R. v. Nero, 2017 ONSC 3523

Court File and Parties

CITATION: R. v. Nero, 2017 ONSC 3523

COURT FILE NO.: CR-15-30000187

DATE: 20170608

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondents

– and –

NICOLA NERO, DEAN WIWCHAR, MARTINO CAPUTO and RABIH ALKHALIL

Applicants

Counsel:

Andrew Sabbadini, Maurice Gillezeau, and Barbara Lynch, for the Crown

Alan Gold, for the Applicant Nicola Nero

Adam Boni and Alexander Morris, for the Applicant Dean Wiwchar

Greg Lafontaine and Ricardo Golec, for the Applicant Martino Caputo

Solomon Friedman, for the Applicant Rabih Alkhalil

HEARD: May 30, 2017

APPLICATION TO STAY COUNT 2 BY REASON OF THE PRINCIPLE AGAINST MULTIPLE CONVICTIONS FOR THE SAME DELICT

REASONS FOR DECISION

Clark J.:

Introduction

1Nicola Nero, Dean Wiwchar, Martino Caputo, and Rabih Alkhalil were tried by this court sitting with the jury on a charge that they conspired to murder John Raposo and, further, that they committed first degree murder on the person of John Raposo. On May 11, 2017, they were found guilty as charged on both counts. The court has yet to impose sentence. On May 17, all accused applied to have this court enter a provisional stay on Count 2, conspiracy to murder, At the conclusion of oral argument, I dismissed the application in a brief oral pronouncement. At the same time, I indicated that further reasons would follow; these are those reasons.

The Facts

2For purposes of this application, the facts can be succinctly stated. In that behalf, I derive the following exposition principally from the many hundreds of email messages found on various electronic communication devices seized from the accused men and introduced by the prosecution in its case.

3In the period leading up to the murder of John Raposo, Nero and Caputo were large scale importers of cocaine. Raposo also imported cocaine on a large scale, but his enterprise was distinct from that of Nero and Caputo. It would appear, however, that round about April 2012 Raposo entrusted to Nero and Caputo a shipment of 100 kilograms of cocaine destined for him from the United States. Alkhalil was also involved in importing cocaine; his enterprise was distinct from the others, but it appears that, at least on occasion, Nero and Caputo imported their cocaine by means of a transportation system Alkhalil had in place.

4Sometime in April 2012, Nero, Caputo, and Alkhalil decided to steal the aforementioned 100 kilograms of cocaine. Pursuant to their plan, they stole the 100 kilograms and a further 100 kilograms of cocaine also destined for Raposo. The proceeds from the stolen cocaine were to be split three ways. As part of the plan, the three men decided to kill Raposo. Nero and Caputo sought to justify Raposo’s murder by the fact that they considered him to be “a rat”, by which they meant he was an informer. It seems far more likely to me that the real impetus underlying their decision to kill Raposo was, in effect, to launch a preemptive strike so as to forestall any attempt by Raposo to retaliate for the theft of his cocaine.

5Sometime in May 2012, Alkhalil contacted Wiwchar to do the actual killing. Wiwchar, who I find as a fact was known to Alkhalil, boasted in an intercepted email that he was a contract killer and that his fee for such service was $100,000. When arrested, Wiwchar was in possession of $45,000 in cash. Shortly, thereafter police officers executing a search warrant recovered another approximately $20,000 in cash from his parents’ home in Stouffville, Ontario.

6In May 2012, Wiwchar came to Toronto and conducted certain reconnaissance in relation to addresses at which he had been advised that Raposo could be found. Wiwchar was under surveillance at the instance of the Vancouver City Police at the time. The Vancouver police were investigating a murder that had taken place in that city in January 2012. Other intercepted emails make it abundantly clear that Wiwchar was fully aware he was being surveilled while he was in Toronto. Presumably, by virtue of that surveillance, Mr. Wiwchar returned to Vancouver.

7On June 14, 2012, however, Wiwchar returned to Toronto and, on June 18, he murdered Raposo as he sat watching a soccer game in an outdoor café on College St., in downtown Toronto. He shot Raposo five times, once in the neck and four times in the head, all of this occurring in full view of dozens of horrified patrons of the café.

Position of the Applicants

8The position of all four applicants is identical. Each asserts that a conviction cannot lie for conspiracy to commit murder because the mens rea of that offence is identical to the mens rea of first degree murder (to wit: planning and deliberation), such that to register a conviction on the conspiracy count would offend the rule against punishing an accused twice for the same delict or, as it is more commonly known in Canadian jurisprudence, the Kienapple¹ principle.

Position of the Respondent

9The respondent contends that the application is without merit. It lacks, counsel argues, both the factual and legal nexus required to engage the rule against multiple convictions.

General Principles

10In Kienapple, Laskin J., as he then was, stated the principle that there should not be multiple convictions for the same ‘delict’, ‘matter’, or ‘cause’. At p. 750, Laskin J. said “[t]he relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences. At 751, he went on to say “if there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in a second count, the situation invites application of a rule against multiple convictions...” Having said that, he went on, at p. 753, to indicate “that Parliament could create two separate offences out of the same matter and could mandate multiple convictions if it made clear its intentions in this regard.”

11This doctrine was revisited in R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, where Dickson C.J., speaking for the court, made clear that the rule against multiple convictions was “framed not in terms of whether the offences charged were the ‘same offences’ (or ‘included offences’), but in terms of whether the same ‘cause’, ‘matter’ or ‘delict’ was the foundation for both charges”.

12In R. v. Smith, [2007] NSCA 56, at para. 146 et seq., Cromwell J.A., as he then was, held that for the rule against multiple convictions to apply there must be both a factual nexus between the charges and a legal nexus between them. Citing Prince, at p. 498, Cromwell J. A. further held that the second condition “will be satisfied only ‘… [i]f there is no additional distinguishing element that goes to guilt contained in the offence for which a conviction is sought included by the Kienapple principle.’”

The Principles Applied

13I begin by noting that in Smith the appellant had been found guilty of conspiracy to murder and first degree murder. Cromwell J. A. found no merit in this ground. On further appeal to the Supreme Court of Canada, this issue was not raised. For another case involving the multiple convictions issue respecting the combination of these same offences, see R. v. Grewall, [2001] B.C.J. No. 76; aff’d 2003 BCCA 441.

14“The factual nexus is established where the charges arise out of the same transaction”: R. v. R. K., 2005 CanLII 21092 (ON CA), [2005] O.J. No. 2434, 198 C.C.C. (3d) 232, at para. 33.

15In this case, the requisite factual nexus is absent, in my view. According to the emails exchanged between the accused, the conspiracy (i.e.: the act of agreeing to murder Raposo) was complete at least several weeks before the murder, in terms of when Wiwchar became involved. In the case of the other three accused, the emails make clear that they reached their agreement to murder Raposo as early as April 2012, nearly two months before the murder. It is self-evident that the act of agreeing to do something is distinguishable from the act of doing it. Even allowing for the fact that “[a] transaction can… include more than a single isolated act” (R.K., at para. 33, citing Prince, at para. 44), I am firmly of the view that, while the offences in this case share certain common aspects, the conspiracy and the murder were not one transaction.

16Turning to the legal nexus, it will exist “if the offences constitute a single wrong or delict”: R.K., at para. 32. Wiwchar’s liability for murder is predicated upon his having actually shot Mr. Raposo. The liability of each of the other three accused is predicated on his having aided or abetted Wiwchar to commit the murder, or, in the alternative, having counselled someone who later became a party to the murder to commit it.

17As did Cromwell J. A. in Smith, at para. 150, I ask myself “whether there is any ‘additional and distinguishing element’ that goes to guilt present in the conspiracy convictions that is not present in the convictions for first-degree murder.”

18Respecting all four accused, the question must be answered in the affirmative. As for Wiwchar, as well as actually shooting Raposo and thereby committing murder, to be guilty of conspiracy he had to agree to commit the murder; no agreement was required for him to commit the murder. As for the others, as earlier noted, their liability was predicated on each having either aided or abetted Wiwchar, on the one hand, or, on the other, having counselled someone who later became a party to the murder to commit it. Whereas, to prove the conspiracy, the Crown had to prove an agreement on the part of each of Nero, Caputo, and Alkhalil, it did not have to prove an agreement to establish that each was a party to the murder. Therefore, as in Smith, I conclude that, even were the factual nexus present, the required legal nexus is absent.

19In R. K., at para. 38, Doherty J.A., relying on Prince, went on to hold that, “where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule.” Further, in relation specifically to the offence of conspiracy, in R. v. Alexander (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233, speaking for the court at para. 48, Doherty J.A. held:

The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederates bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a preemptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition.

20It is, to my mind, self-evident that the offences in this case are designed to protect different societal interests. One is directed to protecting human life; the other is designed to dissuade people from colluding to commit crimes (whatever those crimes might be).

Result

21In addition, then, to what I said in brief on May 11, 2017, it was for the reasons stated above that I dismissed the offenders’ application to have this court stay Count 2.

Clark J.

Footnotes

1. 1R. v. Kienapple, 1974 CanLII 14 (SCC), [1974] S.C.J. No. 76, 15 C.C.C. (2d) 524.