



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doxtator, 2022 ONCA 155

DATE: 20220222

DOCKET: C66291 & C66431

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jasmine Doxtator

Appellant

and

AND BETWEEN

Her Majesty the Queen

Respondent

and

Richard Doxtator

Appellant

Richard Litkowski, for the appellant, Jasmine Doxtator

Jessica Zita, for the appellant, Richard Doxtator

Andreea Baiasu, for the respondent

Heard: September 27 and October 20, 2021 by
    video conference

On appeal from the convictions entered by Justice James A.
    Ramsay of the Superior Court of Justice, sitting with a jury, on September 21,
    2017.

L.B. Roberts J.A.:

A.

Overview

[1]

The appellants appeal their respective convictions for the first degree
    murder of Joseph Caputo, committed on June 19, 2015.

[2]

The appellants request a new trial. Their principal submission is that
    the trial judge erred in failing to leave for the jurys consideration for
    Jasmine Doxtator the included offences of second degree murder and
    manslaughter. Since their cases are intertwined, the appellants argue, if a new
    trial is ordered for Ms. Doxtator, Richard Doxtator should also have a new
    trial.

[3]

For the reasons that follow, I agree that the
    included offences of second degree murder and manslaughter should have been
    left with the jury for Ms. Doxtator and would order a new trial. As a
    result, I do not need to address Ms. Doxtators grounds of appeal
    concerning the trial judges instructions on party liability. I would also
    order a new trial for Mr. Doxtator.

B.

Factual Background

(a)

The death of Mr. Caputo

[4]

Except as otherwise indicated, the following is
    a summary taken from Ms. Doxtators testimony and concessions at trial, as
    well as the unchallenged forensic evidence. Mr. Doxtator did not testify at
    trial but relied on Ms. Doxtators testimony. As I would order a new trial, I
    make no findings regarding the ultimate credibility and reliability of this evidence.
    I take it at its most favourable for the appellants for the purposes of
    assessing whether, on the totality of the evidence, the jury could have had a
    reasonable doubt with respect to whether Mr. Caputos murder was planned and
    deliberate or whether Ms. Doxtator had murderous intent:
R. v.
    Ronald
, 2019 ONCA 971, at paras. 46-48, 59;
R.
    v. Tenthorey
, 2021 ONCA 324, at paras. 70-71, 75.

[5]

The appellants are cousins. They lived in
    Hamilton, Ontario. Mr. Caputo was Ms. Doxtators former drug dealer and friend whom
    she had known for many years before his death. She was familiar with Mr.
    Caputos apartment in Niagara Falls, where his death occurred, because she had visited
    him often. A day or two prior to Mr. Caputos death, Ms. Doxtator told Mr.
    Doxtator that the last time she saw Mr. Caputo he had drugged and raped her and
    that he was stalking her teenaged daughter. Up until that point, Ms. Doxtator
    had kept this information from Mr. Doxtator because she was concerned it
    would make him upset.

[6]

On June 18, 2015, the appellants borrowed Ms.
    Doxtators cousins Jeep and attended a drive-in movie theatre. There, Ms.
    Doxtator and Mr. Doxtator talked about the problems she was having with Mr.
    Caputo. Ms. Doxtator became very upset. The appellants left the theatre without
    seeing the movie. Ms. Doxtator called Mr. Caputo and arranged to meet him. The
    appellants then drove to Niagara Falls, Ontario, to confront Mr. Caputo about
    his behaviour and tell him to stay away from Ms. Doxtators daughter. Mr.
    Doxtator was to lend support and protection. Ms. Doxtator was concerned about
    going alone because of what had happened the last time she saw Mr. Caputo.

[7]

In cross-examination, the Crown suggested to Ms.
    Doxtator that her description of events made it sound like the appellants were
    going to threaten Mr. Caputo. Ms. Doxtator disagreed that it sounded like she
    was going to threaten him.

[8]

Once in Niagara Falls, Ms. Doxtator met up with Mr.
    Caputo at a McDonalds restaurant. They did not stay at the restaurant but went
    to Mr. Caputos apartment. While Ms. Doxtator initially testified the
    restaurant was closed, the parties later agreed it was open. Ms. Doxtators
    evidence was that Mr. Caputo drove back in his car and Mr. Doxtator and Ms.
    Doxtator drove in the borrowed Jeep. The Crown maintained Mr. Caputo drove Ms.
    Doxtator back to his apartment and Mr. Doxtator followed them, without Mr.
    Caputos knowledge, in the borrowed Jeep. The apartments security camera
    showed only Mr. Caputo and Ms. Doxtator passing together through the lobby at
    around 12:57 a.m. Mr. Caputos apartment was on the first floor and had a back
    door to a patio. Mr. Doxtator waited outside by the back door. Mr. Doxtator ultimately
    gained entrance into Mr. Caputos apartment through the back door. Ms. Doxtator
    maintained that Mr. Caputo opened the door when Mr. Doxtator knocked; the Crown
    contended that Mr. Doxtator hid on the patio and Ms. Doxtator unlocked the back
    door so Mr. Doxtator could enter.

[9]

Ms. Doxtator and Mr. Caputo argued in his apartment.
    A neighbour testified hearing what he thought sounded like a domestic dispute
    between a husband and wife. Ms. Doxtator and Mr. Caputo became upset when she
    confronted Mr. Caputo about his raping her and his harassment of her daughter. Mr.
    Doxtator told Mr. Caputo to let her speak. Mr. Caputo became enraged. He
    grabbed a kitchen knife, told them both to get the F out of his house, and started
    moving toward Mr. Doxtator. Mr. Doxtator held Mr. Caputo off with his hand on Mr.
    Caputos forehead but a struggle ensued. It was at this point that Ms. Doxtator
    left through the back door, closing her eyes and putting her hands over her
    ears. She did not see Mr. Doxtator stab Mr. Caputo but on re-entering the
    apartment, she saw blood everywhere and Mr. Doxtator cleaning his hands. Ms. Doxtator
    did not see or know if Mr. Doxtator brought a knife with him. The appellants
    conceded at trial that Mr. Doxtator caused Mr. Caputos death.

[10]

The appellants left the apartment and locked the
    front door with Mr. Caputos keys. At about 1:22 a.m., the apartments video
    footage showed Ms. Doxtator leaving the apartment building with Mr. Doxtator.
    The appellants began driving back to Hamilton. However, about an hour later
    they returned to Mr. Caputos apartment to retrieve Ms. Doxtators cup that she
    had left behind, as witnessed by a neighbour.

[11]

The Crown suggested Mr. Caputos apartment had
    been ransacked and that some money had been taken. Mr. Doxtators bloodied
    footprints were found throughout the apartment. Ms. Doxtator maintained they
    did not take any money or drugs from the apartment, although she testified that
    she knew where Mr. Caputo kept drugs. The police later found on the
    Niagara bound side of the highway items belonging to Mr. Caputo that may
    normally be kept in a wallet, including various pieces of Mr. Caputos
    identification, insurance cards, and his vehicle ownership card. Mr. Caputos cell
    phone was also found on the side of Valley Way Road in Niagara Falls.

[12]

On their return to Hamilton, the appellants threw
    away the kitchen knife used in the stabbing and Ms. Doxtators bloodied shoes
    into a grocery store garbage bin. The kitchen knife was never recovered. Video
    footage at Mr. Doxtators fathers apartment shows the appellants putting items
    into the dumpster at the rear of the building.

[13]

The appellants returned the Jeep to Ms.
    Doxtators cousin the following day and then spent the next several days moving
    around and living transiently until they were arrested by the police. One
    witness testified that prior to the appellants arrest, Mr. Doxtator had asked
    if he knew anyone who could forge documents and indicated that he was trying to
    go to Awkesasne, which borders New York State. Mr. Doxtator sent text messages
    that read, Im in a jam and I needed a place to recoup, gather my thoughts and
    figure shit out; I fucked up; and [c]an we set up our tent in house your
    backyard for a week til I figure out the next move. Me and my girl and her
    daughter need to leave Canada soon. Ms. Doxtator texted a friend that she was
    in big trouble and she was scared.

[14]

According to the forensic evidence, Mr. Caputos
    blood was found in the inside back door area of his apartment, which continued
    through the living room, along the corridor and into the hallway area where his
    body was found. Mr. Caputo had sustained 18 individual sharp force injuries,
    which were cutting and stabbing wounds, and had superficial defensive wounds on
    his hands and the back of his arms. Three of the stab wounds to his upper back
    area that punctured his lungs could have been fatal; one stab wound to the front
    of his chest pierced his heart and killed him. According to the expert forensic
    pathologist, Dr. John Fernandes, the stab wound to the heart required a good
    deal of force, as it cut a bone entirely in two. The defensive injuries that he
    found on Mr. Caputo were indicative of a struggle. He agreed that the injuries
    were caused in rapid succession and that Mr. Caputo could have continued
    to stagger for a very short period of time after the fatal wound was inflicted.

[15]

Traces of Mr. Caputos blood were found on and
    near the borrowed Jeeps gear lever and on a bag seized from the place where
    the appellants were staying on their arrest. The police seized from the
    borrowed Jeep a hunting knife belonging to Mr. Doxtator. Mr. Doxtators DNA was
    found on the knife. There was blood on Mr. Doxtators hunting knife that was in
    too small a quantity to analyze. According to Dr. Fernandes, the knife that
    killed Mr. Caputo would have had a cutting edge with no serrations. He opined
    that the hunting knife could be of the type of knife responsible for Mr.
    Caputos injuries or it could have been a larger knife, such as a chefs knife.

(b)

Trial proceedings

(i)

Parties Trial Positions

[16]

At trial, the Crowns primary theory was that
    the appellants carried out the planned and deliberated murder of Mr. Caputo in
    retaliation for his rape of Ms. Doxtator and to protect her daughter. The
    Crown argued that Ms. Doxtator planned and facilitated the murder with Mr.
    Doxtator who did not know Mr. Caputo or where he lived: she called Mr. Caputo
    to arrange a meeting, lured him back to his apartment, and then opened the door
    to Mr. Doxtator who immediately stabbed Mr. Caputo to death with the hunting
    knife he had brought for that purpose. The Crown argued that following the murder,
    the appellants stole Mr. Caputos wallet and ransacked the apartment for
    anything of value.

[17]

While not part of the Crowns final submissions,
    in his charge to the jury the trial judge also stated that another possible
    motive derived from the evidence was that the appellants planned to carry out a
    robbery of drugs and money that Ms. Doxtator knew Mr. Caputo kept at his apartment.

[18]

The appellants defence depended on Ms.
    Doxtators evidence that although they intended to confront Mr. Caputo, the
    appellants never intended or planned to kill or physically hurt him. The
    appellants position was that Mr. Doxtator stabbed Mr. Caputo in self-defense in
    response to Mr. Caputo attacking him with a kitchen knife. Alternatively, it
    was argued that Mr. Doxtator acted instinctively and so lacked the intent for
    murder and should therefore be found guilty of the lesser included offence of
    manslaughter.

(ii)

Pre-charge conference and rulings

[19]

At the pre-charge conference, the trial judge
    initially ruled that manslaughter would be left to the jury for Ms. Doxtator
    but that there was no air of reality to self-defense for Mr. Doxtator. His
    ruling was very brief:

I have decided that I do not think there is an
    air of reality to self-defence. I
have
also decided
    that I think there is an air of reality to manslaughter for Jasmine Doxtator. I
    have given you the bare bones of what I plan to tell the jury in law about
    these offences.

[20]

After hearing further submissions, defence
    counsel persuaded the trial judge that only first degree murder or acquittal
    would be the verdicts left with the jury for Ms. Doxtator, and that for Mr.
    Doxator, self-defense, along with the potential verdicts of second degree murder
    and manslaughter, would be left with the jury. He stated: Okay, it is all or
    nothing for Jasmine and I will leave self-defence for Richard. But do not spend
    too much time on that.

(iii)

Verdicts

[21]

The jury returned in under six hours, rendering
    verdicts of first degree murder for both appellants. Both appellants were
    sentenced to life imprisonment without eligibility of parole for 25 years.

C.

Issues and the Parties Positions on Appeal

[22]

The appellants submit that the trial judge erred
    in his jury instructions by failing to leave with the jury the included
    offences of second degree murder and manslaughter as potential verdicts for Ms.
    Doxtator, notwithstanding the insistence of her trial counsel that only first
    degree murder should be left with the jury. They assert that it was open to the
    jury on the evidence to have a reasonable doubt as to whether Ms. Doxtator had
    the requisite intent for murder or whether the murder was planned and
    deliberate. As a result, they argue, the jury was pushed into the stark binary
    choice between a first degree murder verdict or an acquittal for Ms. Doxtator
    and, by extension, for Mr. Doxtator. According to the appellants, the failure
    to leave second degree murder and manslaughter for Ms. Doxtator undermined Mr.
    Doxtators defence and tainted the verdict of first degree murder: having
    returned a first degree murder verdict for Ms. Doxtator, the jury would not have
    come to a verdict of less than first degree murder for Mr. Doxtator who stabbed
    Mr. Caputo.

[23]

The Crown submits that the trial judge did not
    err in acceding to defence counsels adamant request that only first degree
    murder should be left with the jury for Ms. Doxtator because there was no air
    of reality to the included offences. There is no reasonable view of the
    evidence, on the Crowns submission, on which a jury would have doubt of
    planning and deliberation but convict Ms. Doxtator of second degree murder or
    manslaughter. Moreover, the structure of the jury instructions ensured that the
    jury would consider a separate verdict for each accused and reach a verdict for
    Mr. Doxtator before turning to consider the charge against Ms. Doxtator. There
    was no complaint about the charge that left first degree murder, second degree
    murder and manslaughter for Mr. Doxtator. As a result, the Crown argues, the
    appellants suffered no prejudice and received a fair trial. The Crown submits
    that given the appellants plan to confront Mr. Caputo and the forensic
    evidence of the ferocity of the stabbings from the moment Mr. Doxtator was let
    into the apartment, a verdict of first degree murder was inevitable for both
    appellants. The Crown contends that if there was an error in the jury
    instructions, this court should apply the
curative proviso
.

D.

Analysis

(i)

General principles

[24]

There is no question that trial judges have a
    broad discretion in fashioning jury charges. Their decision about how much
    evidence to review, what structure to use and how to organize the charge falls
    within that discretion and, absent reversible error, is owed deference on
    appeal:
R. v. Newton
, 2017 ONCA 496, 349
    C.C.C. (3d) 508, at para. 11.

[25]

However, a failure to leave with the jury a
    possible verdict that arises on the evidence is an error of law to which no appellate
    deference is owed. It is well established that a trial judge has a duty to
    instruct the jury on all bases of liability that are available on the evidence:
R. v. Kostyk
, 2014 ONCA 447, 312 C.C.C. (3d)
    101, at para. 40.

[26]

In first degree murder cases, where there is any
    air of reality on the evidence, the included offences of manslaughter and
    second degree murder should be left with the jury:
Ronald
, at para. 41;
R. v. Romano
, 2017
    ONCA 837, 41 C.R. (7th) 305, at paras. 13-14;

R. v. Babinski
(2005), 193 C.C.C. (3d) 172 (Ont. C.A.), at para. 45, leave to
    appeal refused, [2005] S.C.C.A. No. 201;
R. v. Aalders
, [1993] 2 S.C.R. 482, at p. 504; and
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75.

[27]

In some cases, like here, the trial judges
    instructions will not accord with the position advanced by counsel for the
    Crown or the defence; however, this is not dispositive of the issue because it
    is the trial judges role to charge the jury on all relevant questions of law
    that arise from the evidence:
R. v. Pickton
, 2010
    SCC 32, [2010] 2 S.C.R. 198, at para. 27. As this court instructed in
R.
    v. Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para.
    97, leave to appeal refused, [2010] S.C.C.A. No. 263:

Counsels position at trial is of course not determinative when
    misdirection or non-direction is raised as a ground of appeal. A legal error
    remains a legal error even if counsel does not object or even supports the
    erroneous instruction
. [Citations omitted.]

[28]

By the same token, the law is sensible: a
    trial judge should not leave verdict options that a reasonable jury, properly
    instructed, could not arrive at. This would create a breeding ground for
    confusion and compromise and give the jury the option to make an unreasonable
    decision:
Romano
, at paras. 14-16;
R.
    v. Wong
(2006), 211 O.A.C. 201 (C.A.), at para. 12.

[29]

As this court stated in
Ronald
, at para. 43, the purpose of the air of reality test is to focus
    the jurys attention on the live issues actually raised by the evidence. This
    reduces the risks of unreasonable verdicts, juror confusion, or improper
    compromise by jurors.

[30]

The overarching consideration for the trial
    judge in determining whether to leave included offences as verdict options for
    the jury is, as this court directed in
Ronald
,
    at para. 46, whether, on the totality of the evidence, the jury could
    reasonably be left in doubt with respect to an element of the main charge that
    distinguishes that charge from an included offence. This court reiterated in
Ronald
, at para. 42:

There should be no instruction on potential
    liability for an included offence
only when
, on a consideration of the totality
    of the evidence and having due regard to the position of the parties and the
    proper application of the burden of proof, there is no realistic possibility of
    an acquittal on the main charge and a conviction on an included offence. [Citations
    omitted; emphasis added.]

[31]

Importantly, unlike positive defences, there is
    no evidentiary burden placed on the defence or Crown to put the possibility of
    a conviction for the included offence  in play:
Ronald
, at para. 47. In other words, the appellants do not need point to
    evidence that supports inferences inconsistent with first degree murder. Rather,
    the trial judge must consider whether the jury could draw inferences, or not
    draw inferences from certain evidence, that could open the door to a doubt on
    an element such as planning and deliberation or murderous intent:
Ronald
, at para. 48.

(ii)

Did the trial judge err by not leaving the
    included offences of second degree murder and manslaughter to the jury?

[32]

In assessing whether the included offence of
    second degree murder should have been left to the jury, the question is whether
    on the totality of the evidence, a reasonable jury could be left unconvinced,
    beyond a reasonable doubt, that the murder was planned and deliberate:
Ronald
, at para. 47. Similarly, in assessing whether the included offence
    of manslaughter should have been left to the jury, the question is if on all
    of the evidence there is an air of reality to a finding that the Crown had not
    proved beyond a reasonable doubt that the killer had either of the requisite
    intents required for murder:
Babinski
, at
    paras. 45.

[33]

In my view, on the totality of the evidence, a
    reasonable jury could have been left in doubt on whether Mr. Caputos murder
    was planned and deliberate or whether Ms. Doxtator had the requisite intent
    required for murder.

[34]

In his charge to the jury, the trial judge set
    out the possible verdicts for Ms. Doxtator: guilty of first degree murder
    or not guilty of first degree murder. He reviewed the elements of the offence
    of first degree murder that the Crown was obliged to establish beyond a
    reasonable doubt. He related in detail circumstantial evidence that he
    instructed the jury might be relevant to planning and deliberation, as follows:

·

Jasmine and Richard Doxtator were in Joe
    Caputos apartment for twenty-five minutes, during which time blood was let
    from one end of the apartment to the other.

·

Jasmine had Joe pick her up at McDonalds
    instead of going straight to his apartment.

·

Jasmine wanted to speak to Joe at his apartment
    instead of in a public place like McDonalds. She testified that McDonalds was
    closed, but it was not.

·

Richard did not enter the apartment with
    Jasmine.

·

Richard entered through the back door rather
    than the front.

·

After Joe was dead or dying, Richard and Jasmine
    stayed in the apartment for a few minutes to remove some items, and they locked
    the front door behind them.

·

They took some items that one might find in a
    wallet and returned for Jasmines cup and Joes cell phone.

·

They threw away the items from Joes apartment.

·

Richard Doxtator did not know Joe Caputo.

·

They drove from Hamilton, not staying to watch
    the movie they told [Ms. Doxtators cousin] about, and drove to Niagara Falls
    at a time when Jasmine had a beef with Joe Caputo, which Richard knew about.
    Jasmine says that they left the movie because it turned out not to be the one
    they expected.

·

Jasmine seems to be talking to Joe in a normal
    manner as they enter the apartment, if that is what you think it looks like 
    it is up to you of course.

[35]

The trial judge further instructed that another
    piece of circumstantial evidence related to planning and deliberation was the
    knife found in the borrowed Jeep and stated that if Richard brought a knife
    with him to Joes, that is a factor that could be used when deciding whether
    planning and deliberation took place. He went on to compare the size of the
    wound in Mr. Caputos heart to the width of the hunting knife found in the Jeep
    with Mr. Doxtators DNA on the handle. He referenced Dr. Fernandess testimony
    that it is not likely that a knife of this width would cause such an injury,
    but he could not rule it out. The chest is compressible. He noted that while
    the blood on the blade could not be profiled for DNA Joe Caputos blood was
    not far away, in the same vehicle near the gearshift.

[36]

The trial judges summary of the evidence
    contrary to planning and deliberation appears in the following short paragraph
    of the charge:

The evidence contrary to planning and
    deliberation is found in Jasmines testimony. She said that she and [Richard]
    went to Joes so that she could tell Joe to stay away from her daughter. There
    was no plan for [Richard] to come in and kill Joe. There was no plan for [Richard]
    even to come in. He just knocked at the gate after she had been in the
    apartment for 15 or 20 minutes and Joe let him in.

[37]

The jury was not obliged to accept the Crowns
    theory or the trial judges suggestions about the use that they could make of
    the circumstantial evidence to assess the elements of planning and deliberation.
    However, the jury was not instructed that it could also reasonably take the
    view that this evidence, considered with the rest of the evidence, in
    particular, Ms. Doxtators evidence, did not support the assertion that the
    murder was the product of a careful and considered scheme of the sort required
    to establish planning and deliberation. As this court reiterated in
Ronald
, at para. 50, Not every act indicative of some preparation prior
    to the murder, or some degree of planning, points only to a finding that the
    murder was planned and deliberate, as that phrase is defined in the case law. And
    there was the reasonable possibility that the jury would not draw any inference
    from some of the evidence that the trial judge suggested may be relevant to
    planning and deliberation:
Ronald
, at para.
    46.

[38]

Similarly, with respect to the included offence
    of manslaughter, a properly instructed jury could have reasonable doubt whether
    Ms. Doxtator had the requisite intent for murder. A person may be convicted of
    manslaughter who lacks the requisite
mens rea
for murder but aids and abets another person in the offence of murder, where a
    reasonable person in all the circumstances would have appreciated that bodily
    harm was the foreseeable consequence of the dangerous act which was being
    undertaken:
R. v. Jackson
, [1993] 4 S.C.R.
    573, at pp. 583. A reasonable view of the evidence could have led to the
    inference that while the appellants may have planned a violent physical
    encounter with Mr. Caputo, the appellants lacked murderous intent, and instead
    planned to assault or rob him.

[39]

Ms. Doxtators evidence, together with the
    forensic evidence, permitted the reasonable inferences that although the
    appellants previously did not plan and deliberate on killing Mr. Caputo, once
    in the apartment and embroiled in a conflict with him, Mr. Doxtator developed
    the intent to kill Mr. Caputo, which was shared by Ms. Doxtator, or that the
    planned physical confrontation escalated and led to his death.

[40]

Ms. Doxtators evidence was that she wanted to
    confront Mr. Caputo and tell him to stop stalking her daughter and that their
    friendship was over. She brought Mr. Doxtator along for security and support. A
    witness testified hearing a man raise his voice and something that reminded him
    of an argument between a husband and a wife. This is consistent with Ms.
    Doxtators evidence that she and Mr. Caputo became involved in a heated
    argument prior to the beginning of the physical altercation between Mr.
    Doxtator and Mr. Caputo. Ms. Doxtator said she left the apartment once the physical
    confrontation between Mr. Caputo and Mr. Doxtator began. There is no
    suggestion that she stabbed Mr. Caputo or that she provided the murder weapon. She
    testified she did not see Mr. Doxtator with the hunting knife. She said she ran
    out of the apartment with her hands over her ears and shutting her eyes.

[41]

The jury was entitled to accept some, none, or
    all of Ms. Doxtators evidence. The jury could have accepted Ms. Doxtators
    testimony that the appellants did not plan or deliberate on the murder of Mr.
    Caputo, while still rejecting Ms. Doxtators version of events of what happened
    once the appellants were at Mr. Caputos apartment or her claims that they were
    not planning to threaten him. As this court stated in
Tenthorey
, at para. 96: The air of reality test does not include
    consideration of the reasonableness of a jurys choices about what evidence to
    believe.

[42]

Furthermore, the following evidence, some of
    which was referenced by the trial judge as supportive of planning and
    deliberation, is equally consistent with a panicked and desperate reaction to
    an unexpected killing:

i.

The
    apparent ransacking and bloodied footsteps all over the apartment.

ii.

The appellants
    leaving behind Ms. Doxtators cup and then returning to Mr. Caputos apartment.

iii.

The clumsy disposition
    of clothing in dumpsters close to premises where the appellants had recently
    stayed.

iv.

Mr. Doxtators
    increasingly desperate text messages that suggested he was looking for places
    to hide and to eventually leave the country. In particular, his text to Matt
    that, I fucked up, and his text to Harvey, Im in a jam and I needed a place
    to recoup, gather my thoughts and figure shit out.. may be suggestive of
    someone who unintentionally committed a killing and are not suggestive only of
    someone who had committed a planned and deliberate killing.

[43]

The evidence related to the knife was also
    equivocal. While Dr. Fernandes did agree that the hunting knife could not be
    ruled out as the murder weapon, he recommended checking for other knives and
    agreed that the murder weapon could have been a larger kitchen knife, like a
    chefs knife. He only ruled out a serrated knife. I also note that the trial
    judge appears to have misstated Dr. Fernandess evidence about the dimensions
    of the murder weapon. The trial judge stated: According to Dr. Fernandes, it
    is not likely that a knife of this width would cause such an injury, but he
    could not rule it out. The chest is compressible. While the compression of the
    chest was relevant to the length of the knife, such that Dr. Fernandes
    could not rule out a knife of the length of the hunting knife, it was not
    relevant to its width. As the trial judge correctly stated, Dr. Fernandes was
    of the view that because of its width, it was unlikely the hunting knife caused
    the fatal injury.

[44]

As in
Ronald
,
    at para. 58, the nature, speed and ferocity of the attack on the victim could
    equally suggest that the killer acted in a frenzied rage consistent with second
    degree murder.

[45]

The evidence outlined above does not exclude the
    reasonable inference that Mr. Caputos murder was planned and deliberate. That
    inference was available on the evidence. However, the question is not whether
    the evidence points more strongly to second degree murder or manslaughter than
    planning and deliberation. As I have stated, the correct question is whether a
    reasonable jury, properly instructed, could have a doubt as to whether Ms.
    Doxtator had planned and deliberated the murder of Mr. Caputo or had the requisite
    murderous intent:
Ronald
, at para. 59.

[46]

If the jury had a reasonable doubt about planning
    and deliberation for Mr. Caputos murder and even the presence of a
    murderous intent for Ms. Doxtator, but had no doubt about her
    participation in an unlawful act  assault or robbery  they were faced with
    only one option: an outright acquittal. This left the jury with a stark choice.
    Given the defence concession that Mr. Doxtator stabbed Mr. Caputo, as the Nova
    Scotia Court of Appeal suggested in
R. v. MacLeod
, 2014 NSCA 63, 346 N.S.R. (2d) 222, at para. 89, affd 2014 SCC 76,
    [2014] 3 S.C.R. 619, the jury may have considered an outright acquittal not
    only quite unpalatable in the circumstances, but contrary to a considerable
    body of evidence suggesting that [the appellants knew they] had engaged in a
    blameworthy act.

[47]

To be fair to the trial judge, his initial
    instinct that there was an air of reality to manslaughter for Ms. Doxtator was
    correct. Ms. Doxtators defence counsel was adamant that the evidence did not
    support the verdicts of second degree murder or manslaughter. However, the insistence
    of defence counsel was not determinative in the circumstances of this case
    where the evidence gave rise to other reasonable inferences than planning and
    deliberation or murderous intent. As this court reiterated in
R. v.
    Chambers
, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 70,
    citing
Polimac
, at para. 97: A legal error
    remains a legal error irrespective of trial counsels position. See also
Kostyk
, at paras. 40 and 42.

[48]

This is not to say that defence counsels
    position at trial is irrelevant. As this court instructed in

R.
    v. Chalmers
, 2009 ONCA 268, 243 C.C.C. (3d) 338, at para.
    52, the question of whether included offences should have been left with the
    jury must be assessed in light of both the strength of the evidence relied on
and the concessions made and position taken by the defence
 at trial
    (emphasis added). However, the present case is not like

Chalmers
(and other similar cases), where this court, at para. 66, found the
    air of reality of the verdict of manslaughter to be marginal at best and did
    not permit the appellant to paddle downstream on appeal when one has paddled
    vigorously upstream at trial: at para. 51. In
Chalmers
, the position of the appellant, who was convicted of the second
    degree murder of his wife, was that he did not cause his wifes death but it
    was caused by accident or a third party. His counsel approved the charge that
    if the jury found Mr. Chalmers had caused his wifes death, murderous
    intent was conceded. In the present case, for the reasons stated above, there
    was an air of reality to the potential verdicts of manslaughter and second
    degree murder. Further, the appellants only conceded that Mr. Doxtator stabbed
    Mr. Caputo, causing his death. Importantly, there was no concession that if Ms.
    Doxtator was somehow involved in the killing of Mr. Caputo, it was a planned and
    deliberate murder.

[49]

In my view, on the totality of this evidence, a reasonable
    jury could have been left unconvinced, beyond a reasonable doubt, that the
    murder was planned and deliberate or that Ms. Doxtator had the requisite intent
    to kill Mr. Caputo. As a result of this potential uncertainty, in addition to
    an acquittal, the jury could have returned a verdict of not guilty of first degree
    murder, but guilty on the included offences of either manslaughter or second
    degree murder.

(iii)

Does the
curative proviso
apply?

[50]

The Crown submits that the
curative
    proviso

found in s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C., 1985, c. C-46, should be applied to correct
    any errors the trial judge made. I do not agree.

[51]

This court in
Ronald
, at para. 65, recently explained the availability of the
proviso
in the context of an erroneous failure to leave with the jury a
    possible verdict that arises on the evidence:

Section 686(1)(b)(iii) of the
Criminal
    Code

provides that this court may dismiss an appeal
    despite an error in law if satisfied that the error caused no substantial wrong
    or miscarriage of justice. The burden is on the Crown to show either that the
    legal error was so minor as to be harmless, or the evidence was so overwhelming
    as to satisfy the court that the verdict would necessarily have been the same
    had the error not been committed. [Citations omitted.]

[52]

The
curative proviso
will generally not be available in cases where included offences
    (in this case, lesser offences) are not left with the jury and the jury
    convicts of a more serious offence. This is because a failure to leave included
    offences that have an air of reality can seldom be said to be harmless or to
    have caused no substantial wrong or miscarriage of justice. As this court in
Ronald
explained, a determination that the included offences should have
    been left with the jury because there was a realistic possibility of an
    acquittal on the full offence is incompatible with a determination that the
    evidence supporting the conviction on the full offence was overwhelming.
    Further, the verdict may have been different if the jury had been presented
    with the full menu of legally available verdicts:
Ronald
, at paras. 66-67. See also
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 31.

[53]

That is not to say that courts never apply the
curative
    proviso
to the erroneous failure to leave a possible
    verdict on an included offence. For example, in
Chalmers
, this court found there was no substantial wrong or miscarriage of
    justice when the trial judge did not leave the included offence of manslaughter
    with the jury and the jury convicted Mr. Chalmers of second degree murder.
    However, as the court noted, the argument that the trial judge made a reversible
    error is only as strong as the air of reality relating to the defence sought
    to be raised: at para. 58. The omission in
Chalmers
was found to be harmless in the circumstances of that case because
    the air of reality to manslaughter was marginal at best and the defence had
    conceded the issue of intent: at paras. 64-66. Those are not the circumstances
    of the present case.

[54]

I do not accept Crown counsels submission that
    this is an appropriate case where the court can take into account findings of fact
    implicit in the jurys verdict of first degree murder to cure any error to
    leave with the jury the possible verdicts of the lesser and included offences.
    Specifically, the Crown argues that the jurys verdict of first degree murder
    for the appellants demonstrates that the jury rejected Ms. Doxtators evidence
    that the appellants did not plan and deliberate to kill Mr. Caputo. As
    this court noted in
Ronald
, at para. 68,
    the court can account for findings of fact implicit in the verdict or verdicts
    returned by the jury
as long as those verdicts are
    not tainted by the legal error
, and those findings are unambiguously revealed by
    the verdict
 (emphasis added).The difficulty is
    that in this case the jurys verdict
is
tainted by the erroneous omission of the included offences for Ms.
    Doxtator. If the included offences had been left to the jury, the trial judge
    would have provided appropriate instructions about the evidence that could have
    given rise to reasonable doubt in the jurys minds about planning and deliberation.

[55]

Nor am I persuaded by Crown counsels submission
    that the structure of the charge made any difference. While the trial judge
    reviewed in his instructions the offences alleged against Mr. Doxtator first
    before turning to those charged against Ms. Doxtator, and the jury was properly
    instructed to consider and render separate verdicts for each appellant, the
    evidence in relation to the charges was the same for both of them. It would be
    artificial to suggest that the jury would not have reviewed the evidence as a
    whole in considering the respective verdicts for each accused.

[56]

In my view, the Crown cannot satisfy its burden
    in the circumstances of this case. The Crowns case on planning and
    deliberation and murderous intent was not overwhelming and, as I earlier
    explained, the supporting evidence was potentially equivocal. The failure to
    leave the other verdicts could not be said to be harmless. The jury
    instructions wrongly narrowed the proper scope of the jurys deliberations. Not
    all verdicts reasonably available on the evidence were left with the jury for
    its consideration.

[57]

There is a real likelihood that the jury, left
    only with the choice of convicting Ms. Doxtator of first degree murder or
    declaring her not guilty, would opt for the verdict that attributed some
    responsibility to her for Mr. Caputos death. It cannot be said that, had the
    jury been left with other possible verdicts that would have held her
    accountable, either manslaughter or second degree murder, the jury would
    necessarily have still convicted her of first degree murder:
Ronald
, at paras. 66-67;
R. v. Haughton
, [1994]
    3 S.C.R. 516, at pp. 516-17;
Sarrazin
, at
    para. 31.

[58]

As a result, I would not accede to Crowns
    counsel request that we apply the
curative proviso
found in s. 686(1)(b)(iii) of the
Criminal Code
. The trial judges failure in this case to leave the potential
    verdicts of second degree murder and manslaughter with the jury for Ms.
    Doxtator led to a substantial wrong or miscarriage of justice.

[59]

I would therefore order a new trial for Ms.
    Doxtator.

(iv)

Should Mr. Doxtator also be granted a new trial?

[60]

In my view, Mr. Doxtator should also have a new
    trial.

[61]

That there were no objections to, or errors
    identified in, the trial judges instructions to the jury with respect to the
    offences against Mr. Doxtator is not dispositive of this issue. As Crown
    counsel frankly acknowledged during oral argument, if the included offences of
    second degree murder and manslaughter had been left to the jury for Ms.
    Doxtator, the trial judges instructions would have been different with respect
    to Mr. Doxtator.

[62]

The Crowns case against the appellants for
    first degree murder was structured and presented to the jury as a package. There
    was no theory put forward that Mr. Doxtator planned and deliberated on the
    murder of Mr. Caputo without Ms. Doxtator or
vice versa
. Mr. Doxtators defence relied on Ms. Doxtators evidence and her
    acquittal. If she were convicted of first degree murder, his conviction for
    first degree murder would inevitably follow. The jury was not left with
    instructions to consider the alternative possibility that Mr. Doxtator killed
    Mr. Caputo in the heat of the moment rather than in self-defence. If the
    jury rejected self-defence for Mr. Doxtator, given the way the charge was left
    for Ms. Doxtator, there was only a straight line to first degree murder for him
    and no other pathways to the lesser and included offences of second degree
    murder and manslaughter.

[63]

If the trial judge had left to the jury the
    included offences of manslaughter and second degree murder for Ms. Doxtator,
    the charge for Mr. Doxtator would have been much broader than the focus on self-defence
    in terms of the possible routes to manslaughter or second degree murder. The
    charge could have included another view of the evidence that the appellants had
    planned a violent encounter with the purpose of assaulting or robbing Mr.
    Caputo that ended in his stabbing. With this broader instruction, at the very
    least, the jury could have had a reasonable doubt of Mr. Doxtators planning
    and deliberation of Mr. Caputos killing.

[64]

This situation is similar to that in
Ronald
, where this court found that the failure to leave second degree
    murder with the jury for one appellant tainted the verdict of the other. In
    that case, by not leaving second degree murder for the principal, the trial
    judge effectively removed a basis upon which the appellant alleged of aiding
    and abetting was asking the jury to find that the principal acted alone: at
    paras. 73-74. While the present appeal deals with the inverse factual scenario
    because all routes of liability were left with Mr. Doxtator, the person who
    caused Mr. Caputos death, the effect of the error in Ms. Doxtators
    instruction was similar. The failure to leave second degree murder and
    manslaughter for Ms. Doxtator narrowed the instructions for Mr. Doxtator and
    weakened his position that he was not guilty of first degree murder.

[65]

As a result, it cannot be said the verdict for
    Mr. Doxtator would have been the same. At the very least, a properly instructed
    jury could have reasonably returned a verdict of second degree murder for Mr.
    Doxtator. The interests of justice therefore dictate that Mr. Doxtator have a
    new trial.

Disposition

[66]

For
    these reasons, I would allow the appeals and order a new trial for both
    appellants.

L.B. Roberts J.A.

I agree. B.W. Miller
    J.A.


MacPherson J.A. (dissenting):

[67]

I
    have had the opportunity to review the reasons prepared by my colleague in this
    appeal. She would allow the appeal and order a new trial for both Mr. Doxtator
    and Ms. Doxtator on the basis that the trial judge erred by not putting second
    degree murder and manslaughter to the jury for Ms. Doxtator and that this
    failure affected Mr. Doxtators charge as well.

[68]

I
    will consider Mr. Doxtators appeal first and then will consider Ms. Doxtators
    appeal. I would dismiss Mr. Doxtators appeal and allow Ms. Doxtators
    appeal.

Mr. Doxtators appeal

[69]

With
    respect, I do not agree with my colleagues conclusion that the trial judges failure
    to put second degree murder and manslaughter to the jury for Ms. Doxtator
    negatively impacted Mr. Doxtators charge. My colleague states her conclusion
    for Mr. Doxtator as follows:

The failure to leave second degree murder and manslaughter for
    Ms. Doxtator narrowed the instructions for Mr. Doxtator and weakened his
    position that he was not guilty of first degree murder.

[70]

For
    two reasons, I do not agree with this conclusion.

[71]

First,
    the trial judge instructed the jury that Ms. Doxtators culpability should be
    considered separately from Ms. Doxtators and that the verdict for each need
    not be the same. He instructed that what Ms. Doxtator said to the police is
    evidence for and against her and is not evidence against Richard Doxtator. He
    instructed that Ms. Doxtators statement was not to be considered when deciding
    Mr. Doxtators case. He laid out the available verdicts for Mr. Doxtator
    and then separately laid out the available verdicts for Ms. Doxtator.

[72]

Second,
    and crucially, the charge in relation to Ms. Doxtator did not narrow the
    instructions for Mr. Doxtator or weaken his position because the trial judge
    instructed the jury to consider Mr. Doxtators charges of first degree murder,
    second degree murder and manslaughter before considering Ms. Doxtators charge
    of first degree murder.

[73]

The
    trial judge in his charge told the jury that they must consider each accused
    person separately and that in the charge he would deal with Richard and
    Jasmine Doxtator separately, starting with Richard. The trial judge instructed
    the jury on the available verdicts for Mr. Doxtator first, before saying that
    [i]f Jasmine Doxtator agreed with Richard Doxtator to go to Niagara Falls and
    kill Joe Caputo, and took time to deliberate on that plan and carried out her
    role  she, too, is guilty of first degree murder.

[74]

This
    language clearly indicates that Mr. Doxtators conviction was to be decided
    before Ms. Doxtators. For Ms. Doxtator to be convicted of first degree murder,
    the jury must have accepted that the Crown proved beyond a reasonable doubt
    that Mr. Doxtator caused Mr. Caputos death and that the death was unlawful.
    Only after making these determinations was the jury instructed to consider Ms.
    Doxtators involvement.

[75]

The
    factual scenario is similar to that in
R. v. Campbell
, 2020 ONCA 221,
    where this court found that a new trial need not be ordered because of errors
    in the jury charge because the jury would only have reached consideration of
    whether the shooting was planned and deliberate after concluding that the appellants
    caused [the] death and had the requisite intent for murder: at para. 52. In
    the case at bar, the jury would have reached consideration of whether Ms. Doxtator
    was guilty of first degree murder only after concluding that Mr. Doxtator
    was guilty of first degree murder. We know this because that is what the jury
    charge instructed.

[76]

Accordingly,
    my colleagues conclusion that if Ms. Doxtator was convicted of first degree
    murder, Mr. Doxtators conviction for first degree murder would inevitably
    follow is, in a word, backwards. The fact that the instruction required the
    jury to decide on Mr. Doxtators guilt before considering Ms. Doxtators means
    that Mr. Doxtators conviction could not have been influenced by Ms. Doxtators
    conviction.

[77]

The
    structure of my colleagues reasons is antithetical to the way the jury charge
    was structured at trial. Instead of considering Mr. Doxtators case first, as
    the trial judge instructed the jury, my colleague devotes 59 paragraphs to
    considering Ms. Doxtators case first. In very brief reasons (six paragraphs),
    she then allows those reasons to influence her assessment of Mr. Doxtators
    case. This is the inverse of how the trial judge instructed the jury.

[78]

My
    colleague does not take issue with any wording in Mr. Doxtators jury charge.
    While she says that Mr. Doxtators charge could have been broader and could
    have included another view of the evidence, there is no error identified.
    Indeed, there is no such error in Mr. Doxtators jury charge. Accused persons
    are entitled to a proper jury charge, not a perfect one:
R. v. Jacquard
,
    [1997] S.C.R. 134, at para. 2;
R. v. Alvarez
, 2021 ONCA 851, at para.
    80. This court has also held that appellate courts are not forensic
    pathologists dissecting the
corpus

of a charge in search of a
    disease process  [o]ur task is to administer justice, to deal with valid
    objections and to determine whether those claims have led to a miscarriage of
    justice:
R. v. Luciano
, 2011 ONCA 89, at para. 71. In this case, there
    was no miscarriage of justice. The jury was instructed to consider Mr. Doxtators
    charges and Ms. Doxtators charges separately. Ms. Doxtators instructions were
    not to play a role in Mr. Doxtators conviction. Mr. Doxtators conviction for
    first degree murder would not inevitably follow Ms. Doxtators conviction  and
    would not follow her conviction at all  because his conviction was to be
    considered before Ms. Doxtators and because there was no error in his charge.

[79]

Given
    the jury instruction was proper for Mr. Doxtator, it does not matter that Mr.
    Doxtator and Ms. Doxtator were tried as co-accused, even if the Crown presented
    the case against the appellants to the jury as a package. This court has held
    that [a]n accuseds right to a fair trial does not  entitle that accused to exactly
    the same trial when tried jointly as the accused would have had had he been
    tried alone so long as each joint accused is afforded the constitutional
    protections inherent in the right to a fair trial: see
R. v. Suzack
(2000), 128 O.A.C. 140 (C.A.), at para. 111. The Crown presenting the case as a
    package did not affect the co-accuseds fair trial rights, even if the case may
    have been presented differently were the co-accused tried separately. This is
    because the trial judge properly instructed the jury and did not present the
    co-accuseds case to the jury as a package in his instructions.

[80]

I
    do not agree that this situation is similar to that in
R. v. Ronald
,
    2019 ONCA 971. As my colleague notes, the present appeal deals with the inverse
    factual scenario because all routes to liability were left with Mr. Doxtator.
    In cases where a party to a crime has received a new trial, it is when there
    was an error in the jury charge of the co-accused who caused the death (the
    prime mover): see
Ronald
;
R. v. Nygaard
, [1989] 2 S.C.R.
    1074. In this case, Mr. Doxtator was the prime mover because he caused Mr.
    Caputos death. In
Ronald

and
Nygaard
, courts were
    avoiding an incongruous result: that the non-moving party, absent a new trial,
    would risk receiving a greater conviction than the moving party who was
    entitled to a new trial. Here, there was no issue with the prime mover, Mr.
    Doxtators, jury charge. There is no risk that Ms. Doxtator  even if she were
    to receive a new trial  would receive a greater conviction than Mr. Doxtator.
    Therefore, the principles in
Ronald
do not apply.

[81]

The
    assumption must be that the jury correctly followed the proper instruction
    absent evidence to the contrary. This court has instructed that courts must
    proceed on the basis that juries accept and follow the instructions given to
    them by the trial judge:
Suzack
, at para. 128. Given that the
    instruction properly indicated to the jury that Mr. Doxtators charge was to be
    considered before moving on to Ms. Doxtators charge, it must be assumed that
    the jury correctly followed the instructions and considered Mr. Doxtators
    charge first.

Ms. Doxtators appeal

[82]

I
    agree with my colleague that Ms. Doxtator deserves a new trial. As my colleague
    outlines, there is an air of reality that Ms. Doxtator committed second degree
    murder or manslaughter. The trial judge erred by failing to put this charge to
    the jury. I agree with my colleagues reasons on this issue.

Disposition

[83]

I
    would dismiss Mr. Doxtators appeal and allow Ms. Doxtators appeal. I would
    order a new trial for Ms. Doxtator.

Released: February 22, 2022 J.C.M.

J.C. MacPherson J.A.


