



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ray, 2020 ONCA 351

DATE: 20200604

DOCKET: C65747

Rouleau, Zarnett and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marina Ray

Appellant

Marina Ray, acting in person

Michael Fawcett, for the respondent

Heard: In writing

On appeal from the conviction entered by
    Justice A.M. Mullins of the Superior Court of Justice on January 30, 2017, with
    reasons reported at 2017 ONSC 696, and from the dismissal of an application for
    a stay of conviction on April 16, 2018, with reasons reported at 2018 ONSC
    2426, and from the sentence imposed on July 12, 2018.

REASONS FOR DECISION


[1]

The appellant was convicted, on January 30,
    2017, after trial by judge alone, of counselling the commission of an
    indictable offence which was not committed, contrary to s. 464(a) of the
Criminal

Code
. The intended offence was murder. The intended victim was the
    appellants former spouse, with whom she was embroiled in family law
    litigation. No murder occurred; the hitman the appellant counselled to commit
    the murder was an undercover police officer.

[2]

The appellant applied to stay her conviction on
    the basis that she was entrapped by police conduct. The trial judge dismissed
    that application on April 16, 2018.

[3]

On July 12, 2018, the trial judge sentenced the
    appellant to 5 years in prison less a combined credit of 8 months for both
    pre-trial custody and the period during which she was subject to strict bail
    conditions.

[4]

The appellant appeals her conviction, the
    dismissal of her stay application, and her sentence.

[5]

In light of the Covid-19 emergency, the parties
    agreed that the appeal be heard in writing.

[6]

For the reasons that follow, we dismiss the
    appeal.

BACKGROUND AND CIRCUMSTANCES OF THE OFFENCE

[7]

The appellant was 60 years of age at the time of
    trial. She was born in the former Soviet Union. She came to Canada in 1990 with
    her then-husband and a daughter from a prior marriage. She applied for refugee
    status, and ultimately became a Canadian citizen in 1996. The appellant
    remarried in 2001, but the individual she married became ill and died in
    October 2003. After his death, the appellant was involved in civil litigation
    with his children.

[8]

The appellant met Michael Ray in November 2008. They
    married in December 2009. The relationship soured; she eventually locked him
    out of her home after learning of his criminal history and other improper
    dealings.

[9]

In October 2012, the appellant and Mr. Ray
    divorced. In November 2013, she listed her home for sale. Shortly after that,
    Mr. Ray brought proceedings against the appellant seeking support and an
    equalization of family property.

[10]

On November 26, 2013, the appellant went to see
    Victor Sokolovski, the owner of a martial arts studio who was acquainted with
    the appellant and Mr. Ray. On Mr. Sokolovskis evidence, the appellant told him
    of her desire to kill Mr. Ray and asked that he (Mr. Sokolovski) help her find
    someone to do so. She told Mr. Sokolovski that she did not want to share the
    equity in her house with Mr. Ray. She also asked if he knew someone who would
    lend her $500,000 under a back-dated note.

[11]

On the appellants evidence she went to see Mr.
    Sokolovski to borrow money and enquire about a back-dated note. She claimed
    that any reference to wanting Mr. Ray killed was made as a joke.

[12]

A few days after he met with the appellant, Mr.
    Sokolovski went to the police. A few days after that he was asked to cooperate
    with them. At the request of the police he contacted the appellant, asked if
    she had changed her mind, and said that he had found someone who could help her.
    He arranged for the three of them to meet on December 7, 2013.

[13]

On December 7, Mr. Sokolovski, the appellant,
    and an undercover police officer posing as a hitman, met. Mr. Sokolovski left.
    A discussion ensued between the appellant and the officer inside a vehicle. It
    was recorded by video. A subsequent meeting took place on December 9 between
    the appellant and the officer, also in a vehicle and also recorded by video.

[14]

The trial judge summarized the two meetings
    based on the video recordings as follows:

The video recordings of Marina Ray and a
    police officer posing as a hit man reveal that Mrs. Ray agreed with the officer
    that she wanted her husband to be liquidated. She suggested specific occasions
    and places where he might be located. She had a photograph of her former
    husband with her on the first meeting, which she gave to the officer. She
    provided his address and phone number and she described her ex-husbands height
    and hair. They discussed how much she would pay. They agreed that she would give
    him $2,000 up front. On December 7
th
she gave him $300 and on the 9
th
,
    $1700. She expected Mr. Ray to be shot, then suggested he be drugged. She
    insisted he be left for dead. She gave the undercover officer a history of her
    troubled relationship with Mr. Ray, described his criminal conduct and her
    legal dispute regarding her home. She expressed a view that her ex-husband
    deserved the outcome she was discussing with the officer. She provided
    documents and drew maps.

At the second of their two meetings, Mrs. Ray
    arrived with a written agenda. She instructed the officer that he was to tell
    Mr. Ray that his death was vengeance for all the women he used, abused and
    stole from. She questioned the officer as to his planning. She requested
    assurance that Mr. Rays body would be found, and his death confirmed. They
    discussed the arrangements for payment of the balance of the funds. They made
    security arrangements so that their communications would not be traceable. As
    he had during the first meeting, the officer warned Mrs. Ray, repeatedly, that
    she would not have an opportunity to change her mind.

THE DEFENCE AT TRIAL

[15]

The appellants defence at trial was that she
    did not intend to kill her husband or hire a hitman to do so. She was fearful
    and distrustful of authorities. She had had a disastrous experience with the
    civil justice system when litigating with her late husbands children, and
    unsatisfactory experiences with the police when she tried to involve them in
    helping her with problems created by Mr. Ray. When Mr. Sokolovski called her to
    say he had made arrangements for her to meet with someone who could kill Mr.
    Ray, she was terrified that Mr. Sokolovski was able to make such an arrangement
    so quickly. She was also fearful of the hitman she thought she was meeting with,
    and of what would happen to her and her family if she appeared not to want to
    follow through. Calling the authorities was not an option for her. She was in a
    poor mental state, afflicted with insomnia, and overmedicating. So, she simply
    played along. She explained her agreement to meet with the hitman, and her conversations
    with him, as nonsensical behaviour that was a product of her poor mental state
    and these circumstances.

THE CONVICTION

[16]

The trial judge found that the appellant had
    gone to see Mr. Sokolovski to try to create a debt to resist Mr. Rays
    financial claims and, better still, to have her former husband killed. She
    found, based on the appellants words and conduct when she met the undercover
    officer on two occasions, that she counselled him to kill Mr. Ray.

[17]

The trial judge rejected the appellants
    evidence that she played along out of fear, or that she had no intention that
    Mr. Ray be killed, or that she was caught up in a nightmare of [Mr.
    Sokolovskis] contrivance, whilst overwhelmed by insomnia, sleeping pills and
    stress.

[18]

The trial judge found that the appellants
    evidence did not give rise to a reasonable doubt, and the balance of the
    evidence established the
actus

reus
of the offence beyond a
    reasonable doubt.

[19]

Although the trial judge rejected the
    appellants evidence, she observed that even if the appellants evidence were
    believed, the required
mens rea
for the offence was still established
    because the appellant was aware of the unjustified risk that the murder she
    counselled was likely to be committed as a result of her conduct. The appellants
    evidence did not give rise to a reasonable doubt, and the balance of the
    evidence established her
mens rea

beyond a reasonable doubt.

THE STAY APPLICATION

[20]

Subsequent to her conviction, the appellant
    sought a stay of the conviction on the grounds that she had been entrapped by
    police conduct. She relied on the evidence at trial, a further affidavit by
    her, as well as the evidence of two police officers who, at her request, testified
    at the hearing of the stay application.

[21]

The theory of the stay application was that the
    police had not adequately recognized and accounted for the appellants vulnerabilities
    before forming the plan that led to her being charged. Instead they exploited her
    vulnerabilities, inducing her to commit the offence. The police conduct was
    therefore an abuse of process.

[22]

The trial judge rejected the suggestion that the
    appellant was induced to commit a crime. On the contrary, the appellant had
    initiated all discussions about having her husband killed:

[S]he asked, respectively, two men to kill her
    husband; brought a photograph of her husband with her to ensure his
    identification; told the undercover police officer where her husband lived,
    what car he drove and where he might visit his parents; prepared a list of
    concerns to review with the officer; entertained different methods to cause his
    death; asked for a specific speech to be made as he was killed; concerned
    herself with avoiding detection; and gave repeated explanations of her motives;
    all in circumstances in which she was repeatedly asked if she was certain she
    wanted to have him killed, and declined offers to inflict lesser harm.

[23]

The trial judge found that, even accepting that
    the appellant was in challenging circumstances with limited means, that she viewed
    the police as having been hostile to her, and that she was disappointed in the
    justice system, there was no evidence that the police instigated any criminal
    activity. Moreover, even though there was some evidence of the appellant having
    poor mental health, based on all the evidence, the trial judge concluded that she
    did not present any frank manifestation of mental illness. Her words and
    conduct are purposeful and organized relative to her repeated desire to have
    her husband killed.

[24]

The trial judge concluded:

I find that there is nothing in the evidence,
    particularly the video recordings, to suggest that the police exploited Ms. Ray
    in any way. She was resolute in expressing her desire to have her husband
    killed. Her mental and emotional functions seem remarkably composed, especially
    given the subject matter. In my view, when all of the evidence is considered,
    it is wholly inconsistent with her being in a state of vulnerability that was
    open to exploitation, or was exploited, by police.

THE SENTENCE

[25]

The appellant was sentenced in July 2018. By
    that time, the appellant had spent 143 days in pre-trial custody and roughly 1,528
    days on bail under strict conditions. The Crown sought a sentence of six to eight
    years. The appellant asked for a sentence of time served, based in part on the
    credit she argued she should receive for pre-trial custody and for her time on
    bail, time which she characterized as house arrest. The trial judge imposed a
    sentence of five years incarceration, less a combined credit of eight months
    for time in pre-trial custody and on bail.

THE CONVICTION APPEAL

[26]

In her appeal against conviction, the
    appellants primary argument is that her conduct should attract the defence of
    duress. She submits that what she engaged in was morally involuntary conduct
    that should not be the subject of criminal sanction or punishment. It was the
    product of her vulnerable mental state, and her fear of those she was involved
    with and what they might do to her and her family.

[27]

In support of that argument, the appellant
    points to various areas in the evidence which she says could have allowed the
    trial judge to view certain of the evidence differently, and thus doubt elements
    of Mr. Sokolovskis evidence, or draw different conclusions about her
    vulnerability and fear of Mr. Sokolovski and the hitman. She also says at times
    that the trial judges reasons did not adequately explain or account for
    certain matters, such as why the appellant would disclose her troubled personal
    history to a hitman, or the evidence about her distressed mental state prior
    to the offence.  The appellant also points to the portion of the trial judges
    reasons in which she held that the
mens

rea
of the offence was
    established even if the appellants evidence were believed. She submits that if
    her evidence were believed, it was clear that she acted out of fear for her
    life and that of her grandchildren.

[28]

We do not accept these arguments.

[29]

Nothing that the appellant has pointed to
    supports a conclusion that the trial judge made a palpable and overriding error
    in her factual findings or the inferences she drew. Such an error is necessary
    before this court can treat the matter on a factual basis different than that
    found by the trial judge:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235, at paras. 21-23.

[30]

Nor are the reasons of the trial judge
    inadequate. They explain why she decided as she did, and permit meaningful
    appellate review:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at
    paras. 10 and 15.

[31]

It does not appear that duress was directly
    raised as a defence at trial. In any event, on the trial judges findings, it
    is unavailable to the appellant. The trial judge found that the appellant
    intended to have Mr. Ray killed, and that she initiated all discussions that
    took place about it. The trial judge expressly rejected the suggestions that
    the words and conduct of the appellant, which clearly amounted to counselling
    murder, were the result of the appellant playing along out of fear, or that she
    was caught up in something of Mr. Sokolovskis design.

[32]

These pivotal findings are what matters,
    notwithstanding that the trial judge expressed an additional reason for her
    conclusion on
mens

rea
, noting that it existed even if the
    appellant were believed that she did not intend that Mr. Ray be killed because she
    was clearly aware of the unjustified risk that the murder she counselled was
    likely to occur due to her conduct. However, it must be remembered that the
    appellants evidence was not believed; it was expressly rejected.

[33]

Duress is available when an offence is committed
    by a person while under
compulsion
of a threat made for the purpose of bringing about the commission
    of the offence. An act so compelled lacks moral voluntariness. Two elements of
    both the common law and statutory defences of duress are that the accused was
    the subject of a threat of death or serious bodily harm, and that she
    reasonably believed the threat would be carried out
: R. v. Ryan
, 2013
    SCC 3, [2013] 1 S.C.R. 14, at paras. 2, 17, 43 and 55.

[34]

The trial judge expressly rejected the
    suggestion that the appellant had acted out of fear. That rejection, when
    coupled with the findings that the appellant intended that Mr. Ray be killed,
    that she initiated the discussions about Mr. Ray being killed, and that she
    counselled, in a detailed manner on two occasions, how the killing should
    occur, preclude the application of the defence of duress in its statutory or
    common law form.

[35]

Accordingly, the appeal from conviction must be
    dismissed.

THE APPEAL OF THE REFUSAL TO GRANT A STAY

[36]

A proceeding or entry of a conviction may be
    stayed where the accused shows police conduct amounting to entrapment. A stay
    should be granted only in the clearest of cases:
R. v. Mack
, [1988] 2
    S.C.R. 903, at p. 977. Entrapment occurs when (a) police provide a person with
    an opportunity to commit an offence without having a reasonable suspicion
    that the person is already engaged in criminal activity or pursuant to a
bona
    fide

inquiry; or (b) police go beyond providing an opportunity and
    actually induce the commission of an offence
: Mack
, at pp. 964-965
;
    R v. Ahmad
, 2020 SCC 11, at paras. 15 and 23.

[37]

The appellant argues, as she did on the
    application before the trial judge, that the second branch of entrapment
    applies, namely that the police exploited her vulnerability, thus inducing her
    to commit an offence. Before this court, she appears to add an argument not
    made below, that the first branch of entrapment also applies, that is, that the
    police provided an opportunity to commit an offence without having a reasonable
    suspicion. She maintains that the trial judge should have entered a stay.

[38]

We see no error in the trial judges careful
    consideration and rejection of the appellants application for a stay on the basis
    of entrapment.

[39]

The first branch of entrapment cannot be relied
    upon by the appellant. In addition to it not having been put forward on the
    stay application, on which the appellant was represented by counsel, the findings
    that the trial judge did make are inconsistent with an absence of reasonable suspicion.

[40]

In the entrapment context, the reasonable
    suspicion standard requires something more than a mere suspicion and
    something less than a belief based upon reasonable and probable grounds:
R.
    v. Chehil
, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26, citing
R. v.
    Kang
‑
Brown
, 2008 SCC 18, [2008] 1 S.C.R.
    456, at para. 75. It focuses on what the police knew at the time the
    opportunity was provided:
Chehil
, at paras. 26-29. In addition to
    information originally provided, investigative steps taken by the police as a
    consequence of that information can be relevant:
R. v. Clarke
, 2018
    ONCJ 263, at paras. 40 and 56-57;
Ahmad
, at paras. 51-52. Interactions
    with the accused before the opportunity to commit the offence was offered may
    also be considered, as the police may form a reasonable suspicion in the course
    of a conversation with the target, but prior to presenting the opportunity to
    commit a crime:
R. v. Townsend
, [1997] O.J. No. 6516 (C.J. Gen. Div.);
Ahmad
, at para. 54.

[41]

In this case, the police acted on a report from Mr.
    Sokolovski, after which they opened an investigation and made inquiries about
    Mr. Ray and the appellant in several databases. They also conducted telephone
    surveillance, reviewed police occurrence reports about domestic disputes
    between Mr. Ray and the appellant and conducted a threat assessment. It was
    only after [h]aving this information in hand that the police developed a plan
    to have the appellant introduced to an undercover police officer. When she met
    the undercover officer, it was the appellant, not the officer, who initiated
    the discussions about having Mr. Ray killed in response to being asked what she
    wanted. The police did not engage in random virtue testing:
Mack
, at
    pp. 941 and 956;
Ahmad
, at paras. 17 and 27-28.

[42]

With respect to the inducement branch of
    entrapment, the findings of fact of the trial judge are also fatal to the
    appellants success. The trial judge found that it was the appellant who
    initiated the discussions when she met with the undercover officer about having
    Mr. Ray killed; they were not instigated by the police. The trial judge expressly
    found that there was no inducement. After carefully reviewing the evidence, she
    concluded that there was no manifestation of vulnerability by the appellant
    that could be, or was, exploited by the police.

[43]

This ground of appeal fails.

THE SENTENCE APPEAL

[44]

The appellant argues that she received
    insufficient credit for her time on bail, which she characterizes as house
    arrest.

[45]

The trial judge gave a total credit of eight
    months against the five-year sentence she imposed. She did not precisely explain
    how the credit was calculated. In the context of describing the appellants
    submission on sentence, the trial judge noted that 143 days in pre-trial
    custody would be credited at 1.5. She also noted the appellants submission
    that she should be entitled to a credit for strict bail conditions. Without
    repeating that the appellants pre-trial custody would be credited at 1.5 or expressing
    any conclusion about what precise credit should be given for time on bail, the
    trial judge concluded that the appellant would be credited for the time [she
    has] served in pre-trial incarceration and the period of [her] bail of eight
    months.

[46]

The time spent by the appellant in pre-trial
    custody, 143 days, would equate to a 7-month credit (approximately) based on the
    1.5 times calculation the trial judge referred to in relation to the
    appellants submission, and which is contemplated by the
Criminal Code
.
    On the assumption that this credit is what the trial judge used for pre-trial
    custody, the eight-month total credit would have included a little less than one
    month for her time on bail.

[47]

We would not interfere with the sentence in this
    case. It cannot be suggested that the trial judge overlooked the issue of
    credit for pre-trial custody and time on bail. Her reasons for sentence recite,
    in some detail, the request of the appellant for these credits.

[48]

The credit given adequately accounts for the time
    spent in pre-trial custody. The decision whether to provide a credit for time
    on bail is discretionary:
R. v. Ijam
, 2007 ONCA 597, 87 O.R. (3d) 81,
    at para. 37. The record does not disclose terms of bail that were so strict as
    to necessarily entail the conclusion that an error in principle occurred in the
    amount of the credit given for time on bail. The terms of bail allowed the
    appellant to leave her residence in the presence of her surety and were varied to
    also permit her to leave her residence without her surety to walk her dogs on a
    twice daily basis. She was allowed to live with a friend with whom she
    developed a close personal relationship. There was no evidence of any special
    prejudice suffered by the appellant as a result of the terms of her bail:
R.
    v. Pomanti
, 2017 ONCA 48, at para. 34.

[49]

Overall, we cannot conclude that the sentence
    was unfit or that it was materially affected by an error in principle:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41-42.

CONCLUSION

[50]

For these reasons, we dismiss the conviction
    appeal and the appeal from the denial of a stay.  We grant leave to appeal sentence
    but dismiss the sentence appeal.

Paul Rouleau J.A.

B. Zarnett J.A.

M. Jamal J.A.


