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411, at paras. 6, 25, 33.

[156] As I will explain, I conclude that there was an evidentiary basis on which to leave first degree murder under s. 231(5)(e) with the jury. However, the trial judge failed to assist the jury in understanding how, having rejected planned and deliberate murder in which the movement of Hassan to the remote site was a key part of the plan, the evidence nonetheless could support a finding of guilt under s. 231(5)(e) using kidnapping as the predicate offence. Adding s. 231(5)(e) as an additional path to liability for first degree murder further complicated the jury's task, and the charge failed to provide the jury with the tools they required to deal with that increased complexity.

Air of reality

[157] The only direct evidence concerning the movement or transportation of Hassan from his Ottawa apartment to the remote site came from Yegin, who drove Hassan from the apartment to the site. Based on a prior conversation with Saleh, Yegin thought that he was driving Hassan to a meeting with Porter to discuss drug distribution problems Hassan was encountering in Cornwall. Yegin understood Saleh would attend the meeting. Yegin thought the meeting with Porter was real. Yegin contended that he did not know that Hassan was going to be shot or that any harm would come to him that night.

[158] The Crown relied on other evidence to advance a case that Hassan had been deceived about the purpose of getting into the car and driving away with Yegin: Hassan had transacted directly with Ebrekdjian, instead of through Saleh, to purchase cocaine, angering Saleh; cell phone tower records that tracked the movements of Esrabian, Yegin and Hassan (but not Saleh) on August 20 and the morning of August 21; a course of post-offence conduct by Saleh, Esrabian and Yegin that, the Crown suggested, demonstrated an effort to cover up the killing. Using that evidence, the Crown asked the jury to conclude Saleh was the hub of a plan to lure Hassan to a remote location.

[159] The Crown's primary position with the jury was that the plan Saleh orchestrated was designed to lure Hassan to the remote location in order to kill him. During the extremely brief treatment in his closing of an alternative path to first degree murder through kidnapping, Crown counsel did not offer the jury a reason for a kidnapping other than to kill Hassan.

[160] However, given that in his direct evidence about why he drove Hassan away from his apartment Yegin denied any knowledge of an intent to kill or harm Hassan, the circumstantial evidence could support either a scenario where the transportation of Hassan was part of a plan to kill him or, as the trial judge thought, a plan to intimidate him at some remote location.

[161] Some circumstantial evidence, if accepted by the jury, pointed strongly toward a plan to kill Hassan: the Crown evidence that suggested Hassan's shallow grave had been dug the day before he was lured to the remote site. However, if a juror did not accept that evidence, or had a reasonable doubt that the evidence was satisfactory to establish a planned and deliberate murder, then the remaining evidence left open a basis for a juror to conclude that Hassan was moved to confine him for a purpose other than to kill him. Accordingly, I am persuaded that an evidentiary basis existed for the trial judge to leave with the jury a scenario where the movement of Hassan was not part of a plan to kill him, but a scheme to kidnap him in order to confine him for some other purpose, such as intimidating him. To that extent, I am not persuaded that the trial judge erred in law in leaving with the jury a path to liability under s. 231(5)(e).

Absence of tools to equip the jury

[162] That said, I am persuaded by Saleh's further submissions in oral argument that the trial judge's instructions did not equip the jury to assess this path to liability, which at the pre-charge conference the parties initially agreed should not be left with the jury.

[163] First, the trial judge structured her charge and decision tree so that the jury first had to consider whether they were satisfied that Saleh had committed a planned and deliberate first degree murder. In the event they had a reasonable doubt about whether the murder was planned and deliberate, they could then consider whether he was guilty of first degree murder under s. 231(5)(e). The instructions did not provide any guidance to the jury about how they could have a reasonable doubt that the murder for which Saleh was responsible at law was a planned and deliberate one – with the kidnapping forming a key part of the plan – but was one caused by Saleh while committing the predicate offence of kidnapping.

[164] I have posited a possible way, in para. 161 above, but the trial judge gave the jury no assistance on this point. Specifically, she did not identify for them what evidence relevant to the issue of planning and deliberation might not be relevant to an analysis under s. 231(5)(e).

[165] Second, I accept the submission Saleh made during oral argument that the trial judge neglected to deal properly with the knowledge of Saleh required to find him guilty of first degree murder under s. 231(5)(e).

[166] When proceeding under s. 231(5)(e), the Crown must establish that the accused committed the predicate offence and that he or she also committed the murder; where liability of the accused is based on secondary, party liability, the Crown must first establish that the accused was a party to both offences before s. 231(5)(e) can be applied: R. v. Kirkness, [1990] 3 S.C.R. 74, at pp. 86-87. Regardless of the basis upon which an accused may be guilty of first degree murder, the trial judge must clearly focus on the additional elements of first degree murder as defined in s. 231(5) and relate the evidence to those elements: R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 72.

[167] The trial judge's charge made no reference to the mode or modes of Saleh's participation in the predicate offence of kidnapping or the murder. She did convey s. 231(5)(e)'s requirement that Saleh be a "substantial cause of the victim's death." This instruction goes some way to offsetting the omission of a specific instruction on party liability for murder in this section of the charge. However, the evidence the jury heard about the predicate offence of kidnapping was that it was Yegin, not Saleh, who transported Hassan to the remote site. While the jury heard evidence about Saleh telling Yegin to meet Hassan at his apartment and making hand gestures while passing Yegin's vehicle on Highway 417, the trial judge's instruction on the predicate offence of kidnapping did not include any reference about how to examine Saleh's liability for that offence as a party. That was a material omission from the charge: Almarales, at para. 84.

[168] Saleh argues that by adding to the paths of liability for first degree murder one under s. 231(5)(e), the trial judge fell into reversible error by "over-charging" through leaving with the jury a speculative theory of liability: R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), at p. 494; R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 60. While I have concluded that an evidentiary basis existed for leaving that route of liability with the jury, this is a case where the trial judge left with the jury two paths of liability not requested by the parties at the start of the pre-charge conference – Saleh as the shooter of a fatal shot, and Saleh as liable under s. 231(5)(e) – and that departed from the main thrust of the Crown's case. Where, in exercising her discretion, the trial judge leaves with the jury paths to liability based on her assessment of the record, she is obliged to give clear guidance to the jury on the elements for each route.

[169] In respect of liability under s. 231(5)(e), the trial judge failed to do so. Her instructions on s. 231(5)(e) did not provide the jury with the legal framework to assess Saleh's liability based on secondary participation in the kidnapping, as it was Yegin, not Saleh, who drove Hassan to the site where he was shot. Nor did she assist the jury in understanding how, having a reasonable doubt on whether the murder was planned and deliberate, where kidnapping was an integral part of the plan, the evidence remained available to find, beyond a reasonable doubt, that Saleh's involvement in the movement of Hassan to the remote site satisfied the key elements to find his participation in a kidnapping for the purposes of s. 231(5)(e).

[170] Before considering the effect of these errors, I shall deal with Saleh's grounds of appeal concerning the Vetrovec caution.

III

FOURTH GROUND OF APPEAL: INADEQUATE VETROVEC WARNING

(i) THE ISSUES STATED

[171] The trial judge included in her charge special instructions about the evidence of Yegin and Ebrekdjian, both witnesses of unsavoury character, as required by Vetrovec. Saleh submits that the trial judge's Vetrovec caution contained two errors: (i) she used an incorrect definition of materiality in the instruction; and (ii) she invited the jury to consider hearsay evidence as potentially confirmatory of Ebrekdjian's evidence.

(ii) MEANING OF "MATERIAL" CONFIRMATORY EVIDENCE

The charge and parties' positions

[172] While instructing the jury about the "greatest care and caution" with which they should approach the evidence of Yegin and Ebrekdjian, the trial judge stated:

To be confirmatory of the evidence of either Mr. Yegin or Mr. Ebrekdjian, the evidence must be both independent of these witnesses and material … The evidence is material when, in the context of the case as a whole, it is reasonably capable of strengthening your belief that the witness is telling the truth on an important aspect of the case or when he asserts that Fadi Saleh committed the offence.

In the absence of evidence that you accept that is independent and supports or confirms material aspects of their evidence, you should be reluctant to accept the evidence of Mr. Yegin or Mr. Ebrekdjian.

[173] Saleh submits that the trial judge's instruction on materiality was imprecise because it failed to make clear that confirmatory evidence must be material in respect of whether he committed the offence – i.e. whether he was involved in the killing. He contends that the trial judge erred by failing to follow the directions on Vetrovec cautions given by this court in Saleh 2013. Saleh further argues that the examples given by the trial judge of evidence potentially confirmatory of Yegin's testimony – the cellphone records and the cell towers that registered the use of the phones of Yegin, Esrabian, Hassan, and "Frank Machevelli," which was used by Saleh at one time – were irrelevant to the question of his role in the killing and, therefore, did not meet the materiality requirement, a situation that he contends is analogous to that in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.

[174] The Crown submits that the trial judge's instruction on the meaning of material confirmatory evidence was proper and she did not err by relying on the definition used by this court in R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.). In Saleh 2013, this court did not say anything that would undermine the continuing validity of the definition it expounded in Archer. As well, in Saleh 2013 this court identified, as potentially material confirmatory evidence, that which confirmed Yegin's attendance at the remote site contemporaneous with the killing. The cell phone and tower records fall into that category.

Analysis

[175] I am not persuaded by Saleh's submission on this issue.

[176] First, I note that in R. v. Kehler, 2004 SCC 14, [2004] 1 S.C.R. 328, at para. 15, the Supreme Court stated:

while confirmatory evidence should be capable of restoring the trier's faith in relevant aspects of the witness's account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.

[177] Second, I see no practical conflict between the definitions of "material" offered by this court in Archer and Saleh 2013. As set out on the table below, when the definitions of "material" in both Archer and Saleh 2013 are read in their entirety, this court stated that confirmatory evidence need not implicate the accused in the commission of the offence. Saleh 2013 did not purport to depart from Archer in that regard:

Archer, at para. 56

Saleh 2013, at paras. 110 and 117

Confirmatory evidence in the context of the Vetrovec instruction does not have to prove the guilt of the accused or even implicate the accused in the commission of the alleged offences. Confirmatory evidence must, however, be reasonably capable of strengthening the jury's belief that the suspect witness is telling the truth on an important aspect of his evidence.

To be material, confirmatory evidence need not implicate the accused in the commission of the offence. To be material, what the confirmatory evidence must do in the context of the case as a whole is to give comfort to the jury that the witness can be trusted in his or her assertion that the accused committed the offence. Where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the Vetrovec witness is telling the truth in that regard before convicting on the strength of the Vetrovec witness's evidence. To be confirmatory of the testimony of a Vetrovec witness, evidence need not implicate the accused in the commission of the offence charged. [Emphasis in original; citations omitted.]

[178] Third, I do not read the decision in Bradshaw as undermining that aspect of the definition of "material" in respect of potentially confirmatory evidence for purposes of a Vetrovec caution, as suggested by Saleh. The issue in Bradshaw was quite different: when a trial judge could rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established: at para. 3. The focus of the analysis in Bradshaw was ascertaining when corroborative evidence could overcome the specific hearsay dangers presented by the tendered statement: at para. 4. The case did not consider the range of admitted evidence that could be used to confirm the testimony, and assess the credibility, of a witness who was subjected to cross-examination at trial, as were Yegin and Ebrekdjian. Indeed, in Bradshaw the majority of the Supreme Court expressly distinguished the concerns at play in a Vetrovec caution from those in issue when assessing threshold reliability for admitting a hearsay statement: at paras. 29 and 43.

[179] Fourth, I do not see any meaningful departure by the trial judge from the definitions or language used in the Archer and Saleh 2013 jury instructions, in which this court found no error. In Archer, this court saw no error in that portion of the Vetrovec caution where the trial judge stated: "What you should look for is evidence that agrees with the important parts of M.S.'s evidence that makes you more confident that his testimony is true." In Saleh 2013, at para. 99, this court did not take issue with the following passages in the charge that explained the meaning of confirmatory evidence:

To be confirmatory the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of the evidence of these witnesses. You're entitled to rely on their evidence even if it is not confirmed by another witness or by other evidence, but I repeat: it would be dangerous for you to do so.

To be confirmatory evidence need not implicate Mr. Saleh. To be confirmatory the independent evidence must confirm relevant portions of the testimony of a witness so that your faith in the witness's evidence can be reinforced. The evidence to which I am about to refer illustrates the kind of evidence that you may find confirms or supports their testimony. It may help you. It may not. It is for you to say.

[180] In the present case, the trial judge used a mixture of the language from Archer and Saleh 2013 to instruct that confirmatory evidence is material when it is reasonably capable of strengthening the jury's belief that the witness is telling the truth "on an important aspect of the case or when he asserts that Fadi Saleh committed the offence."

[181] Finally, I see no error by the trial judge in using, as an example of material confirmatory evidence in respect of Yegin, the cellphone records and the cell towers that registered the phones of Yegin, Esrabian, Hassan, and "Frank Machevelli." As the Crown correctly points out, in Saleh 2013 this court identified as potentially material confirmatory evidence that which confirmed his attendance at the remote site contemporaneous with the killing: Saleh 2013, at para. 117.

(iii) THE USE OF GEAGEA'S EVIDENCE AS CORROBORATIVE

The issue stated

[182] In describing for the jury evidence potentially confirmatory of the testimony of Ebrekdjian, the trial judge stated in her charge:

Rafei Ebrekdjian has testified that the money he received from Mr. Saleh was regularly less than what had been agreed upon. Johnny Geagea also testified that Mr. Saleh told him that their money was short, when they knew that it was not. This is another example of evidence that you may find to be confirmatory evidence. [Emphasis added.]

[183] Saleh submits that the trial judge erred in using this example because Geagea's evidence was hearsay. In his testimony Geagea was clear that he had no independent knowledge of Saleh claiming that the money had been short; instead, Hassan had provided Geagea with this information. Saleh contends that since Geagea's evidence on this point was inadmissible, the jury was not permitted to use it to restore confidence in Ebrekdjian's testimony.

[184] The Crown does not accept Saleh's characterization of Geagea's evidence as hearsay. While at one point Geagea suggested that Saleh was the source of his belief that Hassan was always short, elsewhere Geagea was less clear on the point. In any event, the Crown contends that the evidence was admissible because: (i) it was tendered for a non-hearsay purpose, to show what Saleh thought the situation was; (ii) Hassan was the source of Saleh's belief, the evidence was admissible as a declaration by a deceased person; (iii) the evidence of what Saleh said could also be considered admissible as a declaration of a co-conspirator said in furtherance of a conspiracy (to traffic drugs); or (iv) the evidence of what Hassan told Geagea that Saleh had said is also admissible under the principled approach. In any event, if there was any error, it was harmless because a significant amount of other evidence confirmed Ebrekdjian's evidence, including that of Sleiman and Yegin.

How the issue arose

[185] The trial judge had included in the first draft of her charge the impugned Geagea example as evidence confirmatory of Ebrekdjian's testimony. On the first day of the pre-charge conference, Saleh's counsel asked that the example be removed because it did not accurately reflect the evidence of Geagea and his actual testimony constituted hearsay. The trial judge stated that she understood that both Hassan and Geagea were together when Saleh relayed the information that their money was short, so the evidence was not hearsay. The trial judge acknowledged that the evidence could not be confirmatory if it was hearsay. Counsel undertook to provide the trial judge with the relevant portions of the transcript and revisit the issue the following day.

[186] The transcript of Geagea's evidence recorded that he had spoken about Saleh's concern regarding the shortfall in money provided by Hassan at two points in his examination-in-chief. First, Geagea was asked about any difficulties he and Hassan had encountered in dealing with Saleh:

Q. Was there other issues with Mr. Saleh?

A. Money was always ... short.

Q. What do you mean by that?

A. Like, if he counted it it's short. But when we count it it's perfect. I give you 100,000; all of a sudden it's 98.

Q. So he was telling you guys you had not given him enough and your perspective was you had?

A. Yes.

[187] Later in the examination-in-chief, Crown counsel sought to clarify the source of Geagea's knowledge. The following exchange took place:

Q. ... The other thing I wanted to clarify was we discussed – you told us earlier about – I'll call them problems with the drug supply from Mr. Saleh.

A. Yes.

Q: We talked about the not answering his phone thing and you talked about the short money thing. What was your direct involvement in the short money thing? Like, how did you know that that was happening?

A: 'Cause we get the money together, we fix it, we counted it and we'll send it to him. We'll send it to Fadi.

Q: You and Hussein?

A: Either me or Hussein or we send a driver.

Q: Okay. And then how is it you find out that Mr. Saleh is saying it's not what you say it is?

A: He text back Hussein or he calls him.

Q: Mr. Saleh does?

A: Yes.

Q: And how did you know that? Does Hussein tell you? Did you.....

A: Yeah, Hussein told me.

Q: Did you ever see a text or hear a conversation or.....

A: No. No.

Q: It was from Hussein.

A: I'll take – yeah – Hussein's word.

[188] When the issue was re-visited on the second day of the pre-charge conference, the trial judge stated that she had read the transcript. In her view, the example from Geagea's evidence that she had included in her Vetrovec caution was "exactly what he said. There is a clear inference that the information came directly to him, not to him solely by Mr. Hassan." She acknowledged that elsewhere in the transcript Geagea had testified the information came from Hassan, but "it's equally clear in another portion of the transcript that it's – the information comes to both of them." As a result, she left the example in the Vetrovec caution.

Analysis

[189] Impermissible hearsay evidence is not capable of providing independent confirmation of a Vetrovec witness. Indeed, a trial judge is obliged to explain to the jury why they cannot rely on that evidence as confirmatory: R. v. Magno, 2015 ONCA 111, 321 C.C.C. (3d) 554, at para. 42, leave to appeal refused, [2015] S.C.C.A. No. 145. The trial judge recognized as much in her comments during the pre-charge conference. However, she did not regard as hearsay the evidence of Geagea that she included in the caution.

[190] With respect, the trial judge misapprehended this part of Geagea's evidence. Certainly, when Geagea first addressed the matter in his testimony, he clearly left the impression that Saleh had communicated his concern about the shortfall in the money directly to Geagea. But following a recess, Crown counsel indicated that he wanted "to just go back and touch on a few areas that we discussed earlier." One of the matters that Crown counsel "wanted to clarify was we discussed – you told us earlier about – I'll call them problems with the drug supply from Mr. Saleh." Geagea then clarified that he learned about Saleh's concern regarding the shortfall in money from Hassan, not from Saleh.

[191] Given that clarification, the trial judge misstated Geagea's evidence when, in her Vetrovec caution example, she told that jury that Geagea testified that "Mr. Saleh told them that their money was short, when they knew it was not." In the result, she left with the jury hearsay evidence as an example of independent evidence confirmatory of Ebrekdjian's testimony.

[192] The Crown asserts that Geagea's evidence was admissible hearsay but does not provide an adequate analysis that would support that assertion. In any event, during the pre-charge conference the trial judge acknowledged that if Geagea had not received the information directly from Saleh, his statement would constitute hearsay and could not be used as confirmatory evidence.

[193] Accordingly, I conclude that the trial judge misapprehended Geagea's evidence on the point and, as a result, erroneously left impermissible hearsay with the jury as an example of independent confirmatory evidence.

IV

THE EFFECT OF THE ERRORS

[194] To summarize, I have identified legal errors in the trial judge's charge on four matters: (i) the mens rea elements for planned and deliberate murder as a party; (ii) the mens rea elements for liability under s. 231(5)(e) where kidnapping is the predicate offence; (iii) the confusion created in the charge by adding a route to liability for first degree murder under s. 231(5)(e); and (iv) leaving impermissible hearsay with the jury in the Vetrovec caution as an example of independent confirmatory evidence. Whether these errors call for appellate reversal depends on the context in which they were made: did these errors, on this evidence, in this trial cause a substantial wrong or miscarriage of justice? See: R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 66, leave to appeal refused, [2010] S.C.C.A. No. 152. That, in turn, requires an assessment of whether the error was so harmless or minor that it could not have had any impact on the verdict or, if it was a serious error that would otherwise justify a new trial, whether the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34; R. v. R.V., 2019 SCC 41, at para. 85.

[195] Although in his factum Crown counsel did not address the availability in the circumstances of the curative proviso in Criminal Code s. 686(1)(b)(iii), at the hearing he submitted that if there was a legal error in the charge, this would be an appropriate case in which to apply the curative proviso.

[196] I am not persuaded that it would be.

[197] The legal errors committed by the trial judge in the "Homicide" section of the charge were serious. The first two involved the instructions on mens rea that were fundamental to a finding of guilt for first degree murder: Kelsie (NSCA), at para. 93; R. v. Adams (1989), 49 C.C.C. (3d) 100 (Ont. C.A.) at p. 112.

[198] The third, when viewed in context, also was serious. The trial judge left three routes of liability for first degree murder with the jury: (i) Saleh fired one of the fatal shots; (ii) Saleh aided and abetted a planned and deliberate murder; and (iii) Saleh participated in a kidnapping that, while not part of a planned and deliberate murder, concluded with the murder of Hassan. The Crown's case had rested on demonstrating Saleh's participation in a planned and deliberate murder. During the course of the pre-charge conference, the trial judge added the other two routes of liability. In those circumstances, it was incumbent on the trial judge to equip the jury with the tools they needed to differentiate, on the evidence, a planned and deliberate murder from a first degree murder under s. 231(5)(e) where the movement of Hassan to the remote location was a common feature of both.

[199] The fourth error concerning the Vetrovec caution was not a harmless error, as suggested by the Crown. Leaving impermissible hearsay for consideration as an example of independent confirmatory evidence that could bolster Ebrekdjian's testimony that Saleh had a strong motive to kill Hassan could have had an important effect on the jury.

[200] Nor do I regard the case against Saleh for first degree murder as so overwhelming that a jury inevitably would have convicted him on that count, rather than of a lesser offence. The Crown points to the concurring reasons of LeBel J. in Pickton as an example of a similar case in which the curative proviso was applied. However, in Pickton, LeBel J. applied the curative proviso to verdicts of second degree murder. In the present case, the verdict was first degree murder. Only one witness placed Saleh at the scene of Hassan's killing – Yegin. He was a discreditable witness; in Saleh 2013 Watt J.A. commented on Yegin's "manifest unreliability": at para. 91. Prior to the re-trial, Yegin had given conflicting descriptions of the events at the remote site that differed in critical details. While I have rejected Saleh's submission that the Vetrovec caution in respect of Yegin was tainted by error, I have accepted that the caution concerning Ebrekdjian – another key witness – did contain error. In those circumstances, I cannot say that the case against Saleh for first degree murder was so overwhelming as to attract the application of the curative proviso to the trial judge's errors.

[201] Accordingly, I would allow Saleh's appeal, set aside the conviction, and order a new trial on the indictment for first degree murder.

[202] Although that is sufficient to dispose of the appeal, I will address the final ground of appeal advanced by Saleh given the extensive submissions made by the parties on it.

V

FIFTH GROUND OF APPEAL: JAIL-CELL "ADVICE"

(i) ISSUE STATED

[203] Upon their arrest on June 27, 2005, Saleh and Ebrekdjian were placed in the same cell. The following exchange between them was recorded:

SALEH: Yeah but just say my lawyer and that's it man.

EBREKDJIAN: Uh.

SALEH: (Unintelligible) name, date of birth and I wanna talk to my lawyer. (Unintelligible). (Pause) Even for what you did that night don't answer.

EBREKDJIAN: What?

SALEH: Even what did you do that night, (unintelligible) don't answer that.

[204] During the pre-charge conference, defence counsel stated that if the Crown intended to submit to the jury that the evidence showed an attempt by Saleh to suppress evidence, then the trial judge should instruct the jury that they could not "interpret that passage that way." That is because one detainee telling another detainee not to talk to the police is an expression of his constitutional right to silence, not the suppression of evidence. Crown counsel disagreed, but stated he would talk to his co-counsel to ascertain what he intended to do with the evidence in closing submissions.

[205] In the result, in his closing Crown counsel did indeed submit to the jury that the intercept of the jail cell conversation was particularly useful as "in it you will find Mr. Saleh is coaching Mr. Ebrekdjian to refuse to provide information to the police about what he did that night."

[206] Defence counsel did not raise the matter again following the Crown's closing. Instead, defence counsel dealt directly with the issue, at some length, in his closing. He emphasized that no one was obliged to speak to the police when arrested because "in our system, you've got the right to remain silent." He characterized the exchange as nothing more than Saleh telling Ebrekdjian that he did not have to talk with the police: "There is nothing wrong with that, and to suggest that there is, frankly, is appalling"; "Relying on your constitutional rights … that can't be a badge of guilt, can it?"; "I just say the simple act of saying to your cell mate, your friend, you don't have to talk to the police cannot be turned around and used as a sword."

[207] Following his closing, defence counsel did not request the trial judge to provide a special instruction to the jury about the jail cell conversation.

[208] On appeal, Saleh submits that the trial judge erred by denying his pre-charge conference request to instruct the jury that no adverse inference could be taken from his advice that Ebrekdjian not speak to the police. It was an error for the trial judge to allow the jury to conclude that Saleh's comments amounted to an attempt to suppress evidence.

(ii) ANALYSIS

[209] I would not accept Saleh's submission.

[210] Saleh does not take the position that the jail cell intercept constituted inadmissible evidence; his submission is limited to its use. He provides no authority to support his assertion that s. 7 of the Charter somehow cloaks a statement made by one detainee to another. Saleh certainly enjoyed a right to silence in his dealings with the police. However, for his own reasons, he decided to speak at length to Ebrekdjian when they were cell-mates. In those circumstances, it was open to the jury to assess what inferences could be drawn from that admitted evidence, taking into account the circumstances in which Saleh made his statements and the entirety of his conversation with Ebrekdjian.

[211] Finally, the record discloses that defence counsel decided to tackle the evidence of the jail-cell conversation head-on in his closing, where he forcefully submitted that the jury should not use the evidence to conclude that Saleh had attempted to suppress evidence. Following his forceful closing, defence counsel did not renew his request for a limiting instruction. In those circumstances, I see no prejudice to Saleh from the trial judge not including one in her charge to the jury.

VI

DISPOSITION

[212] For the reasons set out above, I would allow the appeal, set aside the conviction, and order a new trial on the indictment of first degree murder. Given that disposition, I would quash Saleh's inmate-stream sentence appeal C61319.

Released: October 15, 2019

"David Brown J.A."

"I agree. L.B. Roberts J.A."

"I agree. B. Zarnett J.A."

APPENDIX A

[Sketch showing positions of Yegin, Esrabian, Saleh, and Hassan at time of shooting]

APPENDIX B

[Decision tree for jury deliberations]

FOOTNOTES

[1] Ebrekdjian suffered from health problems affecting his memory at the time of Saleh's second trial. The defence and the Crown agreed to play Ebrekdjian's testimony from Saleh's first trial for the jury.

[2] As matters transpired in the present case, the Crown ultimately included in its closing a mode of participation in which Saleh fired one of the fatal shots as a possible basis for his culpability.

[3] Although the Supreme Court of Canada overturned the decision of the Court of Appeal for Nova Scotia, it agreed with that court's conclusion that the trial judge's instructions on party liability for first degree murder were in error: at para. 1.

[4] In the section on whether Saleh caused Hassan's death, the trial judge used the term without any express distinction between liability as a principal and as a party: "If you are satisfied beyond a reasonable doubt that Fadi Saleh shot Hussein El-Hajj Hassan or was otherwise an active participant in his killing…" In the section on the state of mind required for murder, the trial judge used the term to cover participation either as a principal or as a party: "[I]f you have concluded that Fadi Saleh was an active participant, either as a principal or as a party in the killing of Hussein El-Hajj Hassan, but not a direct cause of his death…"

[5] Although in Esrabian, this court found that the trial judge's instructions on the essential elements of the crime of first degree murder were "problematic," based as they were on a misunderstanding of the Crown's case, nonetheless this court concluded that the trial judge had adequately conveyed the essential questions the jury had to consider in rendering a verdict. However, the Crown theory in that case differed from that in the present: at paras. 25-27. There, the Crown theory was that it did not matter who shot Hassan because it was a planned initiative on the part of Esrabian, Saleh, and Yegin, who decided together to murder Hassan: at para. 28. Here, the Crown theory was that Saleh was the "hub" of the scheme, while Esrabian and Yegin were "peripheral players," and Esrabian was "virtually a stranger to the whole plot."

[6] The Crown submits that the slight lapse in time between Yegin's arrival with Hassan at the remote site and the start of the shooting could support an inference that the initial intention was to bring Hassan to the location to intimidate him.