



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

6.

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(b) on application of the victim or the prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Devitt, 2016 ONCA 871

DATE: 20161118

DOCKET: C61419

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Donald Devitt

Appellant

Robert J. McGowan, for the appellant

Chris Chorney, for the respondent

Heard: November 15, 2016

On appeal from a conviction entered on January 23, 2014
    and the sentence imposed on February 26, 2015 by Justice Kenneth E. Pedlar of
    the Superior Court of Justice, sitting without a jury.

By the Court:

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was convicted of two counts of sexual assault
    causing bodily harm and single counts of breach of a recognizance and
    counselling murder, an offence that was not committed. He appeals his
    conviction of counselling murder only.

[2]

The trial judge considered a sentence of nine years was fit for the
    conviction of counselling murder. After taking into account the time spent in
    pre-disposition custody, which the trial judge calculated at four years, he
    imposed a sentence of five years for the counselling murder conviction. The
    appellant seeks leave to appeal that sentence. He does not take issue with the
    sentence imposed in respect of the other convictions  three years  or the
    decision that those sentences be served consecutively to the sentence for
    counselling murder.

The Appeal from Conviction

[3]

The essence of the case against the appellant on the count of
    counselling murder is that he approached a fellow inmate, whom he invited into
    the yard at Brockville Jail, and solicited him, on a promise of payment of
    money, to kill the complainant in the sexual assault counts, the same person
    with whom the appellant had communicated in breach of his recognizance, so that
    she could not testify against him. The parties did not conclude an agreement
    about how the killing was to be carried out at this time.

[4]

The putative killer, a career criminal who had spent the better part of
    three decades in jail, testified about the appellants plan. The complainant
    was to die of a drug overdose while the appellant was still in jail. An
    overdose would look accidental. The killer was to be paid $50,000 when the
    charges against the appellant were withdrawn. The money would be obtained by
    the appellant on release by remortgaging his home.

[5]

The putative killer said he would think about it. His thoughts soon
    crystallized. He contacted jail authorities, then the police. He offered
    himself as a police agent. He sought some concessions, but received none. On
    two separate occasions, about a month apart, he and the appellant had
    discussions about the plan. The discussions were recorded. On the second
    occasion, the appellant drew a map of the complainants residence and pointed
    out the best time and place to enter. The appellant insisted that he did not
    want the complainants death to come back on him.

[6]

The appellant, who did not testify at trial, advances two grounds of
    appeal against conviction. He says that the trial judge erred:

i.

in finding that the appellant proactively engaged in the conversation
    about killing the complainant in the Brockville Jail yard and further erred in
    relying on mere discussions in the recorded conversations as corroboration of
    the discussion in the yard; and

ii.

in misapprehending and erroneously relying upon the evidence of the
    later discussions as confirmatory of the evidence of the unsavoury prosecution
    witness, the putative killer.

[7]

We would not give effect to either ground of appeal.

[8]

Counselling by procuring or inciting another to commit an offence does
    not require that the inciter originate or initiate the transaction. Counselling
    the commission of an offence that is not committed is an inchoate or
    preliminary crime complete when the solicitation occurs even if the person
    incited rejects the solicitation or merely feigns assent:
R. v. Root
, 2008
    ONCA 869, at paras. 85-86. Proactivity of the counsellor is not an essential
    element of the offence.

[9]

In this case, the trial judges findings with respect to the unrecorded
    discussion in the yard at the Brockville Jail established the essential
    elements of the counselling offence. These findings were open to the trial
    judge to make on the evidence of the principal witness for the Crown. The trial
    judge was fully cognizant of the need for caution in approaching and relying
    upon this evidence. It was his call to make.

[10]

Further, we are not persuaded that the trial judge misapprehended or
    erred in considering as confirmatory of the evidence of the putative killer
    portions of the conversations surreptitiously recorded later in the Brockville
    Jail. It is worthy of reminder that neither a
Vetrovec
self-instruction nor confirmatory evidence are conditions precedent to reliance
    on the evidence of a tainted witness:
R. v. Snyder
, 2011 ONCA 445, 273
    C.C.C. (3d) 211, at para. 24;
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R.
    104, at para. 37.

[11]

The appellant emphasizes the lack of proactive discussion during the
    intercepted conversations and points to the failure of the appellant to do any
    of the several things necessary to implement the plan. Failure to provide a
    surety to assist the putative killer in obtaining bail. Recruiting others to
    assist. Getting drugs or money for their purchase to kill the complainant.
    Mortgaging his house to pay the putative killer for the job. All these things,
    the appellant says, show that the whole scheme was the work of the putative
    killer who entrapped the appellant for his own purposes.

[12]

The submission fails in large measure because the trial judge found, as
    he was entitled to do, that the offence was complete when the appellant and
    putative killer met, at the appellants invitation, in the yard at the
    Brockville Jail. The preliminary or inchoate crime of counselling is not unravelled
    because some of the details remain to be worked out. Entrapment involves
    official instigation of crime, not conduct after the offence is complete.

[13]

The appeal from conviction is dismissed.

The Appeal from Sentence

[14]

The appellant also seeks leave to appeal the sentence imposed on the
    conviction of counselling, a sentence of imprisonment of nine years reduced to
    five years as a result of credit awarded for pre-disposition custody.

[15]

The appellant says that the sentence imposed is too long and thus unfit.
    It fails to take into account the appellants lack of engagement and thus is
    disproportionate to his moral blameworthiness. A more apt range of sentence,
    consonant with the principle of proportionality, would be a term of
    imprisonment of one to three years.

[16]

The appellant is a mature recidivist. He is now 61 years of age. His
    prior convictions, separated by more than a decade from these offences,
    included offences of significant violence that attracted a sentence for a then
    first-offender of six years in the penitentiary. In an assessment completed for
    prospective dangerous offender proceedings, the appellant was described as a
    low to moderate risk to reoffend. On the other hand, as the examining
    psychiatrist pointed out, the offences of which the appellant stands convicted
    did occur and included offences of serious violence.

[17]

The precedents reveal a substantial range of sentence for an offence 
    counselling to commit murder  that is not of commonplace occurrence. The
    disparity among the precedents and the breadth of the sentencing range is
    scarcely remarkable for an offence that attracts no minimum punishment and a
    maximum punishment of imprisonment for life.

[18]

A significant aggravating factor in this case, as the trial judge
    pointed out, is that the person whose death was counselled was the complainant,
    for all practical purposes the case for the Crown, in the offences with which
    the appellant was charged. As the complainant and a witness for the Crown, she
    was a justice system participant, a person deserving of the laws protection.
    In these circumstances, the trial judge was right to emphasize denunciation and
    deterrence in his sentencing decision.

[19]

The sentence imposed on the conviction of counselling murder is substantial.
    This is as it should be. We cannot say, however, that the sentence offends the
    cardinal principle of proportionality or is in any other way unfit.

[20]

Leave to appeal sentence is granted, but the appeal from sentence is
    dismissed.

Released: November 18, 2016 (JCM)

J.C. MacPherson J.A.

R.A. Blair J.A.

David Watt J.A.


