minicounsel

COURT FILE NO.: CR-21-024 (Napanee)

DATE: 20220824

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARSHALL ROSS

Defendant

Monica Heine, for the Crown

Peter Zaduk and Kristy Wong, for the Defendant

HEARD: 18-21, 25, 26 and 28 July 2022, at Napanee

reasons for decision

Background

1Glen Davis was murdered on 18 May 2007. He was 66 years old at the time. He was a wealthy businessman in Toronto, the president of a holding investment company involved primarily in real estate and venture operations called N.M. Davis Corporation Ltd. (the “Davis Corporation”). He was fatally shot by a single assailant in an underground parking garage in mid-town Toronto.

2On 12 October 2011, Marshall Ross pleaded guilty to murdering Glen Davis. Mr. Ross was Mr. Davis’s first cousin, once removed. He admitted to having arranged with one or more persons to having Mr. Davis killed. At the time of the murder, Mr. Ross’s company, Rosshire Enterprises, owed the Davis Corporation almost $2 million. Mr. Ross was sentenced by Nordheimer J. to life imprisonment without parole eligibility for 25 years.

3It has been said that Mr. Ross had, wrongly, believed that by murdering Mr. Davis, the loan from the Davis Corporation would be expunged. However, on 20 March 2012, Lederer J. granted judgment in favour of the Davis Corporation against Rosshire and Mr. Ross personally in the amount of $3,269,204.94 plus interest and costs: R.M. Davis Corporation Ltd. v. Ross (2012), 110 O.R. (3d) 196, 2012 ONSC 1697.

4In 2013, Davis Corporation discovered that Mr. Ross’s house and cottage had been conveyed to his now ex-wife, Eva Wower, in 2011. A fraudulent conveyance lawsuit was commenced against Mr. Ross and Ms. Wower. That lawsuit was settled in or around May 2021. However, the original judgment on the loan remains partially unsatisfied.

5On 18 April 2020, Mr. Ross, who by that time was an inmate at Bath Institution, a medium security federal prison, was arrested and subsequently charged with counselling “Inmate X” to commit murder, which offence was not committed, contrary to section 464(a) of the Criminal Code of Canada.

6The Crown alleges that between 27 August 2019 and 8 March 2020, Mr. Ross solicited the assistance of a fellow inmate, referred to throughout the proceedings as “Joe” in order to protect his identity, to have four people murdered. The alleged targets of this scheme were all persons connected to Glen Davis: his widow, Mary-Alice Davis, the general manager of the Davis Corporation, Keith Jones, his lawyer, Peter Quinn, and his friend and business partner, Tom Whealy. The Crown’s theory is that Mr. Ross believed that by killing these people, he could escape civil liability for the outstanding judgment and the related fraudulent conveyance action.

7One of the many unusual features of this case is that the accused and five of the witnesses who testified at trial – one for the prosecution and four for the defence – are convicted murderers currently in federal custody. Of note is that the Crown’s principal witness – Joe – testified that for nearly nine months he pretended to play along with an evolving scheme to murder the four targets and assist Mr. Ross to escape from custody and make his way to Belize where he would be joined by his wife and children.

Legal Principles

8Before turning to the scheme described by Joe and the evidence of the other witnesses, I will briefly discuss some applicable legal principles.

9I turn first to how the evidence of so-called unsavoury witnesses should be approached.

10Triers of fact presented with the testimony of witnesses whose evidence occupies a central position in the proof of guilt, but whose evidence may be suspect by reason of being a person of unsavoury character, should, depending on the circumstances, approach such evidence with caution and in particular be alert to the danger of convicting an accused without more than just the evidence of such witness: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, 27 C.R. (3d) 304, 67 C.C.C. (2d) 1.

11While it may also be appropriate for the trier of fact to approach certain kinds of defence evidence with care because of the character of a witness, defence evidence need only raise a reasonable doubt and, hence, application the Vetrovec principle to the evidence of such witnesses is not required: R. v. Chenier (2006), 2006 CanLII 3560 (ON CA), 205 C.C.C. (3d) 333, at para. 49.

12Next, although Mr. Ross did not testify, the principles underlying the Supreme Court’s instruction in R. v. W.(D)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, that guide triers of fact when there is conflicting evidence in relation to the elements of the offence charged, still apply. As Blair J.A. explained in R. v. B.D. (2011), 266 C.C.C. (3d) 197, 2011 ONCA 51, at para. 114:

… the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather. it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice [(1979), 45 C.C.C. (20) 546]. In that event, they must acquit.

13I will now say a few words about the offence of counselling. It is one of a number of offences categorised as inchoate offences, in which conduct is deemed to be criminal without actual harm having been done, provided that the harm that would have occurred is criminal.

14The actus reus of the offence of counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate — and do not merely describe — the commission of an offence: R. v. Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47, at para. 15. The mens rea element of the offence requires proof that the accused intended that the proposed offence occur, or consciously disregarded the substantial and unjustified risk that it would occur as a result of his counsel: Hamilton, at para. 29. The crime is complete even if the person counselled rejects the solicitation or merely feigns his or her assent: R. v. Root (2008), 241 C.C.C. (3d) 125, 2008 ONCA 869, at para. 86.

15I will come back to some of the legal principles in the analysis stage of my reasons.

The Evidence

16Prior to the trial, orders were made requiring that witnesses and counsel use the pseudonym “Joe” while litigating (pursuant to s. 486.31 of the Criminal Code); that publication be limited in relation to witness identifiers (pursuant to s. 486.5 of the Code); and that public access to certain identifying recordings/exhibits be limited. In my review of the evidence, I will therefore omit reference to details which could identify Joe. However, in formulating these reasons and coming to my decision, I have considered all of the evidence presented at the trial.

Joe

17Joe was convicted of second degree murder in the 1990s. He was sentenced to life imprisonment, with no eligibility for parole for ten years. Notwithstanding that, at the times material to this case, he had been continuously incarcerated since his conviction (with one brief period when he was on day parole and two days when he was unlawfully at large).

18Joe and Mr. Ross were fellow inmates at Bath Institution in 2019-20. Joe said that he liked Mr. Ross a great deal. He said that Mr. Ross had helped him with a business venture designing, printing and selling t-shirts. Both he and Mr. Ross were hoping that they would eventually be transferred to a low security facility. However, Joe had been found to be positive for THC soon after his arrival at Bath Institution, and thus needed to work on building his credibility before he could expect such a transfer to be made.

19Joe’s relationship with Mr. Ross changed after he told Joe that he planned on escaping once he got to a low security institution and asked whether Joe could help get him into a healing lodge once he was at a low security prison, because it would be easier for him to escape from. Joe told Mr. Ross he could not help. He explained that he considered healing lodges to be “special”. He had himself previously escaped from a healing lodge and realised the wrong of that. Joe added that he did not care one way or the other whether Mr. Ross wanted to escape. As long as it was not from a healing lodge.

20After the discussion about helping Mr. Ross to escape, Joe says that he distanced himself from Mr. Ross. However, after a few days he concluded that whatever Mr. Ross was going to do down the road really had nothing to do with him. And he liked Mr. Ross. So, they reconnected.

21Joe knew from the grapevine that Mr. Ross had got someone killed, but he did not know any of the details. He knew too that Mr. Ross called home to his son and daughter every day.

22As they became better acquainted, Mr. Ross described to Joe some people who he said had created all of the tragedy in his life and that of his wife and children. He explained that when the person he had been convicted of killing (who he described as a sex offender) had died, money was supposed to have come to him but that somehow, “this woman” – referring to Mary-Alice Davis – had got that changed and that she and others had got the money that should have come to Mr. Ross, and were using it to make his life miserable. That is when, according to Joe, Mr. Ross asked him if he knew people who could kill this woman and the other people. Joe said that the only time he ever saw Mr. Ross really angry was when he talked about this woman, referring to her as a “fucking bitch” and saying, “this fucking bitch has to die”.

23Initially, Mr. Ross told Joe that there were five people involved – two business partners, one of whom was a lawyer, who had changed the will; a chauffeur who was now apparently a lover of the woman; and a nephew. Joe understood that all of these people were part of the lawsuit and that Mr. Ross wanted to have them eliminated.

24Asked why Mr. Ross would have approached him, Joe said that he assumed Mr. Ross came to him because Mr. Ross had been told that he was someone who would be able to arrange for multiple murders to be carried out outside: “He thought I had knowledge of people who could make this happen”. Joe believed that Mr. Ross knew something about his background, specifically that “I was a contract killer” (although Joe also said that, in fact, despite having pleaded guilty to being the assailant in the murder he was convicted of, he had, in fact, not been the assailant).

25Joe said that he knew that Mr. Ross’s proposed scheme was “a real deal”. So, he went to his parole officer, Angela Crossman, and told her about his conversation with Mr. Ross.

26Angela Crossman’s statement/observation report (“OSOR”) of 27 August 2019 outlines what she was told by Joe that day. Her report indicates that Joe had told Mr. Ross that he might know people who could carry out the contract murder, but would have to go through a lawyer to make contact with them. In response to an enquiry from Mr. Ross as to how much a contract murder would cost, Joe had surmised that it might be $20,000. Mr. Ross said that he would be able to give Joe a list of the names of the people to be murdered after a forthcoming private family visit (“PFV”) with his wife over the Thanksgiving weekend. Joe told Ms. Crossman that he had allowed the conversations to go as far as they had because he knew that he did not have any credibility and wanted to have all the necessary information. He stated that he never wanted to be an informant, but that there were five people whose lives were at risk and he did not want to be part of that. He told Ms. Crossman that he did not know why Mr. Ross would have approached him, as Ross was already friends with another inmate with ties to a Toronto crime family and there was also another inmate allegedly with connections that would fit what Mr. Ross was looking for.

27After his initial disclosure to Ms. Crossman, Joe said that he realised that Mr. Ross was connected to some serious guys inside who, in turn, were connected to the Italian mob. He says he knew that if he stepped away from the scheme, that it was likely that these people would have him killed. He therefore went back to Mr. Ross and continued with the pretense that maybe he could help him. Joe denied that anyone in a position of authority asked him to string Mr. Ross along. Indeed, he said he was advised not to do so – although he cannot remember by whom. Despite that advice, he unilaterally decided to carry on and to get as much information as he could so that he could convince investigators that “this was the real thing”.

28Ms. Crossman completed another brief OSOR on 6 September 2019. Her report indicates that she told Mr. Ross that since her last meeting with him, she had passed on the information that he had provided to the Security Intelligence Office within the institution, and that the police had also been advised. Joe said that he had told Mr. Ross that he could get him out of the country. The alleged plan was to escape from a minimum-security facility to the US and Mexico and then to Belize. Once the five intended victims had disappeared, Mr. Ross would have the money, and that is when the escape plan would be executed.

29On 13 September 2019, Joe provided Ms. Crossman with an envelope. Ms. Crossman did not open the envelope, but was told that it contained a note written by Mr. Ross naming three people who needed to be killed. Ms. Crossman’s report also records that Joe had stated that in a conversation with Mr. Ross two days previously, he had told Mr. Ross that he had a lawyer in New Brunswick who he could ask about what would happen to Davis Corporation should the three targets disappear. Ms. Crossman records that seemingly, Mr. Ross believed that if the three individuals would be killed, then the estate of the victim (presumably Ms. Davis) would go to a charity (the World Wildlife Federation) and the lawsuit against Mr. Ross would be dropped. Ross further advised that the three intended victims had once been in a romantic triangle, and a murder-suicide would be an appropriate cover.

30Ms. Crossman confirmed that Joe was not asked to solicit information from Mr. Ross and that it was Joe’s idea to make an offer to Ross to seek out legal advice. Joe was not offered any assurances or any indication of what might happen as a result of him providing information.

31Joe said that Mr. Ross had given him a typewritten letter, which Joe put in an envelope and then put in a mailbox, intending that the letter would be picked up by Security Intelligence. The idea was that Mr. Ross would believe the letter had been passed on to a lawyer in New Brunswick for the purpose of obtaining advice as to the consequences of the death of Ms. Davis – and possibly others – on the civil lawsuits.

32The typewritten letter did end up with Security Intelligence. It contained two typewritten sentences:

A legal interpretation of what happens to the assets of the legal entity of N.M. Davis Corporation upon the death of Mary Alice Davis.

Glen Davis was the sole owner (To my understanding) of N.M. Davis Corporation and upon his death all rights were to revert to his wife (while living) and then upon her death to go to charity (World Wildlife Fund).

33Joe’s evidence was that he subsequently communicated to Mr. Ross that the lawyer had told him that the lawsuit would no longer exist if all of the people were killed. Joe says that Mr. Ross was “happy” when Joe told him this. As Joe explained it, “the illusion was that unless they were all killed, the existing lawsuit would continue”.

34The scheme continued to evolve. Joe said that he told Mr. Ross that there was a second lawyer who he was dealing with – a lawyer in Montreal who was connected to a gang leader there. Communications would be channeled through the lawyer to the gang leader so as to engage privilege and bypass review by prison authorities. The escape plan involved obtaining passports, possibly using a helicopter to get across the United States, and eventually getting to Belize where Mr. Ross could be joined by his wife and other family members. Apparently, according to Joe, Mr. Ross and his family would be able to live out their lives there because all of the people involved in the lawsuit would have been killed.

35Joe says that he told Mr. Ross that he needed the addresses of all of the people that he wanted killed. Mr. Ross repeated that he would get this information from his ex-wife at the forthcoming PFV. Discussions continued in relation to an escape plan. Joe said that he told Mr. Ross that he would introduce him to an individual called Morgan Scott who could get him down to the Mexican border.

36As the discussions continued, the number of people to be killed changed from five, to four, then three, then up to five again, and, in the end, four.

37A handwritten document was admitted into evidence. It is not disputed that the document was written by Mr. Ross. Joe believes that it was given to him by Mr. Ross after the PFV that he had over the Thanksgiving 2019 weekend. The handwritten document was handed over by Joe to the prison authorities on 23 October 2019, some ten days after the PFV.

38The document is headed “very important = Backstory”. It contains information about Mary-Alice Davis, Keith Jones, Peter Quinn and Tom Whealy. In the case of Ms. Davis and Mr. Quinn, there are hand drawn maps of where they live. Not all of the information is accurate. For example, the document states that Ms. Davis and Mr. Jones live in the same condominium complex. Mr. Jones, who testified, indicated that that was not the case. In the bottom left-hand corner of the document, there is a box with the words “New ID Name: Cavan Archer”. With respect to Tom Whealy, who is indicated to live in London, Ontario or Sarasota, Florida, it is noted: “If Mary-Alice calls Tom, he will come to Toronto if emergency. Tom could be in town (Toronto) in December anyway”. Keith Jones confirmed that there would typically be a Christmas lunch in December for people associated with the Davis Corporation, which Mr. Whealy would typically attend.

39Although the PFV involving Mr. Ross’s his ex-wife was, in fact, electronically monitored, nothing of substance relevant to this proceeding was picked up.

40Originally, February 2020 was the month when everything was going to happen. Then Joe got sick with cancer. The month when things were going to happen got postponed to April. But Joe also had parole dates coming up. He said that he wanted nothing to happen before the opportunity for parole was considered. In any event, the plan required that both Joe and Mr. Ross be transferred before the murders could occur. Then Covid arrived.

41Joe acknowledged that, in the entirety of his dealings with his parole officer and with the police, no inducements or promises were made to him. Indeed, he accepted that he had been warned by Detective Constable Debbie Asselstine of the OPP that he should not continue with the subterfuge. But, as Joe put it, “I felt an obligation to do it. I didn’t think there was any other way to stop it. I gained nothing. I certainly received no benefit by coming forward.”

42Joe testified that he was well-respected at Bath Institution. He blamed his inability to stop drinking as the main reason for not having been granted parole. He testified that he never went around boasting of criminal connections such as Chinese, Mexican and Greek Mafias and gangs. Indeed, he felt that he was “deeply respected” by the people he was living with.

43Joe also denied that, at any point during his time at Bath Institution, he had been involved with buying or selling drugs. He denied that he had ever been involved in any physical altercations or, specifically, that he had been “slapped” or otherwise beaten up. And he also denied having been involved in any sort of gambling activities.

44Joe claimed that his only motivation for maintaining the subterfuge with Mr. Ross was because he regretted having been previously involved in the despicable act of taking someone else’s life before and being too much of a coward to prevent it. When Mr. Ross presented his scheme to Joe, he felt that the past was repeating itself. Joe vehemently denied that he had run up gambling debts at Bath Institution or that he had used or traded in drugs. His only positive test at Bath Institution had been for THC shortly after his arrival.

45Although Joe denies that the role that he assumed with Mr. Ross was intended to advance Joe’s prospects for parole, he acknowledged that in his subsequent exchanges with the Parole Board he would have mentioned his co-operation with the police because, as he put it, “it was part of his reality”.

46In addition to Joe, the Crown called Keith Jones, Peter Quinn, Ellisa Johnson, Angela Crossman and Karen Moore as witnesses.

Officials

47Ellisa Johnson is an Indigenous elder employed by Correctional Services Canada. Her role was to provide cultural and spiritual counselling and one-to-one guidance with Indigenous inmates. It was clear from her evidence that she got the measure of Joe. She realised that he was not always sharing all information with her. It took quite a long time to build up trust between her and Joe. She was not aware that Joe had been assisting with an investigation, although he had mentioned to her that he might have to testify in a court case. Ultimately, in January 2020, Ms. Johnson confirmed her formal support for Joe’s efforts to obtain parole.

48Angela Crossman explained how, shortly after becoming acquainted with Joe, she encouraged him to stop trying to be a leader and to be careful who his associates were. He took this advice, putting in for a transfer from the house that he had been living in.

49Ms. Crossman did harbour a concern that Joe was coming forward with the information about Mr. Ross in order to facilitate his transfer to another facility and, ultimately, to obtain parole. Initially, she thought that Joe might be making up the story in order to gain favour. In a police synopsis of an interview of Ms. Crossman, she stated that Joe liked to “put himself out there as a heavy”. She explained that she made this comment having read Joe’s file. There had been a lot of involvement in “subculture activities” in Joe’s past. Ms. Crossman felt that he had influence. She described him as a large man and “imposing” who spoke directly and could be perceived as intimidating.

50Ms. Crossman also told the police that Joe “tells lies”, maintaining that the murder he was serving a life sentence for was not a contract killing, but that someone else had done it. The police notation of the interview records Ms. Crossman’s view that “Joe has not given a linear story and lacks credibility”.

51Ms. Crossman testified that she felt that the whole scheme described by Joe was “mind-boggling and didn’t make any sense to me”. She also had a concern that Joe was coming forward with this information in order to facilitate his transfer to another facility.

52Ultimately, Joe did have Ms. Crossman’s support for parole, but this had nothing to do with his disclosures about Mr. Ross.

53Karen Moore, a security intelligence officer at Bath Institution (at all material times) confirmed that an intercept of the PFV which Mr. Ross had with his ex-wife in October 2019 was arranged. She testified about her role in passing on letters that came either directly from Joe or through Ms. Crossman. Her principal role appears to have been essentially as a conduit to the police. However, she did confirm that, along with Detective Constable Asselstine, she had met with Joe on 16 October 2019 and cautioned him about his continued involvement. As she put it, things were “getting complicated”. Joe indicated no safety concerns at that time.

Defence

54The defence called five witnesses. Four of them – all convicted murderers – were fellow inmates of Mr. Ross and Joe at all material times. The fifth witness was Eva Wower, the ex-wife of Mr. Ross.

Inmate Witnesses

55The inmate witnesses gave varying accounts of their involvement with and knowledge of Joe and Mr. Ross. The consistent theme was that Mr. Ross was generally well-respected, whereas Joe was not.

56George Johnstone encountered Joe in two scenarios. At meetings of Narcotics Anonymous, Joe spoke about growing up dealing with drugs since he was a youth and being in and out of prison. He did not disclose any current substance abuse and Mr. Johnstone never saw Joe using drugs although, from time to time, Joe would come to the house that Mr. Johnstone was living in at Bath Institution to get substances, usually prescription drugs. By contrast, at the “Italian club” which Joe frequented from time to time, he would boast about having been able to get stuff in and how he had made so much money. In Mr. Johnstone’s words, Joe’s persona was “I could hook you up with whatever you want – I’m a big man”.

57According to Mr. Johnstone, Joe was not regarded as being too honest. Mr. Johnstone, personally, did not like Joe, saying that Joe “contradicted himself from one place to the other”. He contrasted Joe’s “poor me” persona at Narcotics Anonymous with his “big man” behaviour at the Italian club. Mr. Johnstone added that if you believed what Joe said, he was connected with everyone – the “Red Lines”, Hell’s Angels, Rock Machine. Mr. Johnstone did not believe him. Furthermore, according to Mr. Johnstone, Joe made deals with other inmates but did not follow through.

58Mr. Johnstone acknowledged that he was a friend of Marshall Ross’s. After Marshall Ross was removed from Bath Institution, Mr. Johnstone wrote to him to ask how he was doing. Mr. Ross apparently responded and said that everything was fine. Mr. Johnstone described Mr. Ross as “smart” and a “leader”. Many people in the institution admired him.

59Keith Davis knew Joe, both in person and by reputation. He said that Joe was regarded as a “scam artist”, and that people rolled their eyes when his name came up. He was known as a small-time seller of drugs, primarily pills. He had a reputation for telling different people different things. Mr. Davis said that generally, “I wouldn’t believe what Joe said”. Asked how well-liked Joe was, Mr. Davis said that “he was tolerated”.

60Mr. Davis acknowledged that he never saw money changing hands between Joe and anyone else, but that it was generally accepted that Joe was a guy to go to if you needed to get drugs. He conceded, however, that his knowledge of Joe was based more on rumours and speculation than firsthand knowledge.

61Joshua Kohl, another inmate, described how Joe had shown up one day at his house at Bath Institution looking for drugs. He was interested in obtaining opiates or crystal meth. He described how he and Joe were “drug buddies”, getting high together and talking “a bunch of nonsense”.

62Mr. Kohl was not a friend of Mr. Ross’s, although they had lived in the same house for a year or two. They talked sports or about their children.

63With respect to Joe, after a while people stopped believing him. By the time he left Bath Institution, he had “a terrible reputation”. As Mr. Davis put it, “he lied through his teeth”. Mr. Davis said that Joe owed him more than $200 arising from debts incurred by Joe at the poker table and for drugs. He described how, from time to time, he would provide Joe with crystal meth and how “Joe was always high”. He also believed that Joe targeted younger Indigenous prisoners when they first came to Bath Institution “because they were impressionable”. Joe would boast about his connections to “Red something”, “Hell’s Angels”, “Rock Machine” and the “Greek Mafia”. At first people did not know what to think, but they soon realised that Joe was a guy who “ran his mouth when he got high”.

64According to Mr. Kohl, Joe got “slapped” two times because of gambling debts. Mr. Kohl also testified that Joe had asked him to intercede with one of his Indigenous friends to persuade the Indigenous group to let Joe back in (Mr. Kohl is not Indigenous, but explained that Joe had been kicked out of the Indigenous group because they said that he had been manipulating younger guys).

65Joseph Drosi at first knew Joe by reputation. Later on, he would see Joe at the Italian club and they would socialise, both there and at other houses. Mr. Drosi described Joe as “a con man, a liar and a druggie”. He would proclaim himself as having lots of contacts and friends in high places. He mentioned the Greek Mafia, Italian Mafia, Chinese Triads, Red Scorpions (or something like that), and Hell’s Angels. Mr. Drosi said that he saw Joe playing poker and that he believed there had been an altercation between others and Joe because of gambling debts. According to Mr. Drosi, Joe was quiet when he wasn’t high, but boastful when he was.

66Mr. Drosi expressed the opinion that it was inconceivable that Mr. Ross would do business with someone like Joe.

Eva Wower

67Eva Wower was summoned by the defence to testify. She married Marshall Ross in August 2003 and divorced him in July 2011. They have two children, aged nineteen and sixteen. Ms. Wower confirmed that Mr. Ross had studied business at Bishop’s University and the University of Victoria. He had excellent knowledge of business and finance. He remained an attentive father. Even after he had been incarcerated, he had helped his children along with their studies and tutored them in mathematics over the phone.

68Ms. Wower had initiated the divorce. She decided about six to eight months after Mr. Ross was arrested in 2009 that she wanted to divorce him. She said that she does not harbour any thought of resuming a life with Mr. Ross. She is certain that Mr. Ross understands this and that he accepts that they will never have a life together again. According to Ms. Wower, Mr. Ross has never attempted to resuscitate their romantic relationship since their divorce. Nor has there ever been discussion of reconciling and moving to Belize. She denies that she has ever been party to any discussion about Mr. Ross escaping.

69Ms. Wower claims that she had limited knowledge of Mr. Ross’s indebtedness to Glen Davis and his corporation. She knew that there had been a lawsuit by the Davis Corporation against Mr. Ross, and a judgment. She says that she did talk to Mr. Ross about the effect that Mr. Davis’ death would have on the money owed, but says that Mr. Ross explained to her that the loan was between two corporations and so the death of Mr. Davis would have no impact on that debt. According to Ms. Wower, that was the extent of their discussion.

70There was then further litigation (the fraudulent conveyance action) to which Ms. Wower was a party. It settled recently.

71Ms. Wower acknowledged that she went to Mr. Ross’s place of incarceration for scheduled family visits, typically twice a year. She and her children had obtained professional advice which recommended maintaining the relationship between the children and their father. At these family visits, searches were undertaken both going in and leaving. Typically, the children had their own bedroom, Ms. Wower had a bedroom, and Mr. Ross would sleep in a couch. On occasions, when the accommodation only had two rooms, Ms. Wower allowed Mr. Ross to share a room with her. When this occurred at Millhaven, there had been intimate relations. That had not continued at Bath Institution.

72During the visit between 11 and 14 October 2019, a three-bedroom unit had been made available. Ms. Wower had slept alone. There were no intimate relations. She had no sense of whether the visits were electronically monitored. As far as she was concerned, she and Mr. Ross were free to talk openly. She denies that Mr. Ross asked her for names or addresses of anyone.

73When shown the handwritten document authored by Mr. Ross, Ms. Wower said that she was seeing it for the first time. None of the contents of the document had been discussed during the family visit. She had no knowledge of how the document came into being. She said that she did not supply any of the information contained in the document. She had never heard the name Cavan Archer. Nor had she taken a shower with Mr. Ross during the family visit (although on cross-examination she seemed less certain of this).

74Ms. Wower said that she had never been asked by her ex-husband to hand over his passport to anyone. She believed that his current passport had been seized by the police when he was arrested.

75In March 2020, Ms. Wower had had an encounter with a woman outside her gym in Toronto. The woman knew her name and started peppering her with statements that she knew Mr. Ross, that her employer was Morgan Scott, and that they were trying to help her. Ms. Wower said that she was scared. The woman who had approached her looked like she was wearing a wig. It has subsequently been revealed that this individual was an undercover police officer. Ms. Wower said that she did not know the name Morgan Scott. The individual tried to get her to take a burner phone. Although Ms. Wower took a bag containing the phone, she never took it out of the bag. She subsequently contacted her lawyer, who advised her not to respond.

76Under cross-examination, Ms. Wower said that she knew that the murder of Mr. Davis had been a failed effort to make the civil litigation go away. She denied having been told by her then-husband that he was going to try to have Mr. Davis killed, or being told by him that he had previously tried to have Mr. Davis killed.

77She acknowledged that properties were conveyed to her by Mr. Ross, but felt that this was part of their divorce arrangement, rather than a ploy to avoid judgment.

78According to Ms. Wower, she “needed to get off the crazy train”. She could not imagine why anyone would think that one could avoid civil litigation by killing a party.

Discussion

79The Crown submits that Joe testified at length and in detail, and that his evidence was “unshaken”. Any contradictions between his evidence at trial and what he testified to at the preliminary inquiry were minor and inconsequential. According to the Crown, his evidence was consistent throughout the entire investigation.

80Considerable time was spent by both the Crown and defence counsel debating Joe’s qualities, and hence his reliability, as a witness. The Crown conceded that Joe might be said to be “combative”. As defence counsel put it, no doubt tongue-in-cheek, the words “yes” and “no” were not part of Joe’s vocabulary when answering straightforward questions that were put to him. Rather, “cross-examining Joe was like engaging in a wrestling match”.

81While I take the views of Joe’s fellow inmates with a pinch of salt, at least when it comes to their regard for Joe, or lack thereof, it does appear that there is a significant contrast between Joe’s perception of how he was regarded within the institution, and everyone else’s.

82It was not just his fellow inmates who questioned his veracity. It will be recalled that his parole officer stated that Joe “tells lies” and that he “likes to put himself out there as a heavy”.

83Joe is, as a Parole Board decision that was filed in evidence states, a “talker”. He has a firmly rooted sense of self-belief. However, it would also appear that he has limited insight into how others perceive him.

84I am inclined to the view that Joe had an inflated view of his own standing within the prison community. This likely coloured his perception of the subterfuge that he described being drawn into such that it is hard to determine where fact ends and fiction begins.

85That having been said, and despite his mixed reputation, Joe’s testimony should not be lightly discounted. In a place where there are many complex personalities, he was no exception. By doing what he did, he exposed himself to considerable risk. He is now labelled a “rat”. He received no credit from the authorities for what he had done. Indeed, when he was transferred out of Bath Institution, it was to another medium security penitentiary, rather than being cascaded down to a low security facility. While he did eventually achieve parole, there is no evidence to support the suggestion made by the defence that his co-operation with respect to the Marshall Ross investigation was a factor which led to that outcome.

86A number of the assertions made by his fellow inmates – that he was involved in gambling, that he had been beaten up, that he was buying, selling and using non-prescribed drugs, and that he was preying on younger members of the Indigenous inmate community – were not backed up by the observations of the professionals in the institution who knew Joe and interacted with him.

87In inviting me to see past the blemishes in Joe’s testimony and not to cloud my assessment of his motivation and, hence his credibility, the Crown places considerable reliance on a decision of this court, R. v. Kerr, 2017 ONSC 7305. The accused and the principal witness for the Crown were both in custody. The informant came to the authorities with a story that the defendant wanted his ex-girlfriend killed to prevent her from testifying against him. He asked the informant to help arrange it. After speaking with the police, it was agreed that the informant should be engaged by the police as an agent to assist them in their investigation. He pleaded guilty to the charges that he was on remand for, and was released for time served plus probation. After his release, he helped to arrange for the accused to contact an undercover officer by telephone. As in the present case, the informant’s credibility, or lack thereof, was central to the defence position. Dunphy J. observed, at para. 82:

I do not accept the idea that this one category of witness is to be presumed to be endowed with almost superhuman capacities to deceive or that the presumed motive of seeking early release or favourable treatment behind bars is so much more powerful than any other motive. There are good liars and bad liars. There are strong motives and weak ones. The quest for freedom, arrogance, love, hate, greed, jealousy, revenge or resentment: all of these can be very powerful motives. Prisons certainly have their share of inmates whose crimes can be traced to one or more of these motives. However, the persistence of the phenomenon of recidivism does not recommend prison as being a particularly effective academy of deception.

88Dunphy J. went on to acknowledge that the informant’s testimony at trial had been “far from perfect”. Where there were discrepancies between his testimony and that of the police or correctional officers, he found the evidence of the latter to be preferable, but did not conclude for that reason that the informant was being insincere in his testimony.

89Dunphy J. also found that the defence theory that the informant’s overpowering desire to secure his freedom significantly undermined his credibility was “simplistic”, finding that there was no evidence that the informant had ever discussed the matter of police assistance on sentencing as a quid pro quo for this co-operation.

90Interesting though the Kerr case is, it really turns on how Dunphy J. resolved issues of credibility in that case. It does not lay down any principle that would guide me in this case.

91As I indicated already, I take much of the other inmates’ evidence about Joe with a pinch of salt. But I do accept their characterisation of Joe as boastful, and prone to saying what he thinks others want to hear, and there were examples of that tendency, too, in the evidence he gave in this court.

92And, despite the evidence that, from an institutional perspective, Joe had nothing to gain from his collaboration concerning Marshall Ross, I accept at least the possibility that Joe may have thought otherwise.

93In all of the circumstances, it would be unsafe for me to make a finding of guilt based solely on what Joe testified to.

94The defence asserts that even if what Joe said about the scheme was true – which the defence, of course, robustly challenges – the plan he described was fantasy at best, with no prospect that it would or could ever be executed.

95The Crown agrees that the scheme was “bizarre”. The Crown concurred with Ms. Wower’s description of Mr. Ross’s plan as “crazy – even delusional” from the outset.

96Yet it is submitted by the Crown that the scheme was consistent with Marshall Ross’s motive – to eliminate his civil liability to the Davis Corporation – and his prior behaviour.

97Ms. Wower’s testimony was given in a dignified and measured manner. The Crown agrees that Ms. Wower was a credible witness. However, the Crown suggested that Ms. Wower had no evidence to assist the court in the current matter.

98Ms. Wower was aware that her ex-husband owed money to Glen Davis at the time of Mr. Davis’s death. Although she testified in chief that Mr. Ross had explained to her that the loan was between two corporations and, hence, the death of Mr. Davis would not have an impact on the debt, under cross-examination, Ms. Wower acknowledged that she had read a transcript of her ex-husband’s guilty plea, and conceded, when it was put to her by Ms. Heine, that the murder was a failed effort to make the civil litigation go away.

99A review of the comprehensive statement of facts presented to Nordheimer J. at the time of Mr. Ross’s guilty plea does indeed disclose that in May 2007, Mr. Ross’s company owed the Davis Corporation almost $2,000,000, that Mr. Ross had no realistic expectation that he would ever be able to repay the full amount of that indebtedness and that, eventually, Mr. Ross’s misrepresentations to Mr. Davis regarding the financial status of Rosshire Enterprises, its inventory of works in progress, and its projected revenues, would be discovered. Mr. Ross further acknowledged that he wanted Mr. Davis killed because he was controlling the family’s wealth and giving it away to charities, whereas Mr. Ross felt he should be controlling the money because Mr. Davis had been adopted.

100Accordingly, while the motive for killing Mr. Davis was, indeed, money, at least as far as the facts that were read into the record in 2011 go, the reason was somewhat more nuanced than a simple belief that the debt would be expunged if Mr. Davis was killed.

101If Ms. Wower was, indeed, part of the scheme giving rise to the present charge, she was unaware of it. I accept, as correct, her assessment that Mr. Ross would have had no realistic expectation that his relationship with her could be revived. Since Mr. Ross’s murder conviction she had suffered the further indignity of being on the receiving end of the fraudulent conveyance lawsuit because of the transfer of property which, she believed, was undertaken because of her entitlement under family law, rather than to avoid judgment.

102Consistent with this, when Eva Wower was approached by an undercover police officer purportedly representing Morgan Scott, she was completely baffled. Subsequent text messages produced in evidence explicitly show that. Joe, of course, was unaware that an undercover officer had been involved.

103It may well be the case, as the Crown suggested, that Ms. Wower’s ignorance as to the conduct of her ex-husband was something that had permeated their relationship even from its outset. She did not know anything of his business dealings, she confirmed that she knew nothing of an earlier failed plot on Glen Davis’s life, and she knew nothing of the second, successful plot to kill Mr. Davis. For that reason, the Crown submits that it is not surprising that she knew nothing of the scheme that brings Mr. Ross before the court again.

104The difference, of course, with the current scheme, as described by Joe, and the plan to murder Mr. Davis, is that Ms. Wower was part of it. While I would agree with the Crown that it is not surprising that Ms. Wower knew nothing of the scheme, I cannot eliminate the possibility that this was because there was, in fact, no scheme, or at least nothing that had evolved to a stage where it was in any way plausible.

105The defence points to what it describes as many “improbabilities”. Why would Mr. Ross approach Joe when, according to other inmates who testified, there were more plausibly connected individuals in the institution? If Joe had, indeed, boasted of his connections with organised crime, would someone of Mr. Ross’s intelligence not have realised that there was little substance to his boasts?

106More significantly, it makes little sense that if, as Joe indicated, his motivation for continuing with the subterfuge was to prevent innocent people from being killed, he would have reported to Mr. Ross that he had obtained legal advice that if the individuals were killed, the litigation would cease. Joe had acknowledged under cross-examination that there would have been no reason to continue with the plot to kill these individuals if it would not have the effect of ending the litigation. As the defence put it, without the verbal confirmation which Joe says he provided to Mr. Ross, namely that the death of the targets would be the end of the litigation, the plot, such as it was, would have died on the vine. All Joe had to do to put an end to the scheme and, thus, effect his purpose of avoiding the death of innocent people, was to report that the answer had come back that “no”, the litigation would continue.

107It may well be, as the defence suggested, that by “nipping the plot in the bud” by telling Mr. Ross that the lawyer had said that the death of the individuals would not bring an end to the lawsuit, Joe would also have removed the risk of repercussions being visited on him by Mr. Ross or others associated with him.

108The defence further argues that the plan or scheme was never a plan. The loose ends – the pitfalls, contingencies and conditions precedent – are palpable. Uncertainties piled on uncertainties. Who would the assassins be? Could they be trusted? How would they be paid? By money up front? With or without a down payment? Or only on completion? Why would two lawyers facilitate the slaughter? What happened to the price when the number of victims changed? How were these dishonest lawyers to be paid? How were the murders to be carried out? Joe said that they would all need to be undertaken simultaneously: how would that be done? Where would the bodies be hidden in order to support the illusion of a kidnapping? How would the passports be forged? How would escape be effected? Helicopters, planes, borders: the loose ends and contingencies are, according to the defence, overwhelming. The defence suggests that they are nothing more than a fantasy dreamed up by Joe. And, in fact, nothing ever happened. No one ever followed Mr. Quinn or Mr. Jones around. The scheme never got off the ground. Because, the defence suggests, there never was a scheme to begin with.

109The defence characterises the document drawn up by Mr. Ross is a “very strange murder map”, if that is what it is. While I would agree with that comment, no rational explanation has been given as to why a document created for the purposes of the civil litigation would have sketch maps of the location of the residences of two of the four individuals identified in the documents.

110The Crown refutes the suggestion that the lack of detail detracts from the fact that the framework of the scheme was well formed and, thus, the elements of the offence of counselling established. Joe’s account demonstrates that the defendant’s goal was to pursue arrangements to have his targets killed and that it is not necessary for the details of how that purpose would be fulfilled to have been formulated in order for the offence to have been committed. And the document drawn up by Mr. Ross was done in furtherance of that purpose and for no other credible reason.

111I agree that the many gaps in the plan described by Joe are not fatal to a conviction. I also find that the document drawn up by Mr. Ross is a very troubling piece of paper. I find it more supportive of the Crown’s theory of the case than that of the defence. I do not accept that it is more likely to have been created for the purposes of the civil litigation than in relation to the plot to kill four individuals. The best that can be said about the document, from a defence perspective, is that murder is not the only possible explanation for the document.

112However, I do not accept the underlying premise of the Crown’s case, namely that Mr. Ross wanted four people killed to avoid his indebtedness to the Davis Corporation. Even if Mr. Ross had thought that killing Glen Davis would end the litigation, he would certainly have known by no later than 2012, when a civil judgment of $3,269,204.94 was made against him, that lawsuits and civil liability are capable of surviving the death of a claimant. And he would have known, at a time when he was approaching eligibility to make a faint hope application for parole, something Ms. Wower said he was minded to do – that he risked throwing that opportunity away and being consigned to a significantly extended period of incarceration if the scheme described by Joe was discovered.

113It is possible that Mr. Ross’s animus towards Mary-Alice Davis, Keith Jones, Peter Quinn and Tom Whealy was motive enough to propel the scheme described by Joe. But that is not part of the narrative as recounted by Joe. It was the elimination of the civil debt and the prospect of escape that propelled the scheme.

114Furthermore, Joe’s evidence, even if accepted in its entirety, was that Mr. Ross did not want the murders to go ahead until he was in a minimum-security facility and there was legal advice that the deaths would resolve the lawsuits. The scheme was thus some distance from the point where it could be carried out.

115The defence referred me to a decision of the England and Wales Court of Appeal, R. v. O’Brien (1974), 59 Cr. App. Rep. 222 (EWCA). O’Brien was a case involving conspiracy, which is a different inchoate offence to counselling: conspiracy requires an agreement between at least two conspirators. Counselling does not require a meeting of the minds. With that caveat, the defence draws my attention to the Court of Appeal’s statement at p. 225 that “persons do not commit a criminal offence merely by talking about the possibility of committing some wrongful or unlawful act unless they reach the stage where they have agreed to commit that act if it lies in their power”: if matters left outstanding and reserved are of a sufficiently substantial nature, it will be said that the act is merely a matter of negotiation.

116R. v. Jeffers (2012), 280 C.C.C. (3d) 54, 2012 ONCA 1, involved a charge of counselling murder through a poster that showed a photograph of a city councillor and contained hand-printed words including “murder”, “help”, the name of the councillor and the name of the accused. Noting that the accused had a grade five education and was barely literate, Laskin J.A., for the Court of Appeal, found that the trial judge should have evaluated the plausibility of the accused’s explanation that the posters were intended as a plea for help, rather than a call for someone to murder the councillor.

117Professor Don Stuart writes, in Canadian Criminal Law, 6^th ed. (Toronto: Carswell, 2011) at p. 740, that the phrase “counsels” is obviously wide: “[c]ounselling has been held to have no technical meaning but merely advising or recommending”. Nevertheless, will a plan that is sufficiently implausible that it is described as “bizarre”, “delusional” and “fantastic” by not only the defence but also the Crown, necessarily be capable of forming the basis for convicting the originator of the ideas for counselling another?

118In my view, the context is important. Here the determination by Widgery L.C.J. in O’Brien that persons do not commit a criminal offence merely by talking about the possibility of committing some wrongful or unlawful act is apt. Despite the elastic quality of the phrase “counsels”, to attract criminal liability, there has to be some threshold of plausibility, some air of reality, for the elements of the offence of counselling to be complete.

119Taking account of all the circumstances, I find that the scheme described by Joe fails the reality check.

120A further, and somewhat unusual feature of the present case is that Mr. Ross is, effectively, charged with counselling Joe to counsel others: a double inchoate offence. Canadian courts have refused to recognise an attempt to conspire (R. v. Dungey (1980), 1979 CanLII 2940 (ON CA), 51 C.C.C. (2d) 86 (ONCA); R. v. Déry, [2006] 2 S.C.R. 669, 2006 SCC 53). Professor Stuart, at p. 741 of the 6^th edition of his treatise, writes:

It is logically possible to arrive at preposterously wide definitions of offences by combining the present incomplete offences. Why not attempting to attempt, a conspiracy to attempt, counselling an attempt, and so on? That the general principles of defining each incomplete offence would be applied to situations surely never imagined, suggests that the criminal sanction should not be extended at all to combinations of incomplete offences.

Conclusion

121The evidence of Joe gives rise to sufficient questions and concerns that I am not prepared to rely on it alone as the basis for convicting Mr. Ross of the offence of counselling. When the other evidence is considered, and in particular, the implausibility of the scheme described by Joe, I am not sufficiently confident that Mr. Ross put forward the scheme which Joe described.

122However, even if I am wrong about my assessment of the evidence, and I were to accept Joe’s evidence, supported, in particular, by the documents which emanated from Mr. Ross, the plan to have four individuals murdered is so fanciful and implausible, and subject to the contingency of Mr. Ross’s transfer to a low-security facility and a successful escape, that it should not in the circumstances form the basis for a conviction on the offence of counselling.

123I also agree with the concern expressed by Professor Stuart that combinations of inchoate offences – in the present case counselling to counsel or perhaps to conspire - should not form the basis for criminal liability.

124For all of these reasons, the prosecution has failed to meet its burden. Mr. Ross is therefore acquitted.

Mew J.

Handed down (orally): 24 August 2022