Court File and Parties
Court: COURT OF APPEAL FOR ONTARIO Date: 2022-06-30 Docket: C65099
Between: Her Majesty the Queen, Respondent And: Shevon Bailey, Appellant
Before: Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.
Counsel: Zachary Kerbel, for the appellant Craig Harper, for the respondent
Heard: December 3, 2021
On appeal from: the conviction entered by Justice Steve A. Coroza of the Superior Court of Justice, sitting with a jury, on October 5, 2017.
Authored by: Feldman J.A.
Overview
[1] The appellant appeals his conviction for first degree murder, arising out of a home invasion robbery. The appeal is from his second trial, his first conviction having been overturned by this court and a new trial ordered. [^1]
[2] Three perpetrators broke into the victim’s home looking for money. George Kalogerakis, the victim, insisted he had no money. He was shot in the arm and bound up with duct tape. After searching upstairs and finding no money, two of the perpetrators carried the victim to the basement where he was shot in the head and later died. No one testified as to what occurred in the basement. The victim was found bound, and from the blood spatter and position of the body, it was determined that he would have been sitting, kneeling or crouching when he was shot.
[3] The first degree murder charge was based on s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, committing murder while committing or attempting to commit forcible confinement.
[4] The Crown’s primary position at trial was that the appellant was the shooter. However, if the jury was not satisfied that the appellant was the shooter, the Crown’s secondary position was that the appellant was a party to the offence of murder and that he could be found liable either as having aided the shooter under s. 21(1)(b) of the Code or as having formed a common intention with the shooter under s. 21(2) of the Code.
[5] The appellant’s appeal is based on two alleged errors in the jury charge relating to whether the trial judge erred in his instructions regarding: (1) the mens rea for murder as a party to the killing; and (2) the requirements for a party to be found guilty of first degree murder. For the reasons that follow, I would dismiss the appeal.
Facts
[6] The robbery was discussed in a series of text messages between the appellant and a neighbour and former friend of the victim that began three days before. The messages discussed robbing the victim, who was 38 and lived with his mother, of $20,000 that his neighbour told the appellant he kept in cash in his house. The appellant said he would do it with his “cuz” and that he was getting a “duce duce”. It was agreed that “duce duce” or “deuce deuce” referred to a 22-calibre gun.
[7] The morning before the robbery, the appellant and another person knocked on the door of the victim’s home around 7 a.m., after he had left for work, and spoke to his mother through the door. The appellant texted the victim’s neighbour later that he had tried that morning and would go back tomorrow.
[8] The robbery took place around 1 a.m. the next morning. The victim’s mother heard a struggle downstairs and her son call out to call 911. Before she could do so, a masked man with a long gun came upstairs, pushed her downstairs with the gun, and ordered her to sit on the bottom of the stairs near the foyer. There were three men, whom the mother described by height and clothing. The tallest and middle height men wore bandanas over their faces and gloves. The shortest, also described as the youngest, wore a hood with nothing covering his face. The Crown’s position was that the tallest man was the appellant.
[9] From her position on the stairs, the victim’s mother could see her son and the middle height man in the foyer. The victim was lying on the floor with his wrists and ankles bound with tape. The middle height man demanded money. The victim cried and said he had no money.
[10] The tallest man ordered the shortest man to tie up the mother. The shortest man taped her wrists and ankles and sat with her in the living room holding a knife. He took her car keys and wallet from her purse. [^2]
[11] The tallest man went back upstairs, leaving the middle height man with the victim. Forensic evidence indicated that at some point, the victim was shot in the arm in the foyer. That was not the fatal shot.
[12] After the tallest man came back downstairs, he and the middle height man dragged the victim to the basement. After a short time, which the mother initially testified was a few seconds after, but agreed in cross-examination could have been up to five minutes later, she heard a shot.
[13] The robbers then came back upstairs. The mother originally testified at the first trial that the tallest man passed the gun to the middle height man after he brought her downstairs and before they took the victim to the basement. At this trial, the mother stated that she did not remember who had the gun when the two men went down to the basement, but that the tallest man had the gun when they came back upstairs. Once they returned upstairs, they unplugged the kitchen phone and left the house together, with the tallest one pointing the gun at the mother while he backed out the front door.
[14] After the robbers left, the mother went to the basement where she found the victim bound with tape and shot but still breathing. She testified that she tried to remove tape from his mouth and was unable to, but emergency services and forensics found no evidence of tape or that there had been tape on his mouth. When she went outside, she found her car had been taken. She went next door and her neighbour called 911. The police came and found the victim in the basement. He was still alive but died in the ambulance.
[15] The police investigation in the basement disclosed that the victim was killed by a gunshot to the head fired from close but not tight contact range, while sitting, kneeling or crouching on the floor. The victim also had abrasions and bruising on his face and a fractured bone above his right ear caused by the application of force, more likely from strikes than from a fall.
[16] The appellant was arrested a few days later at a residence. A search of an upstairs bedroom disclosed a newspaper with a fold on a page with a story about the murder, as well as a backpack containing the appellant’s ID and wallet as well as a “gun sock” used for storing a long gun.
[17] The appellant made an exculpatory statement to the police, in which he admitted to exchanging the text messages regarding planning the robbery, and to attending the house the morning before, but said he had changed his mind and did not end up participating in the robbery. He also denied any knowledge of the gun sock.
[18] A jail house informant, John Whissel, became a witness at the trial. While he was serving a three-week sentence for domestic assault, he was originally housed with the appellant. They shared a cell for six days while the appellant was attending pretrial motions in court. He said that because he was being bullied by other inmates, he provided the guards, and later the police, with information about the appellant and was moved to another cell.
[19] He testified at trial that he told the appellant that his girlfriend had read about his case online, including that the robbers had beaten up the mom, and the appellant responded: “I didn’t beat up the mom, I shot the guy in the head.” The appellant said he was downstairs while someone else remained upstairs with the mother. He also asked Mr. Whissel if he knew what a “deuce deuce” was, and explained that it was a 22-calibre gun. Mr. Whissel told the police that the appellant had mentioned a 22- or 25-calibre gun, but only remembered he had used the term “deuce deuce” after a Crown attorney in the first trial mentioned it. He also added that one time, the appellant pointed to the back of his head behind an ear with a gun motion, possibly around the time he was talking about the deuce deuce.
[20] The jury was given a strong Vetrovec warning about Mr. Whissel’s testimony.
[21] The appellant’s position at trial was that he was not one of the robbers. He had been involved in the planning, but backed out after attending the victim’s residence on the morning before the robbery. The appellant did not testify, but his exculpatory police statement was tendered by the Crown. If the jury rejected that position, then the issue was the extent of the appellant’s liability. The appellant concedes on appeal that all three of the robbers were guilty of manslaughter and that if he was one of the robbers, he was not the shortest man who stayed on the ground floor during the robbery.
[22] The jury was instructed that there were three paths to murder in this case: (1) that the appellant was the shooter; (2) that the appellant aided the shooter in the killing (s. 21(1)(b)); or (3) that the appellant formed a common intention with the shooter (s. 21(2)). Assuming that the jury was satisfied that the appellant was either a principal or party to the murder, the jury was instructed that they would then have to turn their minds to whether it was a first degree murder.
[23] The first degree murder charge was rooted entirely in s. 231(5)(e) of the Code, murder while committing forcible confinement. The evidence of forcible confinement was clear, as the victim was bound with duct tape when he was carried to the basement and he was shot at close range while sitting, kneeling or crouching, shortly after being carried down.
[24] If the appellant was the actual shooter, then the basis for first degree murder was essentially indisputable. If the appellant was not the shooter, but he was a party to the murder, then the jury had to determine whether, in accordance with R. v. Harbottle, [1993] 3 S.C.R. 306, the appellant played “a very active role – usually a physical role – in the killing”, and that his action formed “an essential, substantial and integral part of the killing of the victim”: at p. 324.
Issues
[25] The appellant raises two issues on the appeal. Both issues relate to the charge to the jury on party liability, i.e., the appellant’s liability if he was not the shooter. One issue relates to the mens rea for murder, while the other issue relates to the evidence of first degree murder. The appellant’s oral submissions focused exclusively on the first degree murder issue. He left the mens rea for murder issue to his factum. Although the first degree murder issue is the main issue on this appeal, I will begin by addressing the mens rea for murder, following the logical progression of issues that the trial judge followed in his charge.
[26] The first issue relates to an alleged error on the murder charge: did the trial judge err in his instruction to the jury by failing to focus the jury on the issue of whether they could infer from the circumstantial evidence that if the appellant was not the shooter, he had subjective knowledge or foresight that murder would probably occur during the robbery?
[27] The second issue relates to an alleged error on the first degree murder charge: did the trial judge err by failing to adequately instruct the jury, if the appellant was not the shooter, how, based on the evidence, he could have played an essential, substantial, and integral part in the killing to be guilty of first degree murder as a party?
Analysis
Issue 1: Error on the murder charge – did the trial judge err in his instruction to the jury by failing to focus the jury on the issue of whether they could infer from the circumstantial evidence that, if the appellant was not the shooter, he had subjective knowledge or foresight that murder would probably occur during the robbery?
[28] To be liable for murder as a party, the appellant had to have known that his cohort had the intention for murder. There were two bases upon which he could be found guilty as a party to murder. Under s. 21(1)(b) as an aider, the appellant must have intended to assist the shooter, knowing that the shooter had the intention for murder. Under s. 21(2), the appellant must have agreed with the shooter to pursue an unlawful purpose – in this case a robbery – and the murder must have taken place during that robbery. Provided that the appellant knew that a murder would probably take place in the course of the robbery, he would also be guilty of murder.
[29] The appellant submits that this was a weak case for party liability for murder by the non-shooter, and in particular, there was a paucity of evidence from which the jury could draw an inference of knowledge that the shooter was going to murder the victim. From that proposition, he argues that the trial judge erred in his charge on this issue by failing to assist the jury with relevant examples from the evidence that would allow them to find or infer that if the appellant was the non-shooter, he had subjective knowledge that the other robber intended to kill the victim. He says that while the charge on party liability was generally accurate, the trial judge failed to focus the jury on the critical issue of his subjective knowledge or foresight of death.
[30] I reject the appellant’s premise that this was a weak case for party liability for murder. I say this in the context that the most likely scenario on the evidence, and the main position of the Crown, was that the appellant was the shooter. However, if he was not the shooter, the evidence that he knew that the victim would be killed was overwhelming.
[31] In the text messages that preceded the robbery, the appellant said that he would bring the “duce duce”, that is, the 22-calibre gun. If he in fact passed it to one of his cohorts, on one version of the evidence, it would have been for the purpose of using it. By the time the two robbers took the victim to the basement, one of the robbers had already shot him, i.e., the gun had already been used. Using it again would not have been a surprise. And if there was money on the premises, the victim would certainly have given it up by the time he was taken, injured and bound with duct tape, to the basement. Logically, there was only one purpose to take the victim down, out of sight of the mother, and that was to kill him so that he could not identify the perpetrators.
[32] As for the charge as it related to s. 21(1)(b) liability – aiding the shooter – the trial judge directed the jury to five elements of the evidence they could use to determine whether the appellant did something to aid the shooter:
- The gun was visible and used to force the victim’s mother down to the foyer: You may draw the inference that the gun was also visible to the others. You may also consider that when she was marched down to the foyer, her son was bound. He was already in that state with two other males when the taller male brought her down to the foyer. She called these two males the middle guy and the younger guy.
- Two forensics experts gave evidence “that confirms that Mr. Kalogerakis was shot in the foyer.”
- The tallest and middle height men took the victim to the basement while the younger man held the victim’s mother at knife point.
- When the two men went to the basement with the victim, “one of them was carrying a gun.”
- The younger man tied up the victim’s mother “and held her at knife point throughout the incident. And I think it is a reasonable inference that she could not call for help while being held at knife point”.
[33] The trial judge also directed the jury to the evidence they could consider regarding the appellant’s state of mind as an aider:
So the evidence that may be relevant to the state of mind of Mr. Bailey acting as an aider would include the evidence, (a) the actions of the males who were not holding the gun when Ms. Kalogerakis was taken to the foyer. Keep in mind the middle man and the younger male were apparently already with Mr. Kalogerakis when he was laying on the foyer; (b) evidence that Mr. Kalogerakis had already been shot in the foyer and that he was bound by the wrist and arms; (c) any knowledge by the other males that the shooter had a gun in the house that early morning of November 12th; (d) any knowledge that the gun had been drawn out when Mr. Kalogerakis was taken downstairs; (e) the opportunity, if any, that the non-shooter who went to the basement with the shooter had to recognize that the shooter was going to shoot Mr. Kalogerakis dead in the basement; (f) evidence that a non-shooter helped the shooter take Mr. Kalogerakis to the basement; (g) evidence that the younger male was confining Mrs. Kalogerakis at knife point while her son was taken downstairs to the basement by the shooter; (h) evidence that the younger male took her car keys and left with the shooter after the shooting.
[34] The trial judge then reviewed the relevant evidence for the jury to consider in order to assess whether the appellant was a party to murder by acting with common purpose in a joint criminal venture (s. 21(2)). He did this under headings that broke down the issues for the jury. One of those was: “Did Mr. Bailey know that, in carrying out the robbery, it was likely or probable that the shooter meant either to kill George Kalogerakis or meant to cause George Kalogerakis bodily harm that the shooter knew was likely to kill him and was reckless whether the person died or not?” Under that heading, the trial judge referred the jury back to the evidence they should consider in the following paragraphs:
And I emphasize again that to convict Mr. Bailey of murder, to show that he had the knowledge to commit murder under this route, the Crown must prove that Mr. Bailey actually knew that in carrying out the robbery, one of the other participants in the original agreement to rob the people at [the victim’s home] would likely or probably kill George Kalogerakis, or likely or probably intentionally cause bodily harm he knew would likely kill George Kalogerakis, and didn’t care whether he died or not.
So in looking at the state of mind for Mr. Bailey as the non-shooter, look at what he would or would not know. Look at the weapon used by the shooter. Look at when it was first displayed. Recall that Mr. Kalogerakis was already shot when he was taken to the basement according to the opinion of Constable Kastelic [the bloodstain pattern expert]. Look at the photos of the foyer. Look at the texts. Look at what the male said or did not say in the house. Where were the non-shooters when anything was said in the home? Look at when the killing took place. Where were the non-shooters when the shot in the basement occurred? What were the middle man and the younger male doing when the shot was fired? What did they do after the shot was fired? What position was George Kalogerakis in when he was shot according to Constable Kastelic? Was he bound? Where was he shot on his body?
[35] In my view, the trial judge’s charge clearly directed the jury to the evidence they could use to consider whether, if the appellant was not the shooter, he was liable for murder as a party with the requisite knowledge component.
[36] In addition, the appellant maintains that the trial judge erred by using examples of party liability from Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), instead of crafting examples based on the evidence at the trial. He argues that the examples the trial judge used of two people robbing a convenience store assume the guilty state of mind rather than demonstrate how to infer it, and raise irrelevant facts that would not assist the jury.
[37] I would not give effect to this submission. The trial judge’s use of examples not related to the facts of the case and taken from Watt’s Manual is standard procedure to explain a concept to the jury. The jury was well aware of the factual circumstances that I outlined above from the trial judge’s detailed recitation of the facts, and in particular, the evidence of the mother who observed the robbers take her son to the basement.
[38] I would dismiss this ground of appeal.
Issue 2: First degree murder charge – did the trial judge err by failing to adequately instruct the jury, if the appellant was not the shooter, how, based on the evidence, he could have played an essential, substantial, and integral part in the killing to be guilty of first degree murder?
(a) The alleged error and relevant law
[39] This alleged error was the basis of the decision of Rosenberg J.A. in R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503. The appellant relies on this decision as disclosing an error of law by the trial judge in his charge to the jury. In Ferrari, the two accused, Ferrari and Zingariello, agreed to rob a bookie who they understood kept a safe in his home containing a lot of money. The victim was shot and died. Both accused men testified and gave conflicting stories about who had the gun and who fired the shots. Ferrari testified that they found the victim in his bedroom where they tied him up and tried to get him to tell them the combination to the safe. He refused. They tried to take the safe with them but could not move it beyond the stairs. Zingariello testified that the victim came home while he and Ferrari were in the bedroom and Ferrari forced the victim up the stairs at gunpoint. A fight ensued between Ferrari and the victim, and Zingariello fled when Ferrari’s gun went off. He denied any involvement in the confinement or killing. Both men were charged with first degree murder under s. 231(5)(e).
[40] The appellants in Ferrari first argued that a person could not be found liable for first degree murder under s. 231(5)(e) as a party under s. 21(2) of the Code. The court rejected that submission. Rosenberg J.A. explained that to be guilty of murder as a party under s. 21(2), the party must have had the subjective foresight that death would probably occur. He explained what this would mean, at para. 61:
[T]he non-shooter had to know that the shooter would probably cause the death of the deceased with one of the intents set out in s. 229(a) of the Code: either the intent to cause death, or the intent to cause bodily harm that the principal knew would likely cause death, being reckless whether death ensued or not.
[41] To move from second to first degree murder by way of forcible confinement, the party’s participation in the death must form “an essential, substantial and integral part of the killing of the victim”: Harbottle, at p. 324. Rosenberg J.A. referred to the following example used by Cory J. in Harbottle to describe the level of participation required for conviction under s. 231(5)(e), at para. 70:
An example can make the point more clearly. As I discuss at greater length below, in Harbottle, Cory J. gave some examples of where an accused could be convicted of first degree murder under s. 231(5). One example was described in the following terms at p. 324:
For example, if one accused with intent to kill locked the victim in a cupboard while the other set fire to that cupboard, then the accused who confined the victim might be found to have caused the death of the victim pursuant to the provisions of s. 214(5) [now s. 231(5)]. [Emphasis added by Rosenberg J.A.]
[42] Rosenberg J.A. went on to explain his conclusion regarding the requirements for conviction as a party to first degree murder under s. 231(5) at paras. 71-72 as follows:
In my view, liability under s. 231(5) would also flow if the one accused (the party), while not intending to kill the victim, knew that the principal offender would probably commit murder in carrying out the unlawful purpose, i.e., had the s. 21(2) mens rea for murder. The participation by the party is the same whether the party intended to kill or merely knew that the principal offender would probably commit murder. Further, these acts of participation were a substantial cause of the death of the victim. I find it difficult to conceive that such a person would not have the requisite moral blameworthiness for first degree murder. Of course, a slight change in the facts might relieve the party of liability for first degree murder. If the victim was able to get out of the cupboard and was then shot by the principal offender, the acts of the party in confining the victim would not be a substantial cause of the death and the party would be guilty, at most, of second degree murder.
When addressing potential liability for first degree murder, regardless of the basis upon which an accused may be guilty of 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. The jury must clearly understand in the context of the evidence it heard what it takes to make the accused guilty of first degree murder under s. 231(5). [Emphasis added.]
[43] Applying that test, Rosenberg J.A. found that the trial judge’s charge had failed to give the jury sufficient direction regarding the acts that could constitute the direct participation in the killing required for party liability for first degree murder under s. 231(5)(e). In considering the type of participation that the case law has recognized can amount to first degree murder by a party, he referred to the facts and examples in Harbottle, as well as the facts in R. v. Al Ghazzi; R. v. Norouzali (2003), 177 C.C.C. (3d) 383 (Ont. C.A.); Comeau c. R., 2010 QCCA 1603; R. v. Kematch (S.D.) et al., 2010 MBCA 18, [2010] 7 W.W.R. 636; R v. Brown (2002), 160 O.A.C. 141 (C.A.); and R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148.
[44] For example, in Al Ghazzi, the accused was a taxi driver whose actions constituted the type of direct participation in the murder that could result in a finding of guilt for first degree murder. He was aware of the plan to assault the victim in the back of his cab; then as he was driving, he became aware that the assault was turning to murder, but kept driving without stopping the cab or curtailing the attackers’ actions. As Rosenberg J.A. put it at para. 90 of Ferrari: “The appellant’s actions in controlling the taxi were essential to the killing; somewhat like the arson example in Harbottle, the appellant confined the victim while his confederate inflicted the fatal beating.”
[45] In Norouzali, the two accused forcibly took the victim from his car into a fenced wooded area where they shot and killed him. The court explained that the non-shooter prevented the victim’s escape, and in that way, his actions were an integral cause of the victim’s death: at para. 53. Rosenberg J.A. elaborated that it was the active role of the non-shooter right up to the point of the execution that made him liable for first degree murder: Ferrari, at para. 92.
[46] After reviewing the case law, Rosenberg J.A. turned to the evidence in the case before the court. He explained that the evidence could support a number of ways that the killing occurred. He outlined three examples, at paras. 95-97. One was that the killing was planned and deliberate, but that had been rejected by the trial judge. A second was that both appellants participated in the unlawful confinement, which immediately preceded the shooting, and which was done to obtain the combination to the safe, while the non-shooter knew that his cohort intended to kill the victim. On this scenario, the non-shooter would be guilty of first degree murder.
[47] A third possibility was that both appellants participated in the unlawful confinement, but then while the non-shooter was dragging the safe from the bedroom, his cohort shot the victim. In that scenario, while there would have been subjective foresight of death, the non-shooter would not have taken an active role in the actual killing and therefore his actions would not have been a substantial cause of death. On that scenario, the non-shooter would be guilty of second degree murder but not first degree.
[48] Rosenberg J.A. found that the trial judge had failed to outline such examples to the jury in order to explain for their benefit how the evidence could support first degree murder and how it would not, depending on the findings they made. He concluded that this constituted a gap in the jury charge that could have misled the jury into thinking that they could convict the non-shooter of first degree murder under s. 21(2) based only on his participation in the unlawful confinement, even though they were unsure what the non-shooter did as part of the killing: Ferrari, at para. 99.
[49] In Ferrari, the Crown asked the court to substitute a conviction for second degree murder for both accused rather than order a new trial. The court did so. As a result, the court did not need to address the final ground of appeal, which was that the evidence could not support a finding of first degree murder.
(b) The appellant’s position
[50] The appellant submits that the trial judge made the same error in his charge as the trial judge did in Ferrari and left the same gap, and that a new trial must therefore be ordered. He argues that the instructions the jury was given “created the strong possibility that they would have concluded that they did not have to decide which of the robbers actually shot Mr. Kalogerakis” because they thought it was sufficient that the non-shooter “knew that it was probable that one of the other robbers would commit murder, and that his participation in the forcible confinement of Mr. Kalogerakis some time earlier … was sufficient to constitute ‘active participation’ in the subsequent shooting.”
[51] The appellant points to scenarios, as in Ferrari, that would not have amounted to first degree murder for the non-shooter, such as if the two robbers took the victim to the basement where they continued to search for the money, and the shooter then shot the victim on his own. The fact that the mother agreed in cross-examination that the robbers could have been in the basement with the victim for up to five minutes extended the time period during which there was no evidence of what was going on. The appellant submits that the trial judge was required to explain to the jury that if they found a scenario like that to be possible on the evidence, they could not convict of first degree murder.
(c) The jury charge on party liability for first degree murder
[52] The final steps in the jury charge were the explanations of first degree murder and party liability for first degree murder as a non-shooter. The trial judge set out the following questions as headings in his charge:
- Did Mr. Bailey murder George Kalogerakis while committing the separate offence of unlawful confinement?
- Were the unlawful confinement and the murder of George Kalogerakis part of the same series of events?
- Did Mr. Bailey actively participate in the killing of George Kalogerakis?
[53] With respect to the third question (active participation), the trial judge said:
To prove this element, Crown counsel must prove beyond a reasonable doubt that Mr. Bailey did something that was an essential, substantial, and integral part of the killing of George Kalogerakis. By an essential, substantial and integral part, I mean that Mr. Bailey actively participated in the killing of George Kalogerakis. It is not enough to prove that Mr. Bailey was present, or that he played some minor role in the events.
As I told you previously, someone causes another person’s death if they do something that is at least a contributing cause of death beyond something that is minor or trifling. Meeting that test is sufficient to establish causation for either murder or manslaughter. However, a higher standard of causation must be established by the Crown before murder can become first degree murder on the basis we are now considering. The difference between the tests for causation for murder and manslaughter and under this question is one of degree. The law provides that no one should be convicted of the more serious offence of first degree murder on the basis we are now considering unless they have been involved in causing the death in an essential, substantial and integral way.
So paragraph 425, it is for you to determine whether what Mr. Bailey did was an essential, substantial and integral part of the killing of George Kalogerakis. Consider all of the evidence. If you are not satisfied beyond a reasonable doubt that Mr. Bailey did something that was an essential, substantial and integral part of the killing of George Kalogerakis, you must find Mr. Bailey not guilty of first degree murder, but guilty of second degree murder.
If you are satisfied beyond a reasonable doubt that Mr. Bailey did something that was an essential, substantial and integral part of the killing of George Kalogerakis, you must find him guilty of first degree murder.
[54] The trial judge gave the jury an extensive review of the evidence.
[55] After reviewing the evidence, the trial judge related the evidence to the elements of the offence in the context of what had to be proved for each. The last one related to first degree murder as the non-shooter, and for that, whether the appellant actively participated in the killing. On that issue, the trial judge stated:
To prove this element, Crown counsel must prove beyond a reasonable doubt that Mr. Bailey did something that was an essential, substantial and integral part of the killing of George Kalogerakis.
In her evidence Mrs. Kalogerakis described how the taller man took her at gunpoint, led her downstairs where her son was laying on the foyer. Initially, before she was taken downstairs, she had tried to call for 9-1-1. Her son was bound and there were two other males. The taller man directed the younger male to tie her up. The younger man tied her up, took her keys and wallet and asked for her son's keys. The younger man confined and held her up at knifepoint. This taller man went upstairs and came back downstairs. The taller man and the middle man then took her son downstairs and she heard a shot shortly after. The younger man was left upstairs with her. Once the shooting occurred, all three males left her home. Her car was also stolen.
Depending on your view of the facts, you will have to decide what Mr. Bailey did in that home and this question is for you to decide.
It is for you to determine whether what Mr. Bailey did was an essential, substantial and integral part of the killing of Mr. Kalogerakis. And if you are not satisfied beyond a reasonable doubt that Mr. Bailey did something that was an essential, substantial and integral part of the killing of Mr. Kalogerakis, you must find him not guilty of first degree murder, but guilty of second degree murder. And if you are satisfied beyond a reasonable doubt that Mr. Bailey did something that was an essential, substantial and integral part of the killing of Mr. Kalogerakis, you must find him guilty of first degree murder.
(d) The trial judge did not err in his first degree murder instructions
[56] In my view, the trial judge made no error in his charge on first degree murder. His instructions to the jury properly explained the steps they should follow and the evidence they were required to consider in order to determine whether, if the appellant was not the shooter, they should find him guilty of first degree murder as a party.
[57] I have reached this conclusion for three reasons. First, the need to set out alternative scenarios such as those provided in Ferrari depends on the evidence that is put forward at trial. Where the accused does not testify and the evidence is circumstantial, the trial judge should not invite the jury to speculate. Second, in this case, it was the evidence of the active role of the appellant up to the point of the basement shooting that made him liable as a party to first degree murder. Finally, it is significant on this point that trial counsel did not object to the way that the jury instruction was written.
[58] This case differs significantly from Ferrari where both accused testified and gave conflicting versions of how the shooting occurred and who was the shooter. The jury was therefore required to come to grips with that evidence and conclude who was the shooter, and whether what the non-shooter did made him guilty of first degree murder. Although the jurors did not have to agree on the route to liability, they had to be instructed on how they should approach these critical issues.
[59] When Rosenberg J.A. stated in Ferrari, at para. 98, that the trial judge failed to give the jury sufficient direction regarding “the factual findings the jury would have to make, in addition to finding joint participation in the unlawful confinement, to render the participant guilty of first degree murder”, he based that finding on the fact that on the evidence, there were different scenarios available. He gave three examples, based on the evidence, of what the jury may have concluded, one of which would not have supported a finding of first degree murder by the non-shooter.
[60] In this case, no one testified as to what occurred in the basement, including who was the shooter. However, the evidence that was available was outlined by the trial judge. The tallest and medium height robbers together carried the victim, who was already bound with duct tape and who had been shot in the arm, down the stairs to the basement. Shortly afterward, he was shot in the head. The time lapse could have been as short as a few seconds or up to five minutes. The forensic expert determined that the victim would have been kneeling, sitting or crouching when he was shot. He had several face and head injuries that appeared to be from a hit rather than a fall. Both robbers came upstairs together after the shooting. The mother gave conflicting evidence about which of the two robbers was carrying the gun on the way down and up the stairs.
[61] From that evidence, it was open to the jury to conclude that regardless of who actually had the gun at that point in time and who shot the victim, the two were in a joint enterprise to kill him while forcibly confining him. They took him downstairs for that purpose, and they carried out that purpose.
[62] It would have been wrong for the trial judge to pose hypothetical scenarios to the jury that were not based on the evidence. That would be asking them to speculate. Their job was to determine, based on the evidence and the reasonable inferences they could draw from it, whether the Crown had proved first degree murder beyond a reasonable doubt.
[63] I would draw a parallel to this court’s decision in Norouzali, which Rosenberg J.A. approved in Ferrari. In Norouzali, the victim’s body was found in the wooded area where he had been shot. Neither of the two accused testified as to what occurred. The two accused were both charged with first degree murder based on planning and deliberation or committing murder while committing forcible seizure. The trial judge charged the jury in accordance with Harbottle using the following words:
The Criminal Code provides that forcible seizure becomes first degree murder when the death of the person seized is caused by that person while committing or attempting to commit forcible seizure. The words “by that person” ordinarily limit the application of the provision to the person who actually caused the death; for example, the shooter. Generally speaking, therefore, a co-accused could not be convicted of first degree murder under this provision solely on the basis that he aided and abetted and was a party to the offence of forcible seizure of Kenneth Thomas. However, both [the accused] can both be convicted under this provision if you find both were substantial causes of Kenneth Thomas’ death. That is the Crown must establish beyond a reasonable doubt that both committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of death. Each of them must have played a very active, usually physical, role in the killing.
[64] In that case, although there was no objection at trial, on appeal the appellant’s position was that there was no evidence that would support an inference that the appellant had been a substantial and integral cause of the victim’s death, even if he was a party to the forcible seizure: Norouzali, at para. 49. That position was firmly rejected by Gillese J.A., who explained, at paras. 53-54:
In my view, the facts in this case are similar both to the very facts in Harbottle itself and to those posited in the second example. All of the evidence of the events of the day supports the inference that the appellant acted in concert with his co-perpetrator throughout the day. Thomas’ robbery and murder was a joint venture. It took both the appellant and the co-accused to forcibly escort Thomas to his execution site. Assuming that Thomas was shot by a single person and that the appellant was the non-shooter, the appellant prevented Thomas’ escape. As such, he committed an act or series of acts of such a nature that they could be regarded as a substantial and integral cause of death. The appellant “caused” Thomas’ death because he participated in the murder in such a manner that he was the substantial cause of Thomas’ death. His role was as substantial as that of the accused in Harbottle itself. The “back up” role that the appellant played was as integral to Thomas’ death as that of the shooter.
In the circumstances, it was open to the trial judge to instruct the jury in the manner that he did. There was ample evidence upon which the jury could have found the accused guilty of first degree murder on the basis that Thomas’ murder was planned and deliberate. If the jury was not convinced beyond a reasonable doubt that there was planning and deliberation and they found that the co-accused shot Thomas, they had to find that the appellant played a substantial and integral role in Thomas’ death. If unable to determine which of the two men shot Thomas, they had to find that both accused played a substantial and integral cause in Thomas’ death in order to find them guilty under s. 231(5). In the instant case, it was entirely open to the jury to conclude that both the shooter and the non-shooter played a substantial and integral role in Thomas’ murder. I would, therefore, reject this ground of appeal.
[65] Rosenberg J.A. explained how Norouzali was distinguishable from Ferrari at para. 92:
As the court explained, the facts in Norouzali resembled both the facts of Harbottle itself and the second example given by Cory J. in that case, of the participant who fought off rescuers. The earlier confinement of the victim was not itself sufficient to render the participant liable for first degree murder; rather, it was the active role played by the appellant right up to the point of execution in ensuring that the victim could not escape. Norouzali is different from this case because no continuing actions by the participant beyond the initial tying up of the deceased were necessary for the killing. [Emphasis added.]
[66] The key is that the non-shooter’s participation in the earlier confinement of the victim is sufficient for party liability for second degree murder, but does not constitute the direct participation in the killing that is required to make him liable for first degree murder. In Norouzali, the non-shooter was part of the entire enterprise because he had to assist in delivering the victim to the murder site, where he could not escape, thereby playing an active role up to the point of execution.
[67] Similarly, in this case, the non-shooter played an integral role in the shooting by delivering the victim for execution. As in Norouzali, it required two people, in this case one also holding a large gun, to carry the bound victim to the basement where he was made to kneel, sit or crouch to be shot. Neither victim, in this case or in Norouzali, was in a position to escape at that point.
[68] While up to five minutes may have gone by before the killing took place, like in Norouzali, it was open to the jury to conclude the non-shooter played an active role throughout. There is no evidence of how much time elapsed from when the victim in Norouzali was forced through the fence to the place where he was shot and the shooting itself. Unlike in Ferrari, there was no direct evidence of what the non-shooter did during that time. Obviously, one cannot know whether he turned his back or closed his eyes – that would be mere speculation.
[69] In both cases, the potential for a time gap could have caused the jury to have a reasonable doubt about the continuing role of the non-shooter, but it remained open to them to find, based on all the circumstances, that he remained involved in the execution until it happened, and of course, there was direct evidence that he remained involved in the getaway.
[70] A finding of first degree murder, where there is no direct evidence of the event, will depend on circumstantial evidence in each case. In this case, the jury was properly instructed on the law regarding circumstantial evidence, albeit at a different point in the charge. By virtue of how the jury charge was structured, by the time the jury was considering first degree murder under s. 231(5), they would already have satisfied themselves that the appellant, either as a principal or a party, had the requisite mens rea for murder. The trial judge also properly instructed the jury that in order to find the appellant guilty of first degree murder, they had to find the appellant played an essential, substantial, and integral part in the killing itself and that it was not enough that he was simply present or played a minor role in the events. The jury also had to find that the unlawful confinement and murder were part of a single ongoing transaction.
[71] It is also important that following the reading of the charge to the jury, both trial counsel and the judge engaged in a lengthy discussion regarding the decision tree as it related to the first degree murder charge. Crown counsel had initial concerns, but defence counsel was satisfied that it was correct. Ultimately the decision tree was not amended further. There were no other objections to the charge. [^3] While not determinative, the fact that all counsel were content with the charge on this point and turned their minds to it in the context of the decision tree “provides a strong reason to conclude that the jury would not have been misled or confused”: R. v. Goforth, 2022 SCC 25, at para. 39; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 44.
(e) Conclusion on the first degree murder issue
[72] The trial judge’s instructions on first degree murder party liability were error-free. They fully described the legal requirements and included the relevant evidence. The need for the instruction described in Ferrari, where the trial judge assists the jury by setting out alternative scenarios that could or could not constitute first degree murder party liability, must be based on the evidence at the trial. Where the evidence is circumstantial, there is no requirement for the trial judge to postulate scenarios that would require the jury to speculate beyond the evidence and the inferences that could be reasonably drawn from it.
[73] I would not give effect to this ground of appeal.
Conclusion
[74] I would dismiss the appeal on both grounds.
Released: June 30, 2022 “J.M.F.” “K. Feldman J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Harvison Young J.A.”
[^1]: R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463. [^2]: It was not clear from the mother’s testimony whether her keys were taken before or after the victim was killed. [^3]: In earlier discussions with counsel regarding the draft charge, defence counsel initially argued that first degree murder for the non-shooter should not be left with the jury. The trial judge ruled that there was sufficient evidence to leave this route of liability with the jury, based on Ferrari.