






Citation:


R. v.
Forknall


Date:
20030121







2003 BCCA 43


Docket:


CA027842






COURT OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






REGINA






RESPONDENT








AND:






PAUL CHARLES FORKNALL






APPELLANT














Before:


The 
          Honourable Madam Justice Ryan







The 
          Honourable Madam Justice Huddart







The 
          Honourable Mr. Justice
Thackray










R.W. 
          Cornett and H.G. Stevenson


Counsel for the Appellant




O.S.
Kuzma
, Q.C.


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




October
              31, 2002




Place 
          and Date of Judgment:


Vancouver, British Columbia




January
              21, 2003








Written Reasons 
    by:

The Honourable Madam Justice Ryan



Concurred in by:

The Honourable Madam Justice 
    Huddart

The Honourable Mr. Justice
Thackray


Reasons for Judgment of the Honourable Madam Justice 
    Ryan:





Introduction


[1]


On
November
    3, 2000
the appellant, 
    Paul
Forknall
, and a co-accused, Robert Copeland, 
    were convicted by a judge and jury in
Prince George
, of the
September
    24, 1994
first degree murder of Tiffany McKinney.

It was a second trial for both men after this 
    court ordered new trials in December 1999.


[2]


Mr. Copeland abandoned his conviction 
    appeal on
July 16, 2002
.


[3]


Counsel for Mr.
Forknall
raises four grounds of appeal. Broadly stated they relate to the refusal of 
    the trial judge to order separate trials, the admissibility of statements 
    made by the appellant to undercover police officers, the failure of the trial 
    judge to give the jury a "Hodgson warning", and the charge and recharge 
    to the jury as it related to causation and abandonment.

Factual Background


[4]


Mr.
Forknall
, Mr. Copeland and Tiffany McKinney were friendly 
    acquaintances.

They planned to move 
    together from
Quesnel
to
Kelowna
at the end of September 1994.

Ms. McKinney never arrived in
Kelowna
.

Her parents 
    reported her missing to the police on
October
    15, 1994
.


[5]


Shortly after Ms. McKinney's disappearance 
    Mr.
Forknall
and Mr. Copeland were residing in
Kelowna
and had possession of her car.


[6]


Several civilian witnesses testified 
    at trial that Mr.
Forknall
and Mr. Copeland had 
    given a number of conflicting stories about the circumstances in which they 
    acquired the deceased's car and how they separated from her.

They asserted to some people that the owner of the car had gone to
Vancouver
from
Kelowna
and to others that they had dropped the owner 
    off in
Vancouver
.

On some 
    occasions they asserted that they had purchased the car and on others claimed 
    that the owner, who they identified to some as "Tiffany", simply 
    loaned the car to them.


[7]


After Ms. McKinney was reported missing, 
    both
Forknall
and Copeland were interviewed at various 
    times by different police officers.

Both maintained that Ms. McKinney had gone with 
    them to
Kelowna
, traveled with a male friend to
Vancouver
, and left her car with them.


[8]


The focus of the Crown's case was evidence 
    gathered by an undercover police operation.

Undercover officers, posing as members of a criminal drug operation 
    obtained admissions from both Mr.
Forknall
and Mr. Copeland as to their participation in the 
    murder of Ms. McKinney.


[9]


In his undercover role as "recruiter" 
    a police officer, Constable
Bentham
, first approached Copeland in
Quesnel
in February 1995.

During the course 
    of their contact
Bentham
told Copeland that he was 
    a member of a drug organization.

He 
    invited Copeland to accompany him on trips to collect drug debts from other 
    undercover officers posing as drug dealers.

Eventually Copeland was sent by
Bentham
to 
    recover a debt and agreed to beat up the person who owed the money if it was 
    not produced.

At some point Copeland 
    was asked by
Bentham
if he wanted to earn $20,000 
    to $30,000 for work off-loading narcotics in locations near
Vancouver
or
Prince Rupert
.

Copeland 
    expressed an interest in doing so.

Bentham
asked Copeland 
    to assure him that there was "no heat" on him.


[10]


Copeland was introduced to other members of the 
    operation.

The undercover officers 
    told him that they had learned that Copeland was a suspect in a murder in
Quesnel
.

Copeland told 
    them that
Forknall
told him that he had murdered 
    a girl and thrown her body into the
Fraser

River
.

Copeland said that
Forknall
warned him that if Copeland said anything he,
Forknall
, would tell the police that Copeland was there.


[11]


On
March
    10, 1995

Bentham
met with Copeland 
    and
Forknall
.

He told
Forknall
not 
    to point the finger at Copeland to draw the attention of the police to him.

Forknall
told the officer that he had killed 
    the young woman and had thrown her body into the river.

During that time
Forknall
expressed an interest in joining the criminal organization.


[12]


Later that day
Forknall
was introduced to the "boss" of the organization, Corporal
Bertagnolli
.

Forknall
repeated to
Bertagnolli
the story of the killing.

On the morning 
    of
March 11, 1995

Forknall
led
Bentham
and
Bertagnolli
to a place by the river where he said that he 
    had disposed of the body of his victim.


[13]


On March 14
Bentham
took
Forknall
and Copeland to a hotel in
Quesnel
and introduced them to an undercover officer posing 
    as the "mechanic".

The mechanic, 
    Staff Sergeant Ross, was said to be a clean-up person who would ensure that 
    any evidence linking Copeland and
Forknall
to the 
    murder would be disposed of so that it could not endanger the organization.



[14]


In accordance with the police plan Copeland and
Forknall
were separated.

Copeland went for a drive with
Bentham
,
Forknall
stayed with
Bertagnolli
.

A short 
    time later
Bertagnolli
received a telephone call 
    from
Bentham
.

Bentham
told
Bertagnolli
that Copeland 
    had told him that
Forknall
had not taken them to 
    the place where the body had been disposed of.

Bertagnolli
pressed
Forknall
to come clean.

Forknall
told them that he had lied to them because he thought they were the police.

He then gave the undercover police officers a lengthy account of the 
    killing.


[15]


Forknall
told
Bertagnolli
and 
    Ross that Copeland said he was going to kill Ms. McKinney and take her car.

A couple of days before the murder the two of them went into the woods 
    near
Quesnel
, dug a pit and covered it with boards.

They left a crowbar nearby.

On 
    the day of the murder they picked up Ms. McKinney at her apartment and took 
    her to the spot in the woods.

They 
    created a teepee from crates from a building supply store and covered it with 
    a shower curtain.

They told her that the marijuana was in the 
    pit.

Ms. McKinney crawled into the 
    hole looking for the drugs.

Copeland 
    gave her a hand out.

Forknall
took the crowbar.

He was to deliver 
    the first blow but could not do it.

He 
    turned his back and heard a thump.

Copeland 
    had struck the victim.

He saw Ms. McKinney 
    fall to her knees.

Copeland hit the 
    victim again and turned the crowbar over to
Forknall
.

He told him 
    to hit her.

Forknall
said he could not.

Copeland said, "You're 
    going to have to because I can't".

Forknall
took the 
    crowbar and hit the victim about twelve times on the side of the head.

The two then dragged Ms. McKinney's body into 
    the hole and covered it with the shower curtain and the crates.

As they drove away
Forknall
threw the crowbar into the bush.


[16]


Forknall
took the undercover officers to the burial site 
    and showed them where everything had happened.

The undercover officers told
Forknall
to tell Copeland that he had told the members of 
    the organization what happened.

Forknall
did this when
Bentham
returned 
    to the hotel with Copeland.

Bertagnolli
was left alone with Copeland who told him a similar 
    version of events.


[17]


Copeland and
Forknall
were arrested shortly after these confessions.

The police returned to the wooded area and exhumed
McKinney
's body from its burial site.


[18]


A forensic pathologist conducted a post-mortem 
    examination of Ms. McKinney's remains.

She 
    noted injuries concentrated around the deceased's head.

She identified eight splits of the scalp, five 
    of which split through completely to the skull bone.

One of the blows, in the area of the right side 
    of the head above the right ear, had broken the underlying skull bone, pushing 
    bone fragments at that location through the skull lining into the brain.

The pathologist concluded that a minimum of eight blows to the head 
    were suffered by the deceased and that a combination of one or more of those 
    blows, particularly the one to the right temple area of the head, caused Ms. 
    McKinney's death.

She said:

The blows to the head would 
    have had a cumulative effect, depending on which order they were received.

Certainly the one or more blows to the right side of the head that 
    produced skull fracturing and the actual damage to the brain would have caused 
    death.







[19]


The pathologist was asked which of the blows were immediately 
    life-threatening.

She answered:

The only ones that I could say were immediately 
    life-threatening, that in and of their own right would have caused death, 
    would be the blow or blows that produced the injury to the right side of the 
    head.



And 
    later the pathologist testified:

These injuries have -- all had similar characteristics, 
    certainly consistent with being sustained over a short period of time.

They are -- the injury to the brain was certainly caused during life, 
    and it's likely that the injuries, depending on which order they were received, 
    were mostly caused during life, although I am sure by the time she'd sustained 
    all of these injuries she was in fact dead.






[20]


The pathologist said that death would have come 
    very quickly, within a few minutes, after the significant blow to the right 
    side of the head.


[21]


The pathologist was shown the crowbar which was 
    removed from the scene and marked as an exhibit at trial. She agreed that 
    it could have caused the injuries to Ms. McKinney.


[22]


While neither testified, both Copeland and
Forknall
called evidence at the trial.

Copeland led evidence of alibi.

His position was that he was at work at the 
    time of the murder.

Forknall
called the evidence of a clinical psychologist who testified that
Forknall
suffered from a borderline personality disorder characterized 
    by impairment of emotional control.

He said that the appellant had a dependant personality 
    disorder characterized by reliance on others to make life's decisions for 
    him and for emotional support.

It was 
    the psychologist's opinion that a person with
Forknall's
personality profile was unlikely to initiate violence and was given more to 
    impulsive and unplanned violence, situational in nature, in response to a 
    strong emotional reaction.

The Admissibility of the Undercover 
    Statements


[23]


The appellant says that the trial judge erred in law in failing 
    to exclude the statements elicited by the police in their undercover operation.

Counsel for the appellant submitted that the statements obtained by 
    the undercover officers were obtained by inducements, the promise of money 
    for assisting with a drug operation, and threats.

Counsel submitted that the tough talk of the police officers in their 
    role as thugs was designed to frighten the appellant into revealing his part, 
    if any, in the murder of Tiffany McKinney.

Counsel cited a number of times in which the undercover agents told
Forknall
that he was a "kink" because he might "draw 
    heat" on the criminal family.

He 
    submitted that when
Forknall
was told that Copeland 
    told the other officers that
Forknall
had lied to 
    them as to where he had disposed of the body, that
Forknall
was "palpably in fear of his life at this point in time."


[24]


Counsel submitted that in these circumstances the statements 
    of
Forknall
were involuntary within the meaning 
    of the confession rule and that the statements would have been inadmissible 
    had the statements been made to persons known by the appellant to be police 
    officers.

He submitted that the "person-in-authority 
    rule" which forms the basis for the confession rule ought to be abolished 
    as it is contrary to
ss
.  7, 8, and 11(d) of the
Canadian Charter of Rights and Freedoms
.

He submitted that all statements made by an accused person to any witness 
    should be scrutinized for
voluntariness
.


[25]


In
Hodgson v. The Queen
, [1998] 
    2 S.C.R. 449, 127 C.C.C. (3d) 449, the Supreme Court of
Canada
dealt 
    with a case where the appellant had made
inculpatory
statements to members of the family of the complainant.

On appeal to the Supreme Court of Canada the 
    appellant maintained that the family members were persons in authority and 
    that the trial judge ought to have conducted a
voir
dire
to determine the admissibility of the appellant's statements 
    to them.

The appeal provided the Supreme 
    Court of Canada the opportunity to re-examine the principles underlying the 
    common law confessions rule.



[26]


The Court concluded that the rule was concerned with reliability 
    and fairness.

Speaking for the majority Cory J. remarked that 
    the rule is carefully calibrated to ensure that the coercive power of the 
    state is held in check and to preserve the principle of self-incrimination. 
    (
Hodgson
,
para
. 29).

Earlier 
    in his reasons, at
para
. 24, Cory J. noted:

The emphasis on
voluntariness
has two main effects: it both avoids the unfairness of a conviction based 
    on a confession that might be unreliable, and has a deterrent effect on the 
    use of coercive tactics. This deterrent effect is properly focused upon the 
    prosecutorial authority of the state, not the personal authority of private 
    individuals. It cannot be forgotten that it is the nature of the authority 
    exerted by the state that might prompt an involuntary statement. As
Estey
J. stated in
Rothman
, 
    [[1981] 1 S.C.R. 640], at pp. 650-51, "
their 
    very authority
might, by promise or threat, express or implied, produce 
    a statement whether or not the accused was truly willing to speak" (emphasis 
    added). In other words, it is the fear of reprisal or hope of leniency that 
    persons in authority may hold out and which is associated with their official 
    status that may render a statement involuntary. The rule is generally not 
    concerned with conversations between private citizens that might indicate 
    guilt, as these conversations would not be influenced or affected by the coercive 
    power of the state. This limitation is appropriate since most criminal investigations 
    are undertaken by the state, and it is then that an accused is most vulnerable 
    to state coercion.






[27]


In discussing the subjective nature of the inquiry into whether 
    a person is a person in authority Cory J. quoted from

the words of Bain J. in
The 
    King v. Todd
(1901), 4 C.C.C. 514 (Man. K.B.) where he said, at pp. 
    526-7:


A 
    person in authority means, generally speaking, anyone who has authority or 
    control over the accused or over the proceedings of the prosecution against 
    him. . . .

[T]he authority that 
    the accused knows such persons to possess may well be supposed in the majority 
    of instances both to animate his hopes of favour on the one hand and on the 
    other to inspire him with awe, and so in some degree to overcome the powers 
    of his mind;
. . . .



[Emphasis added.]


[28]


Thus the
Hodgson
case confirmed that 
    it is the effect of the power of the state on the will or mind of the accused 
    that matters for the purposes of the confession rule.

If the accused does not know that he or she 
    is dealing with agents of the state that coercive effect on his or her mind 
    is not present.

Threats or inducements 
    offered by those other than persons in authority would not fall within the 
    ambit of the rule.


[29]


As I mentioned earlier, in the case at bar the trial judge 
    was asked on a
voir
dire
to

decide whether 
    the confession rule as it is currently constituted violates a number of provisions 
    of the
Charter
.


The trial judge did not directly confront the 
    question whether the confession rule ought to be expanded or abolished on
Charter
principles although he did refer to the constitutional notice filed by the 
    appellant raising the issue.

Instead, 
    he found that the statements were voluntarily made.

He said:

[15]

In 
    the course of the undercover operation neither Mr. Copeland nor Mr.
Forknall
were ever detained.

It was made clear to both they did not have 
    to participate if they did not want to  they voluntarily took part in the 
    scenario and chose to make the statements they did.

The accused in this case believed the undercover 
    police were members of a criminal organization which they wanted to join.

I am satisfied by the evidence on the
voir
dire
that the undercover police in this 
    case were not persons in authority for the purpose of the confessions rule 
    as discussed in the case of
Hodgson v. The Queen
. . . 
    .






[30]


Later, when discussing whether the police officers had committed 
    any crimes during the course of the undercover operation the trial judge said 
    this:

[18]

No 
    direct threats were made to either Copeland or
Forknall
.

Each may reasonably have inferred from Constable
Bentham
comments about getting "whacked" 
    (killed), and "he kicks my ass once I kick your ass twice" and similar 
    statements that breach of the rules of the criminal organization
they were 
    seeking

to join
could well lead to violence against themselves.



* * *



[20]

The 
    words uttered by the police in the course of this undercover investigation 
    were not spoken with the intent to intimidate and cause fear, but with the 
    intent to convince the accused that the undercover operation really was a 
    criminal operation; accordingly the threats were not uttered as threats.

Words which bearing their plain grammatical 
    meaning would convey threats are not threats if uttered jokingly, similarly 
    the words spoken in this case uttered with the intention of deceiving the 
    accused do not contravene the section of the
Code
referred to.

If the undercover officers had uttered the words 
    intending them as threats, offences would have been committed, however on 
    the evidence on the
voir
dire
.

I am satisfied that the intention was deception not threatening.

Having heard the words spoken, both accused 
    remained anxious to join the organization, and
Forknall
in particular, spoke about how good it made him feel.

Copeland and
Forknall
may well have felt threatened, however they were not aware of the true circumstances 
    and the fact that they subsequently felt threatened in the circumstances of 
    this case does not establish the offence when the evidence shows the words 
    were spoken with an intention to deceive rather than to convey threats.



[Emphasis 
    added.]






[31]


In the end, the trial judge seems to be saying that while 
    Copeland and
Forknall
may have felt threatened at 
    some point by the undercover officers, their statements were nonetheless not 
    coerced from them and remained products of the exercise of their free will.


[32]


Given the finding of fact that
Forknall's
statements were voluntarily made, it is unnecessary 
    to discuss the expansion or abolition of the person-in-authority rule or whether 
    the analysis in
Hodgson
,
supra
, precludes that result.

I 
    would dismiss this ground of appeal.

The Failure to 
    Give a Hodgson Warning


[33]


The trial judge did not give the jury what has come to be 
    known as the "Hodgson warning".


[34]


In
Hodgson
, the court recognized 
    that there is no doubt that there may be great unfairness suffered by an accused 
    when a confession obtained by violence by a private individual is admitted 
    into evidence.

In such a case the reliability 
    of the statement will be of central concern.

Recognizing this fact Cory J. said this, at
paras
. 29-30:

The unfairness of admitting statements coerced 
    by private individuals should be recognized.

However, it is the sort of change which should be studied by Parliament 
    and remedied by enactment. . . .

Because 
    of the very real possibility of a resulting miscarriage of justice and the 
    fundamental unfairness of admitting statements coerced by the violence of 
    private individuals, I would hope that the study will not be long postponed.




In 
    the meantime I would suggest that in circumstances where a statement of the 
    accused is obtained by a person who is not a person in authority by means 
    of degrading treatment such as violence or threats of violence, a clear direction 
    should be given to the jury as to the dangers of relying upon it. The direction 
    might include words such as these: "A statement obtained as a result 
    of inhuman or degrading treatment or the use of violence or threats of violence 
    may not be the manifestation of the exercise of a free will to confess. Rather, 
    it may result solely from the oppressive treatment or fear of such treatment. 
    If it does, the statement may very well be either unreliable or untrue. Therefore 
    if you conclude that the statement was obtained by such oppression very little 
    if any weight should be attached to it." However, if a private individual 
    resorts to violence or threatens violence after the statement has been made, 
    this conduct will not as a general rule be a factor affecting the
voluntariness
of the statement and the suggested direction 
    will not be needed.








[35]


In the case at bar the trial judge found that the statements 
    were not obtained by coercion.

He found that the appellant said what he did 
    in order to please the crime gang who had befriended him and to gain admittance 
    to the group and all its promised lucre.

In 
    somewhat similar circumstances in
R. v.
McCreery
(1998), 108 B.C.A.C. and 176 W.A.C. 161, this court held (at
para
. 26) it was important that the trial judge convey to 
    the jury the inherent unreliability of such statements and the significance 
    in finding confirmation of the confession in other independent evidence.


[36]


In the case at bar the trial judge gave the jury no specific 
    warning about the reliability of the appellant's statements to the undercover 
    police officers.

The question for this court is whether the failure 
    to do so was non-direction amounting to misdirection.


[37]


I am not persuaded that in the circumstances of this case 
    it was necessary for the trial judge to warn the jury about the reliability 
    of the appellant's statements to the undercover police officers.

Having lost his attempt to prevent the admission of the statements 
    the appellant called evidence of his dependent nature and took the position 
    that what he had said to the police officers supported a defence of abandonment.

In his closing address to the jury counsel for the appellant took issue 
    with the truthfulness of much of what
Forknall
told 
    the undercover police over the course of his induction into the gang.

Counsel suggested to the jury however, that
Forknall's
final description of the murder to Sergeant Ross 
    was accurate, in that it supported, he said,
Forknall's
defence of abandonment.



[38]


At the conclusion of the charge to the jury counsel for the 
    appellant did not object to the failure of the trial judge to leave a Hodgson 
    or
McCreery
-type warning.



[39]


In most cases of this kind it is preferable for the trial 
    judge to fashion a charge which points out the inherent
unreliablity
of statements made by a prospective member of a "crime gang" to 
    "gang leaders".

But in the 
    case at bar, the defence chose to discount many of the statements, and to 
    rely on one of them as an accurate description of the murder.

In his summing up, the trial judge drew the jury's attention to the 
    arguments made by the Crown and the defence as to the accuracy of the many 
    statements.

In these circumstances 
    a warning was unnecessary.

I would 
    dismiss this ground of appeal.

Refusal to Order Severance


[40]


Before the trial commenced counsel for both Copeland and
Forknall
applied for an order for separate trials.

Forknall
took the position that it would be difficult for 
    the jury, in examining the case against him, to ignore the statements Copeland 
    made to police which implicated
Forknall
in the 
    murder.

He also submitted that he,
Forknall
, would be limited in the attack he could make on 
    Copeland's character.

The trial judge 
    dismissed the application.

He recognized 
    the difficulties, but held that a joint trial best favoured the interests 
    of justice.


[41]


During the course of the trial counsel for Mr.
Forknall
advised the trial judge that he wished to place before the jury video-taped 
    evidence of a conversation Copeland had with two police officers in
Prince George
on
February
    5, 1995
.

On that day Copeland had attended 
    the offices of the R.C.M.P. for the purpose of taking a polygraph test.

On learning that he would be asked if he had killed Ms. McKinney, Copeland 
    asserted his right to counsel and refused to take the test.

Counsel for
Forknall
planned to argue that Copeland's nervous, uncomfortable 
    demeanour during the interview revealed a consciousness of guilt about his 
    involvement in the murder.

The trial 
    judge refused to permit counsel to play the tape before the jury.

He held that the evidence was of marginal utility 
    as evidence of consciousness of guilt.


[42]


Counsel submits that the refusal of the trial judge to grant 
    severance resulted in a miscarriage of justice.

He says that the joint trial deprived him of evidence of Copeland's 
    display of consciousness of guilt which would have assisted his case.

He said too that the jury would have had difficulty understanding and 
    applying instructions given them about how they were to approach evidence 
    admissible against one, but not the other.


[43]


I will deal first with the submission that the jury would 
    be unable to keep separate the evidence implicating only Copeland from the 
    evidence implicating
Forknall
.

In
R. v. Crawford
, [1995] 1 S.C.R. 858, 
    96 C.C.C. (3d) 481, the appellant and another were charged with second degree 
    murder.

The Crown led the video-taped 
    statement of the co-accused which implicated the appellant in the murder.

The co-accused did not testify at trial.

The appellant testified that the co-accused 
    had committed the murder.

The appellant 
    was cross-examined by counsel for the co-accused on his failure to make a 
    pre-trial statement to the police.

The 
    Supreme Court of Canada ordered a new trial on the basis that the trial judge 
    failed to fully instruct the jury on the limited use that they could make 
    of the appellant's pre-trial silence.

In 
    analyzing the issues
Sopinka
J., writing for the 
    majority, examined whether the trials of the two accused ought to have been 
    severed.

He said this, at
paras
. 
    30-32:


There 
    exist, however, strong policy reasons for accused persons charged with offences 
    arising out of the same event or series of events to be tried jointly.

The policy reasons apply with equal or greater 
    force when each accused blames the other or others, a situation which is graphically 
    labelled a "cut-throat defence".

Separate trials in these situations create a 
    risk of inconsistent verdicts.

The 
    policy against separate trials is summarized by Elliott,

[1]


. . . at p. 17 as follows:




There is a dilemma here which could only be 
    avoided by separate trials. But separate trials will not be countenanced because, 
    quite apart from the extra cost and delay involved, it is undeniable that 
    the full truth about an incident is much more likely to emerge if every alleged 
    participant gives his account on one occasion. If each alleged participant 
    is tried separately, there are obvious and severe difficulties in arranging 
    for this to happen without granting one of them immunity. In view of this, 
    in all but exceptional cases, joint trial will be resorted to, despite the 
    double bind inevitably involved.




Although 
    the trial judge has a discretion to order separate trials, that discretion 
    must be exercised on the basis of principles of law which include the instruction 
    that severance is not to be ordered unless it is established that a joint 
    trial will work an injustice to the accused. The mere fact that a co-accused 
    is waging a "cut-throat" defence is not in itself sufficient. In
Pelletier
, [(1986), 29 C.C.C. (3d) 533 
    (B.C.C.A.)], a co-accused was permitted to cross-examine another accused on 
    a statement to the police that had not been proved to be voluntary. On appeal 
    of his conviction, he contended if he had been tried separately, the cross-examination 
    would not have been permitted. On this basis, he claimed that the trials should 
    have been severed. In dismissing this ground,
Hinkson
J.A., on behalf of the court, stated, at p. 539:




On this point it is necessary to keep in mind 
    that the trial judge has a discretion as to whether or not he will grant a 
    severance. The general rule of severance is that persons engaged in a common 
    enterprise should be jointly tried unless it can be demonstrated that a joint 
    trial would work an injustice to a particular accused:
R. v. Black and six others
, [1970] 4 C.C.C. 251 at pp. 267-8, 10 C.R.N.S. 
    17 at pp. 35-6, 72 W.W.R. 407. In this case, the trial judge was not persuaded 
    that it was appropriate to grant a severance. I do not conclude that he erred 
    in the exercise of his discretion.




As 
    I pointed out above, neither party to this appeal contended that the solution 
    to the problem is to order separate trials whenever the full exercise of the 
    right to make full answer and defence by one accused appears to collide with 
    the protections ordinarily accorded to an accused when facing the Crown alone. 
    This position is consistent with both principle and policy as outlined above. 
    The general rule, therefore, is that the respective rights of the co-accused 
    must be resolved on the basis that the trial will be a joint trial. This does 
    not mean, however, that the trial judge has been stripped of his discretion 
    to sever. That discretion remains, and can be exercised if it appears that 
    the attempt to reconcile the respective rights of the co-accused results in 
    an injustice to one of the accused.








[44]


Thus, the general rule is that accused persons alleged to 
    have been involved in a common criminal enterprise ought to be tried together 
    unless it can be demonstrated that a joint trial would work an injustice to 
    one of the accused.

Severance will 
    not be granted solely on the basis that evidence led against one accused is 
    inadmissible or limited in its use against another.

We operate on the premise that juries understand 
    and will obey instructions given to them by the trial judge who can explain 
    to them the uses that can and cannot be made of some of the evidence led at 
    trial.

The decision to order separate 
    trials is a matter of discretion for the trial judge who is in the best position 
    to determine how the interests of justice will best be served.

Absent an error in principle, this court will 
    refrain from interfering with that decision.


[45]


In my view the appellant has not demonstrated any error in 
    the exercise of the trial judge's discretion.

I am not persuaded that the trial judge was wrong in concluding that 
    the jury would be able to comprehend his instructions and to properly apply 
    them to the case at bar.


[46]


In his submissions before this court counsel did not pursue 
    with any vigour the suggestion that
Forknall's
right to a fair trial was prejudiced by the refusal 
    of the trial judge to permit him to play the video-tape of Copeland.

I agree with the trial judge that the evidence would have been of marginal 
    utility in this case.

I cannot say that this ruling resulted in unfairness 
    to
Forknall
in the context of this trial.


[47]


I would dismiss this ground of appeal.

The Charge on Causation and the Defence of Abandonment


[48]


As I understand the argument of counsel for the appellant, 
    he says that the trial judge erred in his instructions to the jury on the 
    defence of abandonment and on the issue of causation.

The theory of the defence was that

Forknall
had, at the last minute, pulled 
    out of the plan to murder Ms. McKinney.

He was present when Copeland administered the 
    blows which caused the victim's death.

After 
    the death blows were struck
Forknall
was enlisted 
    by Copeland to strike the victim.

Since 
    the medical evidence supports the view that the second series of blows were 
    rendered after the death of the victim,
Forknall
could not be said to have caused her death. Counsel submitted that if the 
    jury had a reasonable doubt with respect to abandonment,
Forknall
should only have been convicted of attempted murder.

He says that the trial judge did not handle 
    the jury instructions properly during the initial charge to the jury and later, 
    when answering a question posed by the jury.


[49]


The evidentiary basis of this theory is said to be found 
    in the statements
Forknall
made to Sergeant Ross.

While showing Ross the gravesite
Forknall
explained that Copeland had devised the plan to kill Tiffany McKinney and 
    to take her car.

Forknall
said that 
    he and Copeland dug the hole in the woods a couple of days before they took 
    Ms. McKinney to it.

He said that they 
    had hidden a crowbar near-by.

One the 
    day of the murder Ms. McKinney was driven by
Forknall
and Copeland to the pit.

She was told 
    that there was marijuana there.

While 
    she was in the pit searching for the drugs
Forknall
grabbed the crowbar out of the dirt and had it in his hand.

Forknall
told Ross 
    that when the young woman climbed out of the hole he thought, "It's not
gonna
be worth it. I couldn't bring myself to do the first 
    hit."

Forknall
said that he turned his back and heard a thump.

He said that the crowbar was in Copeland's hand.

Forknall
said that 
    Copeland smacked
McKinney
in the head, she fell to her knees and Copeland hit her again.

It was at this point that the Copeland told
Forknall
to hit
McKinney
.

Forknall
said he could 
    not, and Copeland replied, "You're going to have to because I can't".

Forknall
said that he grabbed the crowbar 
    and struck the victim 12 times about the head.


[50]


In my view there is no air of reality to defences based on 
    either causation or abandonment.


[51]


Rex v. Whitehouse
(1940), 75 C.C.C. 65 (B.C.C.A.), is the leading authority with respect 
    to the elements of abandonment.

In 
    that case a merchant was struck down and died in the course of a robbery.

Whitehouse was aided and abetted by two youths who performed, in part, 
    the tasks assigned to them, but just before the victim was struck by Whitehouse 
    the youths fled the scene.

An argument was made that the youths had abandoned 
    the common object when they fled the scene.

This court held that they had not.

Sloan J.A. said this, at pp. 67-68:


Can 
    it be said on the facts of this case that a mere change of mental intention 
    and a quitting of the scene of the crime just immediately prior to the striking 
    of the fatal blow will absolve those who participate in the commission of 
    the crime by overt acts up to that moment from all the consequences of its 
    accomplishment by the one who strikes in ignorance of his companions' change 
    of heart? I think not. After a crime has been committed and before a prior 
    abandonment of the common enterprise may be found by a jury there must be, 
    in my view, in the absence of exceptional circumstances, something more than 
    a mere mental change of intention and physical change of place by those associates 
    who wish to dissociate themselves from the consequences attendant upon their 
    willing assistance up to the moment of the actual commission of that crime. 
    I would not attempt to define too closely what must be done in criminal matters 
    involving participation in a common unlawful purpose to break the chain of 
    causation and responsibility. That must depend upon the circumstances of each 
    case but it seems to me that one essential element ought to be established 
    in a case of this kind: where practicable and reasonable there must be timely 
    communication of the intention to abandon the common purpose from those who 
    wish to dissociate themselves from the contemplated crime to those who desire 
    to continue in it. What is "timely communication" must be determined 
    by the facts of each case but where practicable and reasonable it ought to 
    be such communication, verbal or otherwise, that will serve unequivocal notice 
    upon the other party to the common unlawful cause that if he proceeds upon 
    it he does so without the further aid and assistance of those who withdraw. 
    The unlawful purpose of him who continues alone is then his own and not one 
    in common with those who are no longer parties to it nor liable to its full 
    and final consequences.








[52]


This statement of the law was approved by the Supreme Court 
    of Canada in
R. v. Miller and
Cockriell
, 
    [1977] 2 S.C.R. 680, 31 C.C.C. (2d) 177, and again in
R. v.
Kirkness
, 
    [1990] 3 S.C.R. 74, 60 C.C.C. (3d) 97.


[53]


In the case at bar
Forknall
said he told Copeland that he could not strike the 
    first blow.

Copeland took it upon himself 
    to do that.

When Copeland told
Forknall
that he could not strike the victim again, that
Forknall
would have to do it,
Forknall
picked up the crowbar and administered a flurry of blows.

Forknall
did not indicate 
    his withdrawal from the plan.

He merely 
    said that he could not strike the first blow.

This display of queasiness does not constitute 
    evidence of an intention to abandon the enterprise, nor can it be said to 
    be unequivocal notice of such an intention.

In my view there was no air of reality to the 
    defence of abandonment.


[54]


Nor is there any air of reality to a defence based on causation.

In this case no importance can be attached to the question who struck 
    the fatal blow.

This murder was a joint 
    enterprise.

The blows of one were the 
    blows of the other.


[55]


In
R. v.
Mena
(1987), 34 C.C.C. (3d) 304 (Ont.
C.A.
), Martin 
    J.A. discussed the liability of joint perpetrators or co-principals.

He wrote (at pp. 314-5):


At 
    common law, a principal in the first degree is one who has committed the act 
    with his own hands, or through an innocent agent: see
Russell on Crime
, 12th ed., vol. I (1964), p. 131.

It was well established that, if several persons 
    combined to commit a crime and each person committed a different part of the 
    crime, every such person was a principal in the first degree.

In
Russell 
    on Crime
, the author states at p. 131:




All the facts of the case must be taken into 
    account, so that where
it appears that 
    there is a joint enterprise afoot between two (or more) persons
in which 
    each has an active part to perform in order to effect the criminal purpose 
    then each participant is equally a principal in the first degree.

Thus in burglary if A hoists B through a half-open 
    window and B then goes to the closed door of the home and opens it from the 
    inside thus admitting A, both are principals in the first degree to burglary.

So also there may be joint action in cases of stealing and other crimes.

In certain circumstances each of the participants may do his part in 
    the absence of the others and even may not know by whom the other parts were 
    executed. [Footnotes omitted.][Emphasis added.]




Glanville 
    Williams in
Criminal Law: The General 
    Part
, 2nd ed. (1961), p. 349 states:




Two persons may be guilty as joint perpetrators. 
    Hence where a body of men beat a constable (some with sticks, some by throwing 
    stones, some with their fists), and the constable died of the aggregate violence, 
    the judge directed the jury that "
If several persons act together 
    in pursuance of a common intent, every act done in furtherance of such intent 
    by each of them is, in law, done by all
". . . .



[Emphasis 
    added.]








[56]


In
R. v. McMaster
, [1996] 1 
    S.C.R. 740, 105 C.C.C. (3d) 193, two cousins were convicted of second degree 
    murder.

The two men assaulted the victim 
    by punching and kicking him.

One kicked 
    the victim in the head, while the other, Harley McMaster, administered kicks 
    to the body.

Forensic evidence indicated 
    that the victim had died because of a blow or blows to the head.

Counsel for the Harley McMaster argued that 
    he did not administer the fatal blow and could not be said to have caused 
    the death of the victim.

In the Supreme 
    Court of Canada, Lamer C.J.C. wrote for the majority, at
para
. 
    33:


Counsel 
    for Harley McMaster suggests that since the forensic evidence indicated that 
    the deceased died because of a blow(s) to the head, the trial judge failed 
    to consider whether Harley could have "caused" the death since the 
    only evidence of his involvement was blows to the body.

However, the trial judge made it clear in his 
    reasons that he was satisfied that the cousins were acting in concert and 
    "jointly involved" in causing the death.

It is a well-established principle that where 
    a
trier
of fact is satisfied that multiple accused 
    acted in concert, there is no requirement that the
trier
of fact decide which accused actually struck the fatal blow.

See.
R. 
    v. Isaac
, [1984] 1 S.C.R. 74, at pp. 80-81, and
R. v. Thatcher
, [1987] 1 S.C.R. 652.








[57]


Thus the fact that the appellant might not have landed the 
    fatal blow is legally irrelevant to the issue of causation in the case at 
    bar.


[58]


It is therefore unnecessary to examine the charge to the 
    jury with respect to abandonment and causation.

Any error committed by the trial judge was in 
    the appellant's favour.

I would dismiss 
    this ground of appeal.

Conclusion


[59]


I would dismiss the appeal.









The Honourable
Madam Justice Ryan







I AGREE: The Honourable
Madam Justice Huddart







I AGREE: The Honourable
Mr. Justice
Thackray















[1]


Elliott, D.W.

"Cut Throat Tactics: 
      The Freedom of an Accused to Prejudice a Co-Accused", [1991]
Crim
. L. Rev.
5.



