COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Parris, 2013 ONCA 515

DATE: 20130812

DOCKET: C52524  C53315

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrae Parris and Cleavon Joseph 

Appellants

Joseph Di Luca and Erin Dann, for the appellant Andrae Parris

Gregory Lafontaine, for the appellant Cleavon Joseph

David Lepofsky, for the respondent

Heard: March 20, 2013

On appeal from the convictions entered by Justice G. M. Miller of the Superior Court of Justice, sitting with a jury, on September 11, 2009.

Watt J.A.:

[1]          Andrae Parris and Cleavon Joseph sold drugs. Joseph was an experienced trafficker, a veteran of the trade. Parris was new to the business. Their currency was crack cocaine.

[2]          Jermaine Malcolm was a crack addict, a customer of Andrae Parris.

[3]          One night in September, 2007, Malcolm arranged to buy $30 worth of crack from Parris. When Parris arrived with the crack at the front door of Malcolm’s residence, a unit in a Mississauga housing complex, Malcolm, drugs in hand, went inside to get the money to complete the transaction. Parris waited at the front door. Malcolm did not return.  No drugs. No money. Parris was not a happy man.

[4]          Parris, the victim of the front door-back door ploy, a common evasion of payment technique among drug purchasers, told his friend Joseph about what had happened.

[5]          A little while later, Parris and Joseph returned to recover payment from Malcolm.  Joseph went to the front door. Parris went to the back.

[6]          Within two hours of the original drug deal, Malcolm was dead of multiple stab wounds.

[7]          A jury convicted both Parris and Joseph of first degree murder. Both seek a new trial. They say that the trial judge left things out or said things that were wrong when she explained to the jury what the Crown had to prove to establish guilt, and how they were to assess the evidence in arriving at their verdict.

[8]          The reasons that follow explain why I have concluded that the judge’s instructions were adequate to the task the law sets for trial judges: proper, but not perfect. I would dismiss the appeal.

THE BACKGROUND FACTS

[9]          The events that led to Jermaine Malcolm’s death occupied but a few hours and a short distance on the evening of September 21 and early morning of September 22, 2007.

The Principals and Places

[10]       Jermaine Malcolm was a crack addict and sometime dealer. He spent the afternoon and early evening of September 21, 2007 smoking crack cocaine with his friends, Mark Belgrove and Thomas Teitsson. Belgrove lived in Unit 24 and Teitsson in Unit 7 at 6860 Meadowvale Town Centre Circle in Mississauga.

[11]       Parris and Joseph (the appellants) had known each other for seven or eight years and were friends. Both were drug dealers.

[12]       During the evening of September 21, 2007, the appellants were together at Kool Kats, a bar that was a four or five minute drive from the Meadowvale Town Centre complex where Malcolm and his friends were smoking crack. The appellants were socializing at the bar as well as selling crack cocaine in and from the premises.

The Front Door-Back Door Deal

[13]       In the early morning of September 22, 2007 Parris left Kool Kats with Malcolm to complete a drug deal. The purchaser was either Malcolm or someone Malcolm said wanted to buy drugs from Parris. The drugs changed hands at the front door of a unit at 6860 Meadowvale. Malcolm took the drugs inside and never returned.

The Search for Malcolm

[14]       Parris and Joseph discussed what had happened with the drug deal. With the help of Jonathan Litster, Parris was able to determine where Malcolm could be found. Shortly before 1:30 a.m. on September 22, 2007, the appellants left Kool Kats and headed for the Meadowvale complex in search of Malcolm.

[15]       According to Litster, Malcolm was at Thomas Teitsson’s place. Joseph went to the front door. Parris went around to the rear.

The Entry

[16]       Joseph banged on the front door of Unit 7. A white cloth covered something in Joseph’s hand. Joseph yelled that he knew Malcolm was inside and threatened to shoot up the house if Malcolm failed to come to the door. Teitsson opened the front door. Joseph entered. Malcolm appeared and said: “I don’t have your money”.  Joseph punched Malcolm in the face with a closed fist.

[17]       Teitsson tried to leave the unit. Parris blocked Teitsson’s path. Wielding a steak knife, Parris told Teitsson to get back inside or “you might get some of this”. Teitsson retreated to the interior of the unit.

The Basement

[18]       When Teitsson went back inside the house, Joseph and Malcolm were in the basement. When someone called “Andrae, come down here”, Parris went to the basement. Teitsson went upstairs to find a cell phone to call police. He heard a “few thumps” in the basement but no words spoken. A few minutes later, Teitsson called 911 from a neighbour’s unit.

The Forensic Evidence

[19]       When police arrived, they found a knife handle on the hallway floor near the stairwell into the basement. The missing blade of the knife was on the basement floor. There was blood on the knife blade and on the basement walls.  The drywall in the stairwell to the basement was dented and cracked in several places. Police found a second knife with a three-inch blade in the front hallway.  There was no blood on this knife.

[20]       Parris could not be excluded as the minor source of DNA taken from the scrapings under Malcolm’s fingernails and as the major source of DNA found above the door knob of a main floor bedroom in Teitsson’s unit.

[21]       Malcolm could not be excluded as the source of DNA found in blood located

                             i.        on a pair of Nike shoes in the back seat of a motor vehicle in which Joseph was arrested;

                            ii.        on the knife blade found in the basement;

                           iii.        on the patio by the front door; and

                          iv.        on the walls and handrail of the basement stairs.

The Cause of Death

[22]       Jermaine Malcolm suffered six stab wounds caused by a knife with a single sharp edge. The deepest wound penetrated 15.5 centimetres into his body. Four stab wounds were inflicted to the deceased’s upper right chest resulting in massive blood loss and playing a major role in his death. The pathologist also saw a small cutting wound on the lower left side of the deceased’s neck likely caused by dragging a knife with a serrated edge across the surface of the skin.

[23]       The pathologist could not say how many knives had been used in the attack on the deceased.

The Positions of the Parties at Trial

[24]       At trial, the Crown contended that Parris, angry about being ripped off in the drug deal, sought out Malcolm after expressing a desire to kill him. With Joseph’s help, Parris learned from Litster that Malcolm was at Teitsson’s place.  Joseph went to the front door. Parris went to the back door. As soon as the front door opened, Joseph entered and attacked Malcolm, forcing him into the basement.  Joseph summoned Parris to the basement and both men attacked and killed Malcolm there.

[25]       According to the Crown, the unlawful killing of Malcolm was murder and amounted to first degree murder because it was either planned and deliberate or it occurred while the appellants unlawfully confined Malcolm or, in the case of Parris, Teitsson. 

[26]       Both appellants testified at trial. It was their position that they went to Teitsson’s place to sell drugs, not to seek out Malcolm because he had ripped off Parris earlier. Neither was armed.

[27]       Parris testified that he became involved in a physical struggle with Malcolm on the main floor of the residence. The struggle spilled into the basement.  Malcolm had a knife. Parris asked Joseph to get Malcolm off him (Parris).  Joseph struggled with Malcolm to defend Parris. During this struggle Malcolm got stabbed with his own knife.

THE GROUNDS OF APPEAL

[28]       The appellants advance three common grounds of appeal that allege deficiencies in the charge to the jury. They say that the trial judge

                             i.        misdirected the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code;

                            ii.        misdirected the jury on the relationship between reasonable doubt and credibility as required by W. (D.); and

                           iii.        failed to provide a sufficiently strong Vetrovec caution in connection with the testimony of several Crown witnesses.

[29]       The appellant Joseph advances two further grounds of appeal. Each alleges a deficiency in the charge to the jury.  Joseph says that the trial judge

                             i.        failed to properly instruct the jury on the defence of accident; and

                            ii.        failed to adequately instruct the jury on the evidentiary value of Joseph’s unaccepted plea of guilty under s. 606(4) of the Criminal Code to second degree murder.

Ground #1: The Instructions on Constructive First Degree Murder

[30]       The first ground of appeal alleges several discrete but related inadequacies in the trial judge’s final instructions on the appellants’ liability for first degree murder under s. 231(5)(e) of the Criminal Code.

[31]       A brief overview of the trial judge’s final instructions on the essential elements of first degree murder will put the appellants’ submissions of error in their appropriate setting.

The Instructions of the Trial Judge

[32]       In her final instructions, the trial judge left four verdicts to the jury in connection with each appellant:

·        not guilty

·        not guilty of first degree murder, but guilty of manslaughter

·        not guilty of first degree murder, but guilty of second degree murder

·        guilty of first degree murder

[33]       The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder of Malcolm was planned and deliberate or the murder was committed while the appellants were unlawfully confining Malcolm, or in the case of Parris, attempting to unlawfully confine Teitsson.

[34]       The trial judge distributed drafts of her proposed final instructions to counsel in advance of their delivery to the jury. Trial counsel for the appellants offered no objection to the instructions either before or after their delivery on any ground now said to reflect error.

The Arguments on Appeal

[35]       The appellants make three complaints about the trial judge’s instructions on constructive first degree murder under s. 231(5)(e) of the Criminal Code. 

[36]       First, Mr. Lafontaine for Joseph submits that the predicate offence of unlawful confinement must be ongoing for a “significant” period of time before a murder committed during its currency can become first degree murder under s. 231(5)(e). Mr. Lafontaine concedes that what amounts to a “significant” period of time must be decided on a case-by-case basis. It must be made plain, however, in final instructions that a confinement that is no more than incidental to the attack that causes death does not engage s. 231(5)(e) to elevate the murder to first degree murder. The trial judge’s failure to make it clear that the confinement must be for a “significant” time was a fatal error.

[37]       Second, Mr. Di Luca for Parris says that the trial judge erred in failing to relate the evidence to the essential elements of first degree murder under s. 231(5)(e) so that the jury could determine whether the enhanced participation requirement under the subsection had been met. Mr. Di Luca argues that it was not enough for the trial judge to tell the jury that the Crown had to prove that Parris must be an active participant in the killing or that he must have done something that was an “essential, substantial and integral part of the killing” to be guilty of first degree murder. There was a break in the events between the struggle that involved Parris and the killing of Malcolm and no evidence that Parris was an active participant in the killing. Without further instruction and evidentiary references, the jurors may not have appreciated the increased degree of participation required for first degree murder under s. 231(5)(e).

[38]       Third, Mr. Di Luca insists, the trial judge erred in leaving Parris’ liability for first degree murder under s. 231(5)(e) on the basis of the confinement, or attempted confinement of Teitsson. Mr. Di Luca says that the evidence about the brief interaction between Parris and Teitsson does not meet the air of reality standard required to warrant submission of s. 231(5)(e) to the jury on the basis of the actual or attempted confinement of Teitsson. Furthermore, no causal link existed between any notional confinement of Teitsson and the conduct that caused Malcolm’s death.

[39]       For the respondent, Mr. Lepofsky rejects the claims of error advanced here for the first time. 

[40]       First, Mr. Lepofsky says, the trial judge correctly instructed the jury on the essential elements of first degree murder under s. 231(5)(e) of the Criminal Code. The instructions made it clear that the unlawful confinement and the killing must be distinct acts, albeit part of the same transaction. But neither the governing authorities nor the evidence adduced at trial required or warranted further elaboration, in particular, a direction that the confinement must be for a “significant” time to engage the provisions of s. 231(5)(e). Mr. Lepofsky reminds us that such a requirement would be inconsistent with the inclusion of attempted unlawful confinement as a predicate offence under the section where no actual, let alone “significant” period of confinement need ever occur. 

[41]       Second, Mr. Lepofsky contends, the trial judge did not err in her inclusion of the predicate offence of unlawful confinement of Teitsson as a further basis upon which Parris could be convicted of first degree murder. The person confined, or the person that a party attempts to confine, need not be the same person as the victim of the killing. Teitsson tried to escape. Parris forced him back into the house with threats of violence. This facilitated the killing of Malcolm, thus bringing it within the ambit of s. 231(5)(e).

[42]       Third, Mr. Lepofsky continues, the trial judge adequately related the evidence to the issues the jury was required to determine in order to decide whether Parris was guilty of first degree murder under s. 231(5)(e). What occurred here was a joint attack on Malcolm during his confinement in the basement. The evidence was uncomplicated. The trial judge made it clear that the liability of each appellant was to be considered and determined separately. Counsel did not object to the charge.  Nothing more was required.

The Governing Principles

[43]       An assessment of this ground of appeal requires a brief refresher about the essential elements of constructive first degree murder arising out of unlawful confinement or attempted unlawful confinement under s. 231(5)(e).

[44]       First, to establish first degree murder under s. 231(5)(e), the Crown must prove each of five essential elements beyond a reasonable doubt:

                             i.        that the accused unlawfully confined or attempted to unlawfully confine the victim or another person;

                            ii.        that the accused murdered the victim;

                           iii.        that the accused participated in the murder of the victim in such a way that the accused was a substantial cause of the victim’s death; 

                          iv.        that no intervening act of somebody else resulted in the accused no longer being substantially connected to the victim’s death; and

                            v.        that the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim’s death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events. 

R. v. Harbottle, [1993] 3 S.C.R. 306, at p. 325.

[45]       For discussion purposes, the essential elements of constructive first degree murder under s. 231(5)(e) may be summarized as the

                             i.        predicate offence;

                            ii.        murder;

                           iii.        substantial cause;

                          iv.        no intervening act; and

                            v.        same transaction

requirements. In this case, the requirements in issue are those of predicate offence, substantial cause, and same transaction.

[46]       Second, the predicate offence requirement under s. 231(5)(e) involves the offence of unlawful confinement or the preliminary crime of attempted unlawful confinement. Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, [1990] 2 S.C.R. 711, at p. 723. The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

[47]       Unlawful confinement, like its aggravated form, kidnapping, is a continuing offence, but one that is complete when the victim is restrained against his or her will. The purpose of the confinement is irrelevant: R. v. Kimberley (2001), 56 O.R. (3d) 18 (C.A.), at para. 107.  Further, for the purposes of invoking, s. 231(5)(e) through satisfaction of the “predicate offence” requirement, it is immaterial that the unlawful confinement of the victim has not been completed. The provision is invoked equally where an accused attempts to unlawfully confine the victim or another person.

[48]       Third, the “substantial cause” requirement in s. 231(5)(e) requires the Crown to prove that the accused played a very active role – usually a physical role – in the killing. The accused’s actions must form an essential, substantial, and integral part of the killing of the victim: Harbottle, at pp. 323-324. This requirement might be better described as reflecting an enhanced or more demanding degree of participation in the killing than a requirement of a causation: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 61; R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at paras. 54 and 57.

[49]       As Harbottle itself illustrates, the “substantial cause” requirement may be met where the conduct of an individual accused does not constitute the factual cause of the victim’s death, provided what the accused does falls fairly within the requirement of “an essential, substantial and integral part of the killing” (p. 308).

[50]       Fourth, the “same transaction” requirement refers to the relationship between the predicate offence and the killing of the deceased that amounts to murder. This requirement is not met where the predicate offence has been completed and the deceased killed to facilitate the offender’s flight: R. v. Stevens (1984), 11 C.C.C. (3d) 518 (Ont. C.A.), at p. 541.

[51]       The “same transaction” requirement insists that the Crown prove that the killing occurred as part of a continuing series of events constituting a single transaction that establishes not only the killing but also the distinct offence of unlawful confinement: Pritchard, at para. 3; Stevens, at p. 541; R. v. Paré, [1987] 2 S.C.R. 618, at p. 632. The “same transaction” requirement does not demand that the killing (murder) and predicate offence occur simultaneously, only that they be part of one continuous sequence of events forming a single transaction: Paré, at p. 632.

[52]       The phrase “while committing or attempting to commit” in s. 231(5) requires that the killing be closely connected, temporally and causally, with the enumerated offence: Pritchard, at paras. 19 and 25; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 43; Paré, at p. 632; and Luxton at pp. 722-723.  The murder and the predicate offence, here unlawful confinement, must be linked together, both temporally and causally, in circumstances that make the entire course of conduct a single transaction: Pritchard, at para. 35. The essential temporal-causal connection is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides an accused with a position of power that he or she chooses to exploit to murder the victim: Pritchard, at para. 35.

[53]       To satisfy s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts, that is to say, the act of confinement and the act of killing must not be one and the same: Pritchard, at para. 27; Kimberley, at para. 108; and R. v. Johnson (2002), 166 C.C.C. (3d) 44 (Ont. C.A.), at para. 39. The “same transaction” requirement may be met even where the person killed and the person confined are not the same, provided the killing is closely connected, temporally and causally, with an enumerated offence: Russell, at para. 43.

[54]       Finally, where two or more persons are alleged to be involved in a murder that is said to warrant classification as first degree murder under s. 231(5)(e), proof of their liability will depend on the manner of their participation, whether as co-perpetrators or s. 21 parties: Ferrari, at para. 54. The trial judge’s instructions should set out the findings the jury would have to make to render the participant liable to conviction of first degree murder: Ferrari, at para. 98; and R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at paras. 82-84.

The Principles Applied

[55]       I would not give effect to any of the specific claims of error in connection with the final instructions on constructive first degree murder under s. 213(5)(e). I reach this conclusion for several reasons.

[56]       First, I do not accept the submission that the trial judge did not make it sufficiently clear to the jury that the unlawful confinement and murder must be distinct acts.

[57]       The trial judge’s final instructions, the subject of extensive discussion in the pre-charge conference, track the language of the controlling authorities. The charge made it clear that the unlawful confinement and killing must be separate acts, as well as essential components of a single ongoing transaction. The “distinct act” requirement demands only that the confinement be distinct and independent from the act of killing: Pritchard, at para. 27. That was so here. The unlawful confinement was not inherent in the very act of killing, but rather preceded it as Malcolm was removed from the main floor to the basement where he was eventually killed. This is not a case in which the confinement was any more inherent in the act of killing than it was in Kimberley.

[58]       Further, neither the governing authorities nor the evidence adduced at trial required the trial judge to undertake a more refined or discriminating analysis of the “same transaction” requirement in s. 231(5)(e). Read as whole, the jury instructions made it clear that the Crown had to prove beyond a reasonable doubt that the murder and unlawful confinement were separate acts, but linked together, both causally and temporally, in circumstances that made the entire course of conduct a single transaction: Pritchard, at para. 35. Nothing more was required.

[59]       Second, in connection with the submission that the trial judge should have told the jury that the unlawful confinement had to extend for a “significant” period of time to engage the provision, I do not agree that further instruction was required.

[60]       The trial judge explained to the jury that unlawful confinement was “an unlawful restriction on liberty for some period of time”. The language used to describe the “same transaction” requirement reflected the standard set by Harbottle and Pritchard, and attracted no objection from trial counsel either at the pre-charge conference or after the charge had been delivered.

[61]       The phrase “any significant period of time” appears in connection with the description of the unlawful confinement component of s. 231(5)(e) in paragraph 24 of Pritchard. When read together with other portions of the same judgment, it seems clear that “significant” is used synonymously with “confinement not limited to what was integral to the particular act of killing”. Neither Harbottle nor Pritchard requires the inclusion of “significant” or its functional equivalent for the purpose of jury instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur. 

[62]       Third, I would not accede to Parris’ specific submissions about the trial judge’s failure to relate the evidence to the issue of Parris’ participation in the killing or the inclusion of the unlawful confinement of Teitsson as a predicate offence in relation to Parris.

[63]       Joseph admitted to stabbing the deceased, but raised issues of accident, self-defence and defence of another (Parris). Parris acknowledged no part in the stabbing and said he was elsewhere in the house when Joseph killed the deceased. The position of the Crown was that the appellants were jointly involved in the killing. 

[64]       Throughout her final instructions, the trial judge made it clear that neither accused was to be convicted unless the essential elements of the offence were proven in relation to that accused. She reminded the jury that Parris testified that he left the basement as soon as he extricated Joseph from the clutches of Malcolm. He did not see or use a knife. No further elaboration was required to ensure that the jury understood Parris’ defence. 

[65]       The jury heard evidence that as Teitsson attempted to flee the premises, he was confronted by Parris who had a knife in his hand. Parris threatened Teitsson with a knife and ordered him back inside the house. Teitsson complied. He remained inside until he was able to flee and call 911 from a neighbour’s unit. 

[66]       Section 231(5)(e) is not limited to cases in which the victim of the murder and the victim of the predicate offence are the same: Russell, at para. 33. The section requires only that the accused has killed someone, “while committing or attempting to commit” a predicate offence. Provided the killing is closely connected, temporally and causally, with an enumerated predicate offence, the section may be engaged: Russell, at paras. 33 and 43. Indeed, in Russell, the victim of the unlawful confinement was tied to a bed in one part of the house, while the murder victim was beaten and stabbed to death in another. Yet, s. 231(5)(e) could be invoked to establish liability for first degree murder. 

[67]       Although given the overwhelming evidence that Malcolm was unlawfully confined, the actual or attempted confinement of Teitsson could easily have been omitted as a predicate offence to simplify final instructions, I am unable to say it was legally wrong to include reference to Teitsson in relation to Parris only.

Ground #2: The W. (D.) Instruction

[68]       The second ground of appeal advanced by both appellants alleges error in the trial judge’s instructions on the application of the W. (D.) formula to the testimony of the appellants.

The Instructions of the Trial Judge

[69]       Early in her charge, the trial judge instructed the jury in these terms:

          I am now going to give you some instructions on the procedure that you must follow in dealing with the testimony of Cleavon Joseph and Andrae Parris. It is a three-step analysis that must be followed by you during your deliberations.

          First, if you believe Cleavon Joseph and Andrae Parris’ evidence, you must find them not guilty.

          Second, even if you do not believe their evidence, if it leaves you with a reasonable doubt you must find them not guilty.

          Third, even if Cleavon Joseph and Andrea Parris’ evidence does not leave you with a reasonable doubt, you may convict each man of an offence only if all of the evidence you do accept proves his guilt of the offence beyond a reasonable doubt.

[70]       The trial judge included this “three-step analysis” in the written material she provided to jurors for their use during their deliberations.

[71]       Trial counsel for the appellants did not object to this portion of the trial judge’s charge either before or after it was given. 

The Arguments on Appeal

[72]       For the appellants, Mr. Lafontaine acknowledges that the general format of the trial judge’s W. (D.) instructions was unassailable. However, he says, its content was fatally flawed. He submits that, because the trial judge’s instructions erroneously suggested that belief or a reasonable doubt about the evidence of both appellants was a condition precedent to their acquittal.  All that was required was that the evidence of either appellant raised a reasonable doubt about guilt.

[73]       For the respondent, Mr. Lepofsky says that when the charge to the jury is read as a whole, as it must be, it was made clear to the jury that the burden of proof that rested on the Crown had to be met in relation to each appellant before he could be found guilty of any offence. In other words, he says, the jury was told that guilt was individual. The charge dealt with each appellant individually, explained the essential elements to be proven, and apprised jurors of the evidence relevant for their consideration on each issue. In the end, nothing more was required.

The Governing Principles

[74]       The W. (D.) formula, which emerged from he said/she said cases involving a single accused, but has since been given wider application, seeks to ensure that jurors understand that the principle of reasonable doubt applies to issues of credibility. But as both W. (D.) and its closest relative, S. (W.D.), make plain, the instruction suggested in W. (D.) does not constitute a magical incantation that must be uttered in final instructions on pain of appellate reversal: R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758; R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533.

[75]       The purpose of instructions such as those suggested in W. (D.) and their functional equivalents is to ensure that the jury understands that their verdict must be not based on a choice between the evidence of the accused and that tendered by the Crown, but on whether, based on the whole of the evidence, they are left with a reasonable doubt about an accused’s guilt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8.

[76]       Every error in connection with the relationship between reasonable doubt and credibility is not necessarily fatal. Indeed, in W. (D.) itself, the trial judge’s error in instructing the jury that they were engaged in a credibility contest was held not to be fatal in light of the instructions as a whole: C.L.Y., at para. 8. Our obligation upon appellate review is to take a functional approach to the charge as a whole to determine whether the jury could have been left with any misunderstanding about the obligation of the Crown to prove an accused’s guilt beyond a reasonable doubt on the evidence as a whole, not by simply choosing between the competing versions: R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224, at para. 16.

The Principles Applied

[77]       I would not accede to this ground of appeal despite the erroneous instruction of the trial judge on the first stage of W.(D.) suggesting that the jury had to believe both accuseds to acquit either.

[78]       Each appellant testified at trial. The evidence of each could be used by the jury in deciding the case of both. If the evidence of either were believed, or raised a reasonable doubt about his or the other’s guilt, that person was entitled to its benefit. The proposition that belief or a reasonable doubt about the evidence of both is a condition precedent to an acquittal of either is simply wrong.

[79]       A functional approach to the instructions as a whole satisfies me, however, that the erroneous coupling of the appellants’ testimony in the W. (D.) instruction caused no substantial wrong or miscarriage of justice to either appellant.

[80]       Considered as a whole, the final instructions made it clear to the jury that the burden was on the Crown to prove the essential elements of an offence beyond a reasonable doubt in relation to an accused before that accused could be convicted of an offence. The instructions made it clear that a separate verdict was required for each, and that the verdicts need not be the same for both. Each was presumed innocent of the charge. And it was for the jury to say for each whether the Crown had proven that person’s guilt beyond a reasonable doubt “on the evidence and according to the legal principles that apply to him”. It would have been clear to the jury that the appellants were advancing entirely different defences to the charge. Parris denied participation. Joseph said he acted lawfully. Common sense would indicate to jurors when the instructions are considered as a whole that they need not believe both to find either not guilty.

[81]       The trial judge invited the jury to consider a series of questions that represented the essential elements the Crown was obliged to prove before any findings of guilt could be made. At the conclusion of each segment of her instructions, the trial judge advised the jury of the consequences of the available findings for each accused and their further deliberations. 

[82]       The trial judge’s final instructions also made it clear to the jury that they could consider the evidence of each accused, of which they could believe some, none, or all, in deciding the case not only of that accused, but also of the other accused. It would necessarily follow that if the evidence of either raised a reasonable doubt about an issue in connection with the other, that appellant was entitled to its benefit.

[83]       Neither counsel for the appellants at trial objected to the charge on this ground. While failure to object is not fatal to a claim of error, it is of some significance in light of the opportunities for objection presented to counsel at trial.

Ground #3: The Adequacy of the Vetrovec Warning

[84]       In their joint factum, but not in oral argument, the appellants took issue with the adequacy of the trial judge’s Vetrovec caution with respect to the witnesses Teitsson, Belgrove, and Litster who were called by the Crown, but gave some evidence beneficial to the appellants. 

The Instructions of the Trial Judge

[85]       After instructing the jury about the use they could and could not make of prior inconsistent statements of non-accused witnesses, which included the three witnesses whose evidence was subject to a Vetrovec warning, the trial judge told the jury that she had a “special instruction” for them in connection with the evidence of Teitsson, Belgrove, and Litster. She explained the reasons for this instruction in relation to each of the witnesses. Prior inconsistent statements.  Drug use.  Admitted lies to investigators and others. Criminal records. 

[86]       The trial judge pointed out to the jury that, although they could act on the unconfirmed evidence of these witnesses, they should be cautious in doing so, and should approach their evidence with “the greatest care and caution”. After explaining the meaning of “confirmatory evidence” and emphasizing the requirement that the evidence be independent of the tainted witness, the trial judge provided several examples of potentially confirmatory evidence in relation to each witness.

The Arguments on Appeal

[87]       The appellants say that the circumstances of this case required a more robust or forceful warning about relying on the evidence of the Vetrovec witnesses. The jurors should have been told, they say, that it was dangerous to act on their unconfirmed evidence and should have been provided with more specific instructions about the frailties inherent in each. This was especially so because of the paucity of confirmatory evidence from sources beyond the Vetrovec witnesses themselves.

[88]       For the respondent, Mr. Lepofsky insists that the warning was fully compliant with the law’s requirements. The instructions identified the Vetrovec witnesses, described the reasons that warranted special scrutiny of their evidence, warned the jurors of the risk of acting on their unconfirmed evidence in language appropriate to the occasion, and gave appropriate examples of potentially confirmatory evidence. Mr. Lepofsky says that the language of the warning is discretionary and that here, “the greatest care and caution” was adequate to the task demanded by the authorities.

The Governing Principles

[89]       The nature of the error alleged here does not warrant an extensive canvass of well-trodden ground on the essential elements of Vetrovec cautions. It is sufficient for current purposes to make mention of four principles established by the jurisprudence.

[90]       First, the language of the caution. The usual language of a Vetrovec caution refers to the danger of acting on the unconfirmed evidence of the suspect witness. However, there is no particular magic in the use of the terms “danger” or “dangerous”. Depending on the circumstances, the nature and content of the warning are matters of judicial discretion: R. v. Trudel (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 86. It may often be said that the warning given could have been stronger. But that does not amount to legal error save in exceptional cases. Provided the judge did not go outside the acceptable limits of judicial discretion, the word choice is his or hers to make: Trudel, at para. 86; R. v. Jones (2001), 146 OAC 118, at para. 3.

[91]       Second, deficiencies or shortcomings in the Vetrovec caution itself may be compensated for in other portions of the final instructions that must be read as a whole: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 52 and 55.

[92]       Third, to satisfy the “materiality” element[1], individual items of confirmatory evidence need not implicate an accused, rather are only required to give comfort to the jury that the tainted witness can be trusted in his or her assertion that the accused is the person who committed the offence: Khela, at paras. 40-42; R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 65.

[93]       Finally, at least in the absence of collusion, mutual confirmation among Vetrovec witnesses is permissible: Roks, at para. 67; and R. v. Winmill (1999), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 120.

The Principles Applied

[94]       This ground of appeal fails for several reasons.

[95]       First, the cautionary language used in a Vetrovec warning rests with the discretion of the trial judge. To hold otherwise, as a matter of unyielding principle, risks return to the empty formalism Vetrovec abandoned. The language used here, in the circumstances of this case, fulfilled the “clear and sharp warning” that Vetrovec requires.

[96]       Second, the issue is not whether the trial judge could have used more robust language in the warning. For that can nearly always be said. But that is beside the point. The issue is whether the language used in the circumstances fell fairly within the trial judge’s discretion to compose a word formula to bring home to the jury the need for caution: Jones, at para. 3. In a case such as this, where the Vetrovec witnesses were not participes criminis, jailhouse informers, or those cumbered with a motive to fabricate, the language used was adequate to the task the authorities set for it.

[97]       Third, I am not persuaded that the nature or volume of potentially confirmatory evidence exerts any influence on the terms in which the warning is cast. I can find no authority in Vetrovec, or its progeny, for such a principle. In every event, I am not satisfied that the record in this case reveals any deficit of potentially confirmatory evidence whether from the Vetrovec witnesses or otherwise. 

Ground #4: The Accident Defence

[98]       The appellant Joseph advances an argument that the trial judge erred in law in failing to instruct the jury on the defence of accident, thus depriving him of the potential verdict of manslaughter. Some further details about the circumstances surrounding the death of Jermaine Malcolm are necessary to appreciate this ground of appeal.

The Additional Background

[99]       Jermaine Malcolm suffered six stab wounds. Four wounds penetrated his chest, up to a depth of 15.5 centimetres, one his lower left thigh, and another, his upper left arm. He also suffered blunt force blows to his face consistent with being struck by a fist or having his face forced into a wall or other rigid object.

[100]    Investigators found a knife blade in the basement with blood stains on it and a corresponding handle in the upstairs hallway. The blood was consistent with that of Malcolm.

The Instructions of the Trial Judge

[101]    The defence advanced on the appellant Joseph’s behalf at trial was self-defence and defence of another, Parris, under his protection. The trial judge instructed the jury on s. 27 and the former ss. 34 and 37 of the Criminal Code. No objection was or is taken to those instructions.

[102]    In her instructions to the jury on the essential elements of murder, the trial judge explained the mens rea requirement of s. 229(a), as well as what was required of a person who was alleged to be an aider or abetter of a principal. No objection was or is taken to those instructions.

[103]    Trial counsel for the appellant did not seek, nor did the trial judge provide, instructions on an accidental stabbing during an unlawful act and the legal consequences of such a finding or a reasonable doubt about it.

The Arguments on Appeal

[104]    The appellant Joseph says that the trial judge should have left the defence of accident to the jury in the event that the jury rejected the self-defence and defence of another justifications advanced on Joseph’s behalf. The appellant Joseph says that there was an air of reality to support a finding that an unintentional stabbing occurred in the context of an unlawful act. Such a finding would have led jurors to a verdict of manslaughter.

[105]    For the respondents, Mr. Lepofsky takes the position that the claim now advanced lacks an air of reality in the trial record. The evidence adduced of a beating and multiple penetrating stab wounds is the antithesis of accident, and the jury’s verdict, which included a finding that the appellant committed murder, either as a co-principal or aider or abettor, negates any such claim.

The Governing Principles

[106]    The criminal law uses the term “accident” to refer to two discrete sets of circumstances. The first has to do with the conduct or actus reus element of a crime: an unintentional act, in contradistinction to an intentional act. The second relates to the mental or fault element, the mens rea of a crime.  An accused says that she or he did not intend the consequences of his or her conduct, as for example, the death of the victim: R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 70.

[107]    Accident in the sense of an unintended consequence, in this case at least, is nothing more than an argument that the appellant lacked the mens rea for murder. This sense of accident can be serviced by proper instructions on the mens rea for murder, rather than on some separate basis: Mathisen, at para. 73.

[108]    Accident in the sense of an unintentional act raises a discrete defence.  The circumstances in which the accident occurs determine the question of liability for unlawful homicide and, if liability exists, whether the crime is murder or manslaughter: R. v. Tennant and Naccarato (1975), 23 C.C.C. (2d) 80 (Ont. C.A.), at p. 89. If the appellant accidentally caused Malcolm’s death during the course of an unlawful act, and if the jury were satisfied beyond a reasonable doubt that the unlawful act was such that a reasonable person would inevitably realize would subject another to the risk of at least some bodily harm, the appellant would be guilty of manslaughter: Tennant and Naccarato, at p. 96.

The Principles Applied

[109]    This ground of appeal fails for several reasons. 

[110]    First, the principal defence advanced at trial was self-defence and defence of another under Joseph’s protection. These justifications authorize the use of force in anticipation of, or in response to, an actual or impending attack, subject to the limits imposed by the specific justification invoked. They involve intentional conduct at least so far as responsive force is concerned. They are the antithesis of unintended conduct now said to have been erroneously omitted from the trial judge’s final instructions.

[111]    I acknowledge that inconsistency with the defence advanced at trial, even incompatibility between the defence advanced at trial and the one later claimed to have been wrongly omitted, is not the standard we must apply in deciding whether the omission reflects error. The air of reality test is the standard to be applied.

[112]    Even if the evidence in this case met the air of reality threshold, which to me seems unlikely, the failure to leave accident in the sense of unintentional conduct, to the jury caused neither Joseph nor Parris any substantial wrong or miscarriage of justice. The deceased was stabbed six times. Four wounds penetrated his chest to a significant depth. He was beaten. The jury found that Joseph intended to kill the deceased and may even have planned and deliberated his murder. Trial counsel made no objection to this omission, one that was inconsistent with Joseph’s abortive s. 606(4) plea of guilty to second degree murder. Nothing more need be said.

Ground #5: The Ineffectual Guilty Plea of the Appellant Joseph

[113]    The final ground of appeal relates to the appellant Joseph and the evidentiary value, if any, to be assigned to his plea of guilty to second degree murder when arraigned on the charge of first degree murder. 

The Additional Background

[114]    When arraigned on the charge of first degree murder, the appellant Joseph, through his counsel, pleaded not guilty of first degree murder, but guilty of second degree murder. The procedure was repeated several times because of the manner in which jury selection proceeded. 

[115]    Crown counsel did not consent to the entry of a plea as s. 606(4) of the Criminal Code requires before the trial judge can consider whether to accept the plea and act upon it. The trial judge directed that a plea of “not guilty” be entered and the trial proceeded.

[116]    Crown counsel confronted Joseph with his attempt to plead guilty to second degree murder and the inconsistency of that plea with the defence he advanced at trial. The appellant said he pleaded guilty because he killed a man but didn’t mean to kill anyone.

The Instructions of the Trial Judge

[117]    The trial judge instructed the jury about the evidentiary value of Joseph’s rejected s. 606(4) guilty plea in these terms:

          You will recall that when Cleavon Joseph and Andrae Parris were arraigned before we began jury selection, Cleavon Joseph pleaded not guilty to first degree murder but guilty to second degree murder and that plea was not accepted by the Crown and I indicated that a plea of not guilty was to be entered on Mr. Joseph’s behalf.

          You are entitled to consider Mr. Joseph’s plea of guilty to second degree murder as an admission by him, but you must not find him guilty of that or of any other offence unless you are satisfied beyond a reasonable doubt that the Crown has proven all of the essential elements of that offence.

          Mr. Joseph’s plea is a factor for you to consider but it is only one factor to be considered along with all of the other evidence. Like evidence of anything else said by Mr. Joseph on Mr. Parris, it is only evidence concerning the person who said it.

[118]    Trial counsel for the appellant Joseph did not object to this instruction. 

The Arguments on Appeal

[119]    For the appellant Joseph, Mr. Lafontaine acknowledges that, as a general rule, unaccepted s. 606(4) pleas of guilty are considered admissions of the party entering the plea and are available for use by the trier of fact in determining the level of that accused’s culpability. But here, he says, the appellant made it plain in cross-examination that he did not admit having intentionally killed the deceased. The instruction was gravely prejudicial because it was inconsistent with his trial testimony of an unintentional killing.

[120]    For the respondent, Mr. Lepofsky submits that the appellant Joseph’s s. 606(4) plea of guilty was voluntary and unequivocal, whether entered by  counsel or by the appellant. Its value as an admission, on which the jury was properly instructed, was not diminished by the appellant’s trial testimony inconsistent with his earlier plea. The appellant cannot resile from the evidentiary effect of the plea having made a deliberate choice to enter it on each of several arraignments.

The Governing Principles

[121]    A guilty plea is a formal admission of guilt of the offence to which the plea is entered. Further, it constitutes a waiver of not only the accused’s right to require the Crown to prove its case (by relevant, material, and admissible evidence) beyond a reasonable doubt, but also of related procedural safeguards including those that are constitutionally protected. To be valid, a plea of guilty must be voluntary, informed, and unequivocal: R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at para. 14.

[122]    Pleas of guilty under s. 606(4) are different from pleas of guilty to the offence charged. To be effectual under s. 606(4), a plea of guilty to “any other offence arising out of the same transaction as the offence charged, whether or not it is an included offence,” requires prosecutorial consent and judicial acceptance. Where the plea is effectual, the accused is found not guilty of the principal offence, but guilty of the offence to which the plea of guilty has been entered.

[123]    The absence of prosecutorial consent to a s. 606(4) guilty plea makes the plea a nullity and leaves an accused’s plea as one of not guilty of the offence charged: R. v. Dobson (1985), 19 C.C.C. (3d) 93 (Ont. C.A.), at pp. 94-95; and R. v. Pentiluk and MacDonald (1974), 21 C.C.C. (2d) 87 (Ont. C.A.), at pp. 90-91.  Despite its ineffectual nature, the unaccepted s. 606(4) plea of guilty can be considered an admission and the jury instructed accordingly: Dobson, at p. 95; Pentiluk and MacDonald, at pp. 91-92. In a joint trial, the judge must make it clear that the rejected s. 606(4) guilty plea is an admission only as against its maker: Pentiluk and MacDonald, at p. 92. 

The Principles Applied

[124]    I would not give effect to this ground of appeal. Neither the procedure followed nor the instructions given reflect legal error or rendered the appellant’s trial unfair.

[125]    The decision to enter a plea of guilty under s. 606(4) of the Criminal Code was that of the appellant. He was represented throughout by experienced counsel whose competence is not challenged on appeal. This was a jury trial. A pre-trial conference was mandatory under s. 625.1(2). Counsel must be taken to have known from this conference that the Crown would not consent to the plea of guilty to second degree murder. Yet the plea was entered several times in the presence of the prospective jurors. Counsel must be taken to have known and to have advised the appellant of the potential evidentiary consequences of the plea. To claim prejudice now, in light of an apparently deliberate tactical decision, rings hollow.

[126]    The trial judge entered a plea of not guilty and instructed the jury in unexceptional terms about the evidentiary value of the plea as an admission. The admission was not left as dispositive of the appellant’s guilt of the lesser offence, but only as an item of evidence for the jury to consider. This instruction was appropriate in this case.

CONCLUSION

[127]    For these reasons, I would dismiss the appeal.

Released:

“RJS”                                       “David Watt J.A.”

“AUG 12 2013”                          “I agree Robert J. Sharpe J.A.”

                                                “I agree Alexandra Hoy J.A.”