



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 Malcolms
    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 judges
    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 Malcolms 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 Teitssons 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 Josephs
    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 dont have your money. 
    Joseph punched Malcolm in the face with a closed fist.

[17]

Teitsson
    tried to leave the unit. Parris blocked Teitssons 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 neighbours 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
    Malcolms fingernails and as the major source of DNA found above the door knob
    of a main floor bedroom in Teitssons 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 deceaseds 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 deceaseds 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 Josephs
    help, Parris learned from Litster that Malcolm was at Teitssons 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
    Teitssons 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
    Josephs 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 judges 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 judges 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 judges 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 judges 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 Malcolms 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 victims death;


iv.

that no intervening act of somebody else resulted in the accused no
    longer being substantially connected to the victims death; and


v.

that the crimes of unlawful confinement, whether completed or attempted,
    and murder were part of the same transaction, in that the victims 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 accuseds 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 victims 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 offenders 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
    judges 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 judges 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 judges
    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 neighbours 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
    judges 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 judges
    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 judges
W. (D.)
instructions was unassailable. However, he says,
    its content was fatally flawed. He submits that, because the trial judges 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 accuseds 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 judges 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 accuseds 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 others 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 persons 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 judges 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 judges
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 laws 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 judges 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 Josephs 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 Josephs 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 jurys 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 Malcolms 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 Josephs 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 judges 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 Josephs 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 didnt mean to kill anyone.

The Instructions of the Trial Judge

[117]

The trial judge
    instructed the jury about the evidentiary value of Josephs 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. Josephs behalf.

You are entitled to consider Mr. Josephs 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. Josephs 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 accuseds 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 Josephs 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 appellants 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 accuseds 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 accuseds 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 appellants 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 appellants 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.





[1]
This element relates to the implicative quality of confirmatory evidence.


