



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ferrari, 2012
    ONCA 399

DATE: 20120612

DOCKET: C50463 & C50374

Doherty, Rosenberg and Lang JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Pasquale Ferrari

Appellant

AND  BETWEEN

Her Majesty The Queen

Respondent

and

Salvatore Zingariello

Appellant

Delmar Doucette, for the appellant Pasquale Ferrari

David E. Harris, for the appellant Salvatore Zingariello

Michael Bernstein, for the respondent

Heard: December 19, 2011

On appeal from the conviction entered by Justice Alan W. Bryant
    of the Superior Court of Justice, sitting with a jury, on January 30, 2009.

Rosenberg J.A.:

[1]

The appellants appeal their conviction for first degree murder. The
    appellants, who were jointly tried by Bryant J. and a jury, proffered the
    so-called cut-throat defence. Although the appellants agreed that they broke
    into the deceaseds home, they accused each other of having shot the deceased.
    The principal grounds of appeal concern the charge to the jury and in
    particular whether the trial judge carried out his duty to relate the facts to
    the crucial issues in the case. For the following reasons, I would dismiss the
    appeals, substitute convictions for second degree murder, and remit the matter
    of parole ineligibility to the trial judge.

THE FACTS

[2]

The appellants were both addicted to OxyContin. While they each had had
    stable careers and families, their addictions eventually took over their lives.
    Ferrari became addicted to OxyContin in 2003 to ease serious back pain.
    Zingariello became addicted some time before that to relieve the pain from a
    serious burn to his arm. By 2002, Zingariello had closed the hair salon that he
    had owned; selling OxyContin became his primary source of income. Ferrari was
    Zingariellos best customer, buying up to 100 pills at a time for use by him
    and his girlfriend Tammy Valiente, who was also an OxyContin addict. Because of
    his addiction, Ferrari was not paying attention to his stonemason business. By
    2005, Ferrari was in desperate financial straits. He owed money to Zingariello
    for drugs and owed money to a loan shark.

[3]

Paul Carginari was employed by Ferrari but was also a sometime drug
    dealer. He owed money to the same loan shark as Ferrari. Around April 2005,
    Carginari suggested to Ferrari that they rob Carlo Dimatteo, who was an auto
    worker and a bookie. Carginari told Ferrari that Dimatteo had a safe in his
    home in Woodbridge and that periodically the safe contained large sums of
    money. By May, Ferrari had agreed to participate in the robbery. Ferrari and
    Zingariello gave very different versions of what transpired after that.

Ferraris Version

[4]

According to Ferrari, Zingariello was involved in the planning virtually
    from the start, even at one point involving another man, a break and enter
    expert. There were two meetings among the three men, Zingariello, Ferrari and
    Carginari. At the last meeting they decided on Friday, June 24, 2005 for the
    robbery because, according to Carginari, the deceased would have a large amount
    of money in the safe to pay off debts from the NBA playoffs. Carginari said
    that he could not participate directly because the deceased would recognize
    him, but he would ensure that the deceased was home alone during the robbery.
    The night before the robbery Carginari met with Ferrari at Valientes home. Carginari
    confirmed the robbery was on for the next day. At this time, it was decided
    that Valiente would act as the lookout.

[5]

The morning of the robbery, Ferrari met Zingariello at a mall and then
    drove to Ferraris parents home where they picked up his parents vehicle.
    They also picked up duct tape and a pair of walkie-talkies. Zingariello took a
    blue backpack. They then drove to Valientes house and she got into the back of
    the car. They drove to the street where the deceased lived and saw there were
    two cars in the driveway, which made them think the deceased was not alone.
    They then drove to a mall where they were to meet Carginari. He was not there
    and calls to his telephone were not answered. They decided to do the robbery nonetheless.

[6]

When they returned to the deceaseds home, there was only one vehicle in
    the driveway. Ferrari left the car and went to the passenger side to speak to
    Zingariello. At this time he saw that Zingariello had a semi-automatic handgun
    in the blue knapsack. When Ferrari asked about it, Zingariello said it was
    nothing. The appellants then entered the house through the garage. The
    deceased heard them and called out. The appellants ran up to the second floor
    and confronted the deceased in the master bedroom. Zingariello hit the deceased
    in the head with the gun. The deceased said, Ill give you anything you want.
    The appellants forced the deceased face down on the bed and tied his wrists and
    ankles with the duct tape, while Zingariello kneeled on his back. Carginari had
    told them the safe was in a bedroom closet and Ferrari found it and dragged it
    out. The original plan had been to take the safe with them, but the safe was
    heavier than they expected. Zingariello hit the deceased on the back of the
    head and demanded the safes combination. The deceased refused. The appellants
    put the deceased on the floor and then dragged the safe out of the bedroom to
    the top of the stairs. However, it was too heavy to drag any further.

[7]

The appellants began to ransack the bedroom looking for the combination
    but without success. Zingariello called Valiente on the walkie-talkie to bring
    the car to the driveway. Then, while standing by the bedroom doors, Zingariello
    fired a shot into the floor beside the deceased and demanded the combination.
    The deceased refused. Five to ten seconds later, Zingariello fired a second
    shot that hit the deceased in the back hip area. Ferrari, who had been standing
    behind Zingariello at the head of the stairs by the safe, looked at
    Zingariello. Zingariello looked surprised and then ran from the house. The
    deceased said, help me. Ferrari dialled 911 on the portable telephone that
    was on the bedside table and placed it by the deceaseds ear. Then he too fled.
    He did not think that the deceased was mortally wounded.

[8]

Ferrari entered the car in the drivers seat and drove off. He asked
    Zingariello, What the fuck did you do that for? Zingariello responded, I
    dont know. I fucked up. It just went off.

[9]

Ferrari conceded that on his version of the events, he was guilty of
    manslaughter.

Zingariellos Version

[10]

Zingariello
    denied being involved in the planning of the robbery. He testified that the
    morning of the robbery he had gone to Woodbridge to sell some OxyContin to
    Ferrari. When he arrived at the meeting place, a mall, Ferrari was there with
    Valiente but they did not have any money. It was at this time that Ferrari for
    the first time raised the question of a robbery. He said he had already looked
    at the house, which was near the mall, and had seen the deceased gardening.
    Ferrari said they could carry the safe out and split the cash. Zingariello did
    not want to participate. Ferrari went to a bank to withdraw some money to pay
    for the drugs, but returned empty-handed, claiming that his account was frozen.
    He kept talking about the safe and finally Zingariello agreed to participate.

[11]

They
    drove to the deceaseds street and all three got out of the car. Zingariello
    brought an empty blue knapsack with him to use to carry loot. Valiente rang the
    doorbell but nobody answered. According to Zingariello there was no car in the
    driveway. Zingariello walked down both sides of the house but could not see
    anyone. When he returned, Ferrari said, Come on. Lets do this. Valiente went
    back to the car and the appellants entered the house through the garage, which
    was unlocked. They went up to the bedroom. Once in the bedroom, they heard the
    doorbell chime and at this point the deceased called out. At this point,
    Ferrari pulled down a balaclava from under his ball cap and pulled a gun out.
    This was the first Zingariello had seen of the gun. Ferrari went to the second
    floor landing and pointed the gun at the deceased, who was near the foot of the
    stairs. Ferrari forced the deceased at gunpoint to come up the stairs. Half way
    up the stairs, the deceased pulled out his cell phone. Ferrari grabbed the
    phone and threw it into the bedroom. At the second floor landing, the deceased
    punched Ferrari in the head. The two began to fight and the gun went off.
    Zingariello dropped the blue knapsack and fled.

[12]

When
    Zingariello reached the garage he waved to Valiente to bring up the car. As she
    did, Zingariello heard a second shot. He told Valiente to get Ferrari. She went
    into the house and three to five minutes later came back with Ferrari. In the
    car, Ferrari asked him, What the fuck did you do that for? Zingariello
    replied, I had to fuck off.

Valientes Version

[13]

Valiente
    had given a number of different conflicting accounts of the robbery/homicide
    and Crown counsel did not rely upon her evidence. However, the appellants
    relied on some parts of her story. It was her evidence that Zingariello and
    Ferrari had been planning the robbery for at least a week. The day before the
    robbery, Ferrari told her that she might be needed as a lookout. The morning of
    the robbery, the appellants came to her house. Zingariello changed his clothes
    and she saw that one of the appellants had a handgun. They drove to a mall and
    then drove to the deceaseds home. Valiente rang the doorbell but there was no
    answer. The appellants entered the house and she went back to the car to act as
    a lookout. She heard two shots while the appellants were still in the house. Zingariello
    called on the walkie-talkie and said to bring the car around to the driveway.
    As she pulled into the driveway, Zingariello came running out of the house. He
    had blood on his hands and arms. When Ferrari did not come out she went to the
    front door and rang the bell and then ran to the garage and yelled, Whats
    happening? She heard Ferrari inside swearing. She returned to the car and a
    few seconds later Ferrari came out, got in the drivers seat, and they drove
    away. In the car, the appellants were arguing. The gist of the conversation was
    that Ferrari had fired the gun and Zingariello had also fired the gun but said
    he couldnt handle the gun; that it just went off. They went to Valientes
    house where they divided up some money and jewellery.

The Independent Evidence

[14]

One
    of the houses on the deceaseds street was equipped with a surveillance system.
    The system showed the appellants and Valiente arriving at the deceaseds street
    at 8:50 a.m. and leaving at 9:06 a.m. The car returned at 9:37 a.m. Ferrari
    left the vehicle at 9:39 a.m. and two minutes later the other two left and
    walked towards the deceaseds home. At 9:45 a.m. Valiente ran back to the car
    as the appellants entered the house. Eleven minutes later, at 9:56 a.m.,
    Valiente drove the car to the deceaseds driveway. At 10:05 a.m. a 911 call
    came in from the deceased. He gave his address, said there was a break-in, and
    then apparently passed out. Police arrived at 10:09 a.m. He was still alive but
    died from the bullet wound minutes later.

[15]

The
    evidence at the scene showed that the deceased had been pistol whipped about
    the head and face. His hands were also bruised, perhaps from defensive wounds
    and punching someone. There were bruises on his back, consistent with someone
    kneeling on his back. His wrists and ankles were bound with duct tape. The
    police recovered one bullet from the floor beside where the deceased was found.
    The angle of this shot showed that it could have been fired at shoulder height
    from the entrance to the bedroom, about 12 feet from the deceased.

[16]

The
    bullet that killed the deceased entered at the rear of the left lower flank
    just above the pelvis and struck an artery. There was no gunpowder residue on
    the deceaseds clothing or body. The injury to the artery led to rapid internal
    bleeding and death. The deceased would have lost consciousness within minutes
    of the shot.

[17]

The
    safe was found on its back just outside the entrance to the master bedroom.
    Scuff marks showed that it had been dragged from the closet. It weighed almost
    250 pounds and was difficult to lift and carry. Some of the deceaseds blood
    and Ferraris fingerprints were found on the safe. The safe was unopened. It
    did not appear that any money had been taken from the house. A small amount of
    jewellery may have been taken from the bedroom dresser.

THE GROUNDS OF APPEAL

[18]

Ferrari
    relies on the following grounds of appeal:

1.       The trial judge failed to
    relate the facts to the issues in the case, especially liability for
    second degree murder.

2.       The trial judge
    misdirected the jury on the elements of constructive first degree murder.

3.       The trial judge erred in
    leaving constructive first degree murder on the basis of party liability
    under s. 21(2) of the
Criminal Code
.

4.       The trial judge erred in instructing
    the jury to use their common  sense in assessing the evidence.

[19]

Zingariello
    relies on the following grounds of appeal:

1.      The
    trial judge reviewed Zingariellos evidence in a way that deprived him of a
    fair trial and reversed the burden of proof.

2.      The
    trial judge misdirected the jury on the elements of constructive first degree
    murder.

3.      The
    trial judge erred in leaving constructive first degree murder on the basis of
    party liability under s. 21(2) of the
Criminal Code
.

4.      There
    was no evidence upon which Zingariello could be found guilty of first degree
    murder.

ANALYSIS

Introduction: The Structure of the Jury Charge

[20]

A
    somewhat unusual feature of this case is the delay between the conclusion of
    the evidence and the trial judges charge to the jury.
[1]
The five weeks of evidence concluded on December 18, 2008. The jury was
    released for the holiday break. In the meantime, counsel made extensive
    submissions to the trial judge about the content of the jury charge. In the
    course of those submissions, the trial judge concluded that there was no basis
    for leaving first degree murder on the basis of planning and deliberation. Thus,
    first degree murder was limited to murder in the course of an unlawful
    confinement: see
Criminal Code
, R.S.C. 1985, c. C-46, s. 231(5)(e).
    The trial judge produced a number of drafts of his final instructions, which
    were the subject of comments from counsel. The charge to the jury did not begin
    until January 26, 2009 and concluded on January 27, when the jury began
    deliberations. Counsel made their objections to the charge on January 28 and
    29. The afternoon of January 29, the jury had a question, which related to one
    of the elements of first degree murder. The trial judge recharged the jury a
    short time later. The recharge responded to counsels objections and the trial
    judge indicated that he expected the recharge would answer the jurys question.

[21]

The
    charge to the jury proceeded in the following manner. After reviewing the basic
    principles that apply to any criminal case and the special problems of
    credibility in this case, for example, the credibility of Valiente and Carginari,
    the trial judge turned to the question of modes of participation and the
    elements of first degree murder. He began with the elements of manslaughter
    and, since Ferrari conceded he was guilty of manslaughter, Zingariellos
    potential liability for manslaughter. After accurately setting out party
    liability for manslaughter, the trial judge reviewed the evidence that would be
    relevant to Zingariellos liability as a party to manslaughter. As part of this
    review, the trial judge dealt extensively with Zingariellos testimony. After
    this review, the trial judge summarized Zingariellos position on the key
    issues for manslaughter, namely, whether Zingariello knew that Ferrari had a
    gun and whether he knew anyone would be home during the break-in. The trial
    judge then reviewed the evidence that Zingariellos counsel submitted supported
    his clients position. The trial judge instructed the jury that they had to consider
    all the evidence and he referred to evidence that could support a finding of
    liability for manslaughter, such as Ferraris evidence that they saw the
    deceased enter the house and his other evidence concerning Zingariellos
    actions inside the house.

[22]

After
    this summary of the evidence, the trial judge told the jury: Sometimes you may
    ask yourself a simple question to determine an issue. The trial judge then
    raised several questions the jury would need to consider, such as whether it
    was possible for one person to have subdued and duct-taped the deceased. The
    trial judge also reviewed what he called irreconcilable contradictions between
    the evidence of Mr. Ferrari and Mr. Zingariello. The appellant Zingariello
    submits that this part of the charge was unfair as it undermined his defence
    and had the effect of shifting the burden of proof. The trial judge concluded
    this part of the charge with a brief summary of the elements of manslaughter.

[23]

The
    trial judge then turned to his instructions on murder, beginning with liability
    for second degree murder. He focused on the mental element for murder and party
    liability through aiding and abetting (s. 21(1)(b) and (c) of the
Code
)
    and common purpose (s. 21(2) of the
Code
). The trial judge then reviewed
    more of the evidence as it might be relevant to murder. The trial judge gave
    particular attention to the evidence of the pathologist concerning the various
    injuries inflicted on the deceased. He did not, at this point, deal with the
    cause of death, telling the jury that he would review that evidence when he
    came to deal with first degree murder. During this review, the trial judge
    summarized the testimony of Valiente and of Ferrari. The trial judge did not
    review Zingariellos testimony at length in this part of the charge. He did,
    however, point out that it was Zingariellos evidence that he did not
    participate in the assault, confinement or robbery because he fled the
    residence when Ferrari fired the gun during the scuffle with the deceased. He
    again reminded the jury that they must consider all of the evidence. He
    concluded this part of the charge with a brief summary of liability for second
    degree murder. The appellant Ferrari submits that this part of the charge was
    inadequate and failed to relate the evidence to the elements of liability for
    murder.

[24]

The
    trial judge then turned to liability for first degree murder. After outlining
    the elements of first degree murder under s. 231(5)(e), the trial judge dealt
    with liability of the principal offender. He first dealt with the requirement
    that the principal did something that was an essential, substantial and
    integral part of the killing. At this point, the trial judge reviewed the
    evidence of the pathologist as to the cause of death. He then briefly referred
    to the evidence of the appellants, that is, each claimed the other had shot the
    deceased.

[25]

The
    trial judge then turned to the requirement of proof of unlawful confinement. He
    briefly reviewed the evidence related to that element, particularly the
    evidence concerning the use of the duct tape and the evidence that would
    support the theory that two people would have been involved in the confinement.

[26]

The
    trial judge then turned to the question of whether the unlawful confinement and
    the murder were part of the same series of events. The trial judge reminded the
    jury that they had to consider all of the evidence, and he briefly referred to
    evidence that the robbery was planned and that the deceased was confined within
    minutes of the initial assault and remained confined until the police arrived.

[27]

The
    trial judge concluded this part of the charge by instructing the jury that if
    they could not find the principal committed first degree murder, they could
    only find the appellants guilty of second degree murder. However, if they found
    the principal committed first degree murder, they had to consider the potential
    liability of the party that the trial judge referred to as the participant.
    The trial judge again referred to the three elements of first degree murder,
    beginning with the requirement that the participant did something that was an
    essential, substantial and integral part of the killing. The trial judge
    defined this element as meaning that the participant actively participated in
    the killing. He reminded the jury that they must consider all the evidence,
    not just the evidence of the pathologist. He referred to evidence from which
    the jury could find that this was a joint venture where each accused assisted
    each other in the course of a robbery. He reminded the jury of the positions
    of the two appellants. Both appellants submit that these instructions were
    inadequate.

[28]

The
    trial judge then turned to the two additional elements of unlawful confinement
    and whether the unlawful confinement and murder were part of the same series of
    events. He again reminded the jury of each appellants position on these
    issues. I did not understand the appellants to submit that these instructions
    were erroneous or inadequate.

[29]

The
    trial judge then turned to the positions of the parties. It is apparent that
    the trial judge reviewed the positions as they had been given to him in writing
    by counsel. This review was detailed and extensive. The trial judge concluded
    with a repetition of his earlier instructions on reasonable doubt and the 
W.D
.
    instruction: see
R. v. W.(D.)
, [1991] 1 S.C.R. 742. The trial judge
    concluded the charge with standard directions about deliberations, including
    the importance of using common sense to assess the evidence. Ferrari submits
    that this direction was erroneous.

[30]

The
    trial judge then heard extensive submissions from counsel objecting to the
    charge to the jury. Those submissions occupied January 28. In summary, counsel
    submitted as follows:

(1)

It was not helpful to focus on whether the shooter actively
    participated in the killing, since by shooting the deceased he obviously
    actively participated. The real issue was the identity of the shooter.

(2)

The charge did not adequately deal with whether there was an intervening
    act so that the shooting and the unlawful confinement were not part of the
    same series of events.

(3)

The charge did not make it clear that the participant had to
    be part of the killing, not the murder for liability for first degree murder;
    in other words, that party liability for second degree murder did not alone
    make the participant liable for first degree murder. The charge needed to focus
    on what the participant did that was an essential, substantial and integral
    part of the killing.

(4)

The charge failed to relate the evidence to the elements of
    murder for the principal and party.

[31]

In
    the course of these submissions, the trial judge attempted to have Crown
    counsel identify the acts by the participant that were essential, substantial
    and integral to the killing. Crown counsel replied: And my position is there
    is one transaction that includes a killing and its all one package parcelled
    up. In other words, the participant actively participated in the killing by
    actively participating in the robbery, assault and domination of the deceased.

[32]

The
    evening of January 28, the trial judge prepared a recharge, which he provided
    to counsel. On January 29, he heard submissions from counsel on the recharge.
    Those submissions particularly centred on the non-shooters liability for first
    degree murder and the Crowns theory of liability for the non-shooter. After
    those submissions, the trial judge adjourned to redraft the recharge in
    accordance with counsels submissions. During this period, the jury sent the
    judge a question asking him to clarify the meaning of the essential,
    substantial and integral part of the killing element for first degree murder.
    Counsel then made submissions on the redrafted recharge. Counsel for the
    appellants took the position that the trial judge should tell the jury that his
    earlier instructions on first degree murder were erroneous. Crown counsel
    disagreed with this submission and the trial judge did not accept it. Thus, he
    began the recharge by stating that:

Unless I tell you otherwise, do not consider any further
    instructions I may give you to be any more or less important than anything else
    I have said about the law. All the instructions, whenever they may be given,
    are part of the same package.

[33]

The
    trial judge first addressed the objection from counsel for Zingariello that the
    charge was unbalanced and unfair to Zingariello. He stated that his intention
    was not to be more critical of one accused than the other and he reminded the
    jury of their duty to find the facts. The trial judge then turned to the intent
    for murder and, as requested by counsel, related the pathologists evidence
    about the cause of death to the issue of intent. It will be recalled that in
    the original charge, the trial judge only reviewed this evidence in relation to
    first degree murder. The trial judge then began an extensive recharge on first
    degree murder. In accordance with submissions from appellants trial counsel,
    he told the jury that determination of liability for first degree murder is the
    same for the principal and the participant. He stated: The focus is on the killing
    and the participation of the accused in the killing.

[34]

The
    trial judge then focused on the issue of essential, substantial or integral
    part of the killing or active participation. As requested by appellants
    counsel, the trial judge instructed the jury that there was no question that
    the shooter actively participated in the killing. Thus, the first issue was to
    identify the shooter. The second issue was whether the participant did anything
    that was an essential, substantial or integral part of the killing. The trial
    judge reminded the jury that they must consider all the evidence, not just the
    evidence of the pathologist. He then briefly summarized the testimony of the
    appellants and Valiente. The trial judge referred to the other two elements:
    unlawful confinement and that the killing and unlawful confinement must be part
    of the same series of events. Again, the trial judge briefly reviewed the
    evidence of Valiente and the appellants on these issues. The trial judge
    concluded with a brief review of the positions of the appellants and the Crown.
    The trial judge summarized Crown counsels theory of liability of the
    non-shooter on the question of active participation as follows:

It is further the Crowns position that the non-shooter
    actively participated in the killing of Mr. Dimatteo by restraining the
    deceased and depriving him of his ability to move from place to place. Mr.
    Ferrari testified that both accused participated in the confinement and there
    is circumstantial evidence from which to infer that each of the accused
    actively participated in the unlawful confinement. Both accused physically
    restrained the deceased by assaulting him and by taping his hands and ankles
    together with duct tape. The Crown submits that the non-shooter actively participated
    in the killing by physically confining the deceased which confinement was an
    essential, substantial and integral part of the killing.

[35]

The
    trial judge concluded by instructing the jury that if the recharge did not
    answer their question, the jury were free to come back and he would make a
    further attempt to answer the question. The jury did not have any further
    questions and brought in their verdicts the afternoon of the following day.

Grounds of Appeal Relating to Review of the Evidence

1.       The Appellant Ferrari

[36]

The
    appellant Ferrari submits that the trial judge did not adequately relate the
    facts to the elements of second degree murder. He submits that, particularly
    given the length of time between the end of the testimony and the charge to the
    jury, it was important that the trial judge not simply regurgitate the
    evidence, but relate the evidence to the factual findings the jury had to make.
    Subject to what I say below about first degree murder and the issue of active
    participation, it is my view that the charge sufficiently dealt with the
    evidence and the facts.

[37]

First,
    it is not accurate to say that the trial judge merely regurgitated the
    evidence. He reviewed those parts of the evidence that particularly related to
    the issue of manslaughter for Zingariello and murder for both appellants. The
    one deficiency in that review was the failure to expressly relate the cause of
    death evidence to the intent for murder. That evidence was referred to during
    the review of evidence on first degree murder and referred to in relation to
    second degree murder in the recharge. Second, the trial judge set out the
    positions of the defence in considerable detail, with extensive reference to
    evidence in support of the positions. Combined with the extensive review of
    each appellants testimony, it is my view that the jury would understand the
    defence positions and how the evidence applied to those positions. The trial
    judge fulfilled the duty imposed by cases such as
Azoulay v. The Queen
, [1952]
    2 S.C.R. 495, at pp. 497-98:

The rule which has been laid down, and consistently followed is
    that in a jury trial the presiding judge must, except in rare cases where it
    would be needless to do so, review the substantial parts of the evidence, and
    give the jury the theory of the defence, so that they may appreciate the value
    and effect of that evidence, and how the law is to be applied to the facts as
    they find them.

[38]

I
    would not give effect to this ground of appeal.

[39]

Ferrari
    also submits that the trial judge erred in instructing the jury as follows:

This is not a case that turns on complex legal terminology.
    This is a case that turns on your common sense assessment of the evidence.

[40]

The
    appellant submits that the case did turn on complex factual and legal issues
    and it was misleading to suggest that the case depended on common sense. I
    would not give effect to this submission. The common sense assessment of the
    evidence was central to the jurys task.

2.       The
    Appellant Zingariello

[41]

The appellant Zingariello submits that the trial judge did not deal
    fairly with his testimony and in the course of reviewing his evidence
    improperly reversed the burden of proof. The principal subject of the
    appellants submissions was the use of rhetorical questions. The main review of
    Zingariellos evidence was in reference to liability for manslaughter. The
    first part of that review was a fair and accurate summary, at considerable
    length, of Zingariellos testimony. During this review, the trial judge pointed
    out some of the disputes between his evidence and the evidence of Ferrari and
    Valiente on the same subject. These references were brief and presented from
    Zingariellos point of view. After he had finished this review, the trial judge
    said this:

It is my duty to review the evidence for you. I provided you
    with a detailed review of the evidence to refresh your memory of what the
    witnesses said. The law permits me to comment or express opinions about issues
    of fact to you but it is your duty to find the facts not mine. If my memory
    differs from yours it is your recollection of the facts that count.

[42]

The
    trial judge then referred to the independent evidence that, according to
    counsel, supported Zingariellos position. The trial judge then referred to
    other evidence that was relevant to Zingariellos liability for manslaughter.
    Finally, the trial judge suggested several ways to approach the assessment of
    evidence. He suggested that one way was to ask a simple question and pointed
    out that a basic question that was posed during Zingariellos cross-examination
    was whether one person could do all the tasks and, in particular, whether
    Ferrari could subdue the deceased, strike him about the head and bind his
    wrists and ankles, without help.

[43]

The
    trial judge then suggested that another way to assess the evidence was to weigh
    the witnesss evidence in the context of the other facts. He gave as an example
    the issue of the first shot, which, according to Zingariello, occurred during
    the deceaseds struggle with Ferrari. The trial judge pointed out that the
    independent evidence showed that this shot ended up in close proximity to where
    the deceased was later found by the police. The jury was invited to ask what
    the likelihood was that this first shot would end up in that location, if it
    occurred during the struggle. The trial judge then reviewed the many
    irreconcilable contradictions between the evidence of the two appellants. He
    concluded with a reference to some more of the independent evidence, such as
    the cell phone records, which could support either Ferraris evidence or Zingariellos.

[44]

In
    my view, the manner in which the trial judge dealt with Zingariellos evidence
    and his defence was appropriate and did not deprive the appellant of a fair
    trial. In
R. v. Lawes
(2006), 80 O.R. (3d) 192, this court considered
    at length the propriety of the trial judge making comments on the evidence. At
    para. 35, Rouleau J.A. set out the rule that applies to the judges role:

By allowing the trial judge to express views and opinions on
    the evidence "as strongly as the circumstances permit" provided that
    they do not have the effect of usurping the role of the jury by taking a
    contested issue away from them or by subverting their independence, the common
    law recognizes that comments are both a necessary and desirable part of the
    trial judge's role. The limit is set at the point where the comments interfere
    with the exercise of the jury's role. Although I firmly believe that judges
    should avoid unnecessary comments or opinions, the focus of the analysis on
    appeal is not whether an appellate court views the opinion given by the trial
    judge as having been necessary or even desirable, but rather whether it
    interfered with the jury's function or so undermined the defence position that
    it deprived the accused of a fair trial.

[45]

Justice
    Rouleau also discussed at some length the use of rhetorical questions,
    concluding his discussion with this comment at para. 64:

Clearly rhetorical questions and comments that might be taken
    to unfairly denigrate the defence position ought to be avoided. They make a
    trial judge's charge vulnerable and may result in the charge not being fair and
    balanced.

[46]

Thus,
    the danger of a trial judge using rhetorical questions in relation to an
    accuseds evidence is that they become simply a device to denigrate the
    defence; questions with obvious answers suggest that the trial judge does not
    believe the accuseds evidence: see
R. v. Dunham
(1986), 11 O.A.C. 374
    (C.A.);
R. v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at paras.
    146-47. However, rhetorical questions are to be distinguished from simply
    posing questions that naturally arise on the evidence and are a way to analyze
    and understand the evidence: see
R. v. Wristen

(1999), 47 O.R.
    (3d) 66 (C.A.), at para. 29.

In my view, for the most part, the trial
    judges comments on the evidence fell in the latter category. He asked several
    questions that inevitably arose from the evidence; if they sounded like
    rhetorical questions, this was only because the appellant Zingariellos
    testimony, when considered with the other objective evidence, was extremely
    fragile. Zingariello was entitled to have his position put fairly but he was
    not entitled to have it considered divorced from all the other evidence in the
    case: see
Lawes
, at paras. 62-63.

[47]

The
    question about whether Ferrari could have done all the things without help that
    the independent evidence showed had been done to the deceased was an obvious
    example. The resolution of that question was important to Zingariellos defence
    and to Ferraris defence. The question had been put to Zingariello in cross-examination.
    It was a fair question that arose on the evidence. Asking the jury to consider
    this obvious issue did not unfairly denigrate Zingariellos defence. The same
    may be said about the other questions. The trial judge made it clear that he
    was not attempting to impose his view of the facts on the jury both in the
    charge and the recharge.

[48]

I
    am also satisfied that the manner in which the trial judge dealt with the
    evidence did not improperly shift the burden of proof to Zingariello. As the
    trial judge said, there were irreconcilable contradictions between the evidence
    of the two appellants. Pointing out these contradictions did not shift the
    burden of proof to Zingariello. The trial judge presented the contradictions in
    a neutral manner. He then said:

When you review the various contradictions consider whether
    there were reasons, such as a mistaken memory, to explain any or all
    contradictions. You may prefer one version of a fact over another if it makes
    sense to you. You may accept some, all or none of a witnesss evidence. It is
    up to you.

[49]

Later,
    the trial judge told the jury to use common sense to sift through each
    accuseds evidence to determine if Mr. Zingariello participated in the assault,
    confinement or robbery which eventually lead to Mr. Dimatteos death. I see no
    error in this approach to the evidence. The trial judge did not throw any
    burden of proof on Zingariello; he simply attempted to give the jury some
    assistance in assessing the evidence. Comparing the various accounts of what
    happened in the lead-up to the robbery, in the home, and afterwards was an
    inevitable part of the jurys task in making findings of fact. In this part of
    the charge, the trial judge on several occasions reminded the jury that the
    Crown had to prove guilt beyond a reasonable doubt.

[50]

I
    would not give effect to this ground of appeal.

Grounds of Appeal Relating to First Degree Murder

[51]

Between
    them, the appellants raise several grounds of appeal concerning first degree
    murder:

1.       First
    degree murder under s. 231(5)(e) cannot be founded upon party liability for
    murder under s. 21(2).

2.       The
    trial judge misdirected the jury as to liability for first degree murder under
    s. 231(5)(e).

3.       The
    trial judge failed to relate the evidence to the elements of first degree
    murder under s. 231(5)(e).

4.       There
    was no evidence upon which the participant or non-shooter could be found guilty
    of first degree murder.

1.       First degree murder under s. 231(5)(e)
    and party liability for murder under s. 21(2)

(a)     Introduction

[52]

Section 231(5) defines so-called constructive first degree murder. The
    part applicable to this case is s. 231(5)(e):

Irrespective of whether a murder is planned and deliberate on
    the part of any person, murder is first degree murder in respect of a person
    when the death is caused by that person while committing or attempting to
    commit an offence under one of the following sections:



(e) section 279 (kidnapping and forcible confinement)

[53]

As
    the courts have repeatedly pointed out, s. 231 does not create a distinct
    substantive offence but rather an aggravated form of murder. The jury must
    determine whether the aggravated circumstances exist to warrant the mandatory
    penalty for first degree murder of life imprisonment without eligibility for
    parole for 25 years. As Cory J. pointed out in
R. v. Harbottle
, [1993]
    3 S.C.R. 306, at p. 323: The gravity of the crime and the severity of the
    sentence both indicate that a
substantial and high
degree of
    blameworthiness, above and beyond that of murder, must be established in order
    to convict an accused of first degree murder (emphasis in original). Where the
    only question is the liability of the actual killer for first degree murder,
    the focus is on whether there was an unlawful confinement distinct from the
    actual killing and whether the killing was in the course of the unlawful
    confinement. Justice Binnie summarized liability in
R. v. Pritchard
, 2008
    SCC 59, [2008] 3 S.C.R. 195, at para. 35:

The jurisprudence therefore establishes that second degree
    murder will be elevated to first degree murder where the murder and the
    predicate offence (in this case unlawful confinement) are linked together both
    causally and temporally in circumstances that make the entire course of conduct
    a single transaction (
Paré
). The temporal-causal connection is
    established where the unlawful confinement creates a "continuing illegal
    domination of the victim" that provides the accused with a position of
    power which he or she chooses to exploit to murder the victim (
Paré
,
    at p. 633, and
Johnson,
at para. 39). If this is established the fact
    that along the way other offences are committed is no bar to the application of
    s. 231(5).

[54]

Where
    two or more persons are shown to have been involved in the murder, proof of
    liability for first degree murder will depend on the manner of their
    participation either as co-perpetrators or s. 21 parties. It is not enough that
    the killing occurred in the course of the unlawful confinement; the prosecution
    must prove that the accused caused the death. In
Harbottle
,
Cory J. adopted a test of substantial
    causation, something more than causation that would suffice for murder or
    manslaughter, per
R. v. Smithers
, [1978] 1 S.C.R. 506. At pp. 323-24 of
Harbottle
,
Cory J. used various terms to describe this test of
    substantial cause:

In my view, an accused may only be convicted under the
    subsection if the Crown establishes that the accused has committed an act or
    series of acts which are of such a nature that they must be regarded as a
    substantial and integral cause of the death.



The substantial causation test requires that the accused play a
    very active role -- usually a physical role -- in the killing.
Under s.
    214(5) [now s. 231(5)], the actions of the accused must form an essential,
    substantial and integral part of the killing of the victim
. [Emphasis
    added.]

[55]

I
    have emphasized the last sentence of this part of
Harbottle
, since it
    is the source of the instruction commonly used to describe liability of the
    participant and was the formula used by the trial judge in this case. Justice
    Cory then set out the series of steps that could be included in the charge to
    the jury, at p. 325:

Therefore, an accused may be found guilty of first degree
    murder pursuant to s. 214(5) if the Crown has established beyond a reasonable
    doubt that:

(1) the accused was guilty of the underlying crime of
    domination or of attempting to commit that crime;

(2) the accused was guilty of the murder of the victim;

(3) the accused participated in the murder in such a manner
    that he was a substantial cause of the death of the victim;

(4) there was no intervening act of another which resulted in
    the accused no longer being substantially connected to the death of the victim;
    and

(5) the crimes of domination and murder were part of the same
    transaction; that is to say, the death was caused while committing the offence
    of domination as part of the same series of events.

[56]

In
Harbottle
itself the court had no difficulty finding that the
    accuseds acts met the substantial cause test where the evidence showed that he
    held down the victims legs so that his confederate could strangle her. While
    strangulation was the cause of death, the accuseds acts were a substantial and
    integral cause of the death. There have been many cases since
Harbottle
that have applied the substantial cause test, and I will refer to some of them
    below when considering the submission that the trial judge failed to adequately
    relate the evidence to the elements of first degree murder.

[57]

In
R. v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 61, Arbour J.
    observed that
Harbottle
should not be understood as defining the
    causation requirement for first degree murder so much as setting the degree of
    participation required to impose liability under s. 231(5). At para. 62, she
    described the impact of
Harbottle
in these terms:

As explained by Cory J. in
Harbottle
, in order to
    raise culpability to first degree murder under s. 231(5), something more is
    required. The "something more" is not that the accused
caused more
the death of the victim. What is required is that his participation in the
    killing be sufficiently immediate, direct and substantial to warrant the
    greater stigma and sentence attached to first degree murder. [Emphasis in
    original.]

[58]

While
    the word formulation in
Nette
is slightly different -- sufficiently
    immediate, direct and substantial -- the concept is the same as substantial
    and integral cause used in
Harbottle
. Again, as emphasized by Arbour
    J. at para. 65, the additional causation requirement is a measure of the
    additional blameworthiness required:

It is clear from a reading of
Harbottle
that the
    "substantial cause" test expresses the increased degree of moral
    culpability, as evidenced by the accused person's degree of participation in
    the killing, that is required before an accused can be found guilty under s.
    231(5) of the
Criminal Code
of first degree murder. The increased
    degree of participation in the killing, coupled with a finding that the accused
    had the requisite
mens rea
for murder, justifies a verdict of guilty
    under s. 231(5) of the
Code.

[59]

Finally,
    at para. 73, Arbour J. pointed out the importance of the partys participation
    in the murder, using the phrase significant contribution, in addition to the
    essential, substantial and integral formula from
Harbottle
:

In light of
Harbottle
, where the jury must be
    instructed on first degree murder under s. 231(5) of the
Code
in
    addition to manslaughter or second degree murder, the terminology of
    "substantial cause" should be used to describe the applicable
    standard for first degree murder so that the jury understands that something
    different is being conveyed by the instructions concerning s. 231(5) of the
Code
with respect to the requisite degree of participation of the accused in the
    offence.
In such cases, it would make sense to instruct the jury that the
    acts of the accused have to have made a "significant" contribution to
    the victim's death
to trigger culpability for the homicide while, to be
    guilty of first degree murder under s. 231(5),
the accused's actions must
    have been an essential, substantial and integral part of the killing of the
    victim
. [Emphasis added.]

(b)     Party Liability
    under s. 21(2)

[60]

The appellants submit that a person cannot be found guilty of first
    degree murder under s. 231(5) where their liability for murder rests on s.
    21(2). Section 21(2), the provision imposing party liability for offences
    arising out of a common intention, provides as follows:

Where two or more persons form an intention in common to carry
    out an unlawful purpose and to assist each other therein and any one of them,
    in carrying out the common purpose, commits an offence, each of them who knew [or
    ought to have known]

that the commission of the offence would be a
    probable consequence of carrying out the common purpose is a party to that
    offence. [Brackets added.]

[61]

I
    have bracketed the phrase or ought to have known because the Supreme Court of
    Canada has held that to comply with the principles of fundamental justice in s.
    7 of the
Canadian Charter of Rights and Freedoms
, an individual cannot
    be found to be a party to murder on the basis of objective foresight of death.
    As Lamer C.J. held in
R. v. Rodney
, [1990] 2 S.C.R. 687, at p. 692: A
    party to a murder, therefore, cannot be convicted upon proof that he ought to
    have known that the murder was a probable consequence of carrying out the
    common purpose. Thus, where, as here, the Crown relied upon s. 21(2) in a
    murder prosecution, it first had to prove that the appellants formed a common
    intention to carry out an unlawful purpose, for example, robbery or unlawful
    confinement, and that they assisted each other in carrying out the robbery or
    unlawful confinement. Second, the Crown had to prove that one of the appellants
    committed murder. Third, it had to prove that the other person (the participant
    or non-shooter) knew that the principal offender would probably commit murder
    in carrying out the unlawful purpose. This requirement of subjective foresight
    is crucial: see
R. v. Laliberty
(1997), 117 C.C.C. (3d) 97 (Ont. C.A),
    at pp. 107-108. In the context of this case, the non-shooter had to know that
    the shooter would probably cause the death of the deceased with one of the
    intents set out in s. 229(a) of the
Code
: either the intent to cause
    death, or the intent to cause bodily harm that the principal knew would likely
    cause death, being reckless whether death ensued or not.

[62]

The
    appellants submit that while an individual may be found guilty of second degree
    murder by resort to s. 21(2), as modified by the Supreme Court of Canada to
    require subjective foresight, that provision cannot be the basis for liability
    for first degree murder. The submission is based on the following propositions.
    First, if the jury has resorted to s. 21(2), they must have rejected liability
    under s. 21(1), which requires an act, omission or encouragement. Second, s.
    21(2) is essentially based upon mental elementsformation of an intention in
    common, an intention to assist and knowledge that the principal offender would
    probably commit murderthat are inconsistent with the kind of active
    participation required by the causation requirement for s. 231(5): actions that
    are an essential, substantial and integral part of the killing of the victim.
    This latter part of the argument is fortified by this courts decision in
R.
    v. Jackson
(1991), 68 C.C.C. (3d) 385, at pp. 421 and 424:

Section 21(2) must be distinguished from s. 21(1). The latter
    section is aimed at those who participate in the actual offence for which
    liability is imposed.
Section 21(2) widens the circle of criminal
    culpability to include those who do not participate in the alleged crime
but who do engage in a different criminal purpose and foresee the commission of
    the alleged offence by a party to that criminal purpose as a probable
    consequence of the pursuit of the criminal purpose: see
R. v. Simpson
(1988), 38 C.C.C. (3d) 481 at pp. 488-91, 46 D.L.R. (4th) 466,
[1988] 1
    S.C.R. 3
. [Emphasis added.]



Where, however, liability is based on s. 21(2),
there is no
    participation in the act which caused death but rather foresight that another
    would commit such an act
. Culpability for the incidental offence flows
    almost entirely from foresight that that offence would be committed by another.
    [Emphasis added.]

[63]

From
    the point of view of moral culpability or blameworthiness, an essential aspect
    of first degree murder, liability can be based upon s. 21(2). Justice Cory made
    this clear in
Harbottle
at p. 322:

Many if not all of the concerns expressed by the courts in the
    earlier cases have been eliminated by recent decisions of this Court.
The
    concern that first degree murder should not apply to s. 21(2) parties to a
    murder who lacked any subjective foresight of death has been resolved
by
R.
    v. Rodney
, [1990] 2 S.C.R. 687, and
R. v. Logan
, [1990] 2 S.C.R.
    731. The unlawful object and felony murder provisions, another source of
    concern, were struck down or rendered moribund in
R. v. Martineau
,
    [1990] 2 S.C.R. 633.
Thus the danger of an accused's becoming subject to a
    first degree murder sentence in the absence of subjective blameworthiness has
    effectively disappeared.
The earlier cases were primarily concerned with
    the harshness that would arise from applying a broad causation rule to parties
    to an offence. In my view, that cause for concern no longer exists. [Emphasis
    added.]

[64]

However,
    the fact that a s. 21(2) party may have the requisite blameworthy state of mind
    to warrant a conviction for first degree murder does not answer the question of
    whether such a party sufficiently participated in the killing. As Arbour J.
    said in
Nette
at para. 62:

The degree of participation in the killing by a party whose
    liability for murder is based on aiding or abetting under s. 21(1)(b) or (c) of
    the
Criminal Code
or common intention under s. 21(2) of the
Code
,
    may, under the
Harbottle
formulation, be insufficient to permit a
    finding that the murder amounts to first degree under s. 231(5), which requires
    that the murder be committed "by that person" in the course of
    committing the underlying offence.

[65]

The
    question of s. 21(2) party liability was not squarely before the court in either
Harbottle
or
Nette
. The accused in
Harbottle
was
    either a co-perpetrator in the killing or a s. 21(1)(b) or (c) party.
Nette
was concerned with causation for second degree murder.
[2]
There has been some judicial consideration of s. 21(2) by appellate courts
    since
Harbottle
.
The New Brunswick Court of Appeal briefly
    dealt with the issue in
R. v. Michaud
(2000), 144 C.C.C. (3d) 62, at
    para. 14:

During oral argument, we drew counsel's attention to
R. v.
    Harbottle
,
[1993] 3
    S.C.R. 306
, 84 C.C.C. (3d) 1, a case which, curiously enough, was
    cited neither in the appellant's nor in the respondent's written submission. In
Harbottle
, the Supreme Court of Canada adopted the view that the
    question of causation under s. 214(5) (now s. 231(5)) does not require a
    determination of who is a party to the commission of a particular offence under
    s. 21 of the
Code
. Rather, s. 231(5) requires that the Crown prove,
    beyond a reasonable doubt, that the victim's death was substantially caused by
    the accused, a burden that is met only where the evidence supports a finding
    that the accused played a very active role -- usually a physical role -- in the
    killing.
Section 231(5)
imposes criminal liability when the actions of
    the accused are shown to have formed "an essential, substantial and
    integral part of the killing of the victim"
.
That being so, s. 21(2) cannot be a source
    of criminal liability for first degree murder
.
[Emphasis added.]

[66]

I
    note that the Crown conceded on the appeal in
Michaud
that s. 21(2)
    could not be combined with s. 231(5): see para. 15. On the other hand, in
R.
    v. Richardson
(2003), 174 O.A.C. 390, at paras. 72-75, this court appeared
    to approve of a charge to the jury that combined liability under s. 21(2) and
    231(5):

The appellants argue that the trial judge failed to adequately
    instruct the jury as to the degree of participation required for first degree
    murder pursuant to s. 231(5)(e) of the
Criminal Code
.

The trial judge's charge carefully tracked the five-step
    approach to s. 231(5) set out by the Supreme Court of Canada in
R. v.
    Harbottle
(1993), 157
    N.R. 349; 66 O.A.C. 358; 84 C.C.C. (3d) 1
, at 14.

In dealing with s. 231(5), the trial judge told the jury that
    in order to find the accused guilty of first degree murder, it was necessary
    for the Crown to establish beyond a reasonable doubt the underlying crime of
    domination, that is forcible confinement. He continued:

The person must be guilty of the forcible confinement. The
    accused must also be guilty of murder by being a party, either committing it or
    aiding or abetting it or being a party by subsection (2) of 21. The accused
    must have been shown to have participated - and this is the crux of it - in the
    murder in such a manner that he was the substantial cause of the death of the
    victim.

In my view, the trial judge's instruction was proper and I see
    no merit to this ground of appeal.

[67]

However,
    a review of the factums filed in
Richardson
indicates that the
    argument made here was not raised in that case. In a later case, this court has
    held that the issue is still an open one: see
R. v. Ceballo
,
2007
    ONCA 715, [2007] O.J. No. 3977, at para. 2:

Counsel on appeal argued that those two sections [ss. 21(2) and
    231(5)] cannot be combined to found liability for first degree murder. We
    regard this as an open question of law. We also conclude that if the trial
    judge was wrong in combining the two sections as a basis for committal, the error
    was one of law rather than jurisdiction. Ultimately, the question on this
    appeal is whether there was a basis in the evidence upon which the justice
    could commit for trial on first degree murder.

[68]

Thus,
    despite this courts decision in
Richardson
, it is my view that the
    question of liability for first degree murder under s. 231(5) based upon s.
    21(2) is an open one. That said, however, I am satisfied that the two
    provisions can be combined. While liability for first degree murder under s.
    231(5) is premised on active participation in the murder, that liability flows
    from the participants acts not any additional mental element. Provided the
    participants conduct was a substantial cause of the death and the other
    elements of s. 231(5) are made out including liability for murder and the
    underlying crime, such as forcible confinement, the accused can be found guilty
    of first degree murder.

[69]

It
    is true, as this court pointed out in
Jackson
, that an accused can be
    convicted of murder under s. 21(2), even though he did not participate in the
    act which caused death. In such a case, he could not be convicted of first
    degree murder under s. 231(5), not because the underlying liability for murder
    was premised on s. 21(2), but because the Crown was unable to prove that the
    partys participation was a substantial cause of the death of the victim.

[70]

An
    example can make the point more clearly. As I discuss at greater length below,
    in
Harbottle
, Cory J. gave some examples of where an accused could be
    convicted of first degree murder under s. 231(5). One example was described in
    the following terms at p. 324:

For example, if one accused
with intent to kill
locked
    the victim in a cupboard while the other set fire to that cupboard, then the
    accused who confined the victim might be found to have caused the death of the
    victim pursuant to the provisions of s. 214(5) [now s. 231(5)]. [Emphasis
    added.]

[71]

In
    my view, liability under s. 231(5) would also flow if the one accused (the
    party), while not intending to kill the victim, knew that the principal
    offender would probably commit murder in carrying out the unlawful purpose,
    i.e., had the s. 21(2)
mens rea
for murder.. The participation by
    the party is the same whether the party intended to kill or merely knew that
    the principal offender would probably commit murder. Further, these acts of
    participation were a substantial cause of the death of the victim. I find it
    difficult to conceive that such a person would not have the requisite moral
    blameworthiness for first degree murder. Of course, a slight change in the
    facts might relieve the party of liability for first degree murder. If the
    victim was able to get out of the cupboard and was then shot by the principal
    offender, the acts of the party in confining the victim would not be a substantial
    cause of the death and the party would be guilty, at most, of second degree
    murder.

[72]

When
    addressing potential liability for first degree murder, regardless of the basis
    upon which an accused may be guilty of murder, the trial judge must clearly focus
    on the additional elements of first degree murder as defined in s. 231(5)
    and relate the evidence to those elements. The jury must clearly understand in
    the context of the evidence it heard what it takes to make the accused guilty
    of first degree murder under s. 231(5).

2.       The trial judge misdirected the jury as to liability for first
    degree murder under s. 231(5)(e).

(a)     Liability of
    the Principal Offender

[73]

The appellants submit that the trial judge misdirected the jury with
    respect to first degree murder. The attack on the charge to the jury (as
    opposed to the recharge) was mainly directed at the fact that the charge lacked
    focus; while the charge, with some minor errors, was legally correct, it did
    not focus the jury on the issues in this case. Thus, the trial judge began his
    discussion of the elements of first degree murder by an extensive discussion of
    whether the actions of the shooter were an essential, substantial and integral
    part of the killing of the victim. As counsel pointed out, that was a non-issue;
    the real issue as regards the shooter was identity. The trial judges review of
    the evidence, especially the evidence as to cause of death, was more relevant
    to second degree murder and the liability of the participant (i.e., the
    non-shooter).

[74]

The
    appellants also submit that the trial judges direction on the second element
    of first degree murder, where there was an unlawful confinement, was unfocused
    since this was a non-issue for Ferrari. While Zingariello denied being involved
    in the unlawful confinement, the evidence was overwhelming that both appellants
    were involved in the unlawful confinement. It was further argued that the trial
    judge unfairly lumped the appellants together because of this direction:

If Crown counsel has satisfied you beyond a reasonable doubt of
    this essential element, you must find the accused unlawfully confined Mr.
    Dimatteo.

[75]

I
    would not give effect to these alleged errors as regards the principal
    offender. I agree that the directions were somewhat unfocused, but that problem
    was cured by the recharge where the trial judge told the jury:

All counsel agree that Mr. Dimatteos death was caused by a
    single gunshot to the hip and there was no other cause of death. One or other
    of the two accused discharged the gun in the master bedroom. The shooter
    actively participated in the shooting and was an essential, substantial and
    integral part of the killing of Mr. Dimatteo.

[76]

The
    appellants submit that the errors in the charge cannot be corrected by the
    recharge because the trial judge did not tell the jury that the initial
    instructions were erroneous. Rather, he told them to consider all the
    instructions in the charge and the recharge:

Unless I tell you otherwise, do not consider any further
    instructions I may give you to be any more or less important than anything else
    I have said about the law. All the instructions, whenever they may be given,
    are part of the same package.

[77]

I
    do not agree with this submission. While the directions related to the
    principal offender may have been unfocused, they were legally correct. The jury
    could not have been in any doubt that a central issue in the case was the
    identity of the shooter.

[78]

As
    to the objections concerning unlawful confinement, it may be that the direction
    was unnecessary with respect to Ferrari, but this was a real issue for
    Zingariello. He was entitled to have the issue placed before the jury, no
    matter the strength of the evidence showing that both appellants must have been
    involved in confining the deceased.

(b)     Liability of the Participant

[79]

The
    appellants allege several errors by the trial judge in the charge relating to
    the liability of the participant or non-shooter, in addition to the error
    concerning founding liability under s. 21(2). In the discussion that follows
    concerning the liability of the participant, I will use the phrases essential,
    substantial and integral element and active participation interchangeably.
    Most of these alleged errors, such as the use of a double negative in referring
    to the unlawful confinement element, were minor. One more serious error alleged
    was that after discussing the essential, substantial and integral element, the
    trial judge stated:

You must determine whether either Mr. Ferrari or Mr. Zingariello
did anything
that caused the death of Mr. Dimatteo. [Emphasis
    added.]

[80]

In
    my view, this misstatement did not prejudice the appellants. The jury would
    understand that the anything related to the issue of active participation and
    the essential, substantial, and integral part discussed at length only
    minutes earlier. The misstatement was clarified in the recharge:

If you are satisfied that either Mr. Ferrari or Mr. Zingariello
    did anything that was an essential, substantial, and integral part of the
    killing of Mr. Dimatteo then you must go on to the next question.

[81]

The
    appellant Ferrari submits that the trial judge did not properly relate his
    defence to first degree murder. The portion of the charge to which Ferrari
    objects is the following:

It is Mr. Ferraris position that Mr. Zingariello fired the gun
    which was a discrete act after they decided to take the safe and leave.

Mr. Ferrari submits that he did nothing to assist or
    participate in the co-accuseds shooting of the gun and he shot the gun without
    warning. Mr. Ferrari said he did not assist in any way in the killing.

[82]

The
    appellant submits that this direction did not make it clear that the primary
    position was that the appellant had not actively participated in the killing
    and that there had been a break in events between his admitted involvement in
    confining the deceased and his actions at the time of the killing. I do not
    accept this submission. I can see no material difference between what the trial
    judge said and what the appellant now claims should have been said.

[83]

In
    my view, when the charge and recharge are considered there were no legal errors
    concerning legal liability for first degree murder.

3.       The trial judge failed to relate the evidence to the elements
    of first degree murder under s. 231(5)(e).

[84]

A more substantial challenge to the charge to the jury on first degree
    murder was whether the trial judge adequately related the evidence to the
    elements of first degree murder to determine liability of the non-shooter. This
    objection focuses almost entirely on the essential, substantial and integral
    element. To understand this objection, it is necessary to set out what the
    trial judge said in the charge and recharge in relation to this element of
    liability, as well as what he said about the Crown theory as to the
    participants liability.

(1)     THE CHARGE ON
    ESSENTIAL, SUBSTANTIAL AND INTEGRAL

Did either Mr. Ferrari or Mr. Zingariello as the participant do
    something that was an essential, substantial and integral part of the killing
    of Mr. Dimatteo?

To prove this element, Crown counsel must prove beyond a
    reasonable doubt that the participant did something that was an essential,
    substantial, and integral part of the killing of Mr. Dimatteo. By an
    essential, substantial and integral part, I mean that the participant
    actively participated in the killing of Mr. Dimatteo. It is not enough to
    prove that the participant was present, or that he played some minor role in
    the events.

To convict someone of first degree murder, Crown counsel must
    prove that the participant is an active participant in the killing.

To decide this issue, you must consider all the evidence. Do
    not limit your consideration to only the opinion of Dr. Doucet about what
    caused Mr. Dimatteos death. Take into account, as well, the testimony of any
    witness who described the events that took place around the time that Mr.
    Dimatteo was shot and died and any surrounding circumstantial evidence. Use
    your good common sense.

When I instructed you on the liability for the principal, you
    must consider the same evidence with respect to the participant and any other
    evidence that assists you to determine the liability of the participant for
    first degree murder.

There was evidence that this was a joint venture where each
    accused assisted each other in the course of a robbery. There was evidence of
    acting in concert to rob Mr. Dimatteo. There was evidence that they assaulted
    Mr. Dimatteo and used duct tape to confine him. One attempted to obtain the
    combination while the other found the safe and moved the safe. There was
    evidence that this was a joint enterprise where each performed a role and
    assisted each other in furtherance of their common unlawful purpose. According
    to Mr. Ferraris evidence, he knew that Mr. Zingariello had a loaded
    semi-automatic handgun as part of a plan to dominate the victim and obtain the
    combination to the safe.

It is Mr. Ferraris position that Mr. Zingariello fired the gun
    which was a discrete act after they decided to take the safe and leave.

Mr. Ferrari submits that he did nothing to assist or
    participate in the co-accuseds shooting of the gun and he shot the gun without
    warning. Mr. Ferrari said he did not assist in any way in the killing.

It is Mr. Zingariellos position that he was not present and
    thus he was not a participant in the confinement or the killing.

You must determine whether either Mr. Ferrari or Mr. Zingariello
    did anything that caused the death of Mr. Dimatteo.

(2)     THE
    CHARGE SETTING OUT THE CROWN THEORY

If Mr. Ferrari or Mr.
    Zingariello had intended to leave Mr. Dimatteo alive at the end of the
    robbery they would have worn gloves, masks and disguises. Mr. Ferrari would not
    have worn a hat with his name on it. Further, this robbery took place near to
    Mr. Ferraris home and his family and his girlfriend.

The accused had no concerns about being later identified by the
    victim because he would not be left alive to later identify either of them in a
    police line-up.

Regardless of which accused fired the fatal shot, both accused
    knew that Mr. Dimatteo would be shot in this robbery. They both knew a loaded
    semi-automatic handgun was being brought to the robbery. It was the only weapon
    they brought and it was a deadly weapon.

The Crown submits that both accused acted together and
    assaulted and unlawfully confined Mr. Dimatteo and assisted each other as the
    violence escalated to the point that Mr. Dimatteo was shot and killed.

Both accused actively participated in the intentional killing
    of Mr. Dimatteo who was unlawfully confined at the time making each of them
    guilty of first degree murder.

(3)     THE
    RECHARGE ON ESSENTIAL, SUBSTANTIAL AND          INTEGRAL

The first issue for your determination is the identification of
    the shooter. The second issue for your determination is whether the non-shooter
    did anything that was an essential, substantial or integral part of the killing
    of Mr. Dimatteo. To decide those issues, you must consider all the
    evidence. Do not limit your consideration to only the opinions of Dr. Doucet
    about what caused Mr. Dimatteos death. Take into account, as well, the
    testimony of any witness who described the events that took place around the
    time that Mr. Dimatteo was shot and died and any other circumstantial evidence.

Mr. Ferrari, Mr. Zingariello, and Ms. Valiente were witnesses
    who were present at 56 Cipriano Court on the morning of June 24, 2005. Use your
    good common sense.

Mr. Zingariello testified that Mr. Dimatteo entered the
    residence while he and Mr. Ferrari were in the master bedroom. The security
    chimes rang. They went toward the noise and Mr. Ferrari pulled down a balaclava
    and pulled out a gun. Mr. Ferrari went down the stairs pointing a gun at Mr.
    Dimatteo who was standing in the foyer. Mr. Ferrari marched the deceased up the
    stairs and a struggle ensued between Mr. Ferrari and Mr. Dimatteo on the
    second floor landing. He testified that Mr. Ferraris gun fired and there was a
    loud bang. Mr. Zingariello ran down the stairs and out of the residence. It was
    Mr. Zingariellos evidence that the second shot was fired when he was sitting
    in the car. It was Mr. Zingariellos position that he was not the shooter and
    he did nothing that was an essential, substantial and integral part of the
    killing.

Mr. Ferrari testified that he and Mr. Zingariello were standing
    on the landing near the safe around the entrance to the bedroom. Mr. Zingariello
    told Mr. Dimatteo give me the fucking combination and a shot was fired.
    Mr. Ferrari said he did not see where the bullet from the non-fatal shot struck
    the floor. It was his evidence that Mr. Dimatteo responded fuck you and
    seconds later the second shot went off. Mr. Ferrari said Mr. Zingariello looks
    surprised. He said he was stunned because he heard a grunt from Mr. Dimatteo.
    He went to Mr. Dimatteo who said help me. Mr. Ferrari said he picked up the
    phone, dialled 911, and put the phone to the deceaseds ear and said help
    yourself, and then left. It was Mr. Ferraris position that he was not the
    shooter and he did nothing that was an essential, substantial, and integral
    part of the killing of Mr. Dimatteo.

Ms. Valiente testified that she heard two shots while she was
    sitting in the car. Ms. Valiente said that Mr. Ferrari had a gun that he put in
    his pocket on the morning of June 24, 2005, before driving to Cipriano Court.
    She said she had previously seen the gun in April of 2005 when Mr. Ferrari showed
    it to her. You may consider the evidence of Ms. Valiente concerning the timing
    of the shots, what she saw and overheard at Mr. Dimatteos residence, and what
    she heard and saw at the house and the discussions in the car after the
    killing. You may also consider Ms. Valientes evidence concerning her
    observations of blood in the sink after the robbery at 22 Button Road.

There were conflicting theories of the mechanics of the
    shooting based on the different hypotheticals put to Dr. Doucet. The
    deceased was standing upright with his left hand facing the shooter. The bullet
    travelled from left to right in an upward trajectory, and  (2) the deceased was
    lying on the floor and his body was slightly angled to the shooter and the
    trajectory of the bullet was from left to right horizontally; (3) Detective
    Orme provided a different possibility that if the deceaseds left side faced
    the shooter and the shooter was squatting or sitting at the point below the
    deceased he would be shooting at an upward trajectory.

Dr. Doucet said he did not know the relative positions of the
    shooter and the victim and he had no ability to gather information to give an
    opinion. He said that there were a number of different scenarios that could
    explain the pathway of the bullet. Dr. Doucet was unable to provide an opinion
    as to the distance between the shooter and the deceased.

Dr. Doucet did not find any evidence of gunshot residue on the
    deceaseds skin. He said the absence of gunshot residue could be explained
    because Mr. Dimatteo was wearing clothing. Detective Fraser said that the
    trajectory of the non-fatal bullet was at a 21 degree angle to the floor. If
    the shooter was standing at the doorway of the bedroom he would be
    approximately 14 feet from the place Mr. Dimatteo was found. Detective Fraser
    did not know the angle of the gun when the fatal shot was fired.

Officers McClure and Ferreira drew sketches of the position of
    Mr. Dimatteo lying on his left hip on the Oriental carpet. There was a small
    amount of blood on the underside of the Oriental carpet near the bullet hole
    made by the non-fatal bullet. Dr. Doucet said the wound would produce a small
    amount of discharge.

Officers McClure and Ferreira found one shell casing after Mr.
    Dimatteo was moved by the paramedics.

As you may recall, Mr. Ferrari, Mr. Zingariello, and Ms. Valiente
    gave evidence concerning their conversations in the car. You may consider those
    conversations to assist you to identify the shooter.

You must consider all the evidence to determine whether Mr.
    Ferrari or Mr. Zingariello was the shooter or non-shooter.

With regard to the shooter, the shooting of Mr. Dimatteo would
    be an essential, substantial or integral part of the killing. With regard to
    the non-shooter, you will need to determine whether Crown counsel has proved
    beyond a reasonable doubt that the non-shooter did anything that was an essential,
    integral or substantial part of the killing.

(4)     THE RECHARGE SETTING
    OUT THE CROWN THEORY

It is further the Crowns position that the non-shooter
    actively participated in the killing of Mr. Dimatteo by restraining the
    deceased and depriving him of his ability to move from place to place. Mr.
    Ferrari testified that both accused participated in the confinement and there
    is circumstantial evidence from which to infer that each of the accused
    actively participated in the unlawful confinement. Both accused physically
    restrained the deceased by assaulting him and by taping his hands and ankles
    together with duct tape. The Crown submits that the non-shooter actively
    participated in the killing by physically confining the deceased which
    confinement was an essential, substantial and integral part of the killing.

It is also the Crowns position that there was a temporal and
    causal connection between the unlawful confinement in the killing. The Crown
    submits that the unlawful confinement in the murder were closely connected to
    each other and were part of a continuing illegal domination of Mr. Dimatteo
    culminating in his murder. The unlawful confinement in a murder were part of a continuous
    series of events that was really a single ongoing transaction.

[85]

In
    my view, the initial charge to the jury (1, above) would not have assisted the
    jury in determining what facts they would need to find to determine whether the
    actions of the non-shooter formed an essential, substantial and integral part
    of the killing of the victim. Those instructions focused on the evidence of
    participation in the robbery and the unlawful confinement. While this evidence
    was helpful to provide the necessary context, participation in the robbery and
    the confinement did not answer the question of the non-shooters active
    participation in the killing. The same must be said of the Crowns theory as it
    is set out in the charge. The first part of the theory, in effect, makes a case
    for a planned and deliberate murder, a basis for liability that was taken away
    from the jury. The second part is an assertion that both appellants actively
    participated in the killing, but it gives no theory grounded in the facts as to
    how the jury might find that liability.

[86]

The
    recharge contains a fuller review by the trial judge of the evidence but again
    fails to identify the factual elements that would give rise to a finding of
    active participation in the killing. The review of the Crowns theory in the
    recharge focused on participation by the two appellants in the unlawful
    confinement. I repeat the crucial part of that review:

It is further the Crowns position that the non-shooter
    actively participated in the killing of Mr. Dimatteo by restraining the
    deceased and depriving him of his ability to move from place to place. Mr.
    Ferrari testified that both accused participated in the confinement and there
    is circumstantial evidence from which to infer that each of the accused
    actively participated in the unlawful confinement. Both accused physically
    restrained the deceased by assaulting him and by taping his hands and ankles
    together with duct tape. The Crown submits that the non-shooter actively
    participated in the killing by physically confining the deceased which
    confinement was an essential, substantial and integral part of the killing.

[87]

In
    my view, this part of the recharge is the most helpful explanation of what
    could constitute active participation, provided it is correct. This requires a
    review of some of the authorities. I do not doubt that in some circumstances
    participation in unlawful confining the victim can also be the foundation for
    active participation in the killing.
Harbottle
is an example. In that
    case, as revealed through the accuseds confession to police, the principal
    offender tied up the deceased and sexually assaulted her. The two accused then
    left the room to talk about what to do next. Harbottle then carried the victim
    downstairs and put her on the floor. He held down her legs while the principal
    offender strangled her. Justice Cory explained at pp. 325-26 why Harbottles
    actions were an essential, substantial and integral element of the killing:

The facts of this case clearly established that Harbottle was a
    substantial and an integral cause of the death of Elaine Bown. It will be
    remembered that Ross, who actually strangled the victim, weighed only 130 lb.
    and was about 5' 7" in height. Elaine Bown, although three inches shorter,
    was 10 lb. heavier. There was no indication in her blood of any alcohol or
    drugs so that it can be inferred that she was not impaired. Rather the bruising
    on her neck indicates she struggled valiantly. Indeed, it is apparent that even
    when her hands were bound, she successfully resisted the attempts of both Ross
    and Harbottle to cut her wrists.
There is every reason to believe that, had
    it not been for Harbottle's holding her legs, she would have been able to
    resist the attempts to strangle her. In those circumstances, it is difficult to
    believe that Ross could have strangled her in the absence of the assistance of
    Harbottle
.
[Emphasis added.]

[88]

Thus,
    the finding of substantial causation did not rest on Harbottles participation
    in the earlier confinement of the deceased but on his actions in helping
    overcome her resistance to the killing. Justice Cory gave two other examples of
    how a participant could be convicted of first degree murder, at pp. 324-25:

For example, if one accused with intent to kill locked the
    victim in a cupboard while the other set fire to that cupboard, then the
    accused who confined the victim might be found to have caused the death of the
    victim pursuant to the provisions of s. 214(5). Similarly an accused who fought
    off rescuers in order to allow his accomplice to complete the strangulation of
    the victim might also be found to have been a substantial cause of the death.

[89]

Another
    decision relied upon by the Crown at trial and in this court is
R. v.
    Ghazzi
, [2006] O.J. No. 4052, 2006 CanLII 34260 (C.A.). As this was an
    appeal from dismissal of an application to quash an order to stand trial, there
    is a limited recitation of the facts in the reasons for judgment. It appears
    that the appellant was a taxi driver and was aware of the plan to assault the
    deceased after he was placed in the taxi. The evidence supporting the order to
    stand trial for first degree murder includes an admission to a witness that we
    killed him, as well as the following, at para. 4:

[W]hen it became apparent during the altercation in the
    taxicab, to the appellant's knowledge, that the assault on the victim was
    accelerating to a murderous attack, the appellant initially expressed concern
    but thereafter continued to drive the taxicab in which the victim was forcibly
    confined, while the victim pleaded aloud for his life, without stopping the car
    or otherwise curtailing his companions' actions. Moreover, he continued to do
    so for at least some time given that the forensic evidence indicated that
    approximately five minutes were required to inflict the blows sustained by the
    victim.

[90]

Thus,
    the appellants participation in the unlawful confinement did not merely set
    the stage for the murder. The appellants actions in controlling the taxi were
    essential to the killing; somewhat like the arson example in
Harbottle
,
    the appellant confined the victim while his confederate inflicted the fatal
    beating.

[91]

Another
    decision relied upon by the Crown is
R. v. Norouzali
(2003), 177
    C.C.C. (3d) 383 (Ont. C.A.). In that case, the appellant and another went on a
    robbery and killing spree. The first degree murder conviction rested on the
    unlawful confinement of a victim who was taken from his car into a wooded area
    and executed. The court, at paras. 52-53, described the facts from which a
    finding that the appellant was guilty of first degree murder could be made,
    assuming he was not the shooter. The court wrote at para. 53:

It took both the appellant and the co-accused to forcibly
    escort Thomas to his execution site. Assuming that Thomas was shot by a single
    person and that the appellant was the non-shooter, the appellant prevented
    Thomas escape. As such, he committed an act or series of acts of such a nature
    that they could be regarded as a substantial and integral cause of death. The
    appellant caused Thomas death because he participated in the murder in such
    a manner that he was the substantial cause of Thomas' death. His role was as
    substantial as that of the accused in
Harbottle
itself. The back up
    role that the appellant played was as integral to Thomas' death as that of the
    shooter
.


[92]

As
    the court explained, the facts in
Norouzali
resembled both the facts
    of
Harbottle
itself and the second example given by Cory J. in that
    case, of the participant who fought off rescuers. The earlier confinement of
    the victim was not itself sufficient to render the participant liable for first
    degree murder; rather, it was the active role played by the appellant right up
    to the point of execution in ensuring that the victim could not escape.
Norouzali
is different from this case because no continuing actions by the participant beyond
    the initial tying up of the deceased were necessary for the killing.

[93]

Cases
    from other provinces provide similar examples. Thus, in
R. v. Corneau
,
2010 QCCA 1603, where two victims were confined and killed, the
    participation of two people was required in the killings; otherwise, the
    victims would have been able to assist each other and escape.

[94]

In
R. v. Kematch
, 2010 MBCA 18, 252 C.C.C. (3d) 349, the accused
    common-law couple confined and beat their young daughter over a substantial
    period of time. The court found that first degree murder had been made out, based
    on each accuseds participation in the confinement and the beating. As the court
    said at para. 112, the unlawful confinement was so substantially a part of the
    whole sequence of events that it could be said to be a substantial and integral
    cause of death. And at para. 113:

By their actions and/or omissions, they are both responsible
    for the fact that death ensued and the matter of the confinement and domination
    was sufficiently closely linked to what brought about the death that society's
    condemnation of their actions renders their conduct first degree murder.

[95]

The
    evidence in this case presents several possibilities as to how the killing
    unfolded. One theory was that the killing was planned and deliberate: the
    appellants went to the deceaseds residence knowing that he would be home
    because they intended to obtain the combination for the safe from him and then
    kill him to cover up their involvement. As indicated, the trial judge held that
    there was no evidence to support this theory of liability.

[96]

A
    second possibility is that both appellants participated in the unlawful
    confinement, which immediately preceded the shooting, and which was done to
    obtain the combination from the deceased. This scenario somewhat resembles
Harbottle
and, to a lesser extent,
Ghazzi
.
Liability of the participant
    turns on the theory that the unlawful confinement was not simply part of the
    context but the means to extract the combination when the participant knew the
    principal offender intended to kill the deceased. Such a scenario would
    constitute first degree murder, somewhat like the facts in
R. v. Brown
(2002), 160 O.A.C. 141 (C.A.), at para. 4, where the participant bound and
    delivered up the deceased to the shooter. The deceased could neither flee nor
    defend himself.

[97]

A
    third possibility is that both appellants participated in the unlawful
    confinement to keep the deceased out of the way, especially after, according to
    Ferrari, the deceased tried to defend himself. Then, while the participant was
    dragging the safe, the other shot the deceased, with no involvement by the
    participant. This theory rests, in part, on the fact that the original
    intention of the appellants was to remove the safe from the residence and open
    it later. In my view, the participant could not be liable for first degree
    murder on this scenario, even though he participated in the unlawful
    confinement by helping to tie up the deceased.

[98]

There
    may be other possibilities. These three examples serve to demonstrate the
    difficult task faced by the trial judge in attempting to relate the evidence to
    the elements of first degree murder. The trial judges review of the evidence
    (3, above) while helpful, did not clearly set out the factual findings the jury
    would have to make, in addition to finding joint participation in the unlawful
    confinement, to render the participant guilty of first degree murder: see
R.
    v. Almarales
, 2008 ONCA 692, 237 C.C.C. (3d) 148, at paras. 82-84.

[99]

This
    gap in the instructions to the jury means, in my view, that the convictions for
    first degree murder cannot stand. The jury could well have convicted the
    participant on the basis of s. 21(2) solely because of his participation in the
    unlawful confinement and used that same finding to convict of first degree
    murder, even though they were unsure what the participant did as part of the
    killing. Since it is not possible to tell with any certainty on this record
    which of the appellants shot the gun, both of the convictions for first degree
    murder must be set aside.

[100]

Ordinarily, the
    appropriate disposition would be to order a new trial for both appellants on
    the charge of first degree murder. However, Crown counsel stated that if the
    court was of the view that the errors only tainted the convictions for first
    degree murder, he would be content that the court dismiss the appeals and
    substitute convictions for second degree murder. In my view, that is the proper
    result. This disposition makes it unnecessary to consider the appellants final
    ground of appeal that there was no evidence upon which a jury properly
    instructed could convict of first degree murder.

DISPOSITION

[101]

Accordingly, I
    would dismiss the appeals from conviction for first degree murder and
    substitute convictions for second degree murder. I would remit the matter of
    sentence, parole ineligibility, to the trial judge, in accordance with s. 686(3)(b)
    of the
Code
.

Signed:        M. Rosenberg J.A.

I agree Doherty J.A.

I agree S. E. Lang J.A.

RELEASED: DD JUNE 12, 2012





[1]
The appellants did not submit that this delay on its own was a reversible
    error. Rather, it was part of the context for their submission and emphasized
    the necessity that the trial judges instructions be accurate and fairly and
    fully set out the factual and legal basis for liability.



[2]
Cases from this court prior to
Harbottle
suggested s. 21(2) could not
    be the basis for constructive first degree murder:  see, for example,
R. v.
    McGill
(1986), 15 O.A.C. 266 (C.A.).


