COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Le, 2023 ONCA 79

DATE: 20230207

DOCKET: C62898 & C68612

Roberts, Zarnett and Coroza JJ.A.

DOCKET: C62898

BETWEEN

His Majesty the King

Respondent

and

John Le

Appellant

DOCKET: C68612

AND BETWEEN

His Majesty the King

Respondent

and

Vijay Ganesh Singh

Appellant

Brian Greenspan and Jared Greenspan, for the appellant John Le

Amy Ohler, for the appellant Vijay Ganesh Singh

Benita Wassenaar and Deborah Krick, for the respondent

Heard: May 16-17, 2022

On appeal from the convictions entered by Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a jury, on December 13, 2013 (C62898 & C68612).

On appeal from the sentence imposed by Justice J. Bryan Shaughnessy of the Superior Court of Justice on February 14, 2014 (C62898).

Coroza J.A.:

I. Introduction

[1] Vijay Ganesh Singh and John Le[^1] were involved in the transportation of drugs for traffickers and importers. When a 35-kilogram shipment of cocaine went missing, Singh had to answer to the owner of the drugs. Singh came to believe that Harjinder Sandhu was the "jacker" who stole the drugs, and he concocted a plan to lure Sandhu to a meeting.

[2] On May 3, 2009, Singh and Le were at Singh's home, at 100 Agincourt Drive in Scarborough, Ontario. Singh invited over one of his other associates, Michael Lopez. When Lopez arrived, he saw Singh and Le cleaning handguns. Singh asked Lopez to return the next day because the jacker was coming over and he wanted Lopez to clean the floors afterwards.

[3] On May 4, 2009, Lopez arrived as instructed. Singh and Le were present. Lopez asked to stay in the basement because he did not want to see the jacker coming. Singh permitted him to do so. From the basement, Lopez observed a man walk to the house. After some friendly banter, Lopez heard Singh and Le yelling "get the fuck down" multiple times. Lopez then heard a loud smack, crying, and whimpering. Singh then went to retrieve a second man from the car. Once in the house, Lopez heard a commotion upstairs again, followed by a smack and crying.

[4] When Lopez was instructed to come upstairs, he saw the second man bleeding out on the kitchen floor; his eyes and mouth taped shut. Le escorted this man into the garage and then into the trunk of the grey sedan he had arrived in with the first man. Le then provided Lopez with keys, cell phones, gloves, and a kitchen knife with a roll of silver duct tape attached and told him to dispose of the items. Lopez was left alone in the home to mop up the bloody kitchen.

[5] On May 5, 2009, the police found the bodies of Sandhu and his friend Puneet Chhina in a trunk at the side of Rosebank Road in Pickering, Ontario. DNA analysis revealed matches between: (1) Le and the duct tape binding Chhina's body, and (2) both deceased and the grout on the kitchen floor at 100 Agincourt Drive.

[6] Singh, Le, and Lopez were all arrested for the murder and kidnapping of each deceased. In advance of the trial, Lopez was offered prosecutorial immunity in exchange for his testimony against Singh and Le. He agreed to testify about everything that had happened, including about a confession that Singh had made to him on May 5, 2009. Lopez testified that Singh told him that Le had attacked each man as they entered the home and Singh gave each of them a sleeping aid. Singh told Lopez that Singh and Le then bound the two men with duct tape, put them in the trunk of Sandhu's car, and took them to a road in Pickering, where Singh shot each one execution style.

[7] Before trial, Le brought a severance application, which was denied. At trial, Singh and Le advanced a third-party alternate suspect defence, asserting that Lopez had committed the offences and was now framing them. Neither Singh nor Le testified.

[8] Singh and Le were each convicted by a jury of two counts of second degree murder and two counts of kidnapping.[^2]

[9] Singh appeals his convictions for second degree murder and kidnapping, alleging four errors in the jury instructions. Le appeals only his conviction for second degree murder and seeks leave to appeal his sentence, specifically asserting that a 23-year parole ineligibility period was disproportionate.

[10] For the reasons that follow, I would dismiss both conviction appeals. While I would grant Le leave to appeal sentence, I would dismiss his sentence appeal.

II. BACKGROUND FACTS

A. THE COCAINE THEFT

[11] Singh was involved in the drug trade, mostly importing cocaine. He worked with many associates, including Le and Lopez.

[12] In early 2009, Singh was living in Vancouver. He arranged for the transportation of 35 kilograms of cocaine from Los Angeles to Toronto. When the shipment arrived in Toronto, it looked like packages of cocaine, but it was actually packages of drywall. Evidently, someone had stolen the cocaine.

[13] The cocaine belonged to one "Ahmun", who was the leader of a criminal organization known as the United Nations Gang ("UN Gang"). Singh met with Ahmun to explain what had happened. One thing was clear after this meeting: Singh needed to recover the cocaine shipment, or at least find out who stole it.

[14] Singh returned to Toronto and stayed at his family home, at 100 Agincourt Drive. Singh's associate Zaki Goffur gave him a black Cadillac Escalade which he drove while in Toronto. Singh investigated the matter and came to believe that Sandhu was the jacker and had stolen the cocaine.

B. MAY 4, 2009: THE attack AT 100 AGINCOURT DRIVE

[15] After learning that Sandhu was a heroin user, Singh concocted a plan to lure Sandhu to his home by posing as a heroin dealer offering cheap heroin.

[16] On May 4, 2009, Sandhu and his friend Chhina were socializing in the garage of the home of their friend, Jatinder Dhaliwal. While he was there, Sandhu took a call. Sandhu told his friends that he was speaking to his heroin dealer and told them that he was leaving to purchase heroin. Sandhu asked Chhina to go with him, and he agreed. They left in a grey Nissan Altima around 4:00 p.m.

[17] Meanwhile, Singh and Le were already at 100 Agincourt Drive. As indicated above, Singh had previously asked Lopez to attend on this date, and Lopez complied. When he arrived, Lopez turned off his cellphone and parked away from 100 Agincourt Drive, so he would not be seen and could not be tracked. When Lopez entered the home, he asked Singh if he could stay in the basement. Singh allowed this request.

[18] From the basement, Lopez watched through a window as a grey sedan pulled up to 100 Agincourt Drive. He saw a man exit the car and walk up to the door of the house. Once the man entered, Lopez moved towards the basement door to overhear the conversation. He heard Singh and Le repeatedly yell, "get the fuck down". He then heard a loud smack, followed by whimpering and crying. Lopez heard Singh ask, "where's my work? Where's my load?" which he understood to mean the lost cocaine. Lopez heard the man deny knowledge.

[19] Lopez then heard someone exiting the house. He watched through the window as Singh walked to the grey sedan and spoke to a second man inside the vehicle. The second man then exited the vehicle and followed Singh into the house. Lopez then heard more yelling and another smack. He heard the garage door open and then the front door open. He watched Singh enter the sedan parked outside and drive it into the garage. Lopez then heard Singh repeatedly tell someone to drink something.

[20] Singh then asked Lopez to come up from the basement and start cleaning upstairs. When Lopez came upstairs, he saw the second man on the kitchen floor, bleeding from his head, with his hands bound and his eyes and mouth covered with duct tape. Singh was holding a gun that Lopez had seen him clean the day before. Le entered the kitchen from the garage and guided the second man to the garage. Lopez began mopping up the blood and footprints.

[21] Le gave Lopez four cellphones, some keys, a kitchen knife with a roll of silver duct tape attached to it, and a pair of latex gloves, and asked Lopez to dispose of these items. Lopez left the house with the items in two garbage bags in the trunk of his car. When Lopez left 100 Agincourt Drive, he saw that the grey sedan and Singh's black Cadillac Escalade were gone. He returned to his home in Stouffville.

[22] After he got home, Lopez received a call from Le saying that Singh needed his house keys. Lopez returned to 100 Agincourt Drive, disposing of the garbage bags along the way in two different dumpsters. When Lopez arrived at 100 Agincourt Drive, Singh and his father were there. He did not see Le or the Cadillac Escalade.

C. MAY 5, 2009: SINGH'S STATEMENT TO LOPEZ

[23] On May 5, 2009, Lopez told Singh that he wanted to sever ties with him as a result of "the situation". Singh asked to come over to "hear him out". Lopez agreed and Singh came over to Lopez's house.

[24] Singh told Lopez that he had invited the jacker over to purchase heroin. From the kitchen cupboard, Singh pulled a gun and told the jacker to get down. Le, who had been hiding in the living room, emerged and struck the jacker in the head with the butt of a gun, after which the jacker began bleeding.

[25] Singh then told Lopez that he went out to the jacker's car and invited the other man inside. Upon entering the house, Le struck the second man on the head, and he started bleeding. Singh then moved the jacker's car into the garage. Singh then told Lopez that Le put the two men in the back of the grey sedan. Singh drove the car while Le followed in the Escalade. They pulled over on the side of a road in Pickering.

[26] Singh told Lopez that he considered letting the men go free, but he knew that he needed to show Ahmun progress regarding the stolen cocaine. Singh then told Lopez that he shot both men execution style: one under the chin, the other in the forehead. He thought the second man was still alive, but there were no more bullets in the gun because Le had not replaced the bullets after cleaning the gun the day before. Singh left the gun in the trunk of the car and joined Le in the Escalade. The two men drove away and returned to 100 Agincourt Drive. After Lopez gave Singh the house keys, Singh and his father cleaned the place.

[27] After Singh finished telling Lopez what had happened, they eventually returned to 100 Agincourt Drive. Singh's business partner, Goffur, then arrived with industrial strength toilet bowl cleaner. Goffur mopped the house and Le came over and started mopping the garage. Le and Singh then announced to the group that they would be leaving Toronto.

D. DISCOVERY of THE deceased

[28] On May 4, 2009, Robert Thomas Lyon, a resident of Rosebank Road in Pickering, Ontario, drove to the grocery store to purchase fruit. After returning home, he checked the mail, during which he saw a small, light grey car make a three-point turn. He then returned to the grocery store because his wife needed butter. During his second trip, he noticed a small, silver-grey car parked on the side of Rosebank Road. The next day, on May 5, 2009, he again noticed the parked car. Seeing the car parked for a second day aroused his suspicion, and he called the police.

[29] When the police arrived, they saw that the parked car was weighted in the back with dark red liquid leaking from the trunk. Inside the trunk were the bodies of individuals subsequently identified to be Sandhu and Chhina. Their hands and feet were bound and their eyes and mouths were covered with duct tape. The officer observed wounds and blood on the bodies. The police recovered a firearm from the trunk, as well as shell casing. The firearm had a logo, "CZ". There was ammunition in the gun. Subsequently, an empty plastic gun case for a "CZ" firearm was seized from a storage locker associated with Singh.

[30] Post-mortem examinations revealed that the cause of death for each deceased was a single shotgun wound to the head. Le's DNA profile could not be excluded from DNA retrieved from a piece of latex glove attached to duct tape found on Chhina's body. Le's DNA was not found on Sandhu's body. As well, the grout on the kitchen floor of 100 Agincourt Drive revealed DNA that could not be excluded from the DNA profiles belonging to Sandhu and Chhina.

III. SINGH'S APPEAL (C68612)

A. Positions of the Parties

[31] Singh takes issue with four components of the jury charge: (1) the instruction on prior disreputable conduct; (2) the Vetrovec caution regarding Lopez's evidence; (3) the instruction on the defence theory of Lopez being a third-party suspect; and (4) the recitation of Lyon's evidence.

[32] The Crown submits that the jury charge reveals no error, but that any error can be saved by application of the curative proviso, pursuant to s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

B. Standard of Review

[33] The well-established functional approach to be taken by an appellate court in its assessment of jury instructions was recently summarized by the Supreme Court of Canada in R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-22:

The alleged errors in this case pertain to the trial judge's charge to the jury. As I stated above, this Court has long held that an accused is entitled to a jury that is properly — and not necessarily perfectly — instructed.

Trial judges are not held to a standard of perfection in crafting jury instructions. Rather, an appellate court must take a functional approach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. It is the substance of the charge — and not adherence to or departure from a prescriptive formula — that is determinative[.]

Indeed, trial judges must be afforded some flexibility in crafting the language of jury instructions, as their role requires them to "decant and simplify" the law and evidence for the jury. [Citations omitted.]

C. Analysis

(1) Did the trial judge properly instruct the jury about the prohibited and permitted uses of evidence of prior disreputable conduct?

[34] At trial, the jury heard evidence about Singh's involvement in importing drugs, about Singh's storage locker of firearms, and about the missing cocaine belonging to the UN Gang. While charging the jury on the uses of prior discreditable conduct evidence, the trial judge reminded the jury of some of the evidence they had heard and then provided the following instruction:

All of this evidence, if you find it credible and reliable, is simply evidence of bad character primarily as it relates to Vijay Singh.

I am instructing you that if you find this evidence to be credible and reliable, it is not admissible in support of an inference that, because of bad character, Vijay Singh and/or John Le is likely to have committed first degree murder and/or kidnapping. In other words, you must not infer guilt from bad conduct. [Emphasis in original.]

[35] On appeal, Singh acknowledges that this evidence was relevant and admissible, but argues that there are two errors in how the jury was instructed in relation to the evidence. First, Singh says that the trial judge failed to instruct the jury on the permitted and prohibited uses of this evidence. Second, he takes issue with the generality of the instruction, and submits that the trial judge failed to relate the evidence to the issues. I do not accept any of these arguments.

(a) The jury was properly instructed on the appropriate uses of the evidence

[36] Singh's position on appeal is essentially that the trial judge failed to provide an instruction identifying the permitted and prohibited uses of this evidence and that because the jury did not know how to use this evidence, they could have engaged in propensity reasoning and misused the evidence to infer guilt.

[37] I reject this argument for three reasons. First, the jury was specifically told that it was not to infer guilt, and therefore the trial judge did identify a prohibited use. Second, the jury was effectively told the permitted use, as the instruction on bad character evidence was followed almost immediately by an instruction on motive. Arguably, the bad character evidence was relevant to motive. The jury was told that evidence of motive was "just part of the evidence, one of many things for you to consider", but that motive was not an element of any offence, and that an accused may be found guilty of an offence with or without a motive to commit it. Third, as I will explain below, the instruction that is now impugned on appeal was approved by trial counsel.

[38] Taking the functional approach to a jury charge set out in Goforth, at para. 21, I am satisfied that, when his instructions are taken together, the trial judge did tell the jury the prohibited and permissible uses for this evidence – the jury would have understood that the bad character evidence could not be used to infer guilt and would also have understood that it could be used to assess motive, which was a legitimate use for the evidence.

(b) There was no error in the level of generality in the instruction

[39] Singh also takes issue with the generality of the limiting instruction. He asserts that the jury should have been told, in specific terms, how all of the bad character evidence related to the issues at trial. In his view, the instruction that the trial judge gave failed to equip the jury with a proper understanding of the evidence and the issues.

[40] The jury charge did precisely that. The jury was told, in broad terms, what evidence was at issue and how it could and could not be used.

[41] But more importantly, the instruction was precisely what Singh requested during the pre-charge conference. On the first day, counsel for Singh requested a limiting instruction regarding the prior discreditable conduct and bad character evidence. On the second day, the trial judge asked counsel whether the instruction should be "item-specific" or "global", and then told counsel, "I have drafted on the basis of more global but we'll have to discuss what I've come up with." A thorough discussion ensued, in which the trial judge explicitly stated that he was "open to suggestions". Suggestions were made and incorporated. All counsel agreed to the final draft.

[42] I do not accept Singh's submission that there was no tactical advantage to agreeing to a more broadly worded instruction. A highly specific instruction that described much of the evidence – evidence that had already been summarized elsewhere in the charge – would have likely "magnified the potential for prejudice": R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 80.

[43] These jury instructions were the product of extensive discussion among all parties. The trial judge provided a draft of his proposed instruction for the purposes of seeking input. He received that input, amended the jury instructions accordingly, and delivered precisely the charge that was satisfactory to everyone. These are all factors which bolster the conclusion that the jury charge was appropriate in the circumstances: see e.g., R. v. McCullough, 2021 ONCA 71, 154 O.R. (3d) 171, at paras. 60-64.

(2) Did the trial judge deliver an inadequate Vetrovec caution about Lopez's evidence?

[44] As noted above, Lopez was a key witness for the Crown. As a result of his involvement in criminal activities, including the offences for which the appellants were being tried, the jury needed to be given a caution about the dangers of accepting Lopez's evidence, pursuant to Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. The importance of this caution was furthered by the prosecutorial immunity agreement between the Crown and Lopez in exchange for his testimony.

[45] The trial judge delivered Vetrovec cautions regarding both Lopez and another Crown witness – Jatinder Dhaliwal. Defence counsel agreed on the language and content of these instructions. The trial judge listed some of the reasons why each of the two individuals were unsavoury witnesses. For Lopez, this included that he was a member of a criminal group, that he sold drugs, that he participated in the post-offence clean-up at 100 Agincourt Drive, that he disposed of evidence, and that he entered into a prosecutorial immunity agreement with the Crown.

[46] The trial judge then told the jury, "[c]ommon sense tells you that in light of these circumstances, there is good reason to look at Michael Lopez's and Jatinder Dhaliwal's evidence with the greatest care and caution". He proceeded to explain that the jury could still rely upon Lopez's evidence, even without extrinsic confirmatory evidence, but that it would be "dangerous" to do so, and that the jury needed to "keep in mind … the circumstances under which Michael Lopez and Jatinder Dhaliwal testified".

[47] Singh argues that the jury was not sufficiently instructed on how to assess Lopez's evidence. He submits that a Vetrovec caution must, among other things, identify the reasons why an unsavoury witness' evidence requires special scrutiny. These reasons included Lopez's status as an accomplice, his motive to lie, his admitted lying to the police on several occasions, and his criminal background.

[48] Singh also asserts that the trial judge needed to identify a close association between Lopez's evidence and the third-party suspect defence. The defence position was that Lopez committed the offences and was framing the appellants. As a result, Lopez was in a unique position where he could weave together a compelling narrative that included all the details of the offences, while also falsely implicating the appellants. In Singh's view, it was not enough for the defence to have argued this possibility before the jury; the jury needed to hear it from the trial judge himself.

[49] I see no error in the Vetrovec caution that was delivered. Trial judges are under no obligation to provide "[a]n exhaustive explanation of how a particular characteristic might enable a witness to upset the fact-finding process": R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 107, referring to R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14. There is no magic formulation to crafting a Vetrovec caution. What is appropriate will depend on the circumstances: Saleh (2013), at para. 108, referring to R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 38, 44, and Smith, at para. 16. The content of this warning is discretionary, and the exercise of that discretion is entitled to deference: R. v. Rafferty, 2016 ONCA 816, 33 C.R. (7th) 39, at para. 30, referring to R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 2, 18, and R. v. A.W.B., 2015 ONCA 185, 322 C.C.C. (3d) 130, at para. 40.

[50] In some cases, "the reasons underlying the need for caution are self-evident and an elaborate explanation of them is unnecessary": Saleh (2013), at para. 108, referring to R. v. Linklater, 2009 ONCA 172, 246 O.A.C. 303, at para. 10. This was undoubtedly one such case. Lopez was cross-examined for several days. The charge included a general instruction on assessing a witness' evidence, references to Lopez's credibility being challenged, a 30-page review of Lopez's cross-examination, and subsequent reminders about Lopez's cross-examination, credibility challenges, and his direct interest in the missing cocaine. The trial judge identified multiple times throughout the charge that Lopez had a motive to lie, that he had lied to the police on several occasions, that he was involved in criminal activities, and that he was subject to a prosecutorial immunity agreement. It cannot be said that the jury needed any additional understanding within the Vetrovec caution itself to clarify their approach to Lopez's evidence.

[51] Reading the jury charge as a whole against the context of Lopez's extensive testimony and cross-examination, and considering the defence theory of Lopez as a third-party suspect, there can be no doubt that the Vetrovec caution properly furthered the jury's existing appreciation of the dangers of relying on Lopez's evidence. In my view, the trial judge said all that was needed.

(3) Did the trial judge err in instructing the jury on the defence theory of Lopez as a third-party suspect?

[52] The defence position at trial was that Lopez committed the offences in question. There was no dispute at trial that there was an air of reality to this defence, and therefore the jury needed to be charged with considering "whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of a person charged": R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 78, referring to R. v. Khan, 2011 BCCA 382, 282 C.C.C. (3d) 396, at para. 91.

[53] The trial judge charged the jury as follows:

In this case, John Le and Vijay Singh's position is that Michael Lopez committed the offences with which John Le and Vijay Singh are charged. It will be for you to determine whether the evidence that shows or tends to show Michael Lopez's involvement in the offences charged, alone or together with other evidence, raises a reasonable doubt that John Le and/or Vijay Singh committed the offence with which he is charged. [Emphasis added.]

[54] The trial judge then reviewed some of the evidence that tended to support this defence theory.

[55] Singh argues that the trial judge erred in two ways – first, by failing to state the evidence in support of the defence theory in an objective and even-handed manner and second, by failing to instruct the jury on the applicable burden and standard of proof, specifically by not providing an instruction that adhered to the framework in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

(a) The trial judge adequately reviewed the evidence

[56] The trial judge did not review all of the evidence that supported the defence theory at the time that the third-party suspect instruction was being provided in the charge. However, this evidence was reviewed elsewhere and throughout the charge. The charge was long. In an already lengthy charge, the trial judge had to be mindful of being overly repetitive. Trial judges have a duty to "decant and simplify" jury charges and should not "state evidence twice where once will do": Goforth, at para. 49.

[57] The theory that Lopez committed the offences and planted evidence that incriminated the appellants was at the root of the defence position. The trial judge identified the facts that underpinned this theory several times throughout the charge. In the same way that he presented the Crown's theory that the appellants committed the offences, based on the evidence tendered at trial, he also presented the defence theory. There was nothing inadequate or uneven about his approach. In effect, Singh's argument is premised on more space in the jury charge having been provided for the Crown's theory, an argument that has been repeatedly rejected: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 55-58.

[58] In the end, the defence theory was put to the jury at many points throughout the charge, as was the evidence that related to it. Taking a functional reading of the charge, the jury was reminded many times about what the defence asserted and what evidence supported that assertion. Finally, while not dispositive, defence counsel did not object to the charge on this point: see Goforth, at para. 52. In the end, I see no support for the submission that the trial judge's review of the evidence was not objective or was uneven.

(b) The trial judge did not err by failing to provide a modified W.(D.) instruction

[59] Next, Singh points to the third-party suspect instruction outlined in David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) (Final 75 – Third Party Suspect). In the Final 75 instruction, there are three paragraphs which suggest a modified W.(D.) instruction.[^3] These paragraphs are a new addition from the 2005 version: see David Watt, Watt's Manual of Criminal Jury Instructions, (Toronto: Thomson Canada, 2005) (Mid-trial 11-C – Third Party Suspect (General Instruction)), which the trial judge used to charge the jury. Singh argues that the trial judge erred by failing to provide an instruction in accordance with W.(D.) – which would explain to the jury the burden of proof on the Crown and how it related to the standard of proof.

[60] I begin with the observation that the 2015 Final 75 instruction was not available at the time of trial, which is why the trial judge relied upon the Mid-Trial 11-C instruction. The trial judge can hardly be faulted for not adverting to an instruction that did not yet exist. That said, the issue is whether the instruction given was proper, not whether it complied with a particular model instruction.

[61] The Final 75 instruction does suggest providing a modified W.(D.) instruction but it also notes, "[i]n some cases, it may be sufficient to review the third party suspect evidence, together with evidence pointing to D's participation, on the issue of participation and remind[] the jury of P's burden and standard of proof on the issue": at fn. 4. To determine whether this was one such case, it is helpful to review what the jury was provided with.

[62] At the outset of the charge, the trial judge described the presumption of innocence and then provided a crystal-clear instruction on the burden of proof:

The persons charged, Vijay Singh and John Le, do not have to present evidence or prove anything in this case; in particular, that they are innocent of the crimes charged.

From start to finish, it is Crown counsel who must prove the persons charged guilty beyond a reasonable doubt. It is Crown counsel who must prove Vijay Singh's and/or John Le's guilt beyond a reasonable doubt, not Vijay Singh or John Le who must prove their innocence. You must find Vijay Singh and/or John Le not guilty of an offence unless Crown counsel satisfies you beyond a reasonable doubt that they are guilty of it. [Italics in original; underlining added.]

[63] This was followed by a discussion of the meaning of "beyond a reasonable doubt", which again emphasized that the Crown carried the burden throughout:

It is not enough for you to believe that John Le and Vijay Singh are probably or likely guilty. In those circumstances, you must find them not guilty because Crown counsel would have failed to satisfy you of their guilt beyond a reasonable doubt. [Italics in original; underlining added].

[64] Immediately before providing the instruction on the third-party suspect defence, the trial judge stated that the appellants were denying the conduct alleged by pointing to Lopez as the true offender. This instruction of "denial of conduct alleged" was repeated again after the third-party suspect defence instruction. The trial judge instructed the jury as follows:

It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that John Le and/or Vijay Singh was the person involved in them. It is not for John Le or Vijay Singh to prove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place, you must find John Le and/or Vijay Singh not guilty. [Emphasis added.]

[65] In addition, the trial judge provided the jury with a "handout pamphlet" in which he summarized the approach to presumption of innocence, burden of proof, and reasonable doubt "for ease of reference". This additional set of instructions bookended the jury charge. As a result, the jury was well equipped with these core principles, having been instructed on them at the start and at the end of the charge.

[66] Reading the jury charge as a whole, the instructions that were provided captured the spirit of a W.(D.) instruction, and no specific W.(D.) instruction was necessary: Tomlinson, at para. 84. As such, I see no error in the trial judge's instruction on the applicable standard and burden of proof.

(4) Did the trial judge prejudice the defence when he reviewed Lyon's evidence?

[67] As indicated above, Lyon testified about observing the Nissan Altima, in which the bodies of the two deceased were eventually found. On May 4, 2009, Lyon went to the grocery store to pick up some fruit. After coming home, he stepped out to the mailbox, during which he saw a silver-grey car make a three-point turn. He testified that this was odd because his street was not frequented by strange vehicles and there was enough room for a U-turn. He then went to the grocery store again to buy some butter. On the way home, he saw a small, silver-grey car parked on the side of Rosebank Road. Later, he went shopping with his daughter, again noting the same parked car in the same spot. When he arrived home, he saw the same parked car in the same spot.

[68] The next day, on May 5, Lyon saw that the same parked car was still in the same spot. Lyon looked around the car, wrote down its licence plate number, and called the non-emergency line to report a suspicious car parked on Rosebank Road. He reported the car as having two doors, but this was later determined to be incorrect, as the parked car had four doors. However, Lyon certainly reported the four-door car as being the parked car, as the car was confirmed by its licence plate number.

[69] Lyon provided two statements to the police. In his first statement, on May 5, he forgot to mention the car which made the three-point turn on the previous day. On May 23, he realized his omission and contacted the police. He told them that he saw a three-point turn being made on May 4 by a small, light silver car, which he believed had two doors, and which was driven by an "Oriental" man with a complexion and who was wearing a light windbreaker. Lyon did not describe the complexion of the individual.

[70] During cross-examination, Lyon explained that he assumed the car which made the three-point turn was the same car which was parked on Rosebank Road. He had made this assumption because the cars were similar in colour and size, because of the infrequent traffic on this rural road, and because of the timeframe. However, on re-examination, he was asked whether he was suggesting that the two cars were the same, and he said, "No". He conceded that he could not know whether he had seen the same, or two different cars, but that he had simply assumed it was the same car.

[71] The defence theory that Lopez was the third-party suspect relied in part upon Lyon's evidence. Lopez drove a small, grey, two-door Acura, and thus two different cars would suggest that Lopez may have been at the scene. In addition, Lopez could be described as an "Oriental" man with a complexion.

[72] The trial judge relayed some of Lyon's evidence to the jury during the charge. He said:

In cross-examination, Mr. Lyon testified that after he returned home from the first trip to the grocery store and while outside his home at the mailbox, he observed a car making an unusual three-point turn at the intersection of Concession Four and Rosebank Road. Mr. Lyon testified that he resided on the Fourth Concession, approximately 150 to 200 meters west of the intersection with Rosebank Road. He states that the three-point turn was unusual as there was adequate room to make a U-turn instead.

However, I would suggest to you, members of the jury, that Mr. Lyon's testimony on this point is not significant as he conceded in cross-examination that the car he sees doing the three-point turn is not the Nissan Altima which he observed parked on Rosebank Road on May 4, 2009, and he does not have any good recollection of this car or the driver making the three-point turn.

[73] Singh submits that the trial judge improperly told the jury that the evidence of Lyon was "not significant". He further submits that the trial judge incorrectly recited Lyon's testimony by leaving out key points, including Lyon's evidence that the driver of the car which made the three-point turn was observed to be an "Oriental" man wearing a windbreaker. Collectively, these submissions amount to a single complaint – that the trial judge denigrated the defence theory that Lopez was the person who committed the crime.

(a) The trial judge's opinion did not prejudice the defence

[74] There was a lengthy discussion during the pre-charge conference about the impugned paragraph reproduced above.[^4] Singh's counsel took issue with the "not significant" characterization of Lyon's evidence because Lyon's evidence was "critically important" to the defence. The Crown agreed that it would be appropriate to remove the reference to the "significance of this evidence". The trial judge said that he would "knock out" the whole paragraph, including the opinion about the significance of the evidence.

[75] Although the trial judge agreed to remove the paragraph, when it came time to deliver the final charge, he did not do so as he appears to have forgotten his agreement to delete it. However, I do not agree that the retention of the impugned paragraph in the final jury charge prejudiced the appellant. Singh's counsel made forceful closing submissions on this issue – highlighting the significance of Lyon's testimony. Defence counsel's submissions urged the jury to consider that Lyon observed Lopez making the three-point turn because Lopez is an "Oriental" man. Defence counsel explained to the jury that this evidence furthered their theory that it was, in fact, Lopez who committed the kidnapping and the murders.

[76] A trial judge is permitted to express opinion on issues of fact, if it is otherwise clear that the jury is not bound by the judge's views: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397. While he did not, immediately after this comment, remind the jury that the jury was not bound by his views, the trial judge had informed the jury in the charge that he was entitled to express his opinion on matters of fact, but the jurors did not have to reach the same conclusion. He explained that it was their recollection and assessment of the evidence that mattered, and not his.

[77] Further, while the trial judge expressed his opinion, I do not think he did so in strong terms. This opinion was embedded in one line of a 349-page jury charge. There is nothing in the language of the impugned paragraph that directed the jury to find that Lyon's evidence was irrelevant. Indeed, the charge to the jury did not diminish the importance of Lyon's testimony to the defence position. When reviewing the position of the defence, the trial judge outlined for the jury:

Michael Lopez's account is contradicted by other evidence. For example, he maintained that he was not at Rosebank Road and Concession 4 in Pickering on May 4th, 2009. However, Robert Lyon testified that in the afternoon of May 4th, 2009, he saw a vehicle that matches Michael Lopez's vehicle being operated by a person that matches Michael Lopez do a three-point turn at the top of Rosebank Road shortly after he first observed the abandoned Nissan Altima.

The testimony of Mr. Lyon with respect to seeing a small grey vehicle being operated by an Asian male before coming upon the vehicle containing the bodies of the victims is evidence that you can rely on to disbelieve the testimony of Michael Lopez that he was not present on Rosebank Road. The defence submits that it is simply too coincidental to conclude that the person seen by Mr. Lyon was anyone other than Michael Lopez. The defence reminds you that Michael Lopez testified as to his familiarity with the area and that his sister lived nearby on Altona Road. It can be no coincidence that an Acura logo was found at the scene on Rosebank Road. Mr. Lopez drove a small grey Acura.

[78] Arguably, this summary of the position highlighted the significance of Lyon's testimony and fairly presented the defence position. It is not realistic to view the trial judge's single comment as unduly impacting the jury's assessment of the defence position – that Lopez was the true perpetrator of the crime and that he was at the scene. A trial judge's opinion will exceed permissible limits where the jury is likely to be overawed by it, or where it unfairly presents the defence: John, at paras. 109-110. This was not the case.

[79] Ultimately, the question for this court is whether the trial judge's failure to remove the impugned paragraph despite having agreed to do so, resulted in unfairness to and denigration of the defence. With respect, on a holistic reading of the charge, which includes the favourable interpretations of Lyon's evidence in the summaries of the defence positions, I do not see how this single paragraph unduly impacted this jury and I am not persuaded that the impugned paragraph denigrated the defence or caused prejudice.

(b) The trial judge's errors in his summary of Lyon's evidence did not result in prejudice

[80] I agree with Singh that there are errors in the trial judge's summary of Lyon's evidence. The trial judge's summary of Lyon's evidence did not completely accord with the testimony. Lyon did not "concede[] in cross-examination that the car he [saw] doing the three-point turn is not the Nissan Altima which he observed parked on Rosebank Road on May 4, 2009" (emphasis added). During cross-examination, Lyon was asked whether the two cars were the same, and he clarified that he "never said that [they were] the same vehicle", but that he had assumed as much based on timing and geography. When asked during re-examination if he was able to say whether the two cars were the same or different, he said he could not.

[81] Lyon testified that he assumed, but did not know, that the two vehicles were the same, and that he could not say for certain one way or another. He told the police that the car that made the three-point turn had two doors. He also told the police that the car that was parked on Rosebank Road had two doors, although this was later proven to be incorrect, as the car parked on Rosebank Road had four doors. Lyon conceded he was incorrect in his recitation to the police on this point. This was the extent of Lyon's concessions.

[82] In addition, the trial judge's remarks to the jury that Lyon did "not have any good recollection of this car or the driver making the three-point turn" finds no support in the record. Lyon was steadfast in his testimony that the car was a small, silver car, and in his description of the driver of an "Oriental" man. When pressed on the driver's ethnicity during cross-examination, Lyon remained unequivocal that the driver was an "Oriental" man, and he refused to adopt the descriptor of "Asian" because he did not believe it properly described his observation of the driver's ethnicity.

[83] That said, the trial judge's failure to repeat Lyon's evidence in his charge and his mistaken review of the evidence did not denigrate the defence or call into question the strength of the third-party suspect defence.

[84] There are two reasons why I find that the trial judge's misstatements in his review were not significant.

[85] First, the trial judge told the jury numerous times throughout the charge, "[i]f your recollection [of the evidence] differs from mine, then it is your recollection that counts".

[86] Second, while the trial judge improperly stated that Lyon "conceded in cross-examination that the car he sees doing the three-point turn is not the Nissan Altima which he observed parked on Rosebank Road". This error inured to the benefit of both appellants. It suggested that Lyon did in fact observe two different cars. That evidence provided support to the defence theory that what Lyon saw was the vehicle of Michael Lopez.

[87] Nor do I accept that the failure of the trial judge to specifically tell the jury about Lyon's description of the driver and the description of the car is a reversible error. To the extent that the members of the jury needed to be reminded of the evidence after having heard it the first time, this reminder would have come in the form of defence counsels' closing submissions, which pointed to Lyon's descriptions of the car and the driver. As well, the jury was told numerous times throughout the charge that there was an "Oriental man" involved in various meetings about criminal activities with Singh and Le, and that this "Oriental" man was Lopez. There can be no question that the jury would have understood Lyon's evidence and the defence position that Lopez drove the car that made the three-point turn and that this was a different car from the Nissan Altima. I see no basis to find that this omission prejudiced the appellants.

D. Conclusion on Singh's Appeal (C68612)

[88] Accordingly, for the reasons outlined above, I would reject all of Singh's arguments and dismiss his appeal. During oral submissions, Singh also adopted Le's ground of appeal asserting that the trial judge erred in his response to the jury's first question regarding aiding. Because the jury was charged with aiding in relation to both Singh and Le, Singh submits that any error established under that ground of appeal would similarly affect him. As I will explain below, I have concluded that I see no error in the trial judge's response to the jury on aiding. Therefore, this ground of appeal fails for Singh just as it fails for Le. I now turn to Le's appeal.

IV. LE'S APPEAL (C62898)

A. Positions of the Parties

[89] Le raises three grounds of appeal against his convictions for second degree murder,[^5] asserting that the trial judge erred by: (1) improperly instructing the jury on the admissibility of Singh's statement to Lopez against Le, (2) improperly responding to the jury's question about aiding, and (3) refusing to grant severance.[^6]

[90] Le also seeks leave to appeal his sentence. He raises one ground of appeal with respect to sentence: that the trial judge erred by imposing a disproportionate sentence, specifically by imposing the same parole ineligibility period on both Singh and Le.

[91] The Crown asserts that the trial judge demonstrated no error in his charge to the jury, properly declined to grant severance, and imposed a fit sentence in the circumstances. The Crown concedes that, due to the nature of the errors that have been alleged by Le in his factum, the curative proviso would not apply to those grounds of appeal.

B. ANALYSIS

(1) Did the trial judge err in failing to properly instruct the jury on the admissibility of Singh's statement to Lopez on May 5, 2009 in relation to Le?

[92] Lopez testified against both Singh and Le, but not all portions of his testimony were admissible against each of Singh and Le. Importantly, Singh's statement to Lopez on May 5, 2009, during which he told Lopez what happened at Rosebank Road, was only admissible as evidence against Singh. It was not admissible as evidence against Le.

[93] Le argues that the trial judge's two instructions in the final charge on the use of out-of-court statements of the accused were not sufficiently nuanced to ensure that the jury understood its task. Le submits that in the first instruction, the trial judge failed to specifically charge the jury that when considering the evidence against Le, Lopez's testimony as to what Singh had told him was only evidence against Singh. As to the second instruction, Le takes issue with the trial judge's failure to mention Lopez's testimony in any regard. Le submits that the two instructions, taken together, would have confused the jury as to whether and how it could use Lopez's hearsay statements against Le.

[94] In addition, Le asserts the trial judge's error was compounded by his failure to repeat any cautions when recounting Lopez's evidence, and by his instruction to the jury to "consider all [of Lopez's] evidence" (emphasis in original). As a result, Le argues that the jury could not have understood what aspects of Lopez's evidence applied to Le, nor could the jury have appreciated the value and effect of Lopez's evidence against Le.

[95] In my view, the jurors were equipped for their task with instructions that reveal no error.

[96] From the very outset of the trial, the jury was instructed that despite two accused being tried together, the jury "must consider and decide the case of each accused separately and individually and only on the evidence that applies to him as I shall tell you later" (emphasis added). Thus, one of the first instructions given to the jurors was that they must consider each accused separately, and this instruction also flagged that additional information would be forthcoming.

[97] As the trial progressed, the jury was given several mid-trial instructions regarding how to treat the evidence of multiple accused in a joint trial. After the testimony of the Crown witness Dhindsa, the trial judge told the jury, "[a]nything you decide Vijay Singh said to a witness is only evidence concerning Vijay Singh. You must not consider anything Vijay Singh said to a witness in reaching your verdicts on John Le." This instruction was in the terms as requested by defence counsel.

[98] Defence counsel then requested that the trial judge deliver a similar mid-trial instruction regarding Singh's statement on May 5 to Lopez. The trial judge agreed to provide another limiting instruction in relation to Lopez. When the time came, the trial judge provided the following mid-trial instruction, which both defence counsel approved:

You've heard the testimony of the witness Michael Lopez, both in examination in chief and cross-examination which extended over several days. You will recall that Lopez testified about discussions he had with Vijay Singh on May 3rd, the day before the alleged kidnapping and murder. May 4th, the day of the alleged kidnapping and murder. May 5th, the day after the alleged kidnapping and murder, … when he states Singh came to his home and allegedly told Lopez the details relating to the murders. You will recall that throughout Michael Lopez's testimony there were many other references to what Vijay Singh told him, whether it related to drug transportation or firearms, and indeed many other references to what Singh told him. As I explained to you previously, what Lopez reports as Singh telling him, is admissible evidence as against Vijay Singh if you find Lopez's testimony to be reliable and capable of belief. However this testimony relates only to Vijay Singh. You must not consider it in deciding the case of John Le. [Emphasis added.]

[99] This instruction was later expanded to include any documents that were only admissible against Singh and not Le. Again, defence counsel approved of this instruction.

[100] Prior to delivering the final charge, the parties participated in an extensive pre-charge conference. As part of those discussions, counsel for Le advocated for an approach that kept things "simple" and endorsed the very instructions which are now being impugned on appeal. Trial counsel for Le did take issue with the post-offence conduct instruction, asserting that it did not sufficiently instruct the jury to keep the two accused separate. However, the trial judge emphasized that he had been "abundantly clear to the jury" about keeping the two accused separate throughout his instructions. Counsel for Le did not take further issue with this instruction, nor any other related instruction.

[101] The trial judge delivered the charge to the jury over two days. Throughout the charge, the trial judge repeatedly emphasized that each accused must be treated separately. Some examples follow.

[102] First, in the introduction to how to approach multiple accused and counts, the trial judge said:

And each [accused] is entitled to have his case decided on the basis of the evidence and legal principles that apply to him … In reaching your separate verdict for each accused on each charge, unless I tell you otherwise, you must not use the evidence that applies to only one accused to decide the case of any other accused on the same charge or any other charge. And you must not use the evidence that applies to only one accused to decide the case of any other accused on the same charge or any other charge. [Emphasis in original.]

[103] Next, when describing modes of participation and party liability, the trial judge reminded the jury:

It is important to remember however, that although Vijay Singh and John Le have been charged and are being tried together, each is a separate individual who cannot be found guilty of any offence unless the evidence relating to him proves his guilt of that offence beyond a reasonable doubt. Each person is entitled to separate consideration in relation to each charge. Each is entitled to have his case decided on the basis of his own conduct and state of mind and from the evidence that may apply to him.

[104] The trial judge provided a nearly identical instruction when charging the jury on the use of verdict sheets.

[105] Later, when describing the use of out-of-court statements and documents, the trial judge said:

Anything you find Vijay Singh said to a witness outside the courtroom or documents, both written and electronic, made exhibits as a result of search warrants executed by the police at 100 Agincourt Drive or at the apartment in Burnaby, British Columbia, even if it describes what John Le said or did, is only evidence concerning the person who said it; namely Vijay Singh. You must not consider it in deciding the case of John Le. [Emphasis in original.]

[106] Therefore, while it is true that the trial judge repeatedly instructed the jury to consider "all" of the evidence, this instruction needs to be understood in its proper context. Of course, the jury needed to consider all of the evidence, but within the confines of the trial judge's instructions. As I have outlined in a few examples above, those instructions emphasized that not all of the evidence was admissible against both Le and Singh. The jury would have undoubtedly appreciated that point, which was made several times by the trial judge in his instructions.

[107] During oral submissions on appeal, counsel for Le also framed the issue as a matter of timing. In his submission, the expanse of time between the opening instructions (September 2013), the mid-trial instructions (October 2013), and the final instructions (December 2013) suggests that the jurors may not have had all of these instructions at the forefronts of their minds. This was compounded, he says, by the fact that the final charge is over 300 pages in length. Put simply, he argues that the few times that this instruction was repeated did not suffice to remind the jury of the importance of keeping the two accused separate.

[108] I do not find this argument persuasive. The trial judge instructed the jury numerous times about the importance of keeping each accused separate, and about how they could or could not use certain evidence. The fact is that the trial judge gave opening, mid-trial, and final instructions to the jury. Taken together, these instructions refute any concerns that the jury would misuse the evidence and needed a reminder given the passage of time. Importantly, these instructions were all provided to the jurors both orally and in writing, and the jurors were given binders in which they were directed to place each written instruction that they received.

[109] Perhaps tellingly, following the delivery of the final charge, neither defence counsel raised any objection on this point. The failure to object is significant in assessing the seriousness of the error that is later alleged: Goforth, at para. 52.

[110] Counsel for Le also takes issue with the summary of the Crown's position in the jury charge. This summary was drafted by the Crown and told the jury, "Michael Lopez's evidence gives the details of how Singh and Le participated in the kidnapping and murder of Sandhu and Chhina". Counsel for Le asserts that the Crown was inviting the jury to use Lopez's evidence regarding Singh's confession to fill in the gaps regarding Le's participation in the murders.

[111] Respectfully, I reject this submission. The trial Crown was mindful throughout the trial to not encourage the jury to use the May 5 statement against Le. In fact, he encouraged the jury to do the opposite. In addition, the Crown was careful not to frame this case as a "confession case". The fact is that Lopez did provide evidence that was admissible against Le, and that evidence could reasonably go to Le's involvement in the murders. A fair reading of the Crown's summary of its position does not support the argument that the Crown invited the jury to consider Singh's confession as evidence against Le.

[112] The trial judge clearly understood the importance of the caution and instructed the jury on separating the evidence multiple times, throughout the trial and in the jury charge. The trial judge sufficiently instructed the jury on keeping the accused separate. I reject this ground of appeal.

(2) Did the trial judge err in failing to properly respond to the jury's question about aiding?

[113] The jury was instructed on different routes of liability to murder: that Singh and Le were co-principals; that one of them was an aider, pursuant to s. 21(1)(b) of the Criminal Code; or that they acted by common purpose, pursuant to s. 21(2) of the Criminal Code.

[114] In the final charge, the jury was instructed on the concept of principal offenders and parties who are liable by aiding another person to commit the offence. That instruction read, in part:

It is not enough that a person was simply there when a crime was committed by someone else.

On the other hand, if a person:

• knows that someone intends to commit an offence; and

• goes to or is present at a place when the offence is committed to help the other person commit the offence,

that person is an aider of the other's offence and equally guilty of it. [Emphasis in original.]

[115] The trial judge went on to state:

a) Guilty of first degree murder: In order to be guilty of first degree murder as an aider, the accused 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 accused must have both an intention to help the principal and knowledge of the principal's intention. If you are satisfied beyond a reasonable doubt that the accused knew the principal intended on committing a planned and deliberate murder of the deceased, and intended to help the principal commit that murder, he is guilty of first degree murder. If you are not satisfied of this beyond a reasonable doubt, you cannot find the accused guilty of first degree murder as an aider.

b) Guilty of second degree murder. If you are satisfied beyond a reasonable doubt that the accused knew the principal intended on killing the deceased, and the accused intended to help the principal commit that intentional killing, he is guilty of second degree murder as an aider. If you are not satisfied of this beyond a reasonable doubt, you cannot find the accused guilty of either first degree murder or second degree murder as an aider. [Emphasis in original.]

[116] On the second day of deliberations, the jury submitted the following question:

With respect to "aiding"

4. Question refers to the phrase "at a place when" which is in bullet 2

Does person A who may have been at place X need to be at place Y to be guilty of an offence that takes place at place Y

or

Is person A's involvement at place X enough to say he is guilty of the crime at place Y? [Emphasis in original.]

[117] The trial judge requested input from all counsel and provided them with time to consider the matter more thoroughly. The Crown's position was that an accused did not need to be at place Y to be found guilty of an offence taking place at place Y.

[118] Counsel for Le disagreed. In his view, the Crown's theory was that both accused were present at both locations, and therefore it would not be sufficient for one of them to be absent from place Y. The trial judge clarified that this was not the Crown's only theory of liability. Nevertheless, counsel for Le maintained his position. He argued that if the trial judge was to agree with the Crown's position, the trial judge should remind the jury that more than mere presence is required to find an accused guilty as an aider. The trial judge agreed that he would provide more information about the circumstances in which an accused's involvement at place X could inform whether they are guilty of an offence that was committed at place Y.

[119] Counsel for Singh remained concerned about the Crown's position for two reasons. First, it was unclear whether the jury was contemplating the guilt of Le, Singh, or both. Second, it was unclear whether the jury was concerned about guilt as an aider with respect to murder, kidnapping, or both. In his view, there was no evidence upon which either accused could be found guilty of murder as an aider if that accused was not present at the second location. The trial judge rejected this position, stating that it was wrong in law.

[120] The Crown offered three points in response. First, the jury was only inquiring about a question of law, not about how to apply the law to the facts before them. Second, the jury could only be asking about aiding murder based on the way that the charge was organized, which was the product of extensive discussions between counsel and the trial judge. Third, the jury was not required to accept any one of the Crown's theories of liability.

[121] The trial judge provided all counsel with a draft of his proposed answer and explained his rationale. No one raised any further concerns.

[122] The trial judge delivered the following answer to the jury:

Members of the jury, as a matter of law a person does not have to be physically present at the place where an offence is committed to be guilty as an aider in the commission of the offence.

However, a person is a party to an offence as an aider only if

(i) He does something that helps the principal to commit the offence (a conduct requirement); AND

(ii) Provides the assistance with the intention of helping the principal to commit the offence (the fault requirement).

You must be satisfied beyond a reasonable doubt that both of these requirements are met.

Therefore, the party must have actual knowledge that the principal is going to commit the offence.

For a person to be an aider he must have done an act that facilitates the commission of the offence. An act by way of example could be keeping watch or enticing the victim away or an act which tends to prevent or hinder interference with the criminal act such as preventing the intended victim from escaping or being ready to assist the principal. You must also consider at the same time whether the person committed the act with the intention of helping the principal to commit the offence. [Emphasis added.]

[123] Le submits that the trial judge's answer is legally incorrect, and that this legal error seriously impacted the murder convictions.

[124] Jury questions demonstrate that the jurors are struggling with something and that they require direction. The answers to such questions must provide correct legal assistance: R. v. Zoldi, 2018 ONCA 384, 360 C.C.C. (3d) 476, at para. 50. Therefore, when the jury asked a question about the parameters of aiding, the trial judge needed to provide an answer that was both responsive to the question before him and correct in law.

[125] In my view, the trial judge did not commit any error.

(a) The trial judge did not err regarding the elements of aiding

[126] There is no dispute with the trial judge's articulation of the actus reus of aiding in his response to the jury. Le argues however that the trial judge's response to the jury fell short of explaining the fault requirement of aiding as outlined in R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, 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.

[127] Accordingly, Le argues that the trial judge erred by failing to relate the knowledge requirement to the intention requirement.

[128] I disagree that the trial judge erred. While his articulation of the fault requirement could have been clearer, the trial judge did remind the jury in that response that the aider must have actual knowledge that the principal is going to commit the offence to be guilty as an aider.

[129] Even if the answer to the jury was somewhat confusing, that response must be read alongside the main charge. The jury's question was tethered to a specific page in the main charge. When read alongside the main charge, I am of the view that there was no error in the answer regarding the elements of aiding.

[130] In Goforth, there were conflicting descriptions in the jury charge regarding the required mens rea for failing to provide the necessaries of life. Despite this error, the court held that it was "important to note that the trial judge also clearly and correctly summarized the required mens rea […] in a different portion of the charge": at para. 33.

[131] The primary reason for the court's conclusion in Goforth that there was no reversible error, at para. 37, is highly applicable to this case:

[T]he clearest explanation of the mens rea requirement was provided when the trial judge invited the jury to consider two straightforward questions to assess whether that requirement had been met. These questions told the jurors exactly what to ask themselves in the circumstances of this case. There is simply no reasonable possibility that any juror would have disregarded these straightforward questions and would have instead chosen to apply the lower foresight standard. [Italics in original; underlining added.]

[132] Similarly, in this case, the main jury charge contained a clear, step-by-step instruction which included all the elements of aiding. Importantly, the trial judge outlined examples in the jury charge delineating what the jury would need to conclude to return a given verdict. For first degree murder, the jury was told that they must be satisfied beyond a reasonable doubt that the aider "must both have an intention to help the principal and knowledge of the principal's intention."

[133] For second degree murder, the jury was told that they must be "satisfied beyond a reasonable doubt that the accused knew the principal intended on killing the deceased, and the accused intended to help the principal commit that intentional killing."

[134] As in Goforth, I can see no reason why the jury would forego this clear and legally correct instruction in the main charge, which related directly to the offences charged, when considering the response given by the trial judge.

[135] The jury's question was whether an individual must be present at the place that a crime is committed to be found guilty as an aider. The trial judge did not need to recite the elements of aiding, which he had already clearly and correctly outlined in his charge to the jury. Importantly, however, all of the elements of aiding were present in the answer, albeit less neatly organized than in the main charge. In the end, I do not share Le's concern that the jury would have been confused about the elements of aiding.

(b) The trial judge did not err regarding his answer on physical presence

[136] Counsel for Le repeats his argument made at trial that the trial judge was required to explicitly tell the jury that Le could not be found guilty as an aider if he was not present at Rosebank Road. Le specifically argues that it was obvious that the question was about whether his acts at 100 Agincourt Drive were sufficient to ground a finding of guilt as an aider for killings that ultimately took place at Rosebank Road in his absence. The fact that the jury returned a verdict of second degree murder for Singh is, in his opinion, indicative that the jury doubted whether Singh intended to kill the victims while at 100 Agincourt Drive. Accordingly, Le could not have aided Singh to commit murders at Rosebank Road, because Singh's intention had not crystallized while he was at 100 Agincourt Drive.

[137] Respectfully, I do not accept this submission, which rests on speculation and presupposition about the route to liability taken by the jury.

[138] To begin, I do not agree that it was obvious that the jury's question meant that it considered Le as the aider and Singh as the principal. Although this was the Crown's primary theory, the jury was charged on multiple theories of liability, and the jury was under no obligation to accept any one theory: R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445, at para. 144. All we know from the jury's verdict of second degree murder for Le is that the jurors were satisfied that he had the state of mind for murder. But we simply do not know whether Le's liability was grounded as an aider. For example, the jury could have concluded that Le was not present at Rosebank Road but was nonetheless guilty of second degree murder via common purpose pursuant to s. 21(2) of the Criminal Code, because he knew that the commission of murder would be a probable consequence of carrying out the common unlawful purpose of kidnapping.

[139] Nor do I accept Le's submission that it is obvious that the jury acquitted Singh of first degree murder because the jury must have accepted Lopez's evidence that Singh only formed the intent to kill the deceased by the roadside. Respectfully, the jury did not have to accept this part of Lopez's evidence and could have been satisfied that Singh formed the intent to kill when he left 100 Agincourt Drive and that he did kill the men when he was on Rosebank Road.

[140] To be sure, on one view of the evidence, this was a strong case for first degree murder. However, the jury was instructed to proceed in steps to determine if the appellants were guilty of first degree murder. I have no reason to find that they ignored the direction to do so. The jury was told that if they found that either appellant was not involved in causing the death of the deceased unlawfully, they should be acquitted. However, they were told that if the Crown had proven that they were involved in causing the death of the deceased unlawfully, they could only return a verdict of second degree murder if they were satisfied that the appellants had the state of mind for murder, otherwise, the appropriate verdict was manslaughter. Finally, they were instructed that if they were satisfied that Singh and Le had the state of mind for murder (i.e. second degree murder) they were required to turn their minds to the two routes to first degree murder: (i) a planned and deliberate murder and (ii) constructive first degree murder. If the jury had a reasonable doubt about the two routes, they were directed to return a verdict of second degree murder. Following these steps, all we know from the verdicts of second degree murder is that the jurors must have been left with a reasonable doubt raised on the two routes to first degree murder.

[141] In sum, the jury was adequately made aware of the elements of aiding and the relation between the knowledge and intention requirements. The trial judge did not err in telling the jury that the physical presence of an aider was not required at the location where the actual crime took place. Finally, I do not accept that the jury was instructed on any impermissible route to liability. As a result, I am satisfied that the jury reached verdicts of second degree murder based on legally viable routes.

(3) Did the trial judge err in refusing to grant severance?

[142] Le brought an application to sever his charges from Singh's charges, pursuant to s. 591(3)(b) of the Criminal Code. The trial judge denied Le's severance application and directed that Le and Singh would be tried together.

[143] The defence position was that the May 5 statement made by Singh to Lopez was akin to a confession, which would directly implicate Le despite being inadmissible against him. In his view, this would lead to irreparable prejudice which no limiting instruction could cure.

[144] The trial judge began by explaining that he had the discretion to order an accused to be tried separately from a co-accused if he was satisfied that the interests of justice required it. He acknowledged that his task involved balancing the interests of the co-accused against society's interests in seeing that justice is done fairly and expeditiously. He emphasized that an accused has the right to a fair trial, based only on evidence admissible against him.

[145] Defence counsel for Le urged the trial judge to conclude that the decision in R. v. Figliola, 2011 ONCA 457, 105 O.R. (3d) 641, was directly applicable to the instant case. In that case, the court held that the trial judge's refusal to grant severance was an error because one co-accused's confession effectively identified the other co-accused, and therefore it was so prejudicial to the applicant that nothing could cure it. Counsel for Le emphasized that Figliola was also an entirely circumstantial case, and that the confession by one co-accused was an irreparably prejudicial factor for the other. In that case, the court held that the risk of prejudice was palpable, as the jury might have impermissibly used the confession of one co-accused against the other.

[146] The trial judge outlined the facts, the severance ruling, and the appeal decision in Figliola in great detail. He read the case more narrowly than urged by defence counsel. In his view, Figliola did not stand for the proposition that an out-of-court statement of one accused referring to a co-accused would necessitate severance. Instead, he read this court's decision in Figliola as finding that the injustice therein arose because the trial judge, in refusing to grant severance, had indicated that the prejudicial evidence of one co-accused be "edited out", but such evidence was nonetheless adduced. He found that the disposition in Figliola arose out of the unique circumstances of how that trial played out.

[147] The trial judge also distinguished other jurisprudence relied upon by Le, specifically Guimond v. The Queen, 1979 CanLII 204 (SCC), [1979] 1 S.C.R. 960. In his view, the result in Guimond was a product of the jury being charged with the offence of conspiracy, which led to conceptual difficulties in the jury assessing an "agreement" in a joint trial as opposed to a severed trial.

[148] Having considered the jurisprudence and starting from the presumption that Le and Singh should be tried together, the trial judge identified several reasons to refuse severance. These reasons included: (1) counsel for Le maintained he would not run a "cut throat defence", but circumstances and positions may change as the trial approaches; (2) the risk of inconsistent verdicts; (3) the increased likelihood that the truth would emerge in a joint trial; (4) higher efficiency with less cost and delay (although an admittedly less significant consideration); and (5) there would be considerable duplication, as the Crown's theory that Singh was the principal and Le was the aider would require proving Singh's culpability in order to prove Le's culpability.

[149] The trial judge acknowledged that there was a potential for prejudice against Le but found that potential prejudice insufficient on its own. He noted that it was not rare or unusual for an accused to make a statement that implicates other co-accused. Instead, the trial judge focused the inquiry on whether the prejudice was so incurable that even with appropriate limiting instructions an injustice would result.

[150] In his view, limiting instructions could counterbalance any potential prejudice in this case:

I find that any potential prejudice to the applicant, John Le, can be addressed through a carefully drafted and strong mid trial and final instruction in relation to the use by the jury of the alleged Singh confession. … Indeed, I find that the limiting instructions can be clear and straight forward since the alleged potential prejudice evidence is Singh's statement to Lopez on May 5th, 2009. This is a discrete area of the evidence and clearly identifiable for purposes of instruction to the jury.

[151] Ultimately, the trial judge concluded that Le had failed to meet his burden to show that, on a balance of probabilities, an injustice would arise if severance was denied. Therefore, he denied the application for severance.

[152] Trial judges have broad discretion to grant severance. An appellate court should not intervene unless it is satisfied that: (1) the trial judge acted unjudicially, based on the circumstances at the time that the ruling was made; or (2) the ruling resulted in an injustice, upon retrospective scrutiny of how the trial unfolded: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 15.

[153] It was open to the trial judge to deny severance. The trial judge's decision was not an unjudicial one, nor did it result in an injustice.

(a) The trial judge did not act unjudicially

[154] An appellate court should only intervene on the ground of unjudicial ruling if "the judge erred on a question of law or made an unreasonable decision": Last, at para. 21. In my view, there is no basis to intervene.

[155] At the time of making his decision, the trial judge needed to assess whether the interests of justice demanded severance. In doing so, he considered many of the factors outlined by the Supreme Court in Last, at para. 18. He began from the presumption in favour of trying the two accused together, which he noted was bolstered by "strong policy reasons", including the improved likelihood of the truth emerging by trying the two accused together, heightened efficiency, minimized delay, and a reduced risk of inconsistent verdicts.

[156] First, Le takes issue with the trial judge's consideration of some of these factors. Le focuses on the trial judge having accepted that Le would not mount a cut-throat defence against Singh, but then noting that "circumstances may change and positions may change" as the trial approaches. Le argues that this conclusion found no support in the submissions made by counsel, and that there was no utility to an antagonistic defence given that Le and Singh were joined on the issue of third-party suspect.

[157] I do not accept this submission. The trial judge was entitled to consider "the existence or likelihood of antagonistic defences": R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 73. Despite both Le and Singh pointing to Lopez as a third-party suspect, this would not preclude Le from saying Lopez acted in concert with Singh, nor would it preclude Singh from saying Lopez acted in concert with Le. Indeed, the Crown's theory was that the killings involved two people. Therefore, the trial judge appropriately considered how these arguments may have unfolded at trial.

[158] Second, Le asserts that the trial judge erred in his reading of the decisions of Guimond and Figliola.

[159] Dealing briefly with Guimond, I do not accept Le's submission that the trial judge erred by distinguishing that case on the basis that it turned on the conceptual difficulty with the nature of a conspiracy charge. The trial judge's approach to Guimond aligns with this court's analysis in R. v. Tom, 1997 CanLII 793 (Ont. C.A.). In Tom, this court distinguished Guimond on the basis that the statement at issue in that case, which was rooted in the multiparty nature of a conspiracy, invoked a "compulsion for consistency". On the contrary, the statement at issue in Tom did not have the same "intrinsic problem", and therefore the potential prejudice was addressable through careful limiting instructions, which the jury was presumed to have followed: at para. 3. Notably, as well, the trial judge in this case is not alone in distinguishing Guimond on the basis of it being a conspiracy case: see e.g., R. v. Abdilleh, 2020 ONSC 87, at paras. 22-23; R. v. Leggette, 2015 NSSC 152, at paras. 58-60.

[160] I turn to the decision of this court in Figliola. Maria Figliola and Daniele Di Trapani were being tried together for the murder of Ms. Figliola's husband. At the crux of the Crown's case against Ms. Figliola were various statements that she made to Geoffrey Gonsalves, a man with whom she was having an affair. She told Mr. Gonsalves that she could have her husband murdered by a "Dan", whom she described as a large, husky, Italian man. She also talked to Mr. Gonsalves about three scenarios for killing her husband, one of which closely mimicked how her husband was ultimately killed.

[161] Counsel for Mr. Di Trapani brought a pre-trial severance application, asserting that Mr. Di Trapani would be prejudiced if the jury heard these statements, which effectively identified Mr. Di Trapani as the killer. The trial judge suggested that the prejudice could be limited by editing the content of Mr. Gonsalves' testimony and by limiting the scope of cross-examination.

[162] As the trial unfolded, however, counsel for Ms. Figliola strayed from the agreed-upon scope of cross-examination and Mr. Gonsalves ultimately provided the evidence that was to be "edited out". As a result, Mr. Di Trapani renewed his severance application, which the trial judge dismissed. The trial judge concluded that the prejudice could be mitigated in two ways: first, he could deliver multiple strong limiting instructions about keeping the two accused separate; and second, Mr. Di Trapani could recall witnesses to examine them further.

[163] On appeal, this court allowed the appeals and ordered two separate re-trials. The court held that, despite the strong policy reasons for trying the two appellants together, the ruling resulted in an injustice for essentially two reasons. First, in a substantive sense, the Crown's case against Mr. Di Trapani was relatively weaker and entirely circumstantial; however, Mr. Gonsalves' testimony about Ms. Figliola's statements was "the most damning evidence": at paras. 97-102. In the court's view, a limiting instruction could not cure the risk that the jurors convicted Mr. Di Trapani on the basis of Mr. Gonsalves' evidence: at para. 104. Second, from a procedural perspective, the court noted that there was an injustice in the way that the trial judge handled the renewed severance application: at para. 105. The trial judge's suggestion that counsel for Mr. Di Trapani could recall Crown witnesses was not a practical remedy: at para. 107. The potential prejudice that had been canvassed during the pre-trial application had manifested based on the way that the trial unfolded and was irremediable without a new and separate trial for Mr. Di Trapani.

[164] Turning now to the trial judge's analysis in this case, there can be no doubt that he considered the facts and analysis in Figliola at great length. He discussed the case itself for more than seven pages of transcript and then drew various conclusions.

[165] After reviewing Figliola, the trial judge concluded that it did not stand for the proposition asserted by counsel for Le, namely that "because the Crown will introduce evidence of an out-of-court statement by one accused that relates to a co-accused, that this results in prejudice that is manifest or the notion that severance is required to prevent a miscarriage of justice." In counsel's submission to the trial judge, the potential misuse of the May 5 statement "alone require[d] severance". The trial judge disagreed that Figliola stood for this broad principle.

[166] I agree with the trial judge's conclusion. In R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, leave to appeal refused, [2017] S.C.C.A. No. 403, this court reviewed several cases where severance was not granted despite the existence of a statement made by one accused that was not admissible against another accused. The court endorsed the notion that "persons charged with a joint criminal venture will presumptively be tried together" and concluded that severance was not warranted because, among other things, it was "not a case where the evidence against one accused was significantly weaker compared to his co-accused": at paras. 24-35.

[167] The trial judge explicitly acknowledged the prejudicial effect of trying the two accused together in light of the evidence that was admissible against Singh but not Le. Nonetheless, he noted that this was not a case like Figliola, where the case against Ms. Figliola was markedly stronger than the case against Mr. Di Trapani. Instead, he assessed the strength of the Crown's case against Le, including the direct evidence from Lopez of what happened at 100 Agincourt that was admissible against Le, as well as the DNA evidence that tied Le to one of the victims at Rosebank Road. Having regard to all the appropriate factors, and with careful attention to the circumstances of this case, the trial judge found "that the potentially admissible evidence against John Le is more compelling that the admissible evidence against Mr. Di Trapani in R v Figliola".

[168] In light of the above, the trial judge correctly distinguished Figliola and Guimond from this case.

[169] Third, Le argues that the trial judge demonstrated an "overreliance" on the adequacy of limiting instructions in mitigating prejudice. I disagree. When determining whether a limiting instruction would militate against prejudice, the trial judge must consider the benefits of severing the trial within the administration of justice, having due regard to all relevant factors: Last, at para. 43. The availability of a limiting instruction is only "but one factor in the balancing exercise": Last, at para. 46. The trial judge used the factor in exactly that way.

[170] Finally, Le argues that the trial judge failed to consider the specific prejudice that flowed from the May 5 statement as it related to the murder charges. Le argues that the trial judge did not consider the fact that Le could only be placed at Rosebank Road through the May 5 statement evidence.

[171] In essence, Le argues that the trial judge's reasons are insufficient, and that a more nuanced assessment of prejudice was required. I do not share that view. It is not the role of this court to parse the trial judge's ruling in search of an error: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 69. This is exactly what Le invites us to do.

[172] The trial judge's reasons reflect that he was acutely aware of defence counsel's position on the prejudice specifically relating to the murder charge:

In referencing R v Figliola, the applicant draws parallels that Singh's alleged confession to Lopez is the only evidence that directly implicates John Le in the murders.

Adopting the language in R v Figliola, it is submitted by counsel for the applicant that this is the most damning evidence against the applicant on the charges of first degree murder.

[173] The trial judge's ruling must be understood in the context of the submissions made by counsel: G.F., at para. 69. Before the trial judge, defence counsel presented the argument on prejudice through the lens of Figliola, which the trial judge dealt with, and rejected. Read against this context, I have no doubt that the trial judge was acutely aware of the particular prejudice flowing to Le on the murder charges vis-à-vis the other charges.

(b) The ruling did not result in an injustice

[174] A review of whether a ruling resulted in an injustice involves scrutinizing what happened at trial and the verdicts: Last, at para. 15. Le submits that the trial judge's ruling resulted in an injustice. He makes the following arguments: (1) the trial judge gave an inadequate caution to the jury about misusing the May 5 statement against Le; and (2) the trial judge erroneously answered the jury's question about aiding; (3) the verdicts for second degree murder were untenable for Le because there was no evidence that placed him at Rosebank Road; and (4) the ruling deprived Le of the opportunity to cross-examine Lopez about the "fist bump" detail he testified to at trial.

[175] I do not accept any of these arguments.

[176] First, I have concluded that the trial judge thoroughly cautioned the jury about the need to keep the case against Le separate from that against Singh, and to try each only on the evidence that is admissible against him. These instructions were given at the outset of the trial, in mid-trial instructions following the testimonies to which the instructions applied, and in the final charge. There can be no doubt that the jury was well equipped for its task.

[177] Second, as I have explained, the trial judge did not err in his response to the jury's question about aiding.

[178] Third, as has been detailed elsewhere in these reasons, there was an abundance of evidence that was admissible against Le which would permit the jury to find him guilty of second degree murder even if he was not physically present at Rosebank Road.

[179] Fourth, I do not accept that Le's defence was significantly prejudiced by the inability to cross-examine Lopez about the "fist bump" detail. During the preliminary hearing, Lopez testified that Singh told him that Le bumped Singh's fist twice following the shootings at Rosebank Road, since Le did not believe that Singh would shoot the two men. However, Lopez did not repeat this detail at trial. As a result, Le asserts that the trial judge's ruling on severance rendered him unable to impugn Lopez's credibility by raising this point, as it would have then suggested to the jury that Le was indeed at Rosebank Road.

[180] Furthermore, during oral submissions, counsel for Le characterized the fist bump detail as an "explosive" issue, which he says amplified the injustice of denying severance. Counsel for Le argues that this statement provided a conundrum for Le at trial. On the one hand, counsel argues that the reason for the bumped fist is Le did not think he would commit a murder which undermined his knowledge of Singh's intention to kill. But, on the other hand, the fact that Le apparently gave Singh a fist bump would create prejudice against him because he could be viewed as congratulating Singh.

[181] I do not accept these arguments. To be clear, the defence did not want the jury hearing about the fist bump detail, and the jury in fact did not hear about it. Even if severance had been granted, Lopez would not have been permitted to testify at Le's trial about the fist bump detail because it would have been inadmissible hearsay. As a result, Le is left in no different a position, and no prejudice can be said to have materialized, from the refusal to grant severance.

[182] Overall, no injustice can be said to have arisen in this case as a result of the trial judge's refusal to grant severance. The jury was adequately instructed, the jury's question was correctly answered, the verdicts are not unreasonable, and no injustice flows from the evidence that was presented at trial.

[183] In sum, the trial judge was within his right to deny the severance application at first instance, and any potential prejudicial effect cannot be said to have materialized as a result of how the trial and the verdicts unfolded.

(4) Did the trial judge err in imposing a disproportionate sentence?

[184] As noted above, the jury found Singh and Le each guilty of two counts of second degree murder and two counts of kidnapping. In addition, the trial judge found Singh and Le each guilty of one count of commission of an offence for a criminal organization.

[185] The trial judge sentenced Le to life imprisonment with a 23-year parole ineligibility period on each second degree murder count (served concurrently), 15 years imprisonment on each kidnapping count (served concurrently with the second degree murder and kidnapping counts), and 8 years imprisonment on the criminal organization count (served concurrently with the other counts). Singh received a nearly identical sentence, but with 10 years imprisonment on the criminal organization count instead (also to be served concurrently).

[186] The Crown sought a 25-year parole ineligibility period. Counsel for Le argued for a 15-year parole ineligibility period. He noted that the jury recommended a relatively lower parole ineligibility period for Le than for Singh, which needed to be considered:

Mr. Singh: 25 years (5 jurors), 22 years (1 juror), 20 years (1 juror), 17 years (1 juror), 15 years (2 jurors), no recommendation (2 jurors).

Mr. Le: 25 years (4 jurors), 20 years (1 juror), 17 years (1 juror), 15 years (1 juror), 12 years (1 juror), 10 years (2 jurors), no recommendation (2 jurors).

[187] Counsel for Le argues that the jury's recommendations taken together with the jury's questions on party liability suggest that the jury must have concluded that Singh was the principal and Le was the aider, and therefore they should be treated differently in sentencing.

[188] Citing R. v. Olsen, 1999 CanLII 1541 (ON CA), 131 C.C.C. (3d) 355, (Ont. C.A.), the trial judge noted that the "maximum period" of parole ineligibility "may be ordered for a worst group of offences and a worst group of offenders": at p. 376, but that the offence need not be the worst offence, nor must the offender be the worst offender.

[189] The trial judge reviewed the backgrounds of both offenders, noting that each one had an extensive criminal record, little education, and scarce legal gainful employment. He also acknowledged the positive reference letters filed in support of each offender. He then considered the numerous serious aggravating factors in this case. Having regard to the entire case, the trial judge concluded that "these offences qualify for the description as among the worst group of offences and that Le and Singh are among the worst group of offenders."

[190] The trial judge adverted to the jury's recommendations, as was required of him under s. 745.4 of the Criminal Code, but noted that he was not bound by them, and that they were simply recommendations which were "not particularly well-informed" by the "wider sentencing context": R. v. Chalmers, 2009 ONCA 268, 243 C.C.C. (3d) 338, at para. 115.

[191] The trial judge rejected defence counsel's submission that second degree murder is relatively less serious and morally culpable than first degree murder, and that Le should be treated differently from Singh as a result. As he explained, "Le's moral culpability is that of murder".

[192] After a review of comparable jurisprudence and paying mind to the jury's recommendations and the circumstances of the case, the trial judge concluded that the appropriate period of parole ineligibility for each offender was 23 years.

[193] Le asserts that the trial judge imposed a disproportionate sentence by treating the two offenders equally, and that a 15-to-17-year parole ineligibility period is more appropriate for Le. In support of his position, he argues that the jury must have concluded that Le was an aider. He points to the Crown's closing submissions which urged the jury to adopt this theory; to the jury recommending a lower parole ineligibility period, on average, for Le than for Singh; and to the fact that the jury only asked questions about aiding, which suggests that this was the basis for their verdicts. Counsel for Le further notes that because Le was unaware of Singh's changing motives, he had a relatively lesser moral blameworthiness.

[194] Proportionality is a constitutional principle that drives the Canadian approach to sentencing: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, at para. 41. A sentence is proportionate when it reconciles the individual offender's circumstances and the relative parity of sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para. 53.

[195] In my view, the trial judge made no error in imposing the same parole ineligibility period on both Le and Singh.

[196] First, the Crown's theory of the case is just that – a theory. The jury was under no obligation to accept the Crown's theory: Saleh (2019), at para. 144. There is no way of knowing whether the jury embraced the Crown's theory.

[197] Second, trial judges must consider the jury's recommendations for the parole ineligibility period, pursuant to s. 745.4 of the Criminal Code. However, the weight placed on these recommendations is a matter of discretion. The trial judge acknowledged the disparity in the recommendations and afforded little weight to them, noting that jury recommendations are "not particularly well-informed" by the "wider sentencing context": Chalmers, at para. 115.

[198] The jury's recommendations did not reflect a meaningful difference between the two offenders. Of those jurors who made recommendations, they ranged from 10 to 25 years for Le and from 15 to 25 years for Singh. The maximum parole ineligibility period was recommended by four jurors for Le and by five jurors for Singh. Excluding the "no recommendation" jurors, the average recommendation was about 18 years for Le and about 21 years for Singh. Contrary to Le's submission, in this case, it is difficult to see how the three-year difference between the average recommendations can provide genuine insights beyond speculation.

[199] Third, Le's submission that he was unaware of Singh's changing motives relies on the evidence that Le fist bumped Singh twice after Singh shot the two men because Le did not think that Singh would do it. This evidence was only found in the May 5 statement and was inadmissible against Le. In the context of Le's arguments on his conviction appeal, the assertion that the trial judge should have factored this evidence into sentencing Le is simply inconsistent.

[200] Fourth, the trial judge only needed to accept as true any facts that were essential to the jury's verdicts but could not rely on any disputed facts unless he was persuaded on a balance of probabilities and could not rely on any aggravating facts unless he was persuaded beyond a reasonable doubt: Criminal Code, ss. 724(2), 724(3)(d), and 724(3)(e). Where "the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts": R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18. As outlined above, the jury's path(s) to the murder convictions for each of Singh and Le cannot be known. It was open to the trial judge to decline to find that Le was an aider. In reality, Le's position on appeal is that the sentence was disproportionate because it did not reflect his belief of how the jury reached its verdicts. The trial judge considered all of the relevant factors and imposed a sentence that was responsive to Le's circumstances in light of the offences that he committed. The 23-year period of parole ineligibility is not disproportionate in the circumstances.

V. DISPOSITION

[201] For these reasons, I would dismiss both appeals against conviction. While I would grant leave to appeal sentence for Le, I would dismiss the sentence appeal.

Released: February 7, 2023 "L.R."

"S. Coroza J.A."

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

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

[^1]: For clarity and with no disrespect, I will refer to the appellants, the victims and the witnesses by using their last names.

[^2]: The appellants were also convicted of committing an indictable offence for the benefit of a criminal organization in a judge alone proceeding that admitted the evidence from the murder trial. That conviction has not been appealed.

[^3]: These paragraphs read:

[4] If you believe the evidence that shows or tends to show that (NO3P) committed the offence(s) with which (NOA) is charge, you must find (NOA) not guilty of that (those) offence(s).

[5] If you do not believe the evidence that shows or tends to show that (NO3P) committed the offence(s) with which (NOA) is charged, but that evidence raises a reasonable doubt in your mind that (NOA) committed that (those) offence(s), you must find (NOA) not guilty of that (those) offence(s).

[6] If you do not believe the evidence that shows or tends to show that (NO3P) committed the offence(s) with which (NOA) is charged, and that evidence does not raise a reasonable doubt in your mind that (NOA) committed that (those) offence(s), you must consider whether the rest of the evidence that you accept satisfies you beyond a reasonable doubt that (NOA) committed the offence(s) charged.

[^4]: The trial judge had provided a draft of his charge for discussion during the pre-charge conference.

[^5]: Although Le also adopted all of Singh's grounds of appeal to the extent that they impacted his appeal, I see no basis to find that he would be successful on any of those grounds of appeal even if Singh was unsuccessful. It is sufficient to have addressed these grounds of appeal with respect to Singh, all of which I have rejected.