ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-23-40000773-0000

DATE: 20240627

BETWEEN:

HIS MAJESTY THE KING

– and –

MATTEO TAGLIABUE

A. Ingvaldson, for the Crown

D. Derstine and L. Remigio, for Mr. Tagliabue

HEARD: June 19, 21, 2024

REASONS FOR DECISION

SCHRECK J.:

[1] Three masked men tried to rob Mohammad Ghods of his car while armed with a knife. Fortunately, people he worked with intervened and prevented them from doing so. One of the robbers was restrained, but the other two fled. The Crown alleges that Matteo Tagliabue is one of the men who fled. As a result, he is charged with robbery (Count 1), wearing a disguise with the intent to commit an indictable offence (Count 2) and conspiracy to commit robbery (Count 3) and has elected to be tried in this court without a jury.

[2] There is no issue that the robbery took place. The sole issue is whether the Crown has proven that Mr. Tagliabue was one of the participants. The Crown’s case is entirely circumstantial and consists of the preliminary inquiry transcript of the testimony of three witnesses to the robbery (which counsel agree is admissible for its truth), security video from an apartment building, and photographs of items the police seized, including a car and some clothing from Mr. Tagliabue’s home.

[3] As explained in the following reasons, I am satisfied beyond a reasonable doubt that Mr. Tagliabue was one of the robbers and is therefore guilty on Counts 1 and 2. While I am also satisfied that he is guilty on Count 3, I am troubled by the inclusion of a conspiracy count where the only evidence supporting it is the commission of the substantive offence. Charging a conspiracy in these circumstances is a practice that has long been discouraged. As a result, I am inviting further submissions on whether (1) either count should be stayed pursuant to the rule against multiple convictions; and (2) if not, whether I should exercise my discretion to sever either the robbery count or the conspiracy count.

I. EVIDENCE

A. The Robbery

[4] On January 10, 2022, Mohammad Ghasen Ghods, a real estate developer, drove his Mercedes S63 to a construction site he was developing at 5959 Yonge Street to speak to his employees who were working there. After speaking to the employees for about 15 minutes, he returned to his car and got in. At that point, three men wearing ski masks approached the vehicle from both sides and began banging on the windows and demanding that he open the door. He did so, at which point one of the men entered the Mercedes from the passenger side while the other two grabbed Mr. Ghods’s phone, pulled him out of the car and began assaulting him. One of them was armed with a knife and used the handle to hit Mr. Ghods. The man who had entered the Mercedes moved to the driver’s seat and demanded that Mr. Ghods give him the key.

[5] Several of Mr. Ghods’s employees, including Saeed Jalalifarahani and Hashem Poyanipour, noticed what was happening and ran over to assist him. The two men who were assaulting Mr. Ghods noticed them and ran to a black BMW that was parked nearby. One entered the driver’s seat and the other the front passenger seat. The third man was still in the Mercedes and Mr. Ghods’ employees grabbed him and restrained him on the ground. He was later identified as T.A., a young person.

[6] After the two other men entered the Mercedes, it backed up and hit a pole, causing damage to the rear. It then drove back to where it had been and one of the men got out, threw Mr. Ghods’s phone on the ground, and said, “Let him go,” referring to T.A. Mr. Ghods’s employees did not let T.A. go. Mr. Jalalifarahani and the man who had come out of the BMW threw punches at each other, but neither hit the other. The man ran back to the BMW but returned two or three times, attempting unsuccessfully to have T.A. released. The driver remained in the BMW. Mr. Jalalifarahani noticed that he appeared to be looking for something under the seat.

[7] Eventually, the second man re-entered the BMW, which began to drive south on Yonge Street. At this point, Mr. Jalalifarahani called 911 at 8:20 a.m. After driving south on Yonge Street, the BMW turned around and drove north at a high rate of speed until the witnesses lost sight of it. Soon after, Mr. Jalalifarahani flagged down a passing police car and T.A. was arrested and taken into custody.

B. Descriptions of the Robbers

[8] All of the men who attempted to rob Mr. Ghods wore masks and no witness described their facial features or skin or hair colour.

[9] Mr. Ghods testified that one of the two men who assaulted him was about 6’1” or 6’2” tall. With respect to his clothing, Mr. Ghods testified:

It was – I don’t remember what kind of shoes, but I remember it was black pants, black jacket, and they were tight. So that’s all I remember. It was black.

[10] Mr. Ghods described the second man as shorter, although he “wasn’t very short.” He was a “a little bit chubbier” than the first man. When asked during his examination in-chief what the shorter man was wearing, Mr. Ghods testified:

The little one, he had something white, a t-shirt white or grey jacket on, the best I remember. I mean, look, it was … as I said, I wasn’t paying that too much of attention on that, so – but when they were – we were holding him – holding him down and he was keep saying, “I’m a minor. I’m a minor. You cannot do shit to me.” I mean that’s what, I’m sorry, this is what he was saying.

Crown counsel clarified with Mr. Ghods that it was T.A., the person who had been apprehended, who said that he was minor. It is unclear from the transcript whether the description of the clothing Mr. Ghods provided was of T.A. or the shorter of the two men who attacked him.

[11] Mr. Jalalifarahani described the man who came from the passenger seat of the BMW as being about 6’0’’ tall. With respect to his clothing, he said:

Well, the – I remember exactly the person that was out. He was wearing a black hoodie. It think his pants was black. Black pants, too. And then he had a sneaker on. I remember. I don’t remember what colour was the sneaker. But he had gloves on, too. He had gloves.

When asked whether he remembered what the driver of the BMW was wearing, he said:

The driver, no, not exactly. I think he had black pants. Black pants and a grey colour, I think grey colour hoodies. I think. It was almost two years ago, yeah.

[12] Mr. Poyanipour was not asked to provide a description of any of the people he saw.

C. The Number of People in the BMW

[13] Mr. Ghods testified that the windows of the BMW were tinted. He did not know how many people were in the car when it left the scene.

[14] Mr. Jalalifarahani testified that he saw the driver of the BMW looking under his seat. He also gave the following evidence during his examination in-chief:

Q. Okay. So at that moment in time when you’ve described the door to that black BMW being open and you see the driver keep looking under his seat, and the passenger trying to get at his friend, could you see whether there was anyone else in that BMW?

A. No, I didn’t see anything.

Q. No, you could not see, or no, there was nobody else?

A. I couldn’t see. I couldn’t see.

[15] Mr. Poyanipour testified that he could not see into the BMW because the window was “a little bit dark” and “like a kind of like a smoky thing.” It was also a bright day and light was reflecting off the glass, which prevented him from being able to see inside.

D. The BMW

[16] The BMW was registered to T.A.’s mother. She had last seen the car on the night of January 9, 2022 when it was being used by her son. It was not uncommon for T.A. to use the car for a variety of purposes, including to visit his friends. T.A.’s mother testified that T.A. knew Mr. Tagliabue and she had seen them together in the past. T.A. was permitted to drive his friends in the BMW, but she could not say whether Mr. Tagliabue had ever been in the BMW with T.A.

[17] The BMW was found some time after the attempted robbery abandoned near 4750 Bathurst Street. According to Google Maps, this location is 3.9 km from the scene of the attempted robbery, a distance that would take eight minutes to drive, based on assumption that the vehicle drove north on Yonge Street, turned left onto Steeles Avenue and left again on Bathurst Street.

[18] The BMW was found with stolen licence plates affixed to it. It had significant damage to the rear bumper. Inside the car, the police found a card carrier with the name “Matteo” on it which contained an insurance slip and registration documents for a car and Mr. Tagliabue’s driver’s licence. Mr. Tagliabue’s fingerprint was found near the handle of the driver’s side front door.

E. The Two Men at 34 Carscadden Drive

[19] The police seized security video from the lobby of a building at 34 Carscadden Drive, which according to Google Maps is 550 metres away from where the BMW was found, approximately a six-minute walk assuming that only public streets are used.

[20] The security video shows two men arriving inside the vestibule leading into the lobby of the building at 8:34 a.m. It is an agreed fact that the same two men were seen on video from a nearby building at 8:31 a.m.

[21] The two men do not appear to have a key or a fob with which to gain entry. They stand in the vestibule, at times looking at a mobile phone. At one point, a person with a dog leaves the building and the shorter man begins to enter through the door as she does so. The woman with the dog appears to say something to the two men, who then allow the door to close without entering the building. At another point, the taller man enters the building when another woman is leaving. The shorter man does not enter but leaves the building, at which point the taller man turns around and follows him out. They later return to the vestibule, check if the door is unlocked, and continue to stand around.

[22] One of the men is wearing a black jacket with a hood that he briefly puts up at one point. He has grey sweatpants which appear to have large coloured letters down the left leg and white running shoes. At one point, he takes off the jacket and can be seen to be wearing a white t-shirt underneath it. He appears to be of medium build, young and has short dark hair and some facial hair.

[23] The other man is a few inches taller than the first. He is wearing a grey hoodie with the hood up and black jacket over it, which he briefly removes at one point. He is wearing black pants and black running shoes with white stripes on the side on which there appears to be a Nike logo. His face is not clearly visible.

F. Mr. Tagliabue’s Pants

[24] The police executed a search warrant at Mr. Tagliabue’s home on February 3, 2022. They seized a pair of grey sweatpants on which the word “POLO” was written in large colourful letters down the left leg. The pants appear to be identical to those worn by the shorter man in the vestibule at 34 Carscadden Court.

II. ANALYSIS

A. Relevant Legal Principles

(i) The Burden of Proof

[25] Mr. Tagliabue is presumed to be innocent of each of the charges he is facing. He can only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown and never shifts. There is no onus on Mr. Tagliabue to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is far closer to that standard than it is to proof on a balance of probabilities.

(ii) Circumstantial Evidence

[26] The evidence in this case is circumstantial. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30, where Cromwell J. explained that “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits.” Considering circumstantial evidence in this way ensures that the trier of fact does not “fill in the blanks” or draw an inference of guilt too readily.

[27] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. This is because a reasonable doubt can arise from the evidence, or from an absence of evidence. However, the Crown is not required to negate every possible conjecture, no matter how fanciful or irrational: Villaroman, at para. 37. Put another way, a trier of fact cannot act on alternative interpretations of the circumstances that are unreasonable: Stennett, at para. 61.

[28] In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, 346 O.A.C. 31, at para. 20; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4. It follows from this that alternative inferences need not be as strong or as compelling as an inference of guilt to be reasonable. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[29] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhury, 2021 ONCA 560, at para. 19.

B. Count 1 – Robbery

(i) The Evidence in This Case

[30] As noted earlier, the sole issue is whether the Crown has proven beyond a reasonable doubt that Mr. Tagliabue was one of the men who attempted to rob Mr. Ghods. Counsel framed their arguments focussing on three sub-issues: (1) was Mr. Tagliabue one of the men at Carscadden Court? (2) If so, was he in the BMW at the time of the attempted robbery? (2) If he was, was he one of the men who attacked Mr. Ghods?

[31] The Crown relies on the following circumstantial evidence:

• T.A. and two other people tried to rob Mr. Ghods while using T.A. mother’s BMW.

• Two of the robbers left the scene in the BMW at about 8:20 a.m.

• The BMW was abandoned at a location which was about 6.1 km from the scene of the attempted robbery, assuming that it took a particular route.

• Two men, one of whose appearance is consistent with that of Mr. Tagliabue and wearing a distinctive pair of sweatpants identical to one he owns, is seen at 8:31 a.m. in a building which, depending on the route taken, is about 550 metres or a six-minute walk from where the BMW was abandoned.

• Mr. Tagliabue knows T.A.

• Mr. Tagliabue’s driver’s licence was found inside the BMW and his fingerprint was on the driver’s door.

(ii) Was Mr. Tagliabue One of the Men at Carscadden Drive?

(a) Comparing the Man in the Video to Mr. Tagliabue

[32] In accordance with R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, the Crown invited me to compare the appearance of the man in the video to Mr. Tagliabue’s appearance in court as well as in the photograph on the driver’s licence that was seized from the BMW. There are a number of similarities in terms of age, build and general appearance. However, I am unable to positively identify Mr. Tagliabue as the man in the video based only on such a comparison.

(b) Distance

[33] Counsel for Mr. Tagliabue submits that the two men on the video could not have come from the BMW, given the times and distances involved. The evidence was that the call to 911 was made at 8:20 a.m. while the BMW was heading south before it turned around to head north. The two men were first seen 11 minutes later at 8:31 a.m. Counsel submits that there would not have been enough time for the BMW to turn around, drive north to Steeles Avenue, turn left, turn left again on Bathurst Street, drive south to the location where it was abandoned, and then travel 550 metres on foot. In making this submission, counsel asks me to take judicial notice of the fact that the roads would have been very busy at this time of day.

[34] I agree with counsel that it would have been difficult for the BMW to travel that distance in that amount of time at that time of day. However, while the police had a theory that the BMW drove to Steeles Avenue, there is no evidence as to where it went after the witnesses lost sight of it. The map that was made an exhibit shows that it could have turned left on any number of residential streets before reaching Steeles Avenue, and there is no evidence as to how long it would have taken to drive any of those routes. In addition to this, while the two men would have had to travel 550 metres on foot if they used public roads, the map shows a townhouse complex which they may possibly have been able to cut through. In my view, the evidence as to the times and distances involved is simply inconclusive.

(c) Alternative Reasonable Inferences

[35] The circumstantial evidence in this case leads to the inference that Mr. Tagliabue was one of the two men at 34 Carscadden Court and that he had recently come from the black BMW. The issue is whether that is the only reasonable inference. In my view, it is. The alternative is that a man resembling Mr. Tagliabue and wearing distinctive pants exactly like ones that he owns was acting suspiciously at a building that coincidentally happened to be a short distance away from a car that belonged to a friend of his, on which his fingerprint was found, and which had his driver’s licence in it. In my view, this is not a reasonable alternative interpretation of the circumstances.

[36] In coming to this conclusion, I note that it would be unusual for a person to leave his driver’s licence in another person’s vehicle for any length of time. While the fact that Mr. Tagliabue knows T.A. provides an alternative explanation for the presence of his fingerprint, the presence of his driver’s licence supports the inference that he had been in the car recently.

(iii) Was Mr. Tagliabue in the BMW at the Time of the Robbery?

[37] If Mr. Tagliabue was one of the men at Carscadden Court, his counsel submits that another alternative inference is that he had been picked up by the people in the BMW at some point after the attempted robbery. In my view, this is entirely speculative. Mr. Tagliabue’s address is on the driver’s licence found in the BMW and he does not live anywhere near the area where the attempted robbery took place or where the BMW was found.

[38] Based on the foregoing, I am satisfied beyond a reasonable doubt that Mr. Tagliabue is the person at 34 Carscadden Court, that he and the person he was with had recently come from the BMW which had recently left the scene of the attempted robbery and that Mr. Tagliabue was in the BMW at the time that it left.

(iv) Did Mr. Tagliabue Participate in the Robbery?

(a) Descriptions

[39] Having concluded that Mr. Tagliabue was in the BMW at the time it left the scene of the attempted robbery, the remaining issue is whether the Crown has proven beyond a reasonable doubt that Mr. Tagliabue was one of the robbers. To put it another way, is there a plausible theory that Mr. Tagliabue remained in the car while three other people attempted to rob Mr. Ghods? No witness was able to see into the back of the BMW.

[40] Counsel for Mr. Tagliabue submits that the descriptions of the clothing exclude Mr. Tagliabue. It will be recalled that Mr. Ghods described the taller man who got out of the BMW as wearing black pants and a black jacket. He described a second person as wearing a white t-shirt or a grey jacket, but it is unclear whether he was referring to the driver of the BMW or T.A. Mr. Jalalifarahani described the man who got out of the BMW as wearing a black hoodie and black pants. He said that he could not exactly remember what the driver was wearing, but he thought that he had black pants and a grey hoodie.

[41] The taller man at 34 Carscadden Drive was wearing black pants, a black jacket and a grey hoodie. This is consistent with Mr. Ghods’s description of the man who got out of the BMW and generally consistent with Mr. Jalalaifarahani’s, although he said the man was wearing a black hoodie rather than a jacket.

[42] Ultimately, the evidence about the appearance of the driver of the BMW is inconclusive. It is not clear whether Mr. Ghods was describing the driver at all, and Mr. Jalalifarahani could not exactly remember and could only say what he thought the man was wearing. If Mr. Ghods was describing the driver, the white t-shirt could be consistent with Mr. Tagliabue’s description as he was wearing a white t-shirt under his jacket, which he could have taken off.

[43] Both witnesses described the driver as wearing black pants, which Mr. Tagliabue was not. However, both witnesses were describing the person they remembered sitting in the driver’s seat of the BMW, where the pants would not have been clearly visible. The evidence is unclear as to what opportunity, if any, the witnesses had to observe the driver’s pants when he was out of the car earlier. Mr. Ghods was being assaulted at the time and Mr. Jalalifarahani was some distance away when he noticed the altercation.

[44] Counsel submits that the fact that neither witness recalled seeing the distinctive pants Mr. Tagliabue was wearing suggests that he was not one of the people participating in the robbery. I agree that the pants are distinctive but, as noted, it is unclear whether either witness had any opportunity to observe them. This is not a case where there is a clear dissimilarity between the witnesses’ descriptions and the appearance of the defendant: R. v. Dmitrov (2003), 2003 CanLII 50104 (ON CA), 68 O.R. (3d) 641 (C.A.), at para. 18; R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at paras. 86-87.

(b) Looking Under the Seat

[45] There is one more piece of evidence which, while not dispositive, supports the conclusion that Mr. Tagliabue was the driver. Mr. Tagliabue’s driver’s licence was found in the BMW, which had been abandoned. It is unlikely that he voluntarily left it there, which suggests that he was unable to find out, which is consistent with Mr. Jalalifarahani’s evidence that the driver appeared to be looking for something under the seat.

[46] Based on the foregoing, I am satisfied beyond a reasonable doubt that Mr. Tagliabue was the driver of the BMW and one of the three men who accosted Mr. Ghods in an attempt to rob him. Mr. Tagliabue is therefore guilty on Count 1.

B. Count 2 – Wear Disguise With Intent

[47] There is no issue that the three men who robbed Mr. Ghods wore masks. In the circumstances of this case, the only conceivable reason for doing so was to conceal their identities. As a result, Mr. Tagliabue is guilty on Count 2.

C. Count 3 – Conspiracy to Commit Robbery

(i) Inferring a Prior Agreement

[48] Mr. Tagliabue is charged with having conspired together with T.A. and an unknown person to commit the offence of robbery with a weapon “by agreeing to rob Mohammad Ghods.” The only evidence of such a conspiracy is Mr. Tagliabue’s participation in the substantive offence. The Crown submits that given that the perpetrators acted in concert, they must have previously agreed to do so and are therefore guilty of conspiracy. I agree that such an inference arises from the evidence. However, the addition of the conspiracy count raises another issue related to the propriety of the Crown proceeding on both counts.

(ii) Charging Conspiracy and a Substantive Offence Based on the Same Evidence

[49] The actus reus of the offence of conspiracy is the formation of an agreement between two or more persons to commit an offence: United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 103; R. v. Papalia, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at pp. 276-277; R. v. Alexander (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), at paras. 46-48. The offence is complete as soon as the agreement is made, regardless of whether the substantive offence is eventually carried out. It follows from this that conspiracy is a distinct offence with different elements than the substantive offence.

[50] Although conspiracy is a distinct offence, there is a long line of authority going back over a century that holds that the practice of charging a conspiracy count and a substantive count on an indictment where the commission of the substantive offence is the only evidence of the conspiracy is potentially unfair and is to be discouraged. As long ago as 1906, the Ontario Court of Appeal in R. v. Goodfellow (1906), 1906 CanLII 98 (ON CA), 10 C.C.C. 424 (Ont. C.A.), at p. 431, stated:

The practice of resorting to a charge of criminal conspiracy when there is no evidence except such as proves the actual committing of the crime by all the persons accused … is not to be commended. Fairness to the accused should be of the essence of every prosecution in the public interests and in the name of the Sovereign. One may well doubt the perfect fairness of a prosecution for conspiracy to commit a crime supported by nothing whatever but evidence of the actual committing of the crime itself by all the accused.

See also R. v. Hayes (1942), 1942 CanLII 106 (ON CA), 77 C.C.C. 195 (Ont. C.A.), at p. 198; R. v. Hill (1944), 1944 CanLII 344 (ON CA), 82 C.C.C. 213 (Ont. C.A.), at p. 214; R. v. Graham (1954), 1954 CanLII 401 (BC CA), 108 C.C.C. 153 (B.C.C.A.), at p. 155; R. v. Sommers (No. 1) (1958), 1958 CanLII 765 (BC SC), 28 C.R. 94 (B.C.S.C.); R. v. Kelly, 1966 CanLII 543 (BC CA), [1967] 1 C.C.C. 215 (B.C.C.A.), at pp. 218, 237-238; R. v. Jefferson (1972), 1971 CanLII 467 (ON SC), 6 C.C.C. (2d) 33 (Ont. H.C.), at pp. 29-30; R. v. Sheppe, 1980 CanLII 190 (SCC), [1980] 2 S.C.R. 22, at pp. 26-27; R. v. Callochia (2000), 2000 CanLII 29873 (QC CA), 149 C.C.C. (3d) 215 (Que. C.A.), at paras. 42-45; R. v. Nagy, 2007 SKCA 89, 304 Sask. R. 268, at paras.11-13; R. v. Schertzer, 2010 ONSC 6826, at paras. 12-13; R. v. Smith, 2024 ONSC 318, at para. 4; Hon. E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, 3rd Ed. (Toronto: Thomson Reuters, 2022), at §9.261.

(iii) “Overcharging”

[51] A conspiracy count could be added in virtually any case where an offence is committed by two or more people acting in concert. This is a form of “overcharging.” As Hill J. observed in Re Judicial Pre-Trial Conferences Scheduled for Tuesday October 11, 2016, 2016 ONSC 6398, 367 C.R.R. (2d) 1, at para. 30:

As a general observation, the inclusion of multiple counts in an indictment, all directed to essentially a single transaction, raises the prospects of:

(1) unnecessarily prolonging a trial thereby creating undue delay

(2) a longer, more complicated, repetitive and potentially confusing jury charge: R. v. Rowe, 2011 ONCA 753, at paras. 54 - 45

(3) inconsistent verdicts

(4) the need for Kienapple submissions.

[52] Earlier, in R. v. Dempsey, [1997] O.J. No. 477 (Gen. Div.), at para 32-34, Hill J. stated:

In an era where we are striving to advance the interests of justice through systemic simplicity, all participants in the criminal trial should endeavour to contribute to the clarity of the process for the triers-of-fact.

Streamlining and shortening trials is a worthy objective. Unprincipled over-charging contributes to the unnecessary deflection of the focus of the triers in their deliberations to differences between the offences charged. The very natural bewilderment of the jurors as to why multiple charges are contained within the charging documents detracts from the scrutiny of the evidence upon its merits.

As a general rule, charging every conceivable criminal offence applicable to the accused’s conduct rarely increases the justice done in a particular criminal proceeding and, not infrequently, contributes to an unreasonable strain on resources.

(iv) Severance of Counts

[53] In Re Judicial Pre-Trial Conferences, at para. 41, Hill J. suggested one way in which a trial judge could address overcharging:

It would also appear that in furtherance of active case management principles, a trial judge in trial sittings may exercise the authority conferred by s. 591(3)(a) of the Code in “the interests of justice” to sever various counts. Any such severed counts, if not withdrawn by the Crown, would then be assigned the priority they deserve in terms of scheduling any additional trial.

See also Dempsey, at para. 36.

[54] Severance in cases where a conspiracy is charged together with a substantive offence and based on the same evidence was discussed in Sheppe, at p. 27:

The law on the point in issue here is the same in England, subject now to the question of the propriety of joinder of conspiracy and the substantive offence, with the Court entitled to put the Crown to an election if joinder is not justified: see Practice Direction, [1977] 2 A11 E.R. 540.

Severance in this context was more recently discussed in R. v. Figueroa, [2002] O.J. No. 1154 (S.C.J.), at para. 8:

I am satisfied, despite the presumptive rule that the Crown controls what charges are put before a jury, that a trial court has not only the right, but the duty to control that discretion. One need go no further than s. 591 C.C. to justify that view which is supported by such decisions as R. v. Sheppe and R. v. Dempsey, both supra. It would appear that where there is no evidence of the conspiracy except the evidence relied upon to prove the substantive offence, the Crown should be required to elect to proceed on one or the other: see R. v. Hayes and Pallante (1942), 1942 CanLII 106 (ON CA), 77 C.C.C. 195 (O.C.A.) at p. 198. See as well Verrier v. D.P.P. [1966] 3 All E.R. 568 (H.L.). [Emphasis added].

(v) The Rule Against Multiple Convictions

[55] The rule against multiple convictions for a single criminal act (often referred to as the “Kienapple rule” after the decision in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729) does not ordinarily apply where a conspiracy is charged together with a substantive offence because the essential elements of the offences are different: Sheppe, at pp. 27-28; R. v. Grewall, 2003 BCCA 441, 185 B.C.A.C. 247, at paras. 130-133; R. v. Smith, 2007 NSCA 19, 251 N.S.R. (2d) 255, at para. 148. However, the Court distinguished Sheppe and applied the rule in R. v. Wishart, [1997] O.J. No. 5538 (S.C.J.), at para. 29:

In my view, this case is quite different. The facts supporting both counts here are precisely co-extensive. The agreement that was proved was to do exactly what the accused was doing with the heroin, and nothing more.

See also R. v. Allman, [1982] B.C.J. No. 814 (Co. Ct.), at para. 16.

[56] In R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at para. 113, Rosenberg J.A. expressed doubts about the propriety of entering convictions for both substantive offences and conspiracy based on the facts in that case, but declined to decide the issue:

In addition to the conspiracy counts, Tepsa and Bonin were convicted of importing, trafficking and possession for the purpose of trafficking. All the convictions relate to the same act of importing the narcotics into Canada from Aruba on July 3, 1994. I have some doubt that conviction for all of the three substantive offences was proper in view of the rule against multiple convictions. However, this question was not put in issue on the appeal. In any event, the additional convictions would have no bearing on the sentence. These reasons should not be taken as an indication that all three convictions were proper in the circumstances.

Kienapple was also applied to conspiracy and substantive counts in R. v. Nguyen, 2016 ONCA 182, 346 O.A.C. 375, at para. 2, although there is no analysis of the issue. See also R. v. Boyer, 2019 NSSC 332, at para. 16.

(vi) Application to This Case

[57] The argument advanced in support of the conspiracy charge in this case could be advanced in virtually any case where an offence is committed by more than one person. However, based on the authorities outlined earlier, it is not in the interests of justice for the Crown to tack on a conspiracy count in every such case and the practice is to be discouraged.

[58] Counsel are invited to make submissions on whether the rule against multiple convictions applies in this case. If it does not, counsel are also invited to make submissions on whether I should follow the suggestion made in Figueroa and exercise my discretion pursuant to s. 591(3)(a) of the Criminal Code to sever the counts. If I were to do so, the Crown could elect to proceed on Count 1 or Count 3 and the one that is not proceeded on would be severed. If the Crown chose to proceed on it, it would be “assigned the priority [it] deserve[s] in terms of scheduling any additional trial”: Re Judicial Pre-Trial Conferences, at para. 41.

III. DISPOSITION

[59] Mr. Tagliabue is found guilty on all three counts. Whether convictions will be registered on all counts is to be determined after the court hears submissions on the issue.

Justice P.A. Schreck

Released: June 27, 2024

COURT FILE NO.: CR-23-40000773-0000

DATE: 20240627

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

MATTEO TAGLIABUE

REASONS FOR DECISION

P.A. Schreck J.

Released: June 27, 2024