R. v. Stinson, 2024 ONSC 3212

Court File and Parties

COURT FILE NO.: CR-22-1297 DATE: 2024-06-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Liam Stinson

Counsel: Kaely Whillans / Alayna Jay, for the Crown Joseph S. Wilkinson / Liam K. Thompson, for the Applicant

HEARD: April 18, 22, 2024

Decision on Application

CORNELL J.

Introduction

[1] Mr. Stinson was charged with three counts of first-degree murder and one count of arson causing bodily harm. At the conclusion of the case for the Crown, Mr. Stinson brought an application for a directed verdict of acquittal on all three counts of first-degree murder. I dismissed the application with reasons to follow. I now take this opportunity to provide my reasons.

Background

[2] At the time in question, Mr. Stinson was a drug dealer. He had been in a tumultuous domestic relationship with one of the deceased, Jamie Lynn Rose (“Ms. Rose”). The late Ms. Rose had made various efforts to leave the relationship. She had done so for a period of approximately two or three weeks prior to the events in question by moving to the residence of David Cheff, a friend who was also a drug dealer.

[3] On April 11, 2021, Mr. Cheff’s home was firebombed by the use of two Molotov cocktails. In addition to Ms. Rose and Mr. Cheff, the home was occupied by the late Guy Henri and the late Jasmine Somers. Mr. Cheff was the only person who was able to escape the inferno that totally destroyed the townhouse residence. The three remaining occupants died as a result of the fire.

[4] Mr. Stinson utilized the services of Jared Herrick (“Mr. Herrick”) and Phillippe Jeannotte (“Mr. Jeannotte”) to bring about the arson. Messrs. Herrick and Jeannotte were serious drug users who were addicted to fentanyl. Mr. Stinson was their drug dealer.

[5] Video and viva voce evidence showed that at the request of Mr. Stinson, Mr. Jeannotte attended at a gas station at approximately 2:00 a.m. on the night in question, filled two large Gatorade bottles with gas and returned to Mr. Stinson’s residence where, in the presence of a number of individuals, Molotov cocktails were created.

[6] Mr. Stinson made it known that it was the residence of Mr. Cheff that was to be firebombed. As Mr. Jeannotte was not sure where the residence was located, Mr. Stinson enlisted his friend Mr. Herrick to provide directions so that the proper residence could be targeted.

[7] Around 4:30 a.m. on the night in question, Messrs. Herrick and Jeannotte went to Mr. Cheff’s residence. Mr. Jeannotte proceeded to use the Molotov cocktails to start the fire at Mr. Cheff’s residence by gaining entry via the back door. Evidence led at the trial indicated that the front door was inoperable or otherwise barricaded.

[8] On the way to the Cheff residence, Mr. Jeannotte told Mr. Herrick that he would probably get a ball (3.75 g) of fentanyl. Although Mr. Stinson did not offer Mr. Herrick anything to participate in this enterprise, Mr. Herrick testified that he assumed that Mr. Jeannotte would share with him whatever was to be provided by Mr. Stinson.

[9] After the fire, Mr. Stinson went to the Radisson Hotel. Mr. Herrick went there to get the drugs that he and Mr. Jeannotte were owed. No drugs were provided by Mr. Stinson at that time. The subsequent efforts by Mr. Herrick to obtain the promised drugs from Mr. Stinson were also unsuccessful.

Issues

[10] Is there any evidence upon which a reasonable properly instructed jury could conclude beyond a reasonable doubt the killing was preceded by an arrangement to kill under s. 231(3) of the Criminal Code?

[11] Is there any evidence upon which a reasonable properly instructed jury could conclude beyond a reasonable doubt the killing was planned and deliberate?

The Test

[12] The test for a directed verdict is the same test to be applied by a preliminary inquiry justice under s. 548(1) of the Criminal Code. If the Crown has presented direct evidence as to every element of the offence charged, an accused must be committed to trial. See R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; R. v. Charemski, 1998 SCC 819, [1998] 1 S.C.R. 679, at para. 35.

[13] In the case of circumstantial evidence, the trial judge must engage in a limited weighing of the evidence to determine if the evidence can reasonably support an inference of guilt. The limited weighing exercise to be undertaken by the trial judge is to determine whether the inferences required for the Crown to prove its case beyond a reasonable doubt are, as a matter of logic, reasonably available on the evidence. See Arcuri, at paras. 21-22; R. v. Tenthorey, 2021 ONCA 324, 404 C.C.C. (3d) 457, at para. 67; and R. v. White, 2019 ONSC 916, at paras. 35, 38-41.

Position of the Parties

Applicant

[14] The accused asserts that although there was evidence of a planned and deliberate arson, there was no evidence to support a finding of a planned and deliberate murder. In keeping with this approach, Mr. Stinson says that Messrs. Herrick and Jeannotte were the principals in connection with the arson and that Mr. Stinson is properly characterized as an abettor to the arson under s. 21(1)(c) of the Criminal Code.

[15] There was evidence at trial that showed Messrs. Herrick and Jeannotte went to some lengths to ensure that the residence that was to be firebombed was uninhabited. Mr. Stinson told Mr. Herrick that no one was home. Some 10 or 15 minutes later, Mr. Stinson showed Mr. Herrick a text message saying that “they had arrived safely and would be returning on Monday.” Although Mr. Herrick did not know the date of the text message or who it was from, he assumed that it was from a girlfriend because there was language to the effect of “miss you.” When Messrs. Herrick and Jeannotte attended at Mr. Cheff’s residence, they knocked on the front door. No response was received. They observed that there were no lights on in the residence at that time. When they entered the residence through the back door that led to the kitchen, they did not see or hear anything that would suggest that there were any occupants of the residence.

[16] The applicant argues that the evidence makes it clear the sole intention of Messrs. Herrick and Jeannotte was to commit arson. The applicant goes on to say that as Messrs. Herrick and Jeannotte had no intention to kill, Mr. Stinson can only be found to be an abettor in connection with the arson.

Crown

[17] It is the position of the Crown that Mr. Stinson was the principal in the planned and deliberate murder that took place and that Messrs. Herrick and Jeannotte were innocent agents used by Mr. Stinson to bring about murder.

Analysis

[18] The evidence at trial showed that from time to time, Mr. Stinson went to some lengths to force Ms. Rose to return to his home after she had taken up residence elsewhere.

[19] There was considerable evidence that Ms. Rose feared for her safety. Mr. Cheff testified that some months prior to the fire, Ms. Rose showed him a text message from Mr. Stinson to her telling her to come home, otherwise he would kill her.

[20] After taking up residence with Mr. Cheff, Ms. Rose had a telephone conversation with her mother approximately two or three weeks prior to the fire. Ms. Rose’s mother urged her to return to her home in the Timmins area. Ms. Rose responded by telling her mother that Mr. Stinson had told her that if she left Sudbury, he would kill her mother, father and her children. Ms. Rose went on to tell her mother that in view of this threat, it would be necessary for her to remain in Sudbury for a few weeks until “things cooled down.”

[21] After Ms. Rose moved into Mr. Cheff’s residence, Mr. Stinson used her to transport drugs from his home to the Cheff residence. There was evidence that on the night in question, Ms. Rose had stolen drugs that were to be delivered to Messrs. Cheff and Henri. There was evidence that Ms. Rose had stolen drugs from Mr. Stinson on previous occasions.

[22] There were a number of people present in Mr. Stinson’ home on the night of the fire. There was evidence that people observed Mr. Stinson to be anxious and paranoid.

[23] Mr. Jeannotte testified that he overheard Mr. Stinson ranting and raving to others about how upset he was with the Cheff residence. Mr. Jeannotte understood that Mr. Stinson wanted to send some kind of message to Cheff’s house and that the message involved having Mr. Jeannotte go and start a fire there.

[24] It was against this evidentiary background the Crown put forward as motive that Mr. Stinson wanted to kill Ms. Rose because he was angry that she had left him and because of the drug debts created by the drugs stolen by her.

Innocent Agent Doctrine

[25] Section 21(1)(a) of the Criminal Code provides everyone is a party to an offence who actually commits it. The Crown submits that where an accused actually commits the offence, the accused is a principal perpetrator. In this case, the Crown submits that Mr. Stinson is a principal perpetrator as he committed the offence of first-degree murder by the use of innocent agents.

[26] The Crown’s factum sets out the references to this doctrine as follows:

In the annotations to s. 21 of Martin’s 2024 Annual Criminal Code, it states on page 72:

The words “actually commits it” in subsec. (1)(a) include the case of an accused who commits an offence by means of an innocent agent: R v Berryman (1990), 57 CCC (3d) 375 (BCCA).

In the second edition of Watt’s Manual of Criminal Jury Instructions, Final 101-A, deals with joint principals as defined in s. 21(1)(a) of the Criminal Code. The first footnote reads:

No specific instruction is required where D is a sole principal. D may also act through an innocent agent. See, R v Berryman (1990), 57 CCC (3d) 375 (BCCA).

The doctrine of innocent agency is also discussed in E.G. Ewaschuk’s textbook, where he writes:

Section 21(1)(a) of the Criminal Code provides that everyone is a party to an offence who actually commits it. A person actually commits an offence when he or she does a physical act, with the requisite mens rea, toward the commission of an offence, omits to act when under a legal duty to act, or uses an innocent agent to commit an offence. […]

E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed., Vol. 1 (Aurora: Canada Law Book, 2007), as cited in R. v. Paskimin, 2012 SKCA 35, at para. 22.

[27] The doctrine of innocent agency lay dormant for decades. It appears to have first been applied in Canada in R. v. MacFadden, 1971, 16 C.R.N.S. 251, a decision of the New Brunswick Supreme Court (Appeal Division). The court held that the accused was guilty of the resulting trafficking where an innocent agent was used for the purpose of transporting narcotics. The question of codification of the criminal law was not considered in that case.

[28] In R. v. Mena (1987), 34 C.C.C. (3d) 304 (Ont. C.A.), at para. 37, the Honourable G. Arthur Martin J.A., refers to the doctrine of innocent agency when considering whether the accused was liable as a principal or as a party.

[29] A detailed review of the doctrine of innocent agency was undertaken by Wood J.A. in R. v. Berryman (1990), 57 CCC (3d) 375 (B.C.C.A.). Wood J.A. reviews the evolution of the statutory provisions concerning parties to an offence and concludes that the doctrine of innocent agency has survived the codification: see Berryman, at para. 30.

[30] When reviewing the history of the doctrine, the court in Berryman reviewed Rex v. Giles (1827), 1 Mood, 166, 168 E.R. 1227, Regina v. Clifford (1845), 2 Car. & K. 202, 175 E.R. 84, and Regina v. Michael (1840), 9 Car. & P. 356, 173 E.R. 867. After considering those cases, the court observes:

29 In each of these cases the point is made that where the agent is truly innocent of any complicity in the crime which has undoubtedly been committed, the act of such agent becomes, or is deemed to be, the act of the perpetrator. This approach is reflected by what Glanville Williams has to say at the beginning of para. 120 of the Criminal Law – The General Part, which is entitled “Innocent agents”:

The principal in the first degree need not commit the crime with his own hands, he may commit it by a mechanical device, or through an innocent agent, or in any other manner, otherwise than through a guilty agent. An innocent agent is one who is clear of the responsibility because of infancy, insanity, lack of mens rea and the like. In law he is a mere machine whose movements are regulated by the offender.

30 It is my view, supported by the authorities just referred to, that a person who commits an offence by means of an instrument “whose movements are regulated” by him, actually commits the offence himself. Thus there is no variance between the doctrine of innocent agency and the plain meaning that would seem to attach to s. 61 (a) of The Criminal Code, 1892. While there have been substantial changes to that section over the years, none has affected the language used which is relevant to this issue, and I therefore conclude that what is today s. 21(1)(a) of the Criminal Code can and should be construed so as to give effect to the doctrine of innocent agency.

[31] The innocent agent doctrine is not concerned with a formal relationship of principal and agent. For that reason, it is sometimes referred to as the doctrine of “innocent instrument” or “non-responsible agent”. In R. v. Ali, [1990] O.J. No. 3129, at para. 9, the court observed:

[The doctrine] regards the conduct of the accused in using another human being as the instrument by which the crime was committed as the equivalent of using a wild animal or a mechanical device to cause the relevant harm. Indeed, the doctrine might have more accurately been the doctrine of innocent “instrumentality” rather than “agency,” because, as Williams and others have noted, the person used by the accused need not be an agent within the common understanding of that word in order to engage the doctrine. [Citation omitted.]

[32] To establish liability by way of the innocent agent doctrine, the prosecution must prove that:

1. The accused intentionally caused a person to perform the acts which constitute the offence charged, in the circumstances necessary for the commission of that offence;
2. At the time the person performed those acts, the accused had the state of mind necessary to commit the predicate offence; and
3. The agent is innocent of the offence.

[33] The Crown submits the three requirements have been met because:

1. Mr. Stinson intentionally caused Messrs. Herrick and Jeannotte to commit arson which was the unlawful act that caused the murder of the three persons to be brought about;
2. At the time that Messrs. Herrick and Jeannotte committed the arson, Mr. Stinson had the state of mind to commit murder; and
3. Messrs. Herrick and Jeannotte are guilty of arson, but innocent of murder.

[34] I will now review the evidence as it pertains to the three requirements.

[35] There was evidence that Mr. Stinson instructed Mr. Jeannotte to purchase the gasoline that was used to construct the Molotov cocktails in Mr. Stinson’s residence. There was direct evidence for the jury to consider that Mr. Stinson told Mr. Jeannotte to firebomb David Cheff’s residence, something that took place at approximately 4:50 a.m., a time when it could be reasonably be expected that the occupants of a residence would be asleep. When Mr. Jeannotte made it known that he was not sure where the Cheff residence was, Mr. Stinson enlisted the assistance of Mr. Herrick who did know the location of the Cheff residence. This is some of the evidence of planning available to the jury.

[36] Mr. Stinson told Mr. Jeannotte to get the gas around 2:00 a.m. It was not until approximately 4:30 a.m. that he told Messrs. Herrick and Jeannotte to go to the Cheff residence. This was direct evidence available to the jury on the issue of deliberation.

[37] There was both direct and circumstantial evidence available to the jury to conclude that Mr. Stinson intended to commit murder and murder would be caused as a result of the planning and deliberation undertaken by him. As previously set out, Mr. Stinson made specific death threats. This was direct evidence available to the jury on the question of intent.

[38] A series of text messages that were exchanged mere hours before the fire between Mr. Stinson, Mr. Cheff and Mr. Henri was evidence available to the jury for them to conclude that Mr. Stinson knew that the Cheff residence would be occupied at the time he instructed it to be firebombed. Those text messages show that on the evening in question, Ms. Rose was to transport drugs from Mr. Stinson to the Cheff residence for delivery to Messrs. Henri and Cheff. The drugs never arrived. This fact was made known to Mr. Stinson during the course of the exchange of text messages. The text messages constituted circumstantial evidence that Mr. Stinson knew the Cheff residence was occupied at the time that it was to be firebombed.

[39] I have previously reviewed the efforts that Mr. Stinson went to mislead Messrs. Herrick and Jeannotte into believing that the Cheff residence was unoccupied. There was evidence for the jury to consider whether Mr. Stinson was the architect of the events in question. It was open to the jury to consider this evidence as part of a plan by Mr. Stinson to dupe or trick Messrs. Herrick and Jeannotte into believing that the Cheff residence was unoccupied at the time that it was firebombed. If the jury accepted that evidence, then it would be open to the jury to find that Mr. Stinson used Messrs. Herrick and Jeannotte as his innocent agents to bring about his intention to commit murder.

[40] There was direct evidence from Messrs. Herrick and Jeannotte that they never intended to cause the death of anyone, rather they thought that they were firebombing Mr. Cheff’s unoccupied residence in order to obtain drugs from Mr. Stinson. This was evidence for the jury to consider on the question of their innocent “instrumentality” in-so-far as murder was concerned.

Conclusion

[41] After taking all of this into consideration, I find that the three requirements of the innocent agent doctrine have been met.

[42] I find that there was both direct and circumstantial evidence that was available to the jury to conclude that Mr. Stinson as principal intended to commit the murder of one or more of Ms. Rose, Mr. Henri and Ms. Somers by the planning and deliberation previously detailed and by using Messrs. Herrick and Jeannotte as his instruments or innocent agents to bring about murder.

[43] It is for these reasons that the application to direct an acquittal on the three counts of first-degree murder was dismissed.

Epilogue

[44] As these reasons were drafted after the jury returned its verdicts, I am able to note that Mr. Stinson was found guilty of first-degree murder in connection with the deaths of Ms. Rose, Mr. Henri and Ms. Somers.

The Honourable Mr. Justice R. Dan Cornell Released: June 13, 2024