R. v. Maugey

R. v. Maugey Collection Decisions of the Court of Appeal Date 2000-06-30 Docket numbers C28702 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Feldman, Kathryn N. Subject Criminal Decision Content DATE:20000630 DOCKET:C28702 COURT OF APPEAL FOR ONTARIO ABELLA, LASKIN AND FELDMAN JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. Riun Shandler ) and Mr. J.A. Ramsay ) for the respondent ) (Respondent) ) ) and ) ) CALVIN MAUGEY ) Mr. Peter Hambly ) and Ms. Baran Gerez ) for the appellant (Appellant) ) ) BETWEEN: ) C29319 ) HER MAJESTY THE QUEEN ) Mr. Riun Shandler ) and Mr. J.A. Ramsay ) for the respondent (Respondent) ) ) and ) ) DESMOND PRASHAD ) Mr. Richard Litkowski ) for the appellant (Appellant) ) ) Heard: May 12, 1999 On appeal from conviction by Sills J., sitting with a jury, on September 23, 1997 and from sentence imposed on November 3, 1997 at Kitchener, Ontario FELDMAN J.A.: [1] Two friends of the appellants, Ally and Ecker, robbed a Pizza Pizza store on December 24, 1996. They were armed with knives and attacked the store owner and the pizza delivery driver. Ally and Ecker were convicted of attempted murder of the owner of the store, while Ally was also convicted of aggravated assault on the pizza delivery driver. [2] At their joint trial, the appellants were convicted together with Ally and Ecker of conspiracy to rob and robbery of the store. The appellants were also convicted of being accessories after the fact to the robbery. They were each sentenced to three years imprisonment. The appellants appeal their convictions and sentences. Ally and Ecker did not appeal. As I would order a new trial for the appellants, I will limit the recitation of the facts to those necessary to deal with the issues raised on the appeal. FACTS [3] The four accused men were 18, 19, 19 and 20 years old at the time of the offences, and long-time friends who regularly socialized and frequented nightclubs together. Maugey, who was 20, did the driving as he had access to a car. Ally, Maugey and Prashad, who was 19, all had cell phones and used them to communicate with each other. [4] In December 1996, Ally and Ecker planned a robbery of their local Pizza Pizza store. They were prepared to plead guilty to this conspiracy although they denied any involvement by the two appellants. That plea was not accepted by the Crown. All four accused testified at the trial, and all denied that the two appellants had any involvement in or prior knowledge of the robbery. [5] The Crown’s theory was that all four men were involved in the conspiracy, with the role of the appellant Prashad to be look-out and the appellant Maugey to be get-away driver, and that all four participated in a practice run of the robbery on the night before the offences were committed. [6] On the morning of December 23, the four young men left a night club between 1:00 and 1:30 a.m. in Maugey’s car along with another friend, Andrew Birl. Maugey stopped at Ecker’s home where Ecker ran inside to change, then he drove Ecker and Ally to the Pizza Pizza, dropped them off, drove Prashad home, then drove Birl home. Maugey called Ally and Prashad on a three-way cell call at 1:59 a.m.. The call lasted for nine minutes. Maugey, Prashad and Birl all testified that the call concerned the recovery of Ally’s identification from the club they had been at, although Ally remembered that they discussed an incident at the night club, but not the problem he had had with his identification. The Crown alleged that this call was part of the communication between the accused during the rehearsal for the robbery. Ecker and Ally testified that that night they had masks and knives and did intend to rob the store, but were unable to do so because there were other people around. Maugey then picked up Ally and drove him home. [7] The next night the four accused were again out together. Maugey was the driver. Eventually he dropped off Ally and Ecker at the plaza where the pizza store was located. He then dropped Prashad off at the next intersection where Prashad said he began to walk up a hill behind a school toward his girlfriend’s home. [8] Ally, Maugey and Prashad had a 15 minute open cell phone line during the time that Ecker and Ally attacked the pizza store owner and the pizza delivery driver in the store with knives. During the struggle, the driver also stabbed Ally and Ecker. The three accuseds testified that their phone discussion was about going to Toronto for Chinese food the next day, and that Ally had disconnected from the conversation early on, while the appellants continued to talk. The appellants later heard screaming on the line. Ally said that after the failed robbery, he ran outside, called Maugey for help, then discovered that the phone was still connected. He told Maugey he had been stabbed and told him where he was. During the screaming, Prashad had disconnected his phone. Maugey called him back and requested his help getting Ally to the hospital. [9] Maugey then came and picked up Ally as well as Prashad. Ally was badly injured and bleeding. Maugey drove him to a hospital but not the closest one. He dropped off Ally and Prashad at the arena by the hospital, then he drove home. Prashad took Ally into the hospital where he provided Ally’s correct identifying information, but gave a false story that Ally had been stabbed in a park. Maugey testified that he did not know that a false story would be told. Ally also gave a false story to police initially. [10] Prashad gave a written statement to police on December 24 as well as a videotaped statement. He initially lied about being with Maugey when they received the call from Ally that he was injured, but then admitted that he had been dropped off, then was summoned by Maugey to assist with Ally, and that they took Ally to the hospital. The statements were essentially exculpatory and consistent with his testimony at trial. [11] However, on January 7, 1997, Prashad was arrested, and provided a second videotaped statement in which he said that he and Maugey did know about the robbery in advance. They had dropped off Ecker and Ally knowing they had a knife. He was instructed to be the lookout by walking up a hill behind the school near the Pizza Pizza, to look back and report anything he saw into the phone. However, he just put the phone in his pocket and did not act as lookout. When he picked up the phone to tell Maugey he was going home, he heard screaming and cut off the connection, but Maugey called him back and insisted that he help take Ally to the hospital. He testified that he believed that if he told the police he was supposed to act as a lookout but did not do it, then he would not be charged. [12] At trial his statements were conceded to be voluntary and were admitted as evidence against him. He denied all knowledge of or participation in the robbery in his testimony at trial. [13] Maugey also gave a statement to the police on December 24. He acknowledged picking up Ally and driving him to the hospital, but lied that he was with Prashad when they received the phone call from Ally. He also said in his statement that he suspected that Ecker and Ally were up to something. At trial he denied suspecting anything. ISSUES [14] On the conviction appeal, the appellant Maugey raises the following 7 issues: 1) The trial judge erred by failing to present to the jury the theory of the defence and the evidence which related to that theory. 2) The trial judge erred by failing to outline to the jury what pieces of evidence they could consider against each appellant when applying the three-stage analysis on the conspiracy charge. 3) The trial judge erred in his charge by misstating the evidence with respect to the cell phone conversation on the night before the robbery, by failing to refer to the evidence of Andrew Birl who was in the car and overheard the conversation. 4) The trial judge erred by failing to properly answer the jury’s question which suggested that the jury may have been improperly transferring evidence among the accused. 5) The trial judge erred in his instruction on the mens rea element of the charges of accessory after the fact in that he told them that if either or both accused was wilfully blind to the facts of what Ally had done, then knowledge was proved. 6) The trial judge erred by failing to instruct the jury on the law with respect to consciousness of guilt, especially after the Crown referred to it in his closing address. 7) The trial judge erred by failing to exercise his discretion judicially when he refused to grant Maugey’s motion for severance after allowing into evidence Prashad’s statements to the police in which he implicated Maugey in the offences. [15] The appellant Prashad relies on issues 1,3,4, and 5. ANALYSIS 1) Did the trial judge err by failing to present to the jury the theory of the defence and to outline the evidence supporting that theory? [16] One of the basic functions of the charge to the jury is for the judge to state the position of the Crown and of the defence and to outline for the jury the evidence relating to those positions: Azoulay v. The Queen (1952), 104 C.C.C. 97 (S.C.C.); Colpitts v. The Queen,[1966] 1 C.C.C. 146 (S.C.C.); R. v. C.D., [2000] O.J. No. 1667 (C.A.). Recently in R. v. Mallot, [1998] 1 S.C.R. 123 at 131, while stating that a jury must be properly instructed but need not be perfectly instructed, Major J. quoted with approval the following passage from Azoulay: 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…. [Emphasis added.] [17] In R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), this court dealt with how a reviewing court is to approach an assessment of alleged deficiencies in a jury charge. Doherty J.A. referred to the case of R. v. Jacquard, [1997] 1 S.C.R. 314 where Lamer C.J.C. reiterated the obligation set out in Azoulay but also stated that a functional approach must be taken to assessing the adequacy of jury instructions. Doherty J.A. interpreted that directive to mean that: By the end of the instructions, whatever approach is used, the jury must understand: - the factual issues which had to be resolved; - the law to be applied to those issues and the evidence; - the positions of the parties; and - the evidence relevant to the positions taken by the parties on the various issues. (p. 386) [18] This was a difficult and complex jury charge. There were four accused and five counts including a conspiracy charge, involving various combinations of the four accused. The trial judge himself stated as he was opening the first question from the jury, that he did not ever expect to have a more difficult jury charge to assemble. The trial judge carefully outlined the law in respect of each offence and its applicability to the alleged roles of each of the accused in the respective offences. He also instructed the jury to consider all of the circumstances and referred to some of the evidence. The issue is whether he adequately set out the position of each of the appellants on the counts with which they were charged, and whether he reviewed the evidence relevant to those positions and related it to them. [19] The modern test articulated by Doherty J.A. requires “references to the evidence which are sufficient in the context of the case and the entirety of the charge to alert the jury to the particular parts of the evidence which are significant to particular issues and to the positions taken by the parties on those issues.” See R. v. MacKinnon, supra, at p. 386-7. In my view, the jury charge in this case did not meet that test. [20] On the charge of robbery, the trial judge instructed the jury on the elements of the offence of robbery as well as the requirements for a finding of aiding and abetting. His review of the evidence in respect of the two appellants was the following: In the end, you will have to consider all of the surrounding circumstances, including what each of Maugey and Prashad said and did, in order to decide whether either of them knew or intended that his conduct would aid or abet the principal offender. Please remember the question for you to decide is what did Maugey in fact intend; what did Prashad actually in fact intend? The trial judge did not put the position of the defence to the jury, nor did he outline the pieces of evidence which supported their position or were relevant to it. It was the position of both appellants at trial that they did not know about the robbery and therefore were not parties to it. That position was supported by the co-accuseds. The trial judge could have referred to both appellants’ explanations for their actions that night including, their cell phone connection with Ally, as well as such evidence as the appellant Prashad was nearsighted, was not wearing his glasses, and was at a poor location for acting as a lookout as alleged by the Crown, the evidence of Birl regarding the cell-phone conversation, and the evidence of all four co-accused that the appellants were not involved. [21] The trial judge next dealt with the conspiracy to commit robbery charge. I will deal later with his failure to relate the relevant evidence to the three-part analysis that the jury must undertake in order to find each accused to be a member of the conspiracy and therefore guilty of that offence. [22] The final charge against the appellants was accessory after the fact to the offence of robbery by the assistance they provided to Ally when they picked him up after the robbery. Again the trial judge thoroughly outlined the elements of the offence which the Crown was required to prove beyond a reasonable doubt. Dealing with their knowledge that Ally had committed the acts constituting robbery, the trial judge said only the following with respect to the evidence: You may find it difficult to decide what Mr. Maugey or Mr. Prashad knew. Again, that is because knowledge is a matter of the mind. In deciding whether Maugey and Prashad knew that Kris Ally had committed the acts that constitute the offence of robbery, you will have to look at all the surrounding circumstances, including what each of Mr. Maugey and Mr. Prashad said and did. The trial judge dealt in a similar way with the element of proof by the Crown that the appellants’ purpose or one of them, in coming to Ally’s aid, was to help him escape from justice. In respect of the evidence on that issue, the trial judge referred to categories of evidence but did not articulate for the jury actual examples of relevant evidence: …Again, there needs to be proof of that purpose, and it is difficult to decide exactly what the purposes of Mr. Maugey and Mr. Prashad were. You are entitled as a matter of common sense to draw an inference that a sane and sober person intends these natural and probable consequences of his voluntary acts. Therefore, in deciding what the purposes of Mr. Maugey or Mr. Prashad were, you are entitled as a matter of common sense to infer or conclude that their respective purposes were to bring about the natural consequences of their respective actions. If the actions of Mr. Prashad or those of Mr. Maugey would have the natural effect of assisting Kris Ally, then you are entitled to conclude that they were done for that purpose. But you are not required to make this conclusion. You may decide that there is a reasonable doubt that they were done for that purpose, even if this was the natural consequence of their actions, or of each of their actions. In the end you will have to consider all of the surrounding circumstances, including what each of Mr. Prashad and Mr. Maugey said and did in order to decide whether their actions or whether their purpose in receiving, comforting, or assisting Mr. Ally was to help him escape from justice. You should also consider the explanation of each of Mr. Prashad and Mr. Maugey when they testified. If the testimony of each of them or either of them raises a reasonable doubt about his reason for his conduct, you must give the benefit of that doubt to that accused and return a verdict of not guilty. As this was the end of the substantive portion of the charge, the trial judge made a further general reference to the evidence at this point after reiterating that the Crown must prove each element of the accessory after the fact offence beyond a reasonable doubt: The evidence in this case is not particularly extensive. A considerable amount of time over the past three weeks has been spent watching videos of statements made. But the facts upon which all of the counts in this indictment are based were facts which were developed over a two or three day period between Dec. 22, 1996 and December 24, 1996. [23] He also advised the jury that they would be provided with a list of the witnesses for the Crown and for the accuseds including the accuseds themselves, in the order in which they testified and stated: I hope that will be of assistance to you in the course of your deliberations. [24] At no point during the charge did the trial judge set out the position of the appellants on any of the charges, nor did he identify the pieces of evidence which supported or related to those positions. This was not a very simple and straightforward case as in R. v. Dwyer (1977), 35 C.C.C. (2d) 400 (C.A.), where an exception might be able to be made not to repeat to the jury the facts just set out for them by counsel. This was an especially complex charge with many legal principles which were fully explained by the trial judge dealing with the five counts and their application to the four accused before the court. It was therefore a case which particularly required the trial judge to set out the respective positions of each accused on each charge and to relate the relevant evidence for the jury to each such position. [25] Furthermore, it is no answer, as suggested by the Crown, that a full review of the evidence would have hurt the appellants, so that the trial judge’s failure to do so enured to their benefit. The purpose of the functional approach is to organize and clarify the issues and the applicable evidence for the jury, as it is for them to decide the guilt or innocence of the accused. The appellants were entitled to a proper instruction so that the jury could carry out their function in a fair manner. [26] Although there was no objection to the charge by counsel, that does not relieve the trial judge from the obligation to relate the evidence to the issues: R. v. Pintar (1996), 110 C.C.C. (3d) 402 at 438. (C.A.). 2) Did the trial judge sufficiently set out for the jury which pieces of evidence they could consider against each accused when applying the three-stage analysis on the conspiracy charge? [27] The conspiracy charge reads as follows: “Kris Ally, Ryan Ecker, Calvin Maugey, and Desmond Prashad, on or about the 24th of December, 1996, at the City of Kitchener, did conspire together to commit the indictable offence of robbery of Pizza Pizza owned and operated by Hassan Shah-Fazlollahi situated at 450 Westheights Drive.” [28] The Crown took the position that all four accused were members of the conspiracy, so that if the jury was not satisfied about the membership of all four in the conspiracy, then that charge failed as against all four. Ally and Ecker admitted that they were planning a robbery of the pizza store for one or two weeks prior to the event and pleaded guilty to the conspiracy charge, but only with respect to each other. All four denied in their testimony that the appellants were part of the conspiracy or even knew about it. However, in his January 7, 1997 statement, Prashad had admitted his own participation in the conspiracy and said that Maugey was also a member of the conspiracy. [29] It has been well-established since the cases of R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525 (Ont. C.A.) and R. v. Carter (1982), 67 C.C.C. (2d) 568 (S.C.C) that the trial judge must direct the jury how to apply the three-step process to determine whether an accused has been proved to be a member of an alleged conspiracy. The first step is to decide beyond a reasonable doubt whether the conspiracy existed, based on all the evidence. The second step is for the jury to determine whether the accused was probably a member of the conspiracy, based only on his own acts and declarations admissible directly against him. That question must be answered for each alleged conspirator. If the jury is satisfied, based only on the accused’s own acts and words, that he was probably a member of the conspiracy, the jury may consider the acts and words in furtherance of the conspiracy of other persons whom they have found to be probable members, as evidence against the accused that he was a member. Normally such evidence would be inadmissible hearsay, but because conspirators are agents of each other, their acts in the agency are admissible against each other. Acts and words in furtherance of the conspiracy are those which moved the conspiracy forward, not narrative discussions or descriptions, or statements made after the object of the conspiracy has been carried out, such as statements made to the police after the fact. Finally, the third step is that the jury must be satisfied beyond a reasonable doubt, based on all of the evidence, that the accused was a member of the conspiracy. [30] In his charge to the jury, the trial judge outlined in a very satisfactory manner, the three-step process including a description of the types of evidence that they could use at each stage of the process. He also discussed the element of intent and re-emphasized that the onus was on the Crown beyond a reasonable doubt. That part of the charge covered 6.5 pages in the transcript. [31] In Baron and Wertman, supra, at p. 545-6, Martin J.A. described a five-point procedure to be used by trial judges when charging juries on the offence of conspiracy. After the trial judge has instructed the jury on how to determine if an accused is a probable member of the conspiracy, and if so, how they may then use the hearsay statements of other co-conspirators, the fourth point directs: “As a general rule, it would be desirable for the trial Judge to then refer the jury to the principal evidence admissible directly against each accused from which they may find that such accused was a party to the conspiracy but the jury should be instructed that it is for them to say if the evidence has this effect.” [Emphasis in original.] In the later Supreme Court decision in Carter, supra, at p. 575-6, the court described fully the obligation of the trial judge in charging on conspiracy: The trial judge must bear in mind that in order to convict an accused upon a charge of conspiracy the jury, or other trier of fact, must be satisfied beyond a reasonable doubt that the conspiracy alleged in the indictment, existed, and that the accused was a member of it. In deciding the issue of membership for the purpose of determining guilt or innocence on the charge contained in the indictment, the hearsay exception may be brought into effect, but only where there is some evidence of the accused’s membership in the conspiracy directly admissible against him without reliance upon the hearsay exception raising the probability of his membership. It is not necessary that the directly admissible evidence be adduced first before any evidence of the acts and declarations of other conspirators may be received. The exigencies of the trial would make a chronological separation of the evidence impossible. At the end of the day, however, before the hearsay exception may apply, such evidence on the threshold issue of membership of the accused in the conspiracy must be present. In charging the jury on this question, the trial judge should instruct them to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not satisfied, then the accused charged with participation in the conspiracy must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. If this conclusion is reached, they then become entitled to apply the hearsay exception and consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty. They should be told, however, that this ultimate determination is for them alone and that the mere fact that they have found sufficient evidence directly admissible against the accused to enable them to consider his participation in the conspiracy probable, and to apply the hearsay exception, does not make a conviction automatic. They should be clearly told that it is only after they have become satisfied beyond a reasonable doubt on the whole of the evidence on both issues, that is, the existence of the conspiracy and the accused’s membership in it, that they may convict, and that it is open to them, if they think it right or if they are not satisfied, to acquit the accused, even after reaching their initial determination of probable membership in the conspiracy which enabled the application of the hearsay exception. The trial judge should point out to the jury, as well, the evidence directly admissible against the accused on the threshold issue of his membership in the conspiracy to assist them in that determination…. [Emphasis added.] [32] The reason why it is so important that the jury be specifically charged on which evidence is directly admissible against an accused is because it is that evidence which may make the accused a probable member of the conspiracy and allows the hearsay statements of other co-conspirators to be applicable as evidence against him. In order to be able to apply the test, the jury must understand which pieces of evidence are available as evidence admissible directly against an accused. [33] The matter was particularly open to confusion in this case where the two appellants each gave statements to police after the alleged conspiracy was concluded. Such statements, once ruled voluntary, are admissible against the person who made them, but are never admissible against another co-conspirator, as they are not made in furtherance of the conspiracy, but after the conspiracy was completed. Also, the two other co-accused, Ally and Ecker, made admissions about their own involvement and gave evidence explaining the involvement of the appellants. That evidence was exculpatory for the appellants, as was their own evidence. This exculpatory evidence was also admissible evidence for the jury to consider on the issue of probable participation, but the admissions of Ally and Ecker about their own involvement were not, as those admissions were not declarations made in furtherance of the conspiracy. Because there was both inculpatory and exculpatory evidence on the issue of the appellants’ knowledge and involvement, it is not possible to say what the jury would have done had they been referred to the available evidence in the charge. [34] The trial judge did provide some very brief references to the evidence after his lengthy explanation of the law: Some of the evidence that you should consider is that of each of the accused, particularly as it relates to their joint conduct during the period of December 22, 1996 through December 24, 1996. There is the evidence that all four were together on the night of Sunday, December 22 and the early morning hours of December 23, and drove together to the Driftwood Plaza, discharging Ally and Ecker on Driftwood, while Maugey drove off with Prashad. There is evidence of the conference call lasting over nine minutes at that time, all of which the Crown characterizes as a dry run. There is evidence of all four being together again the next night during which the robbery occurred, and the three-way telephone hook-up among them at almost precisely the time the offences in question were taking place. There is no direct evidence of what was said during those conference calls other than the evidence of the accused that the communications had nothing to do with any robbery. I may review more of the evidence in a concluding fashion, but that is the end of my instruction with respect to conspiracy specifically… [35] The trial judge did not provide the jury with any assistance with respect to which pieces of evidence were directly admissible against each of the accused separately. The court took a break after this portion of the charge, and upon the jury’s return and at the request of counsel, the trial judge provided them with some clarifying points beginning with the following: Thank you, ladies and gentlemen. Before I begin again there are a couple of matters I want to clarify with you. First, I had just left the conspiracy issue, and it has been brought to my attention that I failed to tell you that the video statements taken by the police officers of Mr. Maugey and Mr. Prashad are not evidence against anyone other than them as makers of the statements. [36] What use could, and more importantly, could not be made of the video statements made to police was a key issue, particularly for Maugey. His motion for severance was denied on the basis that the trial judge would make it clear to the jury that they could not use Prashad’s video statement of January 7, 1997, which implicated Maugey in the conspiracy and as a party to the robbery, as any evidence against Maugey. To fail to refer to this in the original charge was a serious error. [37] The correction was of some assistance, but did not fully clarify the matter. First, by referring to the statements and to their makers in the plural, the trial judge failed to explicitly say that each statement was only evidence against its own maker. [38] Second, and more importantly, the instruction did not explain to the jury that even in the context of the conspiracy instruction, a statement by one accused to the police was not evidence against the other. In the context of a joint trial, the instruction on the limited use of a statement must contain both a positive and negative element which tells the jury both the use that they can make of the statement and what they cannot use it for. The importance of explaining the positive and negative aspects of such an instruction was recently emphasized by Sharpe J.A. in R. v. Lam and Diu, [2000] O.J. 1770 at para. 139. The statement made by Prashad to the police was admitted into evidence against him as a voluntary statement amounting to a confession. It was not a statement in furtherance of the conspiracy. As a result, the trial judge should have specifically directed the jury that that statement could not become admissible as evidence against Maugey even if the jury found that Prashad and Maugey were both members of the conspiracy after properly applying the instructions of the trial judge. [39] In summary, the trial judge did not explain specifically that not only were the video statements made to the police not directly admissible against the other accused in the first instance, but they were also not admissible as hearsay after applying the conspiracy test, because they were not statements made in furtherance of the conspiracy. [40] Accordingly, I conclude that the trial judge erred in failing to follow the procedure directed in Baron and Wertman, supra, and in Carter, supra: to set out the evidence which is directly admissible against each alleged conspirator in order to assist the jury to determine whether each accused was a member of the conspiracy, and to properly understand and apply the conspiracy instruction. 3) Misstatement of evidence by the trial judge [41] On the night before the robbery Maugey drove the other three and a fifth friend, Andrew Birl, in his car. Maugey testified that after they left the nightclubs he drove Ecker home first where he changed his clothes, then he drove Ecker and Ally to the Pizza Pizza store, then dropped off Prashad at his home. After that he drove Birl to his home. Both Maugey and Prashad testified that they did not know that Ecker and Ally intended to rob the pizza store but believed they were just going for pizza. [42] Cell phone records for Maugey’s phone showed a nine-minute call to Ally at 1:59:01 a.m. after Ally and Ecker were dropped off. Prashad was joined into the call after a few seconds. The content of the call was important as some evidence of whether the appellants or either of them knew what Ally and Ecker had gone to do while the call was going on. Both Maugey and Birl testified that Maugey made the call while Birl was still in the car being driven home. Birl testified that he heard Maugey’s end of the conversation and that there was no talk of a robbery, but only of an identification card. The appellants said the call concerned Ally’s identification which had been confiscated by a bouncer at a club that night. Ally said the conversation was about a problem they had had at a club that night with a girl, but not about his immigration card problem there. In cross-examination, Birl said that he remembered the night because it was Sunday and there was school the next day, although there was no school on Monday, December 23rd. He also said that he had drunk a lot and was not paying attention to the phone call. [43] The position of the Crown was that the four accused conducted a “dry run” of the robbery on the 23rd and that the events of that evening were evidence of the conspiracy and of the participation and intent of the two appellants. [44] Following his charge to the jury on the conspiracy issue, the trial judge mentioned some evidence that the jury should consider (quoted above) in respect of the joint conduct of the four men. He referred to the cell-phone conference calls on the 23rd and the 24th between Ally, Maugey and Prashad, then stated: There is no direct evidence of what was said during those conference calls other than the evidence of the accused that the communications had nothing to do with any robbery. [45] This statement clearly excludes from the jury’s consideration the evidence of Mr. Birl for whatever weight the jury might have wished to give it. It is a misstatement of the evidence. The appellants submit that it seriously prejudiced the defence. However, the trial judge gave the jury the standard instruction that he may fail to mention something that they believed was important and that it was their view of the significance of the evidence that was important and that his view was not binding on them. [46] Because the trial judge dealt in such a spare and spartan manner with the evidence, it is difficult to gage what significance, if any, the jury may have put on his omission of any reference to Birl’s evidence on the content of the cell conversation on the first night. Furthermore, Birl’s evidence was not without its problems. Although I do not believe that this error, on its own, would have had a significant effect on the jury’s appreciation of the case, it is part of a group of errors related to the failure by the trial judge to adequately deal with the evidence in his charge to the jury. 4) The jury’s question [47] The jury returned with the following question very shortly after retiring for deliberations: To have “completed” a robbery, does there have to be proof that actual goods were taken, or does the “guilty” statement mean it was completed as applies to the other two, Maugey and Prashad, having taken part in a robbery? The trial judge commented after reading out the question that he was not sure what the jury meant. During discussion with counsel the trial judge reread the statement and again said that he was not sure what the jury meant by “the guilty statement.” Crown counsel suggested that the reference was to the admissions of Ally and Ecker. Counsel for the appellant Maugey said that those statements have no effect on the other two, while the Crown and the trial judge both commented that the evidence given at the trial was evidence against all of them. Counsel for Prashad raised the concern as to the use of the guilty pleas by Ally and Ecker as against the appellants on the issue of robbery. [48] After some further discussion with counsel, during which time the jury sent another question, the trial judge gave the following answer to the jury: Thank you, ladies and gentlemen. I have your two inquiries, which I have discussed with counsel. With respect to the first inquiry regarding robbery, you have asked: “To have ‘completed’ a robbery does there have to be proof that actual goods were taken or does the guilty statement mean it was completed, as applies to the two other, Maugey and Prashad having taken part in a robbery.?” My response for you there is that the actual fact of taking is not essential to proof of the charge as written in the Indictment. What is required to be proven is that the intent to steal must be proven beyond a reasonable doubt, as I mentioned to you. I was a little puzzled about what you were referring to as the guilty statement, whether you were referring to the testimony given by Mr. Ecker or Mr. Ally, or to their earlier pleas. If that still remains a problem in your minds perhaps you could express it and let me know. I think the question you are asking me is whether or not there has to be a taking of goods before the robbery charge could be made out, and I tell you that the fact of taking is not essential to proof of the charge as written. [49] Following that response, counsel for the appellant Maugey raised the concern that the jury would use the acknowledgement of guilt by Ally and Ecker to find intent to rob by the appellants. The trial judge refused to recharge the jury unless they asked for further clarification. [50] In my view, this question from the jury demonstrates their possible confusion regarding what use they were entitled to make of both in and out of court statements of other co-accused as against the appellants, not only on the conspiracy charge but on the other counts. [51] In his original charge, the trial judge gave a general explanation of the use of out of court statements. He concluded by stating that out of court statements are not evidence against any other accused. He also told the jury that the guilty pleas of Ally and Ecker could be treated by them as admissions and as part of the evidence on which to base their verdicts, but without saying that the pleas were only evidence against the person pleading. They were not evidence against the appellants: R. v. Simpson and Ochs (1988), 38 C.C.C. (3d) 481 at 491-494 (S.C.C.) [52] During his charge dealing with proof of intent on the robbery count against the four accused, the trial judge referred to the fact that in their own evidence Ally and Ecker said that they intended to rob the pizza store. He then went on to discuss the essential elements that the Crown must establish in order to prove that Maugey and Prashad aided and abetted the other two, including the fact that they each had to intend that some act of theirs would aid the robbery and therefore they would each have to know about the intended robbery. He did not mention the admissions of Ally and Ecker at this point and made the brief reference to the relevant evidence which I will repeat here: In the end, you will have to consider all of the surrounding circumstances, including what each of Maugey and Prashad said and did, in order to decide whether either of them knew or intended that his conduct would aid or abet the principal offender. Please remember the question for you to decide is what did Maugey in fact intend; what did Prashad actually in fact intend. [53] From its question, it appears that the jury may have been confused about what use they could make of the guilty pleas and the admissions of Ally and Ecker about their own intent to rob, to establish that the appellants or either of them knew about those intentions or that either of them intended to aid or abet Ally and Ecker in their criminal endeavor. Once it appeared from the jury’s question that they were confused about this issue, the trial judge erred by failing to clarify first, that the jury could not use the guilty pleas of Ally and Ecker against the appellants, and second, that Ally’s and Ecker’s testimonial admissions of their own roles in the robbery, taken alone, were not proof of the intent of the appellants. To leave it to the jury to ask for further clarification was not an adequate response because the jury did not know what or whether to ask. It was incumbent on the trial judge in answering the question, to clarify with the jury what “guilty statement” they were referring to. If it was the pleas of guilt by Ally and Ecker, those pleas formed no part of the evidence against either appellant. If it was their testimony admitting their own roles and intentions in respect of the robbery, that evidence could be considered by the jury, along with all of the other evidence, in assessing the knowledge and intentions of the appellants. The trial judge’s failure to carefully instruct the jury on this issue may have resulted in the jury using the guilty pleas or the testimonial admission of Ally and Ecker viewed in isolation, as evidence against the appellants to prove that the appellants had knowledge of Ally’s and Ecker’s intent to rob the pizza store. 5) The error in the jury charge on the issue of individual mens rea on the charge of being an accessory after the fact. [54] In his charge on this count, the trial judge included the following statement: The next ingredient is knowledge that the offence was committed by the person assisted. This ingredient that the Crown must prove beyond a reasonable doubt is that Mr. Maugey and Mr. Prashad each knew that Kris Ally did the acts that make up the offence of robbery… if either or both of Mr. Prashad or Mr. Maugey deliberately shut their eyes to facts that would have led each of them to the inevitable conclusion that Kris Ally committed or was a party to an offence, then as a matter of law, knowledge of the offence has been proven. [Emphasis added.] The Crown concedes that this instruction, by itself was in error, but points to several places in his charge where the trial judge made it clear to the jury that the burden is on the Crown to prove the essential elements of each offence against each accused, and that they must consider and render separate verdicts for each accused on each count. Finally, the trial judge told the jury that: “Each accused is entitled to have his guilt or innocence as to each of the crimes charged determined from his own conduct and from the evidence which applies to him as if he were being tried alone.” I agree with the Crown that this error, taken alone, would not have misled the jury as to what evidence was necessary to make a finding of guilt in respect of each accused. However, in light of the other errors, it is not clear that the jury would have understood which pieces of evidence applied to each appellant “as if he were being tried alone.” 6) Failure of the trial judge to instruct the jury on “consciousness of guilt” [55] In her closing address to the jury, Crown counsel referred to the lies that the appellant Maugey told to the police together with his actions in taking Ally to a distant hospital rather than the closest one, as evidencing “consciousness of guilt.” However, the trial judge did not address that issue in his charge. [56] This court has recently set out again the need for a careful and proper instruction on the significance of what is now referred to as the accused’s after-the-fact conduct. In Lam and Diu, supra, Sharpe J.A. stated at para. 121 and 122: In general, the trial judge should instruct the jury that the evidence of the accused’s after-the-fact conduct has only an indirect bearing upon the issue of guilt, and that the jury should exercise caution in inferring guilt because the conduct might be explained in an alternative manner: Arcangioli, supra, at pp. 299-300, citing Gudmondson v. The King (1933), 60 C.C.C. (S.C.C.) The trial judge should also instruct the jury that the evidence of the accused’s after-the-fact conduct can only be used to support an inference of guilt where they have rejected any innocent explanation for the conduct: Peavoy, supra, at p. 238. In some cases, the trial judge should provide specific instructions on the use of evidence of after-the-fact conduct. The specific instruction will depend on the facts of each case and the position advanced by the accused during the trial. There is no clear rule to determine the circumstances in which evidence of after-the-fact conduct may be used to support an inference of guilt. It is, in the end, a question of relating the evidence of after-the-fact conduct to the issues raised and determining the extent to which, if at all, it is logically probative of the issues. [57] I agree with the appellant that such an instruction should have been given in this case, using examples from the evidence of specific after-the-fact conduct together with the accused’s explanation for that conduct in each instance. 7) The refusal of the trial judge to grant severance [58] After nine days of trial, the Crown sought to introduce into evidence the second video-taped statement made by Mr. Prashad on January 7, 1997. The statement was admitted to be voluntary. The other three co-accused, however, objected to the admission of the statement unless the parts which implicated them were edited out. Counsel for the appellant Maugey also asked for a severance of his trial at that point on the basis that the statement by Prashad which refuted Maugey’s defence that he had no prior knowledge of what Ally and Ecker planned to do, was so prejudicial to Maugey that the only way to cure it was by a separate trial. [59] The trial judge denied the motions made by all counsel and admitted the statement. In his reasons for refusing the severance application, the trial judge noted that all counsel had had the statement for several months and no severance had been requested up to that time. Because the essence of both the joint robbery charge and the conspiracy charge was common enterprise involving all 4 accused, with evidence of common intention, the trial judge held that a joint trial was appropriate. The trial judge recognized the concern on behalf of the co-accused that parts of Prashad’s statement implicated them, but held that juries are recognized as able to follow the instructions of the trial judge, and with a clear instruction as to the proper and exclusive use they were entitled to make of the statement, the jury could be trusted to use and apply the statement properly as evidence only against Prashad. [60] Before the statement was admitted, the trial judge proceeded immediately to give the jury a clear instruction that this statement was only evidence against Prashad. In his general instructions at the opening of his charge to the jury, the trial judge repeated clearly that the videotaped statements of Maugey and Prashad to the police were only evidence against the maker of the statement and not against any other accused. [61] As I have already discussed, however, in the jury charge on the conspiracy count, the trial judge failed to identify the videotaped statements as evidence which could not be used for any purpose as against any alleged co-conspirator, although he did make the point very briefly but not fully, at the request of counsel after a break during the charge. He also did not specify that the video statements of one accused could not be used and considered as part of the circumstances or of the evidence as a whole on any other charge as against a co-accused. [62] The trial judge may order severance “where the interests of justice so require”: s. 591(3) of the Criminal Code. It is a discretionary decision which is to be accorded substantial deference by a court on appeal: R. v. Litchfield (1993), 86 C.C.C. (3d) 97 at 113-4. [63] This court has recently reiterated that there is a presumption that “persons accused of the joint commission of crime should be tried together.”: R. v. Suzack (2000), 128 O.A.C. 140 at 162. The appellant challenges the so-called rule of joinder on this appeal on the basis that it contravenes ss. 11(d) and 7 of the Charter. He argues that where it allows highly prejudicial, otherwise inadmissible evidence against one co-accused to be admitted, it violates both the presumption of innocence, by putting an onus on the accused to disprove that evidence, and the right to a fair trial. The appellant also challenges the proposition that a jury is able to understand and follow the instructions by the trial judge to ignore a statement of one co-accused implicating the other in the crime when considering the Crown’s case against that other accused. [64] In R. v. Crawford (1995), 96 C.C.C. (3d) 481 S.C.C., the appellant testified at trial that the co-accused was the killer. The co-accused sought to cross-examine the appellant on the fact that he had initially exercised his right to silence by not giving a statement to the police. Normally no mention can be made of an accused’s failure to testify at any stage. The court discussed the competing rights of co-accused, including Charter rights, and the need to balance the rights of each in the context of a joint trial. In connection with severance, the court stated: Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused…. The general rule, therefore, is that the respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial. This does not mean, however, that the trial judge has been stripped of his discretion to sever. That discretion remains, and can be exercised if it appears that the attempt to reconcile the respective rights of the co-accused results in an injustice to one of the accused. (p.497-8). [65] In Suzack, supra, Doherty J.A., speaking for the court, confirmed the ability of a properly instructed jury to use evidence of bad character led by one co-accused against another only for the purposes of the defence of the co-accused who led the evidence, but not as part of the Crown’s case against the other accused, because such evidence is not admissible on behalf of the Crown, but only on behalf of the co-accused as part of his defence. Doherty J.A. recognized that this evidence, led against Suzack by his co-accused Pennett “posed a threat to Suzack’s right to a fair trial.” (p. 167) He further recognized that severance was an option but that it created other difficulties. He held that the trial judge did not err in refusing severance and handling the issue by a proper jury instruction. Doherty J.A. noted that there is always a concern regarding the ability of a jury to understand complex legal instructions, and even the willingness of the jury to follow such instructions. However, he concluded: As long as we maintain trial by jury, however, courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge: R. v. Corbett [(1988), 41 C.C.C. (3d) 385] at 401; R. v. Eng (1999), 138 C.C.C. (3d) 188 at 201-202 (B.C.C.A.). That is not to say that in a specific case a trial judge could not decide that the risk of misuse of propensity evidence offered by one co-accused could not be adequately addressed by a limiting instruction. If a trial judge reaches that conclusion, he or she will have no choice but to order severance. It would, however, be wrong for a trial judge to accept as a general proposition that a jury would not or could not abide by a limiting instruction. (p. 172) [66] It is clear from the recent jurisprudence of both this court and the Supreme Court that the rule of joinder is constitutionally valid. Where there is a joint trial the rights of each co-accused must be carefully balanced by the trial judge. Where that cannot be done in a way that ensures that each has a fair trial, or where the trial judge is not satisfied that the prejudice of the otherwise inadmissible evidence cannot be overcome in the particular circumstances by an appropriate limiting instruction to the jury, then the trial judge may determine that the option of separate trials is the only way to ensure fairness. [67] In this case there was no error in the approach of the trial judge to the issue of severance and I see no basis upon which to interfere with his exercise of discretion. To the extent that any of the required instructions could have been made more clear to the jury, the opportunity is available at a new trial. 8) Application of the proviso: s. 686(1)(b)(iii) [68] This is not a case for the application of the proviso. This was a complex and difficult case which required the trial judge to provide the jury with the assistance they needed to fairly decide the case. The cumulative effect of the errors, all of which relate to the same issue of the failure of the trial judge throughout the charge to present the theory of the defence, to direct the jury to relevant evidence relating to that theory and to the conspiracy test, and to clarify the allowed and prohibited uses of some of the evidence, makes the application of the proviso inappropriate. I am not satisfied that the verdicts reached by the jury would necessarily have been the same had the jury been fully and properly instructed on those issues. RESULT [69] I would allow the appeals, set aside the verdicts and order a new trial. It is therefore unnecessary to consider the appeals against sentence. Released: June 30, 2000 “Kathryn Feldman J.A.” “ I agree R.S. Abella J.A.” “I agree John I. Laskin J.A.”