



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Dalen,









2010 BCCA 30




Date: 20100126

Docket:
CA035883

Between:

Regina

Respondent

And

Ryan Dalen

Appellant

RESTRICTION ON PUBLICATION:  AN ORDER HAS BEEN MADE
PURSUANT TO SECTION 486.5(1) AND 486.5(9) OF THE
CRIMINAL CODE
PROHIBITING ANY INFORMATION THAT COULD IDENTIFY
THE UNDERCOVER OFFICER INVOLVED IN THESE PROCEEDINGS
BEING PUBLISHED, BROADCAST OR TRANSMITTED




Before:



The Honourable Chief Justice Finch





The Honourable Mr. Justice Hall





The Honourable Mr. Justice Chiasson




On
appeal from:  Supreme Court of British Columbia, March 2, 2008
(
R. v. Dalen
, 24001)




Counsel for the Appellant:



J.
  Bahen, Q.C.





Counsel for the Respondent:



F.
  Tischler





Place and Date of Hearing:



Vancouver,
  British Columbia





December 17, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  26, 2010







Written Reasons by
:





The Honourable Chief Justice Finch





Concurred in by:





The Honourable Mr. Justice Hall

The Honourable Mr. Justice Chiasson


















Reasons for
Judgment of the Honourable Chief Justice Finch:

I.  Introduction

[1]

The appellant, Ryan Dalen, appeals from his
conviction in the Supreme Court of British Columbia on 2 March 2008 following
his trial by judge and jury on one count of attempting to obstruct the course
of justice, between 9 and 12 August 2005.  The jury could not reach a verdict
on two counts of uttering threats on 10 August 2005, and the Crown entered a
stay of proceedings on those two counts.  The jury found the appellant not
guilty on an amended Count 4, [Using] an imitation firearm while committing or
attempting to commit the indictable offence of obstructing justice, on or
about 10 August 2005.

[2]

The main issue at trial was the appellants
identity as one of three young men who entered the home of two brothers,
Mandave and Balkar Heer on 10 August 2005, and by threats and intimidation
attempted to persuade the brothers to make Balkars friend, Mitul Devia, change
his evidence in the pending trial of the appellants father, Roy Dalen, from
what Devia had said in a statement to police.

[3]

Counsel for the appellant on appeal contended
that the guilty verdict on Count 1 and the not guilty verdict on Count 4 were
inconsistent.  He said the verdict on Count 1 was therefore unreasonable and
should be set aside.  Counsel for the appellant also submitted that the learned
trial judge erred in failing adequately to answer questions from the jury
concerning its verdicts on the different counts.  The appellant seeks a new
trial.

[4]

For the reasons that follow, I am of the opinion
that the verdict on Count 1 was not unreasonable, that the trial judge made no
material error in answering the jurys questions, and that the appeal should be
dismissed and the conviction affirmed.

II.  Background

[5]

The appellants father, Roy Dalen, was charged
with first degree murder in the stabbing death of his social worker, John David
Bland, on 19 January 2005.  A potential witness at Roy Dalens trial was Mitul
Devia, a friend of Balkar Heers.  Devia had given a statement to the police in
which he said he had driven Roy Dalen to and from the place where Mr. Bland was
killed.  Devia said he witnessed the murder.

[6]

In August 2005, when the events giving rise to
the present appeal occurred, the preliminary inquiry into the murder charge
against Roy Dalen had not yet occurred.  It was the Crowns theory that Roy
Dalens son, the appellant Ryan Dalen, together with two others, set out to
have Devia change his evidence, by persuading the Heer brothers to intervene on
Roy Dalens behalf with Devia.

[7]

The alleged plan did not succeed.  The police
were notified of the events at the Heer home on 10 August 2005.  Roy Dalen was,
in due course, tried and convicted.  Devia gave evidence in accord with his statement
to the police.  Dalens appeal from conviction to this Court failed:  (See
R.
v. Dalen
(2008), 240 C.C.C. (3d) 557 (B.C.C.A)).

[8]

The trial of Ryan Dalen on the charges of
obstruction and threatening commenced before a judge and jury on 18 February
2008.  The appellant was originally charged jointly with Alexander Radocina,
who is alleged to be one of the three men who entered the Heer home on 10
August 2005.  Radocina, however, pleaded guilty to Counts 1 and 4 before a
different judge.  He did not testify at the appellants trial.

III. 
The Case Against Ryan Dalen

[9]

Mandave Heer (Mandave), aged 26 at the time of
trial, is the younger brother of Balkar Heer.  Mandave met Mitul Devia through
his brother in about 2003.  In January 2005, shortly after Mr. Blands murder,
Devia was arrested in connection with that offence in front of the Heer house.

[10]

Mandave next saw Devia at the latters bail
hearing in the courthouse at Richmond, B.C.  That was the occasion on which
Mandave first saw the appellant, Ryan Dalen.  Ryan Dalen was a young white
male, 18 or 19 years old, five-foot nine or ten inches in height, about 150 to
160 pounds, with short dark hair, and no facial hair.

[11]

On 10 August 2005, Mandave got home from work in
the late afternoon and lay down for a nap.  He was awakened between 7:00 and
8:00 p.m. by a knock on the door.  As Mandave walked towards the front door,
three men entered.  Mandave said the appellant was one of the three.  He did
not know the other two.  The three men walked into the house uninvited.

[12]

The shorter of the other two men, Radocina, was
five-foot nine or ten inches tall, about 170 pounds, 23 or 24 years old, and
completely bald.  The third man, later identified as Jason Porter, was six-foot
one or two inches tall, about 225 or 230 pounds, and also completely bald. 
Mandaves evidence was that during the course of their stay in the Heer house,
the appellant, Ryan Dalen, said:

You know Roy,
you know hes crazy, and even though hes in jail he has ... hes got his
connections.

[13]

Later the appellant told Mandave to tell Devia
to change his story, not to rat Roy out, and that Roy Dalen is not the guy
youd mess around with.

[14]

Radocina assumed control of the situation in the
Heer house.  He asked Mandave if he knew Devia.  Mandave replied that he did.

[15]

While the appellant and the taller bald male
remained in the living room with Mandave, Radocina went into the dining room
where he sat down and took out a handgun from behind him.  He placed the gun
on the dining room table while still holding it.  As far as Mandave could
recall, Radocina never said anything about using the gun.  One or more of the
three intruders told Mandave to call Devia and tell him to come over.  Mandave
telephoned Devia.  This was about 5 or 10 minutes after the men first arrived. 
Mandave spoke first to his brother Balkar, and told him to tell Devia to come
to the house.  The call lasted about one minute.  Mandave could not recall if
the gun was still out at the time he made the phone call.

[16]

The three men said they would wait until Devia
arrived.  Radocina took out a pair of handcuffs and placed them on the coffee
table in front of Mandave.  He said Devia would be coming with them.  Radocina
searched the house and asked Mandave if he had any guns.

[17]

Balkar arrived about 15 minutes after the three
men had first entered the house.  He was upset to see them in the home.  He
wanted to know what they were doing in the house and said, Who do you think
you are?  Radocina became angry and produced the gun for the second time, once
again from behind his back.  He spoke directly to Balkar and said, Who do you
think you are?  Balkar became quiet.  Radocina then patted down Balkars body
to see if he was carrying anything and then directed Balkar to sit down.

[18]

The three men waited a short time longer for
Devia.  While waiting, Radocina said, Id kill Mitul for free, I hate rats. 
He also said he would shoot the Heers mother, that he did not care that she
was 40 years old, and that he was not afraid of blasting anybody.

[19]

When it became apparent that Devia was not going
to arrive, Radocina said to the Heers they should tell Devia to change his
story about what happened and that they would come back in a week to tell
Devia to change his story.  They told the Heer brothers to tell Devia that he
should say the Crown told him he would get out of jail if he changed his
story.  They said they had talked to A.J. Chima and that he would not be
showing up in court.  Radocina also told the Heer brothers not to associate
with Devia because it would get them killed.  He told them they were idiots
for hanging out with Devia and that Radocina was not afraid to shoot them. 
While Radocina said those things, the appellant and Porter stood in front of
Mandave.  Five or ten minutes after Balkar returned home, the three men left. 
Throughout the time in the house the taller man, Porter, just stood there,
basically and on occasion whispered in Radocinas ear.

[20]

Mandave identified the appellant in court.

[21]

Balkar Heer (Balkar) was 28 years old at the
time of trial.  He and Devia were friends.  In January 2005, Devia told Balkar
about Mr. Blands murder, including how he, Devia, had driven Roy Dalen to the
scene.  Balkar attended Devias bail hearing at the Richmond courthouse, and
saw Roy Dalen at that time.  Roy Dalen made a zip your mouth gesture to his
son Ryan, and to another man, Pavan Yadav, with whom Ryan was sitting.

[22]

On 10 August 2005, Balkar was working at his
auto body shop installing a stereo in Devias vehicle when Mandave called and
spoke to Devia.  After the call, Devia said someone was at the Heer house
looking for him (Devia) and that he would not go to the house.  Balkar decided
to go home and see who was looking for Devia.

[23]

Balkar arrived at his home ten minutes later. 
As he entered the house, three men, including the appellant, came around the
corner from the dining room.  The shorter bald male patted Balkar down for
weapons, tried to intimidate him and told him to sit down.  When Balkar refused
and asked why they were in his house, Radocina pulled out a handgun from the
back of his pants.  The gun was cocked and looked ready to fire.  Balkar also
saw a pair of handcuffs.  Mandave, who was sitting on a sofa, very frightened,
told Balkar to shut up and sit down.  Balkar realized that the men were
serious and sat down.  Radocina then tucked the gun back in the back of his
pants.  The three men remained standing throughout the time they were in the
house.  Porter did not do much and only whispered in the ear of Radocina a
couple of times.

[24]

Radocina and the appellant repeatedly asked
Balkar where Devia was.  Balkar replied that Devia was not coming to the
house.  The appellant told the Heers that they should not mess with his
father, that Roy had connections out of jail, and that Roy was a person not to
be messed with.

[25]

Balkar testified that the appellant said he
wanted Devia to change his statement and told him to tell Devia to change his
statement so that the both of them could get off.  He said if Devia did not
change his story, Devia would be killed and that he, Balkar, could be shot
while driving with Devia.

[26]

Radocina said that he killed rats for fun and
that he would shoot and kill the Heer brothers and Devia if Devia did not
change his statement.

[27]

The appellant repeatedly told Balkar to tell
Devia to change his statement, and that Roy Dalen was not a person to mess
with.

[28]

After Balkar told the men that Devia was waiting
at a park, the men left.  Radocina wrote down Balkars licence plate number and
told Balkar in a sarcastic tone that he had a nice car and should keep it
polished and enjoy driving it.

[29]

Balkar saw the three men walking towards a
parked white Mustang.  He was unable to record the licence plate number.

[30]

On 11 August, Balkar recognized the men who
entered his house in photos shown to him in a police photograph identification
procedure.

[31]

Sergeant Young, of the Delta Police Department,
told the court that one member of the Dalen family owned a 2002 Mustang
convertible, grey in colour.

[32]

Bruce Funk, an expert on cellular telephone
communication, examined call records, and linked calls from the appellants
telephone to both Radocina and Porter.  Two of those calls linked the appellant
and Porter shortly after 6:00 p.m. on 10 August 2005.

[33]

Officer X acted in an undercover role on 11
August 2005.  Officer X posed as a friend of Devia and persuaded the appellant
to meet with him at a coffee shop in Steveston.  The appellant told Officer X
he did not know who was there last night and that he was not present.  He
later corrected himself to say he did know who was present, but that he was
not.  He told Officer X that Devia knew what to do, that he needed to change
his story, and to tell the police he had lied.

[34]

Admissions at trial established that the
appellants mother owned a 2002 Ford Mustang convertible, and that the car was
seen parked at the appellants place of work on 11 August 2005.  Admissions
were also filed concerning the identity of persons in the photo line-up which
included Jason Porter and Alexander Radocina.  There were no photographs of the
appellant in the photo line-up materials used by the police.

Evidence for the defence

[35]

The appellant testified to an alibi defence
involving his work schedule on 10 August 2005.  He worked at Georges Taverna
Restaurant in Steveston, and finished his shift about 5:00 p.m.

[36]

At around 8:00 p.m. he went to the home of a
friend, Evan Hatsispiru, in Richmond, whose father owned Georges Taverna.  He
spent virtually the whole evening with Hatsispiru until about 1:00 a.m. on the
morning of 11 August 2005.

[37]

Members of Evans family testified to various
aspects of the appellants alibi defence, and the appellants work schedule.

IV.  The Judges Discussions With Counsel, The Charge To The Jury,
and Answers To The Jurys Questions

Pre-charge discussions with counsel

[38]

It was apparent from the course of the trial
that the central issue was whether the Crown had proven that the appellant was
one of the three intruders into the Heer home on 10 August 2005.

[39]

In discussing with counsel the law relating to
parties in cases where identity was the main issue, the judge said:

THE COURT:  -- where, I think, the only live
issue is -- is, has the Crown proved beyond a reasonable doubt the man in the
dock was one of the three culprits.  Okay, it goes like this, our Court of
Appeal recently -- well, recently to me, is three years ago -- confirmed in
the case of Andy Davis, that it is appropriate, in a case such as that, for the
judge to do what the judge has to do, which is to give them the nutshell
version of the elements of the offence, tell them that nothing is decided until
they decide it, but then say to them, I am going to perceive [sic], on the
premise, which may be wrong, that the only issue that youll be actively
considering is identification,  and then go on from there.

So
with respect to s. 21, what they will hear now, and itll go by in about four
seconds, is that with respect to Sections 1, 2, and 3, they are all 21(1)(a)
co-actual committers.  With respect to Section 4, on the face of it, the fellow
with hair, in other words, the second culprit who talked, he is the one with
hair -- we are lucky weve got bald, hair, bald; and weve got bald short, bald
tall -- the second culprit, the one with hair, who also did talking, is caught
on Count 4 by reason of 21(2), because on the face of the evidence, he did
know.  And when I am using 21(2), I knock out the or ought to know --

[40]

In response to a question from Crown counsel
concerning the appellants statements to the undercover police officer on 11
August about the passing of a message to Devia, the judge said:

THE COURT:  No.  This whole case has gone
before them on the basis of the 10th.  The events of the 10th, at the house,
are whats in issue.  Thats the way this whole case has gone, the way -- the
whole way its been fought.  The fact that on the face of it, youve got the
9th to the 12th, doesnt change my understanding, as the trial judge, of whats
been going on in this courtroom, and so the answer is no.  I am going to
instruct them simply, subject to what I heard in the submission --

Well, I didnt ask defence
counsel.  Sorry, let me just break away for a second.  As I say, I see it as a
case where its one issue, really, has the Crown proved beyond a reasonable
doubt, the man in the dock was one of the three culprits.  Is that the way you
see it?

MR. MORRISON:        Yes,
My Lord.

[41]

Neither counsel asked the judge to instruct the
jury that if they acquitted on Count 4 they must also acquit him on Count 1. 
Nor did either counsel ask the judge to instruct the jury that if they found
the appellant guilty on Count 1 they must also convict on Count 4.

The charge to the jury

[42]

The trial judge gave the jury standard
instructions on their role as triers of fact and their duty to assess and
interpret the evidence.  No exception is taken to any aspect of this
instruction.  He also instructed the jury correctly on the concept of reasonable
doubt.

[43]

The trial judge clearly identified what he saw
as the issue for the jury:

The
live issue, and youll hear this over and over as I talk, in this case is this,
Has the Crown, upon whom the onus lies, convinced you beyond a reasonable
doubt that the man in the dock, Dalen, was the culprit with hair? Thats the
live issue.

[44]

The trial judges instruction concerning Count 4
was as follows:

On the evidence here, the short
bald culprit waved about what was either a real or imitation gun.  That is to
say a firearm for your purposes.  The fact that it was only the short bald
culprit who held the firearm and revealed it to the Heer brothers, thereby
obviously using it within the meaning of Count 4, is no bar to conviction of
the man in the dock before you, Ryan Dalen, on Count 4, if -- if you are
convinced beyond a reasonable doubt that the accused was that second culprit,
the one with hair.  Because on the evidence before you, the only reasonable
inference to be drawn from the events that occurred in the house is that at the
very least the short bald culprit and the culprit with hair had formed an
intention in common to carry out an unlawful purpose, obstruct justice, or
utter threats, or both, and to assist each other therein.  And the short bald
culprit in carrying out the common purpose committed the offence charged in Count
4.  And as there is no evidence to the contrary, the second culprit, the one
with hair, in these circumstances knew that the commission of the offence
charged in Count 4 would be a probable consequence of carrying out the common
purpose.  In the result, the culprit with hair is, in law, just as guilty of
committing the offence charged in Count 4 as the short bald culprit.

As a matter of law, if you do
not find the accused before you, Dalen, guilty on Count 1 or Count 2 or Count
3, you must find him not guilty on Count 4.

With respect to Counts 1, 2, and
3, on the indictment on the evidence before you, at least the short bald
culprit and the culprit with hair, were what the law calls co-actual committers
of the offence and are therefore guilty.  The Crown alleges that the man in the
dock before you, Ryan Dalen, was the culprit with hair.

Now ladies and gentlemen, in a
trial, in a criminal case by jury, nothing is decided until the jury decides
it.  With respect to whichever of the four counts on the indictment you are
looking at, the Crown must prove beyond a reasonable doubt each element of the
offence, including proof of the specific intent stated on the face of the
count.  Whether the Crown has proved each element of the offence is in your
hands.  But I will proceed on the basis that it is obvious that each element of
each of the four counts on the indictment has been proved by the Crown beyond a
reasonable doubt, and that the live issue with respect to whichever of the four
counts you are looking at is, Has the Crown, on whom the onus lies, proved
beyond a reasonable doubt that the accused before you, Ryan Dalen, was one of the
three culprits who entered the Heer house on August 10th 05?

If you are so convinced beyond a
reasonable doubt, you will find him guilty on whichever count you are looking
at.  If you are not so convinced beyond a reasonable doubt, you must find him
not guilty on whichever count you are looking at.

Now,
for all practical purposes the verdicts you will return, if you are able to
arrive at a verdict, is guilty on all four counts or not guilty on all four
counts.

[45]

Towards the end of his charge, the judge said:

As a matter of law you must
return a separate verdict, if you are able to arrive at one, on each count on
the indictment.  On the other hand, the law recognizes the obvious.  In this
case, obviously if you are not convinced that the Crown has proved beyond a
reasonable doubt that Ryan Dalen, the man in the dock, was one of the three
culprits at the Heer house on August 10th, 05, you must find him not guilty on
all four counts.  If you are convinced beyond a reasonable doubt that he was
one of the three culprits at the Heer house on August 10th, 05, then as a
matter of law the verdict on each count is in your hands with only this
reservation.  If you do not find him guilty on at least one of Counts 1, 2, or
3, you must find him not guilty on Count 4.

And
now, to be practical, because the only live issue at the end of the case is
whether the Crown, on whom the onus lies, has proved beyond a reasonable doubt
that the accused was one of the three culprits at the Heer house on August
10th, 05, you will find him guilty on all four counts on the indictment if you
are so convinced beyond a reasonable doubt, and not guilty on all four counts
if you entertain even so much as a reasonable doubt that the accused was one of
the three culprits who were at the Heer house on August 10th, 2005.

[46]

The charge was completed on 29 February 2008. 
Neither counsel took objection to any aspect of the judges charge to the jury.

[47]

The jury asked for a playback of the evidence of
Mandave Heer, Balkar Heer, and Manjit Tatla, the Heers next door neighbour. 
The following day, 1 March, was spent playing tape recordings of those three
witnesses.

Questions from the jury

[48]

On the late afternoon of 2 March 2008, the jury
sent this question:

Please review
the law regarding returning a verdict on all four counts.  That is to say, do
they all need to be the same verdict?

[49]

After discussions with counsel, the trial judge
gave the jury this further instruction:

THE COURT:  All right.  Here is my answer as
to the law.

(1)        As
a matter of law, you must return a separate verdict, if you are able to arrive
at a verdict, on each of the four counts on the indictment.

(2)        That
is so, with one qualification.  As a matter of law, if you do not find the
accused guilty on Count 1 or Count 2 or Count 3, you  must find him not guilty
on Count 4.

Next, to be
brief, the verdicts you return do not, as a matter of law, have to be the same
on each and every count on the indictment.

[50]

Shortly thereafter, the jury sent a further
question as follows:

We have a
verdict on Count 1, but we are hung on Counts 2 and 3.  How do we proceed?

[51]

The judge discussed with counsel various
possible responses to this question.  After a short adjournment, Crown counsel
advised that she proposed to enter a stay of proceedings on Counts 2 and 3, and
to request an amendment to Count 4 to delete the references to Counts 2 and 3.

[52]

When the jury was recalled, the judge told them
that the Crown had exercised its power to enter a stay on Counts 2 and 3, and
that Count 4 was amended by deleting the reference to uttering threats, which
was the substance of those two counts.

[53]

The judge then said:

Now what happens now?  The
indictment before you is now simply Count 1, and Count 4 as it now is.  Thats
all youve got.  Forget 2 and 3.

You will proceed to consider
your verdicts on Counts 1 and 4, but you will remember, as Ive told you
before, and what it comes to now because 2 and 3 have disappeared, if you find
the accused not guilty on Count 1, you must find him not guilty on 4.

If
you find him guilty on Count 1, you may return a verdict of guilty or not
guilty on Count 4, whichever is the verdict you return, if you are able to
arrive at a verdict.

[54]

The judge then excused the jury to consider
whether he had answered their question adequately, and if not, to provide a
further question.

[55]

After these events, neither counsel asked the
judge to instruct the jury that if they acquitted the appellant on Count 4 they
must also acquit him on Count 1.  Nor did either counsel ask the judge to
instruct the jury that if they found the appellant guilty on Count 1 they must
also find him guilty on Count 4.

[56]

Shortly after being excused, the jury advised
they had a verdict.  On their return to the courtroom, the following exchange
took place:

THE COURT:  All right.  Now I have to do
this in stages.  Let me talk to the Foreperson for a second.

When last you were in here,
which was a couple of minutes ago, you went out to consider whether anyone had
any further questions arising out of the answer Id given you, is what it
basically came to.

So I just say to you, Madam
Foreperson, does -- do you have any further question you want to give me?

JURY FOREPERSON:           No,
My Lord.

[57]

The jury then reported their verdicts, holding
the appellant guilty on Count 1 and not guilty on Count 4.

V.  Parties Positions on Appeal

For the
Appellant

[58]

Counsel for the appellant submitted that the
verdicts on Counts 1 and 4 were inconsistent, and that the guilty verdict on Count
1 was therefore unreasonable.  The trial judge had emphasized throughout his
instructions to the jury that the appellants identity as one of the three
intruders was the key issue.  The appellant says that no reasonable jury could
have found the appellant not guilty on Count 4 (and must hence have had a
reasonable doubt as to whether he was a person who committed that offence), but
at the same time have found him guilty on Count 1.

[59]

Counsel for the appellant supported his
submission with reference to what the trial judge said when giving reasons for
sentence on 9 April 2008:

[5]   Because of the course of the
proceedings and what passed between counsel and me on March 31, I think it meet
that the following be plainly stated:

(a)     Whether the
finding of guilty on Count 1 is bad-in the sense of unreasonable within the
meaning of s. 686(1)(a)(i) - is for the Court of Appeal, not for me.  The case is
a classic of its kind: in law, the jury had to return a separate verdict on
each count; in fact, there was but one live issue in the case and that live
issue was common to all four counts; the jury found the accused guilty on one
count and not guilty on another; inconsistency of verdicts is apparent; whether
the differing verdicts are necessarily and irreconcilably inconsistent and must
result in the conviction on Count 1 being set aside is for the Court of Appeal
(
R. v. Pittiman
, [2006] 1 S.C.R. 381).  But for my part, I must ignore
all of that.  I must proceed to sentence the offender on Count 1 on the premise
that the finding of guilty is good.  I must not let the problem with the jurys
verdict on Count 1 affect in any way, shape, or form what I do in sentencing
the offender.

[60]

Counsel for the appellant also submits that the
trial judges answers to the jurys questions were unduly brief, inadequate,
and may have left the jury confused.  He says this perhaps explains why the
jury returned inconsistent verdicts that are irreconcilable on any rational or
logical basis.

For the
Crown

[61]

Counsel for the Crown submitted that the
verdicts on Counts 1 and 4 were not inconsistent, and that the verdict on Count
1 was not unreasonable.  He points out that Count 4 required proof of an
element not found in Count 1, namely, knowledge that Radocina had a firearm
before it was produced inside the Heer home, and that he intended to use it in
the attempt to obstruct justice.  There was no evidence that the appellant had
such knowledge, or that he at any time exercised possession or control over the
firearm.

[62]

The Crown points out that the learned trial
judge erred in his charge to the jury on Count 4 when he said:

And as there is
no evidence to the contrary, the second culprit, the one with hair [i.e. the
appellant], in these circumstances knew that the commission of the offence
charged in Count 4 would be a probable consequence of carrying out the common
purpose.

[63]

Counsel says that in saying there was no
evidence to the contrary, the trial judge placed an improper reverse onus on
the appellant to disprove knowledge of the weapon.  Counsel says that while the
direct evidence would have permitted the jury to draw the requisite inference
of knowledge on the appellants part, that inference was not one that had to be
drawn.

[64]

Thus, the Crown says the jury correctly applied
the trial judges final instructions following amendment of the indictment that
if they found the appellant guilty on Count 1:

... you may
return a verdict of guilty or not guilty on Count 4, ...

[65]

Finally, the Crown says the judges responses to
the jurys questions were correct, responsive and unobjectionable.  After
giving the jury the answers to their last question, he invited them to advise
him if they were not satisfied.  No further question was asked.

VI.  Discussion

[66]

In
R. v. McShannock
(1980), 55 C.C.C.
(2d) 53 (Ont. C.A.), Mr. Justice Martin, for the Court, said at p.55:

Where an
indictment contains more than one count and the jury convicts on one count and
acquits on another count an inconsistency in the verdicts does not of necessity
require the conviction to be set aside.  The onus is on the appellant to show
that the verdicts are so at odds that no reasonable jury who understood the
evidence could have properly arrived at that verdict.  We think that onus on
the peculiar facts of this case has been discharged.  Where on any realistic
view of the evidence, the verdicts cannot be reconciled on any rational or
logical basis the illogicality of the verdict tends to indicate that the jury
must have been confused as to the evidence or must have reached some sort of
unjustifiable compromise.  We would, on the ground that the verdict is
unreasonable alone, allow the appeal, set aside the verdict, and direct an
acquittal to be entered.

[67]

This passage was cited with approval by the
Supreme Court of Canada in
R. v. Pittiman
, [2006] 1 S.C.R. 381, where
Madam Justice Charron, for the Court, said:

[7]  The onus of establishing that a verdict
is unreasonable on the basis of inconsistency with other verdicts is a
difficult one to meet because the jury, as the sole judge of the facts, has a
very wide latitude in its assessment of the evidence.  The jury is
entitled to accept or reject some, all or none of any witnesss testimony. 
Indeed, individual members of the jury need not take the same view of the
evidence so long as the ultimate verdict is unanimous.  Similarly, the
jury is not bound by the theories advanced by either the Crown or the
defence.  The question is whether the verdicts are supportable on any
theory of the evidence consistent with the legal instructions given by the
trial judge. ...

[8]  The search
for a rational or logical basis for the verdicts does not mean that where a
narrative of the events is not readily apparent from the jurys findings that
the impugned verdict must necessarily be set aside as unreasonable.  The
jurys task is not to reconstruct what happened.  Rather, it is to
determine whether the Crown has proven each and every element of the offence
beyond a reasonable doubt.  Therefore, in the case of a single accused
charged with multiple offences, different verdicts may be reconcilable on the
basis that the offences are temporally distinct, or are qualitatively
different, or dependent on the credibility of different complainants or
witnesses. ...

[68]

Where inconsistent verdicts are the foundation
of an appeal, the question is not whether the acquittal is reasonable, but
whether the conviction is reasonable:  See
R. v. Mackenzie
(1997), 97
B.C.A.C. 251,
R. Pittiman
(
supra
),
R. v. Koury
, [1964]
S.C.R. 212.

[69]

In this case, it cannot be said that the
conviction on Count 1 is unreasonable.  There was ample evidence which, if
accepted by the jury, showed that the appellant was guilty of obstruction of
justice.  Apart from the question of the appellants identity, both counsel and
the judge proceeded on the basis that all elements of the offence charged in Count
1 had been proven.  The only live issue was whether the appellant was a
perpetrator, and the jury was satisfied that he was.

[70]

The additional element necessary to a conviction
on Count 4 was use of an imitation firearm while committing or attempting to
commit the offence of obstruction of justice.

[71]

The evidence was that the only person who
possessed a firearm during the offence was the shorter bald man, Radocina.  The
appellants culpability on this count depended upon his being a party to the
use of the firearm within the meaning of s. 21(2).  To prove that charge
against the appellant, the Crown bore the onus of establishing that the
appellant knew in advance that Radocina possessed a weapon, and intended to use
it.

[72]

That is not an inference that the jury was bound
to draw from the evidence.  The gun was not seen when the three men entered the
house.  Radocina first produced it after the obstruction of justice had been
underway for some time, and when he was in the dining room and the appellant
was still in the living room.  The appellant never possessed or had control of
the gun at any time during the intrusion.

[73]

There is no direct evidence that the appellant
knew Radocina was in possession of a gun at any time prior to Radocinas
producing it in the dining room. None of the three men made any statements that
would indicate that the appellant had any prior knowledge of the gun, or of its
possible use, or exercised any control over it.

[74]

The trial judge correctly instructed the jury
that a conviction on Count 1 did not require them also to convict on Count 4. 
He left it open to them to do so, but equally left open the possibility of an
acquittal on Count 4.

[75]

In my respectful opinion, the verdicts on Counts
1 and 4 are entirely supportable on the evidence and consistent with the
instructions provided by the trial judge.  The acquittal on Count 4 is not
inconsistent with the conviction on Count 1, and the latter cannot be said to
be unreasonable.

[76]

With respect to the judges answers to the
jurys questions, counsel for the appellant did not point to anything that the
judge said, or that he failed to say, in answering the questions that might
have left the jury confused or uncertain, or that was objectionable or
incomplete.  There is nothing on the record to suggest the jury was confused. 
The judge specifically left open the opportunity for the jury to ask further
questions if necessary.  No further question was asked.

[77]

Counsel were fully consulted before the judge
answered the jurys questions, and no objection was taken after the answers
were given.

[78]

I would not give effect to this ground of
appeal.

[79]

I would dismiss the appeal.

The Honourable Chief Justice Finch

I Agree:

The
Honourable Mr. Justice Hall

I Agree:

The
Honourable Mr. Justice Chiasson


