Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240515 DOCKET: C69641

Lauwers, Hourigan and Nordheimer JJ.A.

BETWEEN

His Majesty the King Respondent

and

Qiao Zeng Appellant

Counsel: Michael Lacy and Bryan Badali, for the appellant Jennifer Epstein and Brent Kettles, for the respondent

Heard: April 10, 2024

On appeal from the conviction entered by Justice Laura A. Bird of the Superior Court of Justice, sitting with a jury, on January 22, 2020, and the sentence imposed on February 20, 2020, with reasons reported at 2020 ONSC 1137.

Nordheimer J.A.:

[1] Qiao Zeng appeals his conviction for second-degree murder reached after a trial with a jury. He also seeks leave to appeal the period of parole ineligibility of 12 years that was imposed. For the following reasons, I would allow the appeal and order a new trial.

Background

[2] In the early hours of November 7, 2016, a van, occupied by three masked gunmen, waited in the parking lot of a plaza in Scarborough that housed an illegal gambling house, jointly operated by Kongwu Wang and Hao Chen. The illegal gambling house was known as “113”. As the masked men waited, Chen pulled into the parking lot of 113 and exited his car. He had been at 113 a few hours earlier, but returned when Wang advised him of an attempted break-in. Before he could enter the unit, Chen was chased through the parking lot by two of the masked men who emerged from the van. He was captured, handcuffed, robbed, and thrown into the van. Within moments, Wang exited 113. While Chen was in the van with two of the masked gunmen, he heard 2-3 shots outside. The third gunman had shot and killed Wang. Chen was able to get out of the van and began to run away. One of the masked men tried to stop him but was unsuccessful.

[3] After the shooting, Wang’s body was loaded into the van, driven a short distance from the scene, and dumped on the side of the road. The van was then driven to a nearby park, set on fire, and abandoned. A short time later, Wang’s body was found on the side of the road by a garbage truck driver. He phoned 911. Police and EMS attended the scene. Wang was brought to the hospital and pronounced dead shortly thereafter.

[4] The police investigation identified the appellant, who gave a statement to the police. He acknowledged that he supplied gaming machines for gambling operations, including 113, from which he took a cut of the profits. He identified Wang as his good friend, who he had known for approximately four years. The appellant met Wang through the gambling business and rented machines to him. The appellant denied any involvement in the murder of Wang.

[5] In addition to the three masked gunmen, there was a fourth person, Gong, who was present in the immediate area prior to the murder. Gong was initially charged, along with three other accused, with first degree murder. The other accused were the appellant and two other men, Xue and Feng, none of whom were any of the masked men. Rather, the appellant and Feng admitted that they were in the area of 113 in the hours leading up to the shooting. Xue, on the other hand, was identified by Gong as part of the plan to break into 113. Eventually, the charges against Gong were severed as the result of a pre-trial motion. This development led to Gong being called by the Crown as a witness at the trial of the remaining three accused [1].

[6] Gong testified that there was never a plan to kidnap Chen or to harm, let alone kill, Wang. Rather, Gong, and two others, concocted a plan to break into 113 when it was empty in order to steal gambling machines. Gong further testified that he informed the appellant of this plan. The appellant let Gong borrow his van to transport the machines, but Gong testified that the appellant was not involved in either making or executing the plan.

[7] The appellant’s role in the murder was alleged to be two-fold. First, the appellant arranged for the purchase of the van that was used in the murder, although it appears that Gong actually provided the funds to purchase the van. In fact, the van bore licence plates belonging to the appellant. Second, the appellant was seen in the vicinity of 113 for periods of time both before and after the murder and his cell phone had consistent contact with the cell phones of Gong, Xue, and Feng, over the hours leading up to the shooting. The prosecution’s theory was that the appellant was doing surveillance or keeping watch while the events were ongoing, in order to provide assistance if necessary.

[8] The appellant was charged with first degree murder, in addition to kidnapping as it related to Chen. He was acquitted by the trial judge of the kidnapping charge on a directed verdict application. He was acquitted of first degree murder by the jury. Instead, the jury convicted him of the lesser and included offence of second-degree murder. It is the route that the jury followed to reach that conviction that is at the centre of this appeal.

Analysis

[9] The prosecution’s theory at trial was that Wang’s was a planned murder, and that Chen’s kidnapping was simply “collateral damage” related to the murder plan.

Two Routes to Liability for the Appellant

[10] The trial judge identified two routes by which the appellant might be convicted. The first related to first degree murder with manslaughter as an included offence. The second related to second degree murder based on his participation in a scheme to kidnap Wang that resulted in his death, taking into account party liability under s. 21(2) of the Criminal Code.

[11] One of the overriding problems with the jury instructions is that the two routes that the trial judge chose to leave with the jury were not kept separate and apart in her instructions. Rather, the instructions tended to blend or confuse the two routes. The result was that the jury was likely left in a state of confusion as to the analytical steps they needed to take to arrive at a proper verdict through either route.

The First Route – First Degree Murder

[12] There was no evidence that the appellant was a principal in the murder plan. The trial judge instructed the jury that in order for them to find the appellant guilty of first degree murder, they would have to find him to be an aider. The trial judge also instructed the jury that, on that route to first degree murder, the only guilty findings available were either first degree murder or manslaughter.

[13] However, it is entirely unclear how a conviction on manslaughter could arise on the theory that was presented, and the evidence upon which that theory was based. If the intent of the individuals involved was to murder Wang, it was a planned and deliberate murder. The masked men waited in the van for many hours until Wang left 113. He was then shot by one of the masked men, while the others dealt with Chen who was, by that time, being held in the van.

[14] The jury’s task was to decide if the appellant was engaged in aiding the plan to kill Wang. If he was, then a conviction for first degree murder would follow. However, if the jury was not satisfied that the appellant was aiding the murder plan, then he ought to have been acquitted of the charge of first degree murder. There is simply no realistic view of the evidence that would have allowed the jury to conclude that the appellant, in some fashion, aided the others in a plan to harm Wang that did not involve the requisite intent to kill.

[15] In her instructions on this route, the trial judge did not differentiate between first degree murder and manslaughter in terms of the evidence that would support a conviction on the one or the other. Rather, she referred consistently to murder “or the lesser included offence of manslaughter”. The trial judge did instruct the jury that they could not convict the appellant of either offence unless they were satisfied that there was a plan to harm Wang. What was missing was a review of the evidence that would have supported a conviction for manslaughter but not first degree murder.

[16] The trial judge instructed the jury that, if they were not satisfied beyond a reasonable doubt that the appellant participated in the shooting of Wang as an aider, they should find him not guilty of first degree murder. Instead of then dealing with the other option she had left under this route of aiding, namely manslaughter, the trial judge switched liability routes and instructed the jury that they should “go on to consider whether the Crown has proven that either of them are guilty as parties to the offences of second degree murder or manslaughter by virtue of their involvement in a joint criminal enterprise”. In other words, without fully dealing with the role of the appellant as an aider, the trial judge moved into the s. 21(2) party liability issue.

The Second Route – Second Degree Murder

[17] The trial judge instructed the jury that they could find the appellant guilty of second-degree murder through a different party route, that is, the application of s. 21(2) of the Criminal Code, based on a common intention. On this route, the theory was that the participants, including the appellant, had intended to kidnap Wang but, in the course of that effort, one of the masked gunmen had killed him. The trial judge suggested that such a result was a probable consequence of carrying out the kidnapping thus giving rise to the prospect of a conviction for second-degree murder.

[18] This instruction gives rise to several problems.

[19] First, and most importantly, neither the prosecution nor the defence had asked the trial judge to put this route of liability to the jury. Indeed, neither Crown counsel nor any of the defence counsel had addressed that possible route in their closing submissions.

[20] Second, there was an incoherency in the instructions. I quoted earlier the trial judge’s instruction when she abruptly switched routes, telling the jury that they should “go on to consider whether the Crown has proven that either of them are guilty as parties to the offences of second degree murder or manslaughter by virtue of their involvement in a joint criminal enterprise”.

[21] The trial judge’s reference to “either of them” goes back to the fact that the appellant was tried together with Xue and Feng. Feng was acquitted by the trial judge of all of the charges on the directed verdict application. She found that a properly instructed jury could not convict Feng of any offence. Xue remained in the trial to the end. As was the case with the appellant, Xue faced both the murder charge and also a charge of kidnapping – not kidnapping of Wang but kidnapping of Chen. Notably, while Xue still faced both charges by the end of the trial, the appellant was acquitted of the kidnapping charge, on the directed verdict application. These contrasting results left the jury instructions even more complicated.

[22] Third, the trial judge’s sequence of jury instructions was confusing. Her next step was to deal with the route of common intention under s. 21(2) of the Criminal Code, which she referred to as a “joint criminal enterprise”. She began by making it clear to the jury that the only two possible convictions under this route were either second-degree murder or manslaughter.

[23] The trial judge instructed the jury that the first requirement under this route was for them to be satisfied beyond a reasonable doubt that the appellant, along with Gong and the masked men in the van, “agreed that they would commit a criminal offence involving violence and to help each other to do so”. The trial judge told the jury that the predicate offence could be a kidnapping of Wang. She instructed the jury that the second requirement was “proof that one or more of the persons who were part of the original agreement to commit a kidnapping, committed murder or manslaughter in carrying out the original agreement”. The trial judge added that the prosecution must prove beyond a reasonable doubt the third requirement, that each accused “actually knew that one of the participants in [the] original agreement to [commit] kidnapping would probably harm Mr. Wang in carrying out their original agreement”.

[24] The trial judge advised the jury that there was a difference between murder and manslaughter. With respect to murder, the trial judge told the jury:

I will give you more complete instructions on the intent required for the offence of murder and the evidence that relates to that issue when I review that essential element of the offence. Those instructions apply when you are considering the knowledge of Mr. Zeng and Mr. Xue as parties to a joint criminal enterprise.

[25] I note that, by this point in her jury instructions, the trial judge had not given the jury any instructions on the elements of the offence of murder or the included offence of manslaughter. I also note that while the trial judge told the jury, as above, that the instructions on the intent required for the offence of murder applied when they were considering the joint criminal enterprise route, in fact those instructions would have applied equally to the route of aiding for first degree murder. This is another instance where the instructions failed to maintain a distinction between the two routes.

[26] The trial judge did, at this point, instruct the jury on the requirements for the offence of manslaughter. In particular, the trial judge instructed the jury that the prosecution could prove that the appellant knew “that it was likely that in carrying out the original agreement, a member of the group would commit a dangerous, unlawful act in relation to Mr. Wang.” She then told the jury that the unlawful act needed to put a person at the risk of bodily harm. The trial judge did not relate the evidence to any of these instructions at this point.

[27] The trial judge next told the jury how common intention might work by giving an example of a robbery where one of the two participants kills the store manager. She explained the difference in that example between murder and manslaughter. The trial judge then told the jury, in relation to the relevant evidence on this route: “The evidence for you to consider in relation to this basis of liability is largely the same as in relation to aiding.”

[28] That was not correct. Not only was it not factually correct, it also had the distinct potential to entirely confuse the jury. This is where the trial judge’s failure to keep the two routes to liability separate and distinct converge in confusion. The first route was based on the appellant aiding, that is, assisting a plan to kill Wang. The common intention route was based on an entirely different agreement – the kidnapping of Wang with the potential for some harm to come to him. On the second route, the appellant was not simply assisting others to carry out the agreement; he had to be part of the agreement to kidnap Wang. The evidence as it related to aiding did not assist the jury in deciding whether the appellant was part of this entirely separate and distinct agreement. Indeed, on one view of the facts, the two agreements could be seen as contradictory to each other. It is also not clear, on the record, when the agreement might have changed from an agreement to kidnap Chen to an agreement to kidnap Wang, or whether it is alleged that there were two separate agreements concerning each of them.

[29] The concluding instructions were also confusing. At the end of her instructions, the trial judge told the jury that there were four verdicts available with respect to the appellant: (i) guilty of first degree murder as an aider; (ii) not guilty of first degree murder but guilty of second-degree murder as a participant in a joint criminal venture; (iii) not guilty of first degree murder but guilty of manslaughter; and (iv) not guilty of first degree murder. These are the four possible verdicts that appear on the verdict sheet. Missing from that list are two other possible verdicts, not guilty to second degree murder but guilty of manslaughter through the joint criminal venture, and not guilty of manslaughter through either route.

[30] The jury instructions in this case were going to be more complicated because of the presence of two accused who did not have the same routes to liability. It was imperative that the jury instructions keep the two accused, and the charges, separate to avoid confusion. It was also imperative that the instructions be kept separate with respect to the two routes of liability for the appellant. The instructions had to clearly delineate between the two accused and between the two routes; this would include a separate review of the evidence as it might relate to either accused and to either route. The jury instructions did not meet these imperatives.

[31] In saying that, I appreciate the desire to keep jury instructions clear and succinct to the degree possible. I also appreciate the desire not to be repetitious in jury instructions, especially as it relates to reviewing the evidence. In many cases, it is quite permissible to relate back to an earlier review of the evidence when addressing a subsequent issue. However, those desires do not permit the taking of shortcuts in the jury instructions or permit a lack of clarification as to what evidence relates to the different decisions that a jury must make. As Watt J.A. said in R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44: “Judicial relation of the evidence to the issues improves jurors' understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case” (emphasis in original).

[32] In some cases, such as this one, given the different issues involved, some repetition of the evidence was going to be necessary in the interests of both clarity and focus.

[33] Two approaches needed to be taken to the jury instructions in this case. First, the two accused should have been dealt with separately. Their routes to liability were different and they were not both facing all of the same offences. Second, the two routes to liability for the appellant ought to have been the subject of separate instructions that clearly delineated the requirements for a verdict under each route and, most importantly, reviewed separately the evidence that related to those requirements.

[34] The jury instructions in this case would have confused the jury, especially in terms of what agreement was operable for the different routes and what evidence related to those routes. That confusion may well have led the jury into adopting a compromise verdict. Wang was brutally shot and killed for no apparent reason. The appellant had involvement in some of the events surrounding that killing (the degree of that involvement is a very live issue) and was also involved in the illegal activities that may have been the genesis for those events. Those realities may have led the jury to want to hold him accountable. The desire to compromise could have led to a verdict without the jury going through the necessary analytical process to determine if that accountability was proven on the evidence to the very high standard of proof beyond a reasonable doubt.

[35] I should add, as it relates to the problems with the jury instructions, that while the ultimate responsibility for jury instructions rests with the trial judge, it is expected that counsel will provide the trial judge with as much objective and fair assistance as they can. Regrettably, that does not appear to have happened in this case. None of the counsel appear to have realized the problem with the structure and contents of the jury instructions. As a result, no one assisted the trial judge with those problems, nor did they suggest any possible solutions.

[36] I make three other points in relation to counsel and the jury instructions. First, a lack of objection by counsel is not determinative of issues involving the adequacy of jury instructions: R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at para. 67. Second, here the lack of objection was common to both defence counsel and prosecuting counsel, all of whom had an equal responsibility for helping to ensure that the jury instructions were adequate and correct. Third, there is no apparent tactical benefit to any of the parties not raising these issues with the jury instructions.

[37] Read as a whole, the jury instructions were inadequate to properly equip the jury with the tools necessary to understand the evidence as it related to the elements of the offences that the prosecution needed to establish beyond a reasonable doubt. A new trial is required. Since the jury acquitted the appellant of first degree murder, the new trial is limited to the charge of second-degree murder. I leave it to the judge conducting the new trial to determine whether there is a sufficient evidentiary basis for a jury to consider the common intention route to party liability.

Conclusion

[38] I would allow the appeal, set aside the conviction, and order a new trial on the charge of second-degree murder. As a consequence, I do not reach the sentence appeal.

Released: May 15, 2024 “P.D.L.” “I.V.B. Nordheimer J.A.” “I agree. P. Lauwers J.A.” “I agree. C.W. Hourigan J.A.”

Footnotes:

[1] Gong was ultimately tried before a judge alone and was convicted of manslaughter.