Court File and Parties

Court of Appeal for Ontario Date: 2020-06-04 Docket: C65747

Rouleau, Zarnett and Jamal JJ.A.

Between

Her Majesty the Queen Respondent

and

Marina Ray Appellant

Counsel: Marina Ray, acting in person Michael Fawcett, for the respondent

Heard: In writing

On appeal from the conviction entered by Justice A.M. Mullins of the Superior Court of Justice on January 30, 2017, with reasons reported at 2017 ONSC 696, and from the dismissal of an application for a stay of conviction on April 16, 2018, with reasons reported at 2018 ONSC 2426, and from the sentence imposed on July 12, 2018.

Reasons for Decision

[1] The appellant was convicted, on January 30, 2017, after trial by judge alone, of counselling the commission of an indictable offence which was not committed, contrary to s. 464(a) of the Criminal Code. The intended offence was murder. The intended victim was the appellant’s former spouse, with whom she was embroiled in family law litigation. No murder occurred; the “hitman” the appellant counselled to commit the murder was an undercover police officer.

[2] The appellant applied to stay her conviction on the basis that she was entrapped by police conduct. The trial judge dismissed that application on April 16, 2018.

[3] On July 12, 2018, the trial judge sentenced the appellant to 5 years in prison less a combined credit of 8 months for both pre-trial custody and the period during which she was subject to strict bail conditions.

[4] The appellant appeals her conviction, the dismissal of her stay application, and her sentence.

[5] In light of the Covid-19 emergency, the parties agreed that the appeal be heard in writing.

[6] For the reasons that follow, we dismiss the appeal.

Background and Circumstances of the Offence

[7] The appellant was 60 years of age at the time of trial. She was born in the former Soviet Union. She came to Canada in 1990 with her then-husband and a daughter from a prior marriage. She applied for refugee status, and ultimately became a Canadian citizen in 1996. The appellant remarried in 2001, but the individual she married became ill and died in October 2003. After his death, the appellant was involved in civil litigation with his children.

[8] The appellant met Michael Ray in November 2008. They married in December 2009. The relationship soured; she eventually locked him out of her home after learning of his criminal history and other improper dealings.

[9] In October 2012, the appellant and Mr. Ray divorced. In November 2013, she listed her home for sale. Shortly after that, Mr. Ray brought proceedings against the appellant seeking support and an equalization of family property.

[10] On November 26, 2013, the appellant went to see Victor Sokolovski, the owner of a martial arts studio who was acquainted with the appellant and Mr. Ray. On Mr. Sokolovski’s evidence, the appellant told him of her desire to kill Mr. Ray and asked that he (Mr. Sokolovski) help her find someone to do so. She told Mr. Sokolovski that she did not want to share the equity in her house with Mr. Ray. She also asked if he knew someone who would lend her $500,000 under a back-dated note.

[11] On the appellant’s evidence she went to see Mr. Sokolovski to borrow money and enquire about a back-dated note. She claimed that any reference to wanting Mr. Ray killed was made as a joke.

[12] A few days after he met with the appellant, Mr. Sokolovski went to the police. A few days after that he was asked to cooperate with them. At the request of the police he contacted the appellant, asked if she had changed her mind, and said that he had found someone who could help her. He arranged for the three of them to meet on December 7, 2013.

[13] On December 7, Mr. Sokolovski, the appellant, and an undercover police officer posing as a hitman, met. Mr. Sokolovski left. A discussion ensued between the appellant and the officer inside a vehicle. It was recorded by video. A subsequent meeting took place on December 9 between the appellant and the officer, also in a vehicle and also recorded by video.

[14] The trial judge summarized the two meetings based on the video recordings as follows:

The video recordings of Marina Ray and a police officer posing as a hit man reveal that Mrs. Ray agreed with the officer that she wanted her husband to be liquidated. She suggested specific occasions and places where he might be located. She had a photograph of her former husband with her on the first meeting, which she gave to the officer. She provided his address and phone number and she described her ex-husband’s height and hair. They discussed how much she would pay. They agreed that she would give him $2,000 up front. On December 7th she gave him $300 and on the 9th, $1700. She expected Mr. Ray to be shot, then suggested he be drugged. She insisted he be left for dead. She gave the undercover officer a history of her troubled relationship with Mr. Ray, described his criminal conduct and her legal dispute regarding her home. She expressed a view that her ex-husband deserved the outcome she was discussing with the officer. She provided documents and drew maps.

At the second of their two meetings, Mrs. Ray arrived with a written agenda. She instructed the officer that he was to tell Mr. Ray that his death was vengeance for all the women he used, abused and stole from. She questioned the officer as to his planning. She requested assurance that Mr. Ray’s body would be found, and his death confirmed. They discussed the arrangements for payment of the balance of the funds. They made security arrangements so that their communications would not be traceable. As he had during the first meeting, the officer warned Mrs. Ray, repeatedly, that she would not have an opportunity to change her mind.

The Defence at Trial

[15] The appellant’s defence at trial was that she did not intend to kill her husband or hire a hitman to do so. She was fearful and distrustful of authorities. She had had a disastrous experience with the civil justice system when litigating with her late husband’s children, and unsatisfactory experiences with the police when she tried to involve them in helping her with problems created by Mr. Ray. When Mr. Sokolovski called her to say he had made arrangements for her to meet with someone who could kill Mr. Ray, she was terrified that Mr. Sokolovski was able to make such an arrangement so quickly. She was also fearful of the hitman she thought she was meeting with, and of what would happen to her and her family if she appeared not to want to follow through. Calling the authorities was not an option for her. She was in a poor mental state, afflicted with insomnia, and overmedicating. So, she simply played along. She explained her agreement to meet with the “hitman”, and her conversations with him, as nonsensical behaviour that was a product of her poor mental state and these circumstances.

The Conviction

[16] The trial judge found that the appellant had gone to see Mr. Sokolovski to try to create a debt to resist Mr. Ray’s financial claims “and, better still, to have her former husband killed”. She found, based on the appellant’s words and conduct when she met the undercover officer on two occasions, that she counselled him to kill Mr. Ray.

[17] The trial judge rejected the appellant’s evidence that she played along out of fear, or that she had no intention that Mr. Ray be killed, or that she was “caught up in a nightmare of [Mr. Sokolovski’s] contrivance, whilst overwhelmed by insomnia, sleeping pills and stress.”

[18] The trial judge found that the appellant’s evidence did not give rise to a reasonable doubt, and the balance of the evidence established the actus reus of the offence beyond a reasonable doubt.

[19] Although the trial judge rejected the appellant’s evidence, she observed that even if the appellant’s evidence were believed, the required mens rea for the offence was still established because the appellant was aware of the unjustified risk that the murder she counselled was likely to be committed as a result of her conduct. The appellant’s evidence did not give rise to a reasonable doubt, and the balance of the evidence established her mens rea beyond a reasonable doubt.

The Stay Application

[20] Subsequent to her conviction, the appellant sought a stay of the conviction on the grounds that she had been entrapped by police conduct. She relied on the evidence at trial, a further affidavit by her, as well as the evidence of two police officers who, at her request, testified at the hearing of the stay application.

[21] The theory of the stay application was that the police had not adequately recognized and accounted for the appellant’s vulnerabilities before forming the plan that led to her being charged. Instead they exploited her vulnerabilities, inducing her to commit the offence. The police conduct was therefore an abuse of process.

[22] The trial judge rejected the suggestion that the appellant was induced to commit a crime. On the contrary, the appellant had initiated all discussions about having her husband killed:

[S]he asked, respectively, two men to kill her husband; brought a photograph of her husband with her to ensure his identification; told the undercover police officer where her husband lived, what car he drove and where he might visit his parents; prepared a list of concerns to review with the officer; entertained different methods to cause his death; asked for a specific speech to be made as he was killed; concerned herself with avoiding detection; and gave repeated explanations of her motives; all in circumstances in which she was repeatedly asked if she was certain she wanted to have him killed, and declined offers to inflict lesser harm.

[23] The trial judge found that, even accepting that the appellant was in challenging circumstances with limited means, that she viewed the police as having been hostile to her, and that she was disappointed in the justice system, there was no evidence that the police instigated any criminal activity. Moreover, even though there was some evidence of the appellant having poor mental health, based on all the evidence, the trial judge concluded that she did not present “any frank manifestation of mental illness. Her words and conduct are purposeful and organized relative to her repeated desire to have her husband killed.”

[24] The trial judge concluded:

I find that there is nothing in the evidence, particularly the video recordings, to suggest that the police exploited Ms. Ray in any way. She was resolute in expressing her desire to have her husband killed. Her mental and emotional functions seem remarkably composed, especially given the subject matter. In my view, when all of the evidence is considered, it is wholly inconsistent with her being in a state of vulnerability that was open to exploitation, or was exploited, by police.

The Sentence

[25] The appellant was sentenced in July 2018. By that time, the appellant had spent 143 days in pre-trial custody and roughly 1,528 days on bail under strict conditions. The Crown sought a sentence of six to eight years. The appellant asked for a sentence of time served, based in part on the credit she argued she should receive for pre-trial custody and for her time on bail, time which she characterized as “house arrest”. The trial judge imposed a sentence of five years incarceration, less a combined credit of eight months for time in pre-trial custody and on bail.

The Conviction Appeal

[26] In her appeal against conviction, the appellant’s primary argument is that her conduct should attract the defence of duress. She submits that what she engaged in was morally involuntary conduct that should not be the subject of criminal sanction or punishment. It was the product of her vulnerable mental state, and her fear of those she was involved with and what they might do to her and her family.

[27] In support of that argument, the appellant points to various areas in the evidence which she says could have allowed the trial judge to view certain of the evidence differently, and thus doubt elements of Mr. Sokolovski’s evidence, or draw different conclusions about her vulnerability and fear of Mr. Sokolovski and the “hitman”. She also says at times that the trial judge’s reasons did not adequately explain or account for certain matters, such as why the appellant would disclose her troubled personal history to a “hitman”, or the evidence about her distressed mental state prior to the offence. The appellant also points to the portion of the trial judge’s reasons in which she held that the mens rea of the offence was established even if the appellant’s evidence were believed. She submits that if her evidence were believed, it was clear that she acted out of fear for her life and that of her grandchildren.

[28] We do not accept these arguments.

[29] Nothing that the appellant has pointed to supports a conclusion that the trial judge made a palpable and overriding error in her factual findings or the inferences she drew. Such an error is necessary before this court can treat the matter on a factual basis different than that found by the trial judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 21-23.

[30] Nor are the reasons of the trial judge inadequate. They explain why she decided as she did, and permit meaningful appellate review: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10 and 15.

[31] It does not appear that duress was directly raised as a defence at trial. In any event, on the trial judge’s findings, it is unavailable to the appellant. The trial judge found that the appellant intended to have Mr. Ray killed, and that she initiated all discussions that took place about it. The trial judge expressly rejected the suggestions that the words and conduct of the appellant, which clearly amounted to counselling murder, were the result of the appellant playing along out of fear, or that she was caught up in something of Mr. Sokolovski’s design.

[32] These pivotal findings are what matters, notwithstanding that the trial judge expressed an additional reason for her conclusion on mens rea, noting that it existed even if the appellant were believed that she did not intend that Mr. Ray be killed because she was clearly aware of the unjustified risk that the murder she counselled was likely to occur due to her conduct. However, it must be remembered that the appellant’s evidence was not believed; it was expressly rejected.

[33] Duress is available when an offence is committed by a person while under compulsion of a threat made for the purpose of bringing about the commission of the offence. An act so compelled lacks moral voluntariness. Two elements of both the common law and statutory defences of duress are that the accused was the subject of a threat of death or serious bodily harm, and that she reasonably believed the threat would be carried out: R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at paras. 2, 17, 43 and 55.

[34] The trial judge expressly rejected the suggestion that the appellant had acted out of fear. That rejection, when coupled with the findings that the appellant intended that Mr. Ray be killed, that she initiated the discussions about Mr. Ray being killed, and that she counselled, in a detailed manner on two occasions, how the killing should occur, preclude the application of the defence of duress in its statutory or common law form.

[35] Accordingly, the appeal from conviction must be dismissed.

The Appeal of the Refusal to Grant a Stay

[36] A proceeding or entry of a conviction may be stayed where the accused shows police conduct amounting to entrapment. A stay should be granted only in the clearest of cases: R. v. Mack, [1988] 2 S.C.R. 903, at p. 977. Entrapment occurs when (a) police provide a person with an “opportunity” to commit an offence without having a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; or (b) police go beyond providing an opportunity and actually “induce” the commission of an offence: Mack, at pp. 964-965; R v. Ahmad, 2020 SCC 11, at paras. 15 and 23.

[37] The appellant argues, as she did on the application before the trial judge, that the second branch of entrapment applies, namely that the police exploited her vulnerability, thus inducing her to commit an offence. Before this court, she appears to add an argument not made below, that the first branch of entrapment also applies, that is, that the police provided an opportunity to commit an offence without having a reasonable suspicion. She maintains that the trial judge should have entered a stay.

[38] We see no error in the trial judge’s careful consideration and rejection of the appellant’s application for a stay on the basis of entrapment.

[39] The first branch of entrapment cannot be relied upon by the appellant. In addition to it not having been put forward on the stay application, on which the appellant was represented by counsel, the findings that the trial judge did make are inconsistent with an absence of reasonable suspicion.

[40] In the entrapment context, the “reasonable suspicion” standard requires “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26, citing R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. It focuses on what the police knew at the time the opportunity was provided: Chehil, at paras. 26-29. In addition to information originally provided, investigative steps taken by the police as a consequence of that information can be relevant: R. v. Clarke, 2018 ONCJ 263, at paras. 40 and 56-57; Ahmad, at paras. 51-52. Interactions with the accused before the opportunity to commit the offence was offered may also be considered, as the police may form a reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime: R. v. Townsend, [1997] O.J. No. 6516 (C.J. Gen. Div.); Ahmad, at para. 54.

[41] In this case, the police acted on a report from Mr. Sokolovski, after which they opened an investigation and made inquiries about Mr. Ray and the appellant in several databases. They also conducted telephone surveillance, reviewed police occurrence reports about domestic disputes between Mr. Ray and the appellant and conducted a threat assessment. It was only after “[h]aving this information in hand” that the police developed a plan to have the appellant introduced to an undercover police officer. When she met the undercover officer, it was the appellant, not the officer, who initiated the discussions about having Mr. Ray killed in response to being asked what she wanted. The police did not engage in random virtue testing: Mack, at pp. 941 and 956; Ahmad, at paras. 17 and 27-28.

[42] With respect to the “inducement” branch of entrapment, the findings of fact of the trial judge are also fatal to the appellant’s success. The trial judge found that it was the appellant who initiated the discussions when she met with the undercover officer about having Mr. Ray killed; they were not instigated by the police. The trial judge expressly found that there was no inducement. After carefully reviewing the evidence, she concluded that there was no manifestation of vulnerability by the appellant that could be, or was, exploited by the police.

[43] This ground of appeal fails.

The Sentence Appeal

[44] The appellant argues that she received insufficient credit for her time on bail, which she characterizes as “house arrest”.

[45] The trial judge gave a total credit of eight months against the five-year sentence she imposed. She did not precisely explain how the credit was calculated. In the context of describing the appellant’s submission on sentence, the trial judge noted that 143 days in pre-trial custody would be credited at 1.5. She also noted the appellant’s submission that she should be entitled to a credit for strict bail conditions. Without repeating that the appellant’s pre-trial custody would be credited at 1.5 or expressing any conclusion about what precise credit should be given for time on bail, the trial judge concluded that the appellant would “be credited for the time [she has] served in pre-trial incarceration and the period of [her] bail of eight months.”

[46] The time spent by the appellant in pre-trial custody, 143 days, would equate to a 7-month credit (approximately) based on the 1.5 times calculation the trial judge referred to in relation to the appellant’s submission, and which is contemplated by the Criminal Code. On the assumption that this credit is what the trial judge used for pre-trial custody, the eight-month total credit would have included a little less than one month for her time on bail.

[47] We would not interfere with the sentence in this case. It cannot be suggested that the trial judge overlooked the issue of credit for pre-trial custody and time on bail. Her reasons for sentence recite, in some detail, the request of the appellant for these credits.

[48] The credit given adequately accounts for the time spent in pre-trial custody. The decision whether to provide a credit for time on bail is discretionary: R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 37. The record does not disclose terms of bail that were so strict as to necessarily entail the conclusion that an error in principle occurred in the amount of the credit given for time on bail. The terms of bail allowed the appellant to leave her residence in the presence of her surety and were varied to also permit her to leave her residence without her surety to walk her dogs on a twice daily basis. She was allowed to live with a friend with whom she developed a close personal relationship. There was no evidence of any special prejudice suffered by the appellant as a result of the terms of her bail: R. v. Pomanti, 2017 ONCA 48, at para. 34.

[49] Overall, we cannot conclude that the sentence was unfit or that it was materially affected by an error in principle: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41-42.

Conclusion

[50] For these reasons, we dismiss the conviction appeal and the appeal from the denial of a stay. We grant leave to appeal sentence but dismiss the sentence appeal.

Paul Rouleau J.A.

B. Zarnett J.A.

M. Jamal J.A.