R. v. Zvolensky

R. v. Zvolensky Collection Decisions of the Court of Appeal Date 2017-04-03 Neutral citation 2017 ONCA 273 Docket numbers C56042, C56152, C56503 Judges Sharpe, Robert J.; Watt, David; Pardu, Gladys I. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Zvolensky, 2017 ONCA 273 DATE: 201700403 DOCKET: C56042, C56152 & C56503 Sharpe, Watt and Pardu JJ.A. BETWEEN Her Majesty the Queen Respondent and Zdenek “Dennis” Zvolensky, Nashat Qahwash and Ronald Cyr Appellants Frank Addario, Andrew Furgiuele and Delmar Doucette, for the appellant Zdenek “Dennis” Zvolensky Anil K. Kapoor and Sarah Harland-Logan, for the appellant Ronald Cyr John M. Rosen, Paul J.I. Alexander and Lindsay Daviau, for the appellant Nashat Qahwash Jocelyn Speyer and Alison Wheeler, for the respondent Heard: January 23, 24, 25, and 26, 2017 On appeal from the convictions entered on April 30, 2012 by Justice Linda Walters of the Superior Court of Justice, sitting with a jury. Table of Contents A. Severance. 6 (1) The trial judge’s ruling. 6 (2) Analysis. 9 B. Zvolensky application to exclude the evidence of the undercover officer 15 (1) The undercover operation. 16 (2) Trial judge’s decision. 26 (3) Argument on appeal 28 (4) Analysis. 30 C. Editing of statements to the undercover officer 38 D. Use of discreditable conduct by co-accuseds’ counsel 40 E. Failure to instruct on second degree murder 41 F. Zvolensky’s argument that cross examination by the Crown and Cyr’s counsel made his trial unfair 47 G. The Rule in Browne v. Dunn. 48 (1) Analysis. 53 H. The coded text message. 56 I. Adoptive admissions. 58 J. Quahwash’s pre-trial silence. 61 K. Zvolensky denial to police that he was the killer 65 L. The trial judge’s error about the use of Qahwash’s statement 67 M. Crown Closing. 68 N. Was one of the jurors ineligible for jury service?. 73 O. Juror and Court Services Officer conduct 76 (1) Arguments on appeal 84 (2) Analysis. 85 P. Conclusion. 88 Pardu J.A.: [1] Nadia Gehl was shot and killed at about 8:45 a.m. on February 2, 2009 as she walked from her home to a bus stop to go to work. About six months later, her husband Ronald Cyr was arrested and charged with her murder. Nashat Qahwash and Zdenek “Dennis” Zvolensky were arrested a few hours later. The Crown alleged that Cyr arranged for Zvolensky to kill his wife and that Zvolensky enlisted Qahwash to help him. [2] Zvolensky and Cyr were close friends, as were Zvolensky and Qahwash. [3] Gehl’s work hours were irregular. Cyr called her in the morning on February 2 to make sure she was up to go to work. The night before, he sent a text message to Zvolensky, saying, “Can you play ball on tue. The game is at 8:40.” The captain of Cyr’s basketball team testified that there was no game scheduled for that night. The Crown’s theory was that this was a coded message triggering the killing. Zvolensky did not reply to this message, but there were immediate text messages between Zvolensky and Qahwash. [4] The gun used for the killing was found hidden in Qahwash’s basement, some six months after the killing. A bag containing ammunition had his fingerprints on it. Zvolensky’s DNA was on the gun. Text messages discussing the purchase of a gun were exchanged between Zvolensky and Qahwash in the days before Gehl was shot. [5] Cyr told an undercover officer how he had arranged the murder. Zvolensky made statements from which a jury could infer that he was also part of the plan. Qahwash also made some statements from which a jury could infer he was part of the plan. [6] Cyr had a motive to kill his wife. He was having an affair with a co-worker at the law firm where he worked as a paralegal. There was life insurance. He emptied his bank account just before the gun was purchased. [7] All three appellants testified. Each blamed another. Cyr testified that he lied to the undercover officer when he said he participated in the killing of his wife because Zvolensky was blackmailing him. Cyr said that Zvolensky told him Zvolensky killed Gehl, had the gun and would make sure police connected the gun to Cyr, unless Cyr provided funds to invest in a canoeing business. [8] Zvolensky denied any such blackmail. He said he unwittingly participated in the murder by agreeing to wait for Qahwash in his car on a street close to where the killing took place. He said he thought he was helping Qahwash with a robbery. On the morning of February 2, 2009, Zvolensky arrived at Qahwash’s home just before 8:00 a.m. He said Qahwash told him to park in a neighbourhood near the home where Gehl and Cyr lived together. He did so. Qahwash arrived in his own car and got into Zvolensky’s car. Qahwash gave Zvolensky the gun and told him to take it to his home in Oakville. [9] Qahwash testified that Zvolensky gave him $1,700 to buy the gun used in the killing about a week before the shooting. Qahwash said Zvolensky wanted to use the gun to rob drug dealers. He purchased the gun on the morning of January 31, 2009. He said that he and Zvolensky both went to test fire the gun on the evening of February 1. He loaded both magazines and Zvolensky fired the shots. [10] Qahwash testified that, on the morning of the murder, Zvolensky came to his home and picked up the gun. Zvolensky told Qahwash to meet him in Oakville later that day. They met in Oakville, ran a few errands and then returned to Zvolensky’s house. Qahwash said that Zvolensky then told him that he just shot Gehl, at Cyr’s request, in return for future life insurance payments. Qahwash said he asked Zvolensky if he used the gun Qahwash had just bought. The next day, Qahwash sent a text to Zvolensky. He was worried he had left fingerprints on the gun. Qahwash said he unwittingly helped Zvolensky kill Gehl by giving him the gun. [11] On their own evidence, Qahwash and Zvolensky were together, with the gun, close to the time of the killing. [12] All three were convicted of first degree murder – a planned and deliberate killing – and all three appeal from conviction. A. Severance [13] The appellants submit that the trial judge erred in refusing their application to be tried separately. [14] At trial, Zvolensky submitted at first that he and Qahwash should be tried together, but separately from Cyr. He later agreed with Qahwash’s submission that all three should be tried separately. [15] Qahwash and Zvolensky both said they were prejudiced when the jury heard evidence from the undercover officer about statements by Cyr describing their participation in the killing. They argued that, if the jury accepted that Cyr’s statement to the undercover officer was true, the jury would not be able to put that aside in considering the evidence against Qahwash and Zvolensky. Qahwash submitted that he was doubly prejudiced, as Zvolensky also made statements implicating them both in the killing. (1) The trial judge’s ruling [16] The trial judge’s reasons on the application for severance are reported at 2011 ONSC 4649. She summarized the evidence said to give rise to prejudice that was serious enough to make a joint trial impossible, at paras. 11 and 13: · Statements by Zvolensky: · July 18, 2009 – Zvolensky tells the UCJ [the undercover officer] he can plan a hit on [the officer’s] ex-wife. He says that he and Qahwash had done “this kind of stuff” before. He tells him that Qahwash had killed someone in Montreal and in Toronto; that Qahwash had been involved in a card scamming enterprise and had a .38 handgun. Zvolensky tells UCJ that he and Qahwash would plan the hit on his wife and that UCJ should be out of town when it happens. UCJ says that was similar to when Cyr’s wife was shot. UCJ suggests that the gun be melted down after the hit. Zvolensky disagrees telling him it’s best to cut it with a band saw as he and Qahwash had done before. · July 22, 2009 – Zvolensky discusses the proposed hit with UCJ. He tells him he wants to bring Qahwash in on it as the two of them had worked together in the past where Zvolensky was the eyes and Qahwash the trigger man. He tells UCJ that Qahwash is tightlipped and trustworthy. · July 23, 2009 – Zvolensky and UCJ go to look at guns. They discuss Nadia’s murder and Zvolensky tells him the gun from that job had been destroyed. UCJ tells Zvolensky that he is happy that he and Qahwash got away with one murder but thinks this time they should do this one differently. Zvolensky agrees. · August 2, 2009 – Zvolensky and UCJ meet to discuss the proposed hit. Zvolensky tells UCJ he thinks that Qahwash got rid of the gun they used on Nadia Gehl. · Statements by Cyr: · August 1, 2009 – Cyr meets with UCJ who complains about his ex-wife and tells Cyr that Zvolensky had volunteered to kill her. He asks Cyr if Zvolensky and Qahwash can be trusted. In a lengthy conversation, Cyr outlines in detail how he planned Nadia’s murder, how Zvolensky and Qahwash executed the plan, and how the three of them were now carefully covering up. In the words of UCJ, Cyr had given up “the entire thing from beginning to end.” · August 7, 2009 – Cyr and UCJ meet to discuss the hit on UCJ’s ex-wife. In the course of the conversation Cyr once again tells UCJ how he came up with the plan to kill Nadia Gehl and that Zvolensky and Qahwash had carried it out. Cyr also comments that Zvolensky knew he would be getting some of the insurance money once it came in and that Zvolensky would then pay Qahwash. [17] The trial judge began by noting that the discretion whether to grant severance must be exercised judicially with a view to balancing the interests of the accused and the public. The public has an interest in seeing that “justice is done in a reasonably efficient and cost-effective manner,” and “an accused has a right to a fair trial, which includes a “right to be tried on the evidence admissible against him”: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16. The trial judge stated that separate trials will not be automatically required every time there is evidence which is admissible against one accused and not another. [18] She observed at para. 18 that “although the court has a discretion to grant severance where the interests of justice so demand, jointly charged accused who are alleged to have acted in concert will generally be tried jointly,” even in cases involving confessions or admissions. [19] She referred to the policy considerations supporting joint trials highlighted in R. v. Crawford, [1995] 1 S.C.R. 858, at para. 30, including the risk of inconsistent verdicts where cutthroat defences are advanced, the extra cost and delay associated with separate trials and the likelihood that the truth is more likely to emerge in a joint trial. [20] She concluded that the appellants had not displaced the presumption that they should be tried together. She noted: the cost consequences and delay associated with granting severance in this case; the weakening memory of the witnesses over time; the fact that the Crown estimated it would be calling about sixty witnesses across the three prosecutions; and the risk of inconsistent verdicts arising out of the probability that each appellant would advance a cutthroat defence. She acknowledged that the admissions made by the Cyr and Zvolensky were not admissible against any other co-accused. But she held that any prejudice caused by allowing a jury to hear them all in a joint trial was capable of being mitigated by limiting instructions and editing of the statements. (2) Analysis [21] On appeal, Zvolensky says that he and Qahwash should have been tried together, apart from Cyr. He submits that no limiting instruction could overcome the prejudice arising from Cyr’s compelling admissions to the undercover officer. He contends that the trial judge gave too much importance to the fear of inconsistent verdicts, the cost and delay associated with separate trials, and the difficulties separate trials would pose for witnesses. [22] Qahwash adopts these submissions, but goes further and argues that he should have been tried alone. [23] I do not agree that the trial judge erred in refusing severance. This was a discretionary decision attracting deference. All three appellants were closely connected to the killing, and they each blamed another. They were alleged to have executed a plan to kill to which all were parties. Even where one accused has made statements inadmissible against another, courts have favoured joint trials in these circumstances. [24] As the following review of the jurisprudence demonstrates, persons charged with a joint criminal venture will presumptively be tried together. [25] For example, in R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, one participant in a shooting made statements to other participants, implicating a third, Welsh. The trial judge repeatedly warned the jury that those statements were not admissible against Welsh. On appeal, as in this case, Welsh’s position was that no jury instruction could alleviate the prejudice and that a finding of guilt for one accused inevitably would lead to a conclusion that the other accused was also guilty. [26] Citing Guimond v. The Queen, [1979] 1 S.C.R. 960, this court acknowledged that a significant imbalance in the strength of the case against each of multiple accused was a factor in determining whether to grant severance, writing at para. 182: We do not suggest that the relative strength of the prosecution case against various accused is the only factor to consider where the conviction of one accused implies the conviction of a co-accused. It is, however, an extremely important consideration. The reason for that is apparent. Where the case against the accused seeking severance is weak and the case against the other accused substantially stronger, there is a greater risk that the jury will resort to the impermissible reasoning of guilt by association to shore up the case against the former. [27] The court concluded at para. 184 that there was no such significant imbalance and that the trial judge did not err in refusing severance: Welsh’s situation is not unusual in cases of multiple accused where the accused are alleged to have played different roles. The fate of parties and principal offenders are almost inevitably intertwined. Trial judges deal with this problem by instructing the jury to deal with each accused separately and only consider the evidence admissible against the particular accused. [28] In Crawford, two accused were charged with murder. One co-accused implicated the appellant in a statement to police. The co-accused did not testify at trial. The appellant testified at trial and blamed the co-accused for the killing. [29] The co-accused’s statement was not admissible against the appellant. The Supreme Court of Canada reiterated the preference for joint trials in these circumstances, writing at paras. 30-31: There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by [D.W. Elliott, “Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused”, [1991] Crim. L. Rev. 5, at p. 17] as follows: There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved. 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 mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient. [30] In R. v. McLeod, Pinnock and Farquharson (1983), 6 C.C.C. (3d) 29 (Ont. C.A.), aff’d, [1986] 1 S.C.R. 703, each of three accused, who were charged with robbery and attempted murder, made statements to police implicating a co-accused. All statements linked the speaker to the scene of the crime. This court upheld the trial judge’s decision refusing severance, and cited the following from. R. v. Torbiak and Gillis (1978), 40 C.C.C. (2d) 293 (Ont. C.A The rule is well established that prima facie where the essence of the case is that the accused were acting in concert, they should be jointly indicted and tried, and an appellate Court will not interfere with the discretion of the trial Judge unless he has failed to exercise it judicially or his decision has caused a miscarriage of justice … [31] Another example is R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208. Four accused were involved in shooting into a crowd resulting in two deaths. Intercepted telephone calls revealed a conspiracy by some of the accused to kill another co-accused, Reid, because he was talking about his role in the group activity. Reid argued on appeal that the trial judge erred in refusing severance because of the prejudicial impact of statements about him by his co-accused. This court reiterated the presumption that two co-accused who are jointly charged and are said to have acted in concert should be tried together. Although there was little risk of inconsistent verdicts, this court held that the trial judge was correct to refuse severance. It pointed to the limiting instructions and noted at para. 214 that it was “well established that juries should be presumed to understand and follow such instructions.” [32] These same principles have been explained in R. v. Maugey (2000), 146 C.C.C. (3d) 99 (Ont. C.A.), at para. 63, and R. v. Court (1995), 99 C.C.C. (3d) 237 (Ont. C.A.), at p. 259. There is a presumption that co-accused said to have acted together will be tried jointly, and the fact that one has made a statement implicating a co-accused does not necessitate severance. [33] As noted in R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 88: Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story. [34] An appellate court should not intervene in a trial judge’s decision whether to sever accused unless it is satisfied that the judge “acted unjudicially or that the ruling resulted in an injustice.” R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 354. [35] In the case at hand, the trial judge considered all of the appropriate factors. This is not a case where the evidence against one accused was significantly weaker compared to his co-accused. Triple cutthroat defences were advanced. All were closely connected to the killing and, to borrow the words of the court in Welsh, their fates were almost inevitably intertwined. There was a risk of inconsistent verdicts with two or three separate trials. This was a case that called out for a joint trial. B. Zvolensky application to exclude the evidence of the undercover officer [36] At trial, Zvolensky brought an application to exclude all evidence of his conversations with the undercover officer on the grounds that his rights guaranteed by s. 7 and s. 8 of the Charter had been violated. He further submitted that the evidence of discreditable conduct on his part in those conversations should be excluded on the basis that the prejudicial effect of that evidence outweighed its probative value. Cyr joined in that application. Qahwash also supported Zvolensky’s application and submitted that any discreditable conduct evidence which related to him should be excluded on the same basis or edited on the basis that the probative value of that evidence was less than its prejudicial effect. (1) The undercover operation [37] Cyr was fired by his wife’s father’s law firm when his affair with a secretary employed by the same firm came to light after Gehl’s death. He applied for a job as a salesman with Bad Boy, a furniture retailer. He was accepted as an employee and enrolled in a company training program in Toronto in March 2009. When police learned of this, they asked Bad Boy to allow an undercover officer to enrol in the same program. As a result, Cyr and the undercover officer became classmates. When the training program ended, the undercover officer was assigned to work in the same store as Cyr, and they became friends, in Cyr’s mind. [38] The undercover officer (“UCO”) pretended that he was plagued by a vindictive ex-wife who wanted to ruin his life. Another undercover officer, “Lauren,” played the role of the UCO’s girlfriend. [39] There is little dispute about the content of the interactions between the UCO and the appellants. Most of these were recorded. [40] On May 2 2009, Cyr told the UCO of his idea to purchase a business, Canoeing the Grand. Zvolensky and Cyr were both interested; they met at the business to discuss it on May 7. The UCO led Cyr to believe that he and his girlfriend Lauren had the half million dollars required to invest in the business with the appellants. Zvolensky met the UCO at this time, through Cyr, and was excited about the opportunity to become a business owner. Zvolensky met in person with the UCO on eighteen occasions during the interval between May 7 and August 9 and spoke to him on the telephone on twenty one occasions. [41] To make the ploy convincing, the UCO met with the actual owner of the business to negotiate the purchase, produced fake landscaping plans, cheques drawn on a fake bank account and false incorporation papers and produced a genuine real estate appraisal of the property. Zvolensky was to become the manager at Canoeing the Grand. The UCO gave Zvolensky $200 as “wages” on two occasions to cover expenses and took him shopping for $200 worth of clothes so he would look like a businessman. When Zvolensky’s car broke down, Lauren gave him $500 to rent another one. [42] The need for the UCO’s ex-wife to disappear became a frequent theme of conversations between the UCO and Zvolensky. At a visit to Canoeing the Grand on May 27, Zvolensky pointed to a covered well and said “I got a place for her right here” and they both laughed. Zvolensky joked that maybe she had to go for a “really long canoe ride.” [43] On June 10, the UCO met with Zvolensky at the UCO’s apartment. During the visit, the UCO’s “ex-wife” called and demanded money, leading the UCO to hang up on her. The UCO told Zvolensky that his ex-wife had to disappear one day, for everyone’s sake. [44] Zvolensky and the UCO went to Paris, Ontario to check out a competing canoe touring company on the same date. The UCO told Zvolensky that suspicions hanging over Cyr because of Gehl’s murder might jeopardize Lauren’s willingness to fund the business purchase. On their return to Kitchener, they picked up Qahwash and went out for dinner. The UCO said that he and his kids would live with Lauren if he could get rid of his wife. [45] On June 13, the UCO invited Cyr, Zvolensky and Qahwash to his apartment to review business documents. Following another staged phone call from his ex-wife, the UCO threw his cell phone at the wall, feigning rage. In discussing landscaping plans for the Canoeing the Grand property, Zvolensky suggested that they should get a hollow rock in which they could hide guns on the property. The UCO told Zvolensky, in front of Qahwash, that he had a contact in Windsor who could smuggle guns into Canada at a good price. Zvolensky was happy about this and they agreed to discuss it later. [46] Over the following weeks, the UCO made it appear that plans were progressing to acquire the business. On June 20, the UCO, Cyr, Zvolensky and Qahwash met at Cyr’s home for a barbecue and to sign the “incorporation papers.” Everyone was excited and celebrating. They gave each other high-fives and the UCO said they were now officially business partners. On June 25, the UCO told Cyr that he thought it would be a good idea to start paying Zvolensky a “wage” for the responsibilities he would be taking on to foster his sense of becoming a manager. Cyr agreed. [47] Zvolensky was keenly interested in guns. On July 3, he asked the UCO about his gun contacts and told him that guns were too expensive to purchase locally. He wanted to buy guns but did not want to register them. He wanted to hide them at the Canoeing the Grand premises. On July 15, the UCO showed him a picture of a “gun dealer” (another undercover officer), posing with two pistols. Over the next few days, they had several discussions about guns. [48] On July 18, Zvolensky came to the UCO’s apartment to look at photographs of guns. The UCO played a hostile voice message from his fictitious ex-wife and suggested she might put an end to their plans to buy the business. Zvolensky offered to kill the UCO’s ex-wife. He asked the UCO if he wanted it done in a particular way and asked how quickly they could get a gun from the UCO’s dealer. He said he preferred a revolver so no bullet casings would be left behind and wanted a silencer. He spoke about how diligent he was in planning every detail when arranging “anything grimy like this.” He told the UCO that he would take personal responsibility for disposing of a gun used in a killing and would not leave it to someone else. He observed that because he, Cyr and the UCO now all knew each other, this might make them all suspects in two homicides. Zvolensky suggested that the UCO keep his wife at bay and keep Lauren calm. [49] On July 22, Zvolensky met the UCO in his apartment. He confirmed his willingness to kill the UCO’s ex-wife, but he changed his mind about what kind of gun he wanted. He said he wanted a semi-automatic gun instead. Bullet casings would not be a problem because there would be no fingerprints on them. Zvolensky said he wanted to involve Qahwash because it would be easier if they did it together. [50] Zvolensky met the UCO’s gun dealer “Cookie” (in reality another undercover officer) on July 23. Zvolensky and the UCO drove to London together to meet him. Cookie showed them three guns and told Zvolensky he could order whatever he liked, as long as he had the money. Zvolensky was happy with this, telling the UCO that guns were like candy. On the way back, the UCO broached the subject of Gehl’s murder, asking Zvolensky where he and Qahwash had gone to get the gun used in that murder. Zvolensky told him they had had “to do a fuckin … desperation sale from a Toronto nig.” The UCO asked how much they had paid. Zvolensky responded that they paid $1,700 and that the gun “looks like shit looks like it’s from the forties.” Zvolensky reassured the UCO that police would not be able to link the murder of his ex-wife with Gehl’s death because they had disposed of the gun used in that murder. [51] The UCO talked to Zvolensky about making sure the two murders were committed in different ways. Zvolensky was concerned that their telephones could connect them to two killings. Zvolensky said he was pretty sure the police knew what was up with Cyr but couldn’t prove it. The UCO said “Yeah, but the cops don’t know about you and Dutch (Qahwash) they just know about him.” Zvolensky responded, “Yeah.” [52] The UCO expressed concerns that the suspicions surrounding Cyr about his wife’s murder could jeopardize the plans to acquire Canoeing the Grand. He sought assurances from Zvolensky that there were no loose ends that could jeopardize their plans. [53] On July 29, Zvolensky and Qahwash met with the UCO at a restaurant. Zvolensky asked the UCO if he could get assault rifles and said that he and Qahwash could make a lot of money re-selling them in Guelph. Zvolensky told the UCO in Qahwash’s presence that he and Qahwash could deal with the UCO’s ex-wife as long as they had the gun and silencer. On July 30, the UCO called Zvolensky and told him that, once the purchase of the business was finalized, they would all be driving company trucks under the fleet leasing contract that Lauren had. That night, Qahwash and Zvolensky went to visit Cyr at work. Zvolensky told Cyr the UCO had asked him to kill his ex-wife. They agreed they should discourage the UCO from doing this and string him along until the business purchase was closed. [54] On July 31, the UCO called Zvolensky to say they were on the verge of getting the business. The UCO called him again to give him prices and availability for AK47s and handguns. [55] On August 1, Cyr and the UCO went to look at trucks to purchase. The UCO complained bitterly about his ex-wife. He told Cyr that Zvolensky had offered that Zvolensky and Qahwash could “take care of” his ex-wife and make it look like an accident. Cyr began to discuss the ramifications of killing one’s wife. He told the UCO that if his ex-wife were killed police would follow him around all the time and that it was not worth it. The UCO wondered whether killing his ex-wife would eat away at him. Cyr responded that he would live with it forever so it could not be a hasty decision. Cyr told the UCO to consider how his children would react. The UCO asked Cyr how he was coping: UCO: Oh fuck. Like how are you getting along with it? Is it … just a tough decision eh? Cyr: That’s why I say it’s a tough decision. UCO: Are you ok with it now? Cyr: Yeah. [56] Cyr told the UCO that he had to have a solid alibi and to keep his activities as normal as possible. He said it would be better to wait until his relationship with his ex-wife improved so no one would think he had any reason to kill her. He said they should choose a place for the murder where they would be unlikely to be seen and to consider how to avoid surveillance cameras. [57] The UCO asked Cyr whether he could trust Zvolensky and Qahwash. Cyr responded: “Dennis will be the brains behind the operation but Nashat will never say a fuckin’ word.” The UCO asked Cyr if he was confident that, even if Zvolensky and Qahwash were arrested, they would not turn on the UCO. Cyr confirmed that he was. The UCO asked Cyr if he too had left the planning to Zvolensky and Qahwash. Cyr said, “Do you think I’d trust them to come up with shit?” He told UCO that Zvolensky was not afraid to abort if a plan was not going right: “he’ll just do it another time.” When the UCO asked if Qahwash would say anything, Cyr replied: “Phew, no.” [58] Cyr cautioned the UCO that the police would investigate all of his friends. He said the police had showed him Zvolensky’s photo because Cyr had phoned Zvolensky, but Cyr just told them that he knew Dennis from basketball and work. Cyr commented that he had called Zvolensky’s cell phone a couple of times and that that was perfectly normal: “I called a guy I work with what’s your fucking point? I called a guy I play basketball with what the fuck’s your point?” [59] The UCO questioned why they had used a gun in Cyr’s quiet neighbourhood. Cyr responded: “Here’s the thing. No one even found her for 45 minutes.” Their talk turned to the gun, with Cyr telling UCJ that even though he had told Zvolensky to get rid of it, he thought Zvolensky still had it. Cyr said he had not been able to talk to Zvolensky. [60] The UCO asked whether Nadia’s murder had made a big messy scene. Cyr said he did not know. The UCO said you could not do that in his ex-wife’s neighbourhood. At that point, Cyr described Gehl’s murder, telling UCJ how the streets and the surrounding area were laid out. Drawing with his finger on a sales pamphlet, Cyr explained: Cyr: They were somewhere in this neighbourhood in a car. UCO: Just him and Nashat’s there? Cyr: Yeah. UCO: There’s no third? Cyr: Nashat’s in the car, boom, runs over there and quick and they drive into the country so there’s no cameras. They came in the same way. UCO: Ohhh. Nashat drove. Cyr: That’s mine. Cyr pointed at himself, smiled and snapped the lapels on his suit jacket. [61] UCJ asked whether Cyr had paid Zvolensky. Cyr responded: “I told him if the life insurance ever comes in I’ll give you some.” UCJ offered Cyr money to give to Zvolensky in case there were sour feelings, but Cyr said there were not, “I’ve known Dennis for like …” [62] Their conversation continued with more talk of whether Zvolensky still had the gun, and then it returned which trucks to purchase for the business. [63] On August 2, the UCO met with Zvolensky. Zvolensky assured him that the gun used to kill Gehl had been disposed of. [64] On August 7, the UCO and Cyr visited dealerships to look at trucks. Afterwards, they sat on the bleachers in a local park. The UCO asked Cyr about how to go about killing his ex-wife. He asked Cyr what the last straw was for him in his relationship with his wife. Cyr responded that there were “a bunch of last straws.” The UCO asked Cyr if he needed money for Zvolensky and Qahwash in case the life insurance payment did not come through. Cyr said he would not get the life insurance and that he had told Zvolensky it would be years and years, leaving Zvolensky to look after Qahwash. Cyr told the UCO to stick to his normal routine when planning the murder of his ex-wife. He told the UCO that from an outsider’s point of view, everything in his life with Gehl had looked good. The UCO asked Cyr if the killing was Zvolensky’s “grand plan.” Cyr said no and that he had given Zvolensky the parameters. [65] On August 9, Cyr was arrested. The UCO met with Zvolensky and Qahwash in a restaurant parking lot to tell them he had seen the arrest. He asked them if they had any cleaning up to do and if they needed help or money. Zvolensky said no to both. They discussed whether there was any way police could connect them to the killing, such as roadside cameras. The UCO asked them if Cyr would talk. Both Zvolensky and Qahwash were adamant that Cyr would not. Qahwash was less talkative than Zvolensky, and there was some dispute at trial about what Qahwash said. Both Zvolensky and Qahwash were arrested several hours later, at Qahwash’s house, where the murder weapon was hidden. (2) Trial judge’s decision [66] Zvolensky argued at trial that his statements to the UCO should be excluded because his personal life was invaded, as he put it in his factum at trial, “being fraudulently led to believe that he was having private discussions with a partner in a legitimate business transaction, through which he could lift himself out of poverty.” He also argued that the prejudicial effect of the evidence, notably about the plot to murder the UCO’s ex-wife and his ambitions to traffic in guns, outweighed its probative value. Cyr made the same arguments. He had lost his wife, his job and was a suspect in a murder investigation. He was vulnerable to the lure offered by the UCO. [67] The trial judge’s reasons on the application to exclude the statements are reported at 2011 ONSC 7470. She held that s. 8 of the Charter was not engaged as there was no search. She also rejected the argument that the s. 7 Charter rights of the appellants had been violated. She concluded that the undercover operation did not deprive the appellants of liberty or undermine their psychological integrity seriously enough to deprive them of security of the person. Finally, she held that even if the appellants had established infringements of their Charter rights, she would have still admitted their inculpatory statements under s. 24(2): see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 108-110. The police had acted in good faith, the impact on the appellants’ rights was not severe and the reliability of the evidence was high and central to the Crown’s murder prosecution. [68] The trial judge went on to consider whether the evidence of the appellant’s discreditable conduct– the participation in the fictitious plot to kill the UCO’s ex-wife and the evidence about trading in guns – should be excluded. While she determined that this evidence was presumptively inadmissible, in this case its probative value exceeded its potential for prejudice. [69] She concluded that the evidence was important to understand the relationship of trust that existed among Cyr, Zvolensky and Qahwash and the degree of trust they had in the UCO. The evidence of the guns and the proposed killing of the UCOs ex-wife were part of the narrative and provided context for statements by the accused about the killing of Gehl. There was little dispute about what was said. The trial judge was satisfied that limiting instructions would ensure that there was no improper propensity reasoning by the jury and admitted the evidence. (3) Argument on appeal [70] Zvolensky argues that all evidence about communications between him and the UCO should be excluded from evidence. The decision in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, dealing with the “Mr. Big” investigative ploy was released after the trial judge’s decision. Zvolensky submits that Hart mandates exclusion. [71] Zvolensky’s argument rests on two pillars. The first is his vulnerability to the inducement of becoming a business owner; this was his chance to lift himself out of a life of poverty. He points to his conversations with the UCO on June 10 and July 23, 2009: Listen, put it this way. This [the proposed purchase of Canoeing the Grand] and consequently you [as an investor] basically saved my life because right now I’m in a position where I’m not in a position. So this is a lot of what you know is is starting the ball rolling on future shit that I need to get … So my theory is this. Well at least for me. Once you’re broke as fuck and you you get money you never go back to being broke as fuck … Because you know what it is like to be broke as fuck. See people that are rich don’t know what it is … Don’t know that feeling. Do you know how, do you know how like good me and me and this guy [Qahwash] are stretching our money at? You know what on paper we made last year for our income? … Our T4s were about maybe three hundred dollars off of each other. Mine was two thousand eight hundred and forty-one dollars. Now how the fuck does one live an entire year on three thousand dollars … Well you do this. You do, like, I mean fuck, I’m a I’m a fuckin squatter half the year because I have to go back from Oakville. Like I stretch a dollar same as him like nobody’s business. Like, you have to be creative. You have to be innovative and in this experience, I mean, that’s why I can do what I do because you can’t live off two Gs and have a car … This there’s, well basically, you’re going to have to pry the business [Canoeing the Grand] out of my cold dead hands [which caused UCJ to laugh] … Because … I’ve been, I’ve been broke and I’m still broke because nothing has happened yet. You know what I mean? So it’s like I don’t ever say anything until shit’s gonna happen … And fuckin once I, you, you know, once you and me and everybody have this … this is basically my ticket not to be fuckin a broke failure. And I will die defending that. … Yeah, trust me man. Like me and Dutch [Qahwash] talk about it a lot … like ’cause it’s your money and shit and all we can say is … your your investment … will not go fuckin go like unreturned. Like, you’re going to profit off this, man. Like where we we do our damnedest to make sure everybody eats … You know what I mean? ’Cause this honestly … I’ll never have this opportunity … no one will ever offer me … this opportunity you’re offering me in my life ever again … so I must capitalize now … that’s it like … I have to. [72] The second pillar is the significant prejudice associated with Zvolensky’s willingness to participate in another murder and trade in guns. [73] The Crown says that the undercover operation in the present case was not a “Mr. Big” police operation and that the analysis from Hart does not strictly apply. In any event, however, it says that the trial judge’s analytical approach was sufficiently similar to the Hart analysis that this court can assess the probative value and prejudicial effect of the evidence in an analogous way. (4) Analysis [74] In Hart, Moldaver J. articulated a new common law rule to apply to “Mr. Big” police investigations. He described the archetypal “Mr. Big” investigation in the following terms, at paras. 1-2: A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss – known colloquially as “Mr. Big” – must approve the suspect’s membership in the criminal organization. The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize – acceptance into the organization – awaits. If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged. [75] Moldaver J. emphasized that an accused person’s willingness to participate in a criminal organization is inevitably prejudicial. A jury might conclude that a person willing to participate in criminal offences is the kind of person likely to have committed the offence charged. Where an unreliable confession resulting from threats or inducements is coupled with this moral reasoning prejudice, the risk of a miscarriage of justice is unacceptably high. He developed a new common law rule to achieve a just balance – “one which guards against the risk of wrongful convictions that stem from false confessions but which ensures the police are not deprived of the opportunity to use their skill and ingenuity in solving serious crimes”: para. 3. [76] He expressed the new common law rule as follows, at para. 85: The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The rule operates as follows: Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule. [77] He did not exclude the operation of the rule to analogous circumstances, noting, at para. 85, footnote 5: This rule targets Mr. Big operations in their present form. A change in the way the police use undercover operations to elicit confessions may escape the scope of this rule. However, it is not for this Court to anticipate potential developments in policing. To do so would be speculative. Time will tell whether, in a future case, the principles that underlie this rule warrant extending its application to another context. [78] It is common ground that the second prong of the test articulated in Hart, whether police misconduct amounted to an abuse of process, has no application in this case. There was no police misconduct. [79] Moldaver J. indicated at para. 102 that the first step in assessing the reliability of a Mr. Big confession is to examine the circumstances in which the confession was made and assess “the extent to which they call into question the reliability of the confession,” including but not limited to the following: · The length of the operation; · The number of interactions between the police and the accused; · The nature of the relationship between the undercover officers and the accused; · The nature and extent of inducements offered; · The presence of any threats; · The conduct of the interrogation itself; and · The personality of the accused, including his or her age, sophistication and mental health. [80] The next step in the analysis is to look at the confession itself for markers of reliability, such as the level of detail, whether it leads to discovery of additional evidence, whether it identifies any elements of the crime that have not been made public or whether it accurately describes details only a participant in the crime would know. He noted at para. 105 that “[c]onfirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability.” [81] Most Mr. Big cases will turn on the reliability of the confession. The potential for prejudice will remain fairly constant from case to case: para. 108. However, prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative and providing an appropriate limiting instruction to the jury: para. 107. [82] Finally, a trial judge’s decision whether “to admit or exclude a Mr. Big confession will be afforded deference on appeal”: para. 110. [83] I agree with the Crown that the present case does not fit within the archetypal Mr. Big scenario described in Hart. There was no criminal organization. There was no “Mr. Big”. There was no confession extracted by threats or inducements. The UCO broached the topic of Gehl’s killing under the assumption that Zvolensky, Qahwash and Cyr were involved and sought assurances from Zvolensky and Qahwash that it would not jeopardize the proposed business venture. There was no coercion. There was no interrogation. [84] The present case does involve the risk of moral and reasoning prejudice associated with the evidence of the appellants’ extrinsic criminality. However, unlike the typical Mr. Big scenario, the precise reason why the appellants gave incriminatory statements about their participation in Gehl’s murder was not their ambition to participate in a criminal organization. Indeed, they attempted to explain away these statements as lies that they told for alternative reasons. Zvolensky testified he lied to the UCO because he wanted to acquire an interest in the Canoeing the Grand business. Cyr said he lied because he wanted to get back the gun used in Gehl’s murder and foil Zvolensky’s blackmail plot. [85] That said, given the potential prejudice associated with exposing a jury to the appellants’ apparent willingness to murder the UCO’s ex-wife and attempts to purchase firearms, as part of the context of the appellant’s statements to the UCO, in my view the factors listed by Moldaver J. in Hart provide a useful framework for determining whether that prejudice is overcome by the statements’ reliability. [86] Here there is powerful confirmatory evidence of the reliability of the confessions. The presence of the gun used in the killing, hidden in Qahwash’s basement, with Qahwash’s fingerprint on the bag containing the ammunition and Zvolensky’s DNA on the gun, suggests that Cyr’s statement that Zvolensky and Qahwash committed the murder under his direction is true. That Zvolensky and Qahwash both stated the gun was purchased for $1,700 is unlikely to be coincidental. Zvolensky knew the gun was an old one. Qahwash and Zvolensky exchanged text messages about buying a gun in the days before the murder. The text message from Cyr to Zvolensky, saying “The game is at 8:40,” the time of the killing, 8:45 and the testimony from the coach of the basketball team that there was no such game tends to confirm that there was a plan in the works. Qahwash and Zvolensky were in frequent contact the night before the murder. [87] The trial judge’s conclusion that the conduct of the UCO did not have a serious and profound effect on the psychological integrity of Zvolensky or Cyr was supported by the evidence. [88] Although it might be said that Zvolensky was somewhat manipulated by the UCO, the manipulation was a two-way exercise. It is true that Zvolensky was happy to get a one-fifth interest in the Canoeing the Grand business for nothing and happy to have the UCO facilitate his access to guns for resale. He told the UCO that he was saving his life and that this was a once in a lifetime opportunity for him. He explained that this was genuine, in the sense that he did not think anyone else would offer him the same opportunity. However, he also said, “I’m trying to pull on his heartstrings a little bit”; “for some people when they help others, they feel good about themselves for it … It’s like, well, you’re helping me you can’t let it down now, you know, you said you would help us, you can’t back out.” His testimony was that he lied to the UCO that he would kill the UCO’s ex-wife in order to assure the UCO that she would not interfere with the business acquisition. [89] There was no inducement offered as a condition of an admission of guilt to the murder. Zvolensky would not admit participation in the murder on occasions when the UCO asked him about it. He was not in the thrall of the UCO to the point where he was unable to consider his own best interests. He was twenty four years’ old, healthy and held two or three jobs during the undercover operation. He was not socially isolated, as he lived with his parents and had a girlfriend. He had graduated from high school. He did not talk to the UCO about deeply personal matters. It was Zvolensky who first brought up the idea of investing in dealing in firearms. [90] Qahwash had very little relationship with the UCO and seldom spoke to him. There is nothing to suggest that he had any particular vulnerability connected to the interaction with the UCO that made any statements he made unreliable. [91] Similarly, Cyr was confident and boasted of his ability to mastermind the plan to kill. There is no evidence of any particular vulnerability on his part, and he did not suggest that he had any such weakness. His testimony at trial was that he was trying to use the UCO to get the gun used to kill his wife. Cyr told the UCO that he knew what a Mr. Big operation was. He said that in such an operation “an undercover officer would befriend the suspect and then try to get the suspect to join a secret criminal organization but before he can join the organization that suspect has to tell him about the heinous crime or whatever he did and then he can join.” There is nothing that undermines the trial judge’s conclusion that, other than their happiness at the proposed business venture, the UCO’s conduct did not have any psychological effect on either Zvolensky or Cyr. [92] The appellants did not suffer from mental health or addiction problems. The conduct of the UCO did not dramatically change their lives. The operation was of short duration, approximately three months. There were no inducements offered or threats made to secure any statement. [93] The statements to the UCO had sufficient probative value to justify presentation to the jury. I agree that the probative value of the evidence outweighed the potential prejudice, particularly when coupled with the multiple warnings given by the trial judge that a statement by one was not admissible against another and her removing extraneous prejudicial evidence unnecessary to the narrative. In what follows, I consider whether this court should intervene in her editing decisions. C. Editing of statements to the undercover officer [94] In this court, the appellants reiterated the same arguments they made before the trial judge. They had submitted that all references to a co-accused’s name should be edited from a statement by one of them to the UCO, as should evidence of their willingness to participate in plans to kill the UCO’s ex-wife or traffic in guns. [95] The trial judge refused to exclude this evidence. In her reasons on the application, she recognized the statements’ potential prejudice, but she found that they were highly probative and relevant given the Crown’s theory. They disclosed the relationship of trust between the appellants and the UCO and provided the narrative context for the jury to determine whether the appellants conspired together in the murder of Gehl. She stated that limiting instructions to the jury regarding how they can properly use this evidence would sufficiently mitigate the potential for prejudice. [96] The trial judge ruled that other discreditable conduct would be excluded on that ground that the probative value was outweighed by its prejudicial effect, but she did not exclude all of the items requested by the appellants. In making her decision, she indicated at para. 80 that she considered the following factors: In arriving at this decision, a number of factors have been considered including: (a) the interest of the public in having all evidence relating to the murder placed before the jurors to ensure a just and proper verdict; (b) the danger that editing a statement might result in it being misinterpreted or altered in its substance or tone; (c) whether editing would interrupt the flow of the statement and arouse suspicion and speculation by the jury; (d) the prejudice which might be occasioned by the jury hearing evidence admissible against one accused, but clearly inadmissible against the others; (e) That although evidence might be inadmissible for one purpose, it may very well be admissible for another legitimate purpose; (f) that in this case, the evidence of the murder of the fictitious ex-wife and the obtaining of illegal guns is inextricably tied in with the alleged confessions or inculpatory statements of both M. Cyr and Mr. Zvolensky; (g) the evidence of the fictitious ex-wife’s murder and the illegal guns is, as discussed earlier and probative of the relationship between each of the accused and the relationship between the undercover officer and the accused; (h) the statements provide part of the narrative and context for the alleged inculpatory admissions; and (j) lastly, the jury will be reminded, both during the course of the trial and at its conclusion, as to the proper use of this evidence and specific instructions regarding what it cannot be used for. As I set out in my ruling in Application #3, our entire jury system is premised on the fact that jurors are intelligent and capable of following the instructions of the trial judge. [97] The trial judge’s editing was a fact-specific exercise necessitating a weighing of probative value and potential prejudice. The editing decisions were driven in large part by the prior decision that the statements made to the UCO had sufficient reliability to be admissible despite their potential for prejudice. Editing decisions such as these are owed substantial deference: see R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 90, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 119; and [2010] S.C.C.A. No. 460. [98] There is no basis for appellate intervention in the trial judge’s editing decisions. She exercised her discretion in a principled fashion in light of the admissibility of the statements in question. I see no error in the extensive and comprehensive set of factors that she listed as giving structure to her discretion. D. Use of discreditable conduct by co-accuseds’ counsel [99] Each counsel made liberal use of discreditable conduct by his co-accused. This was essential to parts of Zvolensky’s and Qahwash’s defences. Both testified that because of their experience in committing robberies with the other, each thought the other was committing a robbery, not a killing. [100] The trial judge told the jury of the positive uses for that evidence, but warned them repeatedly of the prohibited use of the evidence: In each and every case you were specifically instructed that you could not reason that because of this evidence of discreditable conduct, that any of Mr. Cyr, Mr. Zvolensky or Mr. Qahwash is the type of individual who would commit murder. That is forbidden reasoning and as a matter of law, I instruct you that you cannot use the evidence for that purpose. As well, you may not use this evidence to engender hostility to or bias against the defendants or take it to indicate that they are somehow deserving of punishment. [101] These instructions were the correct ones for the trial judge to give to the jury in circumstances, such as those in the case at hand, where an accused introduces evidence of the bad character of a co-accused to raise a reasonable doubt as to his or her own guilt: see R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at paras. 67-68, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 299. They correctly balanced the interests of the co-accused in making full answer and defence while still being protected from prejudicial propensity evidence. E. Failure to instruct on second degree murder [102] Zvolensky submits that the trial judge erred in failing to leave second degree murder to the jury. He does not suggest that second degree murder was available in this case, where the killing was clearly an execution, but submits that the manner in which the trial judge charged the jury was prejudicial because of the following: · The charge removed the burden on the Crown to prove murder before it could prove first degree murder; · It obscured the crux issue of the requisite intent for murder; and · It left no room for a W.(D.) instruction tailored specifically to the issue of intent: see R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758. [103] The Crown’s position at trial was that Zvolensky and Qahwash were each responsible for the killing, either as the shooter or an aider. It submitted that the jury did not have to determine which role each performed, as long as they were satisfied beyond a reasonable doubt that the accused they were considering was either a shooter or aider. The trial judge instructed the jury, If you are satisfied beyond a reasonable doubt that one or the other of them [Qahwash and Zvolensky] personally shot Nadia Gehl, and the other intentionally assisted him, knowing that he intended to shoot her then you must convict both of them even though you are not sure who was the shooter and who was the aider and abettor. This instruction was legally correct and is not challenged on appeal. [104] The general outline of the trial judge’s description of the elements of the offences was as follows: · Shooter: · Caused death · Caused death unlawfully · Had the state of mind for murder · The murder was planned and deliberate · Aider: · The shooter caused death · That death was caused unlawfully · The shooter had the state of mind for murder · The aider helped the shooter · The aider intentionally helped the shooter kill the victim · When the help was provided, the aider knew of the shooter’s intention to commit a planned and deliberate murder [105] The trial judge gave a corresponding instruction for an abettor to deal with Cyr’s alleged role. [106] In response to the evidence by each of Qahwash and Zvolensky that they had inadvertently aided the shooter, but intended only to help the other commit a robbery, the trial judge left manslaughter to the jury outlining these essential elements: · The shooter caused death · He did so unlawfully · The other did something that helped the shooter · The help was provided with the intention of helping the shooter commit a robbery or other unlawful act other than murder · The aider believed that the shooter intended to commit a robbery or other unlawful act, other than a murder · The robbery or other unlawful act other than murder was objectively dangerous [107] The trial judge also left the possibility of an outright acquittal with the jury. [108] The trial judge made it clear to the jury that it had to find that the Crown had proven the intent required for murder beyond a reasonable doubt: … I want to make it clear, if I already haven’t, that the Crown must prove each of the essential elements beyond a reasonable doubt. You must be satisfied beyond a reasonable doubt that a defendant had the state of mind required for murder, that is, if a defendant is the shooter, the Crown must prove beyond a reasonable doubt that he meant to kill Nadia Gehl, and if he did not mean to kill Nadia Gehl, the defendant committed manslaughter. If a defendant is an aider you must be satisfied beyond a reasonable doubt that when the help was provided he intended to help the shooter and he knew the shooter’s intention was to commit a planned and deliberate murder. If you are not satisfied of this beyond a reasonable doubt you would then consider the question of manslaughter. If a defendant is an abettor you must be satisfied beyond a reasonable doubt that the abettor provided encouragement to the shooter with the intention of encouraging the shooter to commit a planned and deliberate murder. So, if you are not satisfied you would then consider the question of manslaughter. Again, the important principle is the issue of intention. So, I want you to understand that if you do not find beyond a reasonable doubt that there was intention necessary then you would consider the issue of manslaughter. You would not go on to consider whether or not it was a planned and deliberate murder. [109] She told the jury that the “issue was who knowingly participated in this murder and the degrees of participation.” She told the jury Zvolensky’s position that he was an unwitting participant who was not intentionally involved in the murder. [110] The trial judge gave a W.(D.) instruction: In this case you heard the defendants testify. I want to give you some special instructions as to how to deal with the evidence of an accused witness. If you believe the evidence of a defendant, that he did not commit the offence charged, you must find him not guilty of that offence. Even if you do not believe his evidence, if it leaves you with a reasonable doubt about his guilt, you must find him not guilty of that offence. Even if his evidence does not leave you with a reasonable doubt of his guilt, you may convict him only if the rest of the evidence that you do accept proves his guilt of the offence beyond a reasonable doubt. [111] Zvolensky argues that the trial judge should have given a W.(D.) instruction focused specifically on the issue of intent. He submits that, by the end of the trial, each of Qahwash and Zvolensky had tacitly admitted their culpability for manslaughter, as each said that they only intended to help the other commit a robbery. [112] In this case, there was no air of reality to second degree murder. In my view, it was not necessary for the trial judge to charge the jury separately for that offence. As noted in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 43, trial judges should avoid “unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury’s attention from the primary disputed issues in the case.” See also R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at paras. 24-25. [113] The trial judge’s charge made it clear that the Crown had to prove the intent required for murder beyond a reasonable doubt. While the trial judge could have given a W.(D.) charge focused particularly on the intent required for murder, she was not required to do so in the specific circumstances of this case, where the jury was properly instructed in accordance with W.(D.) in general terms that encompassed the entirety of the Crown’s case against the appellants. In light of this all-embracing W.(D.) charge, the jury could not have misunderstood the correct burden and standard of proof to apply when dealing with an accused’s own testimony and the other evidence led at trial. F. Zvolensky’s argument that cross examination by the Crown and Cyr’s counsel made his trial unfair [114] When Cyr’s counsel cross-examined the UCO, he highlighted statements made by Cyr about Zvolensky that were already in evidence, likely for the purpose of emphasizing for the jury extracts from Cyr’s statement to the UCO that would fit into the narrative Cyr would relate in his testimony in chief. [115] During Cyr’s examination-in-chief, he testified that the content of his admission to the UCO on August 1, 2009 – that he had arranged for Zvolensky and Qahwash to kill his wife – was derived from an earlier meeting in February with Zvolensky in which Zvolensky told Cyr he had killed Gehl and blackmailed Cyr. Crown counsel closely cross-examined Cyr with a view to demonstrating that the blackmail story was not credible and went through the August 1 description of the killing in detail. [116] Zvolensky submits that this series of events during the trial had the effect of making Cyr’s description to the UCO of Zvolensky’s role in the killing admissible for its truth. [117] I do not accept this submission. Crown counsel was entitled to probe and test Cyr’s evidence. Counsel for Cyr was entitled to highlight aspects of the UCO’s evidence that might be helpful to his client. [118] The trial judge warned the jury at least five times that the out-of-court statements were admissible only against their speaker. In any event, Cyr testified at trial that Zvolensky told him that he had killed Gehl. This statement was admissible for its truth as a party admission: see R. v. Evans, [1993] 3 S.C.R. 653, at p. 664; and R. v. Foreman (2002), 62. O.R. (3d) 204 (C.A.), at para. 37. G. The Rule in Browne v. Dunn [119] Cyr and Qahwash both argue that the trial judge erred in her treatment of a Browne v. Dunn issue. Cyr submits on appeal that there was no breach of the rule and that he was prejudiced by the trial judge’s remedy. Qahwash says there was a violation of the rule that should have resulted in a mistrial. The Crown submits that the remedy chosen by the trial judge was a reasonable exercise of her discretion and that there is no basis to intervene. [120] Qahwash was first on the indictment, followed by Zvolensky, then Cyr. Qahwash gave his evidence before the others testified. His evidence was that Zvolensky admitted to killing Gehl. He said that he inadvertently helped Zvolensky by giving Zvolensky the gun, thinking Zvolensky was going to commit a robbery, not a murder. [121] Cyr’s counsel asked Qahwash in cross-examination whether he had some advantage over Cyr that resulted in Qahwash getting an interest in Canoeing the Grand. Qahwash said that it might have something to do with the fact that, according to him, Zvolensky had killed Gehl for Cyr, and that he, Qahwash, was keeping the killing a secret. [122] Qahwash closed his case. Zvolensky testified that Qahwash killed Gehl and that he had inadvertently helped him, thinking that Qahwash was committing a robbery. The blackmail theory first came to light during Cyr’s cross-examination of Zvolensky, after Qahwash had finished cross-examination of Zvolensky. [123] Counsel for Cyr asked Zvolensky if, on February 6, 2009, he told Cyr that he and Qahwash killed Gehl. He asked if Qahwash told Zvolensky that “as long as Ron was a friend, your friends would make sure the weapon wouldn’t turn up in any place that Ron wouldn’t like.” He suggested to Zvolensky that he told Cyr “that no one would believe him if he snitched you and Nashat up.” Zvolensky interpreted the questions as a suggestion “that me and Nashat killed Nadia, went to Ron and told him about it, and tried to blackmail him into buying Canoeing the Grand with us.” Zvolensky rejected all of these allegations. [124] To this point, there was no evidence supporting Cyr’s counsel’s suggestion of a blackmail plot in the questioning. Before Cyr’s counsel’s cross-examination was finished, counsel for Zvolensky asked the trial judge for an instruction that the questions of counsel were not evidence. Counsel for Qahwash indicated he would be bringing a mistrial application because the suggestion of a blackmail plot put by Cyr’s counsel and rejected by Zvolensky, was not made to Qahwash. [125] To this point, counsel for Cyr had not succeeded in adducing evidence of an alternate version of events which he had failed to put to Qahwash. [126] Cyr’s counsel continued his cross-examination of Zvolensky and elicited evidence that Qahwash and Zvolensky had discussed how the UCO mentioned Cyr’s situation on July 23 and agreed to go see Cyr to discuss this on July 30. [127] Cyr’s counsel completed his cross-examination of Zvolensky and the trial judge instructed the jury that the questions lawyers asked were not evidence. [128] The trial judge noted in her (unreported) ruling on this issue that Cyr testified that he never spoke to Qahwash about the blackmail: There is no doubt that in cross-examination, Mr. Cyr made it very clear that he never discussed the murder of Nadia Gehl with Mr. Qahwash and Mr. Qahwash never said anything about the blackmail plot to Mr. Cyr. All information about the murder of Nadia Gehl and the blackmail plot came from Mr. Zvolensky including any role Mr. Qahwash may have played. At the same time, however, Mr. Cyr also made it very clear that he believed Mr. Qahwash was involved in the murder, which in my view, includes the blackmail because as far as Mr. Cyr was concerned, both were inextricably bound together. [129] Counsel for Qahwash and Zvolensky cross-examined Cyr fully about his blackmail evidence. [130] The trial judge noted that there was some evidence from Cyr from which an inference could be drawn that Qahwash was involved with Zvolensky. On February 6, 2009 (the date when the blackmail plot was allegedly revealed by Zvolensky to Cyr), Qahwash told Cyr that Zvolensky wanted to talk to him outside. Further, Qahwash was present at the July 30 meeting when the destruction of the gun was discussed. The trial judge concluded that some incriminatory inference might be drawn from Zvolensky’s evidence on cross-examination about the discussion between him and Qahwash on July 23 about the UCO’s references to Cyr. She concluded that these matters should have been put to Qahwash on cross-examination by Cyr’s counsel and that there had been a violation of the rule in Browne v. Dunn. [131] The trial judge reminded the jury, after Cyr’s evidence, that nothing Cyr said that Zvolensky said about Qahwash was admissible against Qahwash. [132] The trial judge concluded that the appropriate remedy was a charge to the jury dealing with this issue, and she refused Qahwash’s application for a mistrial. She stated: The right of Mr. Qahwash to suggest that Mr. Cyr had the opportunity to fabricate his evidence after hearing Mr. Qahwash testify is intertwined with the application of the rule Browne v. Dunn. As Borins J.A. stated in R. v. Marshall: “As the Browne v. Dunn issue was a live one in this case, in my view, the jury properly could have taken the failure to cross-examine into consideration in determining whether the appellant had concocted his evidence.” Although Mr. Qahwash was deprived of the opportunity to cross-examine Mr. Zvolensky with respect to the answers he gave regarding Mr. Cyr’s theory of the murder and the blackmail plot, does not mean that the trial has been rendered unfair to Mr. Qahwash. Mr. Qahwash did, in fact, extensively cross-examine Mr. Zvolensky with respect to his involvement and Mr. Qahwash’s theory of the murder. It is also important to note that Mr. Zvolensky denied, on behalf of himself and Mr. Qahwash, all allegations of involvement as suggested by Mr. Cyr. Mr. Zvolensky was steadfast in his assertions of innocence despite cross–examination by his co-defendant including Mr. Qahwash and the Crown. Again, although the court can never say with certainty what Mr. Zvolensky would say if he was further cross-examined by Mr. Qahwash, given his vigorous denials of any involvement, it is unlikely that he would suddenly recant, acknowledge he perjured himself, and admit his involvement. Mr. Zvolensky’s evidence regarding what occurred at the two meetings with Mr. Qahwash is not lengthy and it will be easy for the court to direct the jury that that evidence cannot be used against Mr. Qahwash in deciding his verdict. Mr. Zvolensky, on the other hand, had a full opportunity to respond to the allegations put to him and I do not see how he is prejudiced in any significant manner as a result of the failure to put certain questions to Mr. Qahwash. I am satisfied that a proper jury instruction will take care of any perceived unfairness to any of the defendants. This is not one of the “clearest” of cases which demands a mistrial. The application for a mistrial is dismissed. [Citations omitted.] [133] The trial judge dealt with this issue in her charge to the jury: … Mr. Qahwash did not have the opportunity to tell you his response to Mr. Cyr’s version of events or provide any evidence to you that might assist you in terms of deciding if what Mr. Cyr said was the truth. However, Mr. Cyr should not be held responsible for what may have been a tactical decision on the part of his counsel. When considering the evidence of Mr. Qahwash and the evidence of Mr. Cyr, you may take into account any instance where Mr. Qahwash did not have the opportunity to give his version of the events in response to the version of the events related you by Mr. Cyr. This is a principle of general fairness and applies to all witness. As well, in response to questions put to him by Mr. Bains, Mr. Zvolensky gave answers regarding the meeting he said he had with Mr. Qahwash after July 23rd, and the meeting of July 30th. Those answers included things that he alleged were said and done by Mr. Qahwash. As Mr. Qahwash had no opportunity to respond to this evidence, through no fault of Mr. Zvolensky, you may not consider anything Mr. Zvolensky said about Mr. Qahwash’s participation at these meetings or what occurred at these meetings when you consider the verdict for Mr. Qahwash. (1) Analysis [134] The rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), addresses the problem where a witness is contradicted by other testimony, but where opposing counsel have not put the alternate version of events to that witness in cross-examination. [135] The application of the rule was discussed by Watt J.A. in R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 203. I extract the following principles from that discussion: · The decision as to whether there was a breach of the rule, and if so what the remedy should be, depends on the circumstances of each case and attracts substantial deference: paras. 80, 118. · Counsel need not confront the witness with every scrap of contradictory evidence, but should do so on matters of substance that a witness has not had an opportunity to explain: para. 81. · In some cases, it is apparent that the cross-examining counsel does not accept the witness’s version of events. “Where the confrontation is general, known to the witness and the witness’s view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so”: para. 82. · “Where the subjects not touched in cross examination but later contradicted are of little significance in the conduct of the case and resolution of critical issues of fact, the failure to cross examine is likely to be of little significance to an accused’s credibility”: para. 85. [136] Watt J.A. stated at para. 117 that the remedy for a violation of the rule in Browne v. Dunn, if any, depends on many factors, including: · The seriousness of the breach; · The context of the breach; · The timing of the objection; · The position of the offending party; · Any request to permit recall of a witness; · The availability of the impugned witness for recall; and · The adequacy of an instruction to explain the relevance of failure to cross examine. [137] I conclude that there was no unfairness to either Qahwash or Cyr or any reversible error in the manner in which the trial judge handled this issue. The trial judge’s decision that there was a breach of the Browne v. Dunn rule is entitled to deference. [138] It was of marginal importance in this trial that Qahwash told Cyr on February 6, 2009 that Zvolensky wanted to talk to him, that Zvolensky and Qahwash discussed what the UCO had to say about Cyr and that Qahwash was with Zvolensky but not part of the discussion when Zvolensky went to discuss this with Cyr on July 30. It was clear after Qahwash’s cross-examination that his position was that he was not part of any blackmail plot and that he said Zvolensky was the killer. Qahwash and Zvolensky had been very close friends. It is not surprising that they would discuss what the UCO had to say about Cyr or the plan to kill the UCO’s ex-wife. That they were sometimes together, as they were on July 30, would not be surprising and of little prejudice, given Cyr’s evidence that Qahwash had never spoken to him about the blackmail. By the end of the trial, on the evidence of both Zvolensky and Qahwash, they were together the night before the murder, on the morning of the murder, had both handled the gun and each said they had unwittingly helped the other kill Gehl. [139] Cyr, on the other hand, gave no admissible evidence inculpating Qahwash in the murder or the blackmail. The instruction to the jury that they should take into account Cyr’s counsel’s failure to confront Qahwash in cross-examination would not have undermined Cyr’s evidence about Qahwash or in any significant other respect. H. The coded text MESSAGE [140] Cyr sent a text message to Zvolensky at 4:44 p.m. on Sunday, February 1, 2009, the day before the murder. It read, “can you play ball on tue. The game is at 8:40.” Zvolensky did not reply to this text. At trial, Qahwash called the captain of the basketball team. He testified that he had mailed two team schedules to Cyr, the first on December 28, 2008 and the second on January 13, 2009. Neither schedule showed a game on the Tuesday. The games that were scheduled started at 9:15 p.m. and 10:15 p.m. Cyr said he had a handwritten schedule that he had consulted when he sent the text message to Zvolensky. He said he had tickets to a hockey game on Tuesday, February 3 and believed there was a basketball game the same night. Gehl was shot the day after the text was sent, at 8:45 a.m. Her work schedule was irregular, and there was no obvious way Zvolensky would know when she was on her way to work. [141] On appeal, Cyr submits that the trial judge ought to have instructed the jury that the Crown’s theory that the Sunday text was a coded message was speculative. Cyr could have mistakenly believed there was a game on the Tuesday. He may not have read the attachments to the emails. [142] The trial judge reviewed this evidence and reminded the jury: Once again, you will consider the texts from Mr. Cyr to Mr. Zvolensky on February 1st and the evidence of both Mr. Cyr and Mr. Zvolensky about the meaning of that text, along with the evidence of David Bonnell. [143] Earlier in the charge, she told the jury: You are entitled to come to common sense conclusions based on the evidence that you accept. You must not speculate, however, about what evidence there might have been or permit yourselves to guess or make up theories without evidence to support them. … You may draw inferences from the evidence which you accept or from the lack of evidence. You may not speculate about conclusions for which there is no basis in the evidence [144] Cyr did not object at trial to this part of the jury charge. The competing inferences to be drawn were plain, and there was no need for the trial judge to go further. I. Adoptive admissions [145] Qahwash argues that the trial judge erred in instructing the jury on admissions adopted by silence in relation to parts of the meeting between the UCO and Zvolensky and Qahwash after Cyr’s arrest. He submits that the trial judge should have excluded the proposed adoptive admissions [146] Qahwash was present at and participated in this meeting. Many of his comments were monosyllabic. At times he said nothing. The UCO testified that both Zvolensky and Qahwash were engaged in the conversation. Some of the “no” responses given by Qahwash were equivocal. For example, the UCO officer raised the issue of whether police knew about Cyr’s relationship with Zvolensky and had shown Zvolensky’s picture to Cyr: UCO: Like I don’t know why I think they had your picture in there like he said just to see if he’d lie about it but … Zvolensky: Yeah. UCO: What about you? Qahwash: No. Zvolensky: There’s no connection to him at all man. He doesn’t even call him … UCO: No. Zvolensky: … so they don’t even check his business. You gotta distance yourself … [147] Other comments were more suggestive of Qahwash’s participation in the killing. For example, when the group discussed whether Cyr would talk to police about them both, the following exchange occurred: UCO: But you guys are absolutely one hundred percent convinced that he won’t ice you two? Zvolensky: No man… UCO: You’re good? Okay… Zvolensky: He’s he’s fuck he’s a rock man. Qahwash: No way man. [148] There was no direct assertion made that Qahwash participated in the killing. [149] When Qahwash testified, he explained why he did not specifically deny participation or appeared to agree. He said the conversation was really just between the UCO and Zvolensky and that he was not always paying attention. Zvolensky had told him just to go along with whatever was said and told him to keep his mouth shut. [150] The trial judge correctly instructed the jury as to the elements of an adoptive admission (see R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-58): If a statement is made by another person, be it a co-defendant, or someone else, in the presence of and adopted by one of the defendants, that is called an adoptive admission. There is only one adoption to the extent that the defendant assents to the truth of the statement expressly or impliedly. Assent may be inferred from the defendant’s words, actions, conduct, or demeanour. Assent may also be inferred from the defendant’s silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission where a denial would be the only reasonable course of action expected. Where silence is the manner of alleged adoption, there are several conditions that must be met. First the defendant must have heard the statement. Second, the statement must be about a subject matter of which the defendant would be expected to reply, as for example, a child. Third, the defendant must not have been suffering from any disability or confusion, and, lastly the person must not be someone to whom the defendant would be expected to reply, as for example, a child. It is for you to decide whether a defendant, by his conduct in remaining silent, adopted the allegations made by the Undercover Officer in their presence. You may only use the allegations made by the Undercover Officer as true to the extent that you find they were adopted by a defendant. If you find that by his silence, a defendant did not assent to these allegations, then they have no value as evidence and should be entirely disregarded. . [151] Here, where Qahwash spoke about thirty times in the course of an eighteen-minute conversation, and where there was no direct accusation or assertion that Qahwash had participated in the killing, the trial judge was not required to parse out segments of the meeting where Qahwash was quiet and treat those parts differently. The jury’s task here was to consider what Qahwash said in the context of the entire meeting. The jury listened to the conversation and was able to assess his demeanour and the degree of his participation in the conversation and whether he tacitly acknowledged participation with Zvolensky in the killing of Gehl. [152] Qahwash relies on Robinson to support his argument that the portions of the meeting where Qahwash was silent should have been excised from the evidence placed before the jury. However, Robinson is distinguishable. In Robinson, the Crown had provided no evidentiary basis that the accused were even part of the conversation in which the admissions they were said to have adopted by their silence were made. [153] Here, the legally correct charge on adoptive admissions caused no prejudice to Qahwash. J. Quahwash’s pre-trial silence [154] Qahwash submits that the trial judge erred by allowing Zvolensky to cross-examine Qahwash about his failure to tell police before trial that Zvolensky was the killer, as he had testified at trial. Qahwash testified that he kept silent for two-and-a-half years because he was waiting for Zvolensky to take responsibility for the killing. [155] Qahwash submits that Zvolensky invited the jury to infer his guilt from his pre-trial silence. He submits that his pre-trial silence could not be used to assess his credibility because he testified that he kept silent on the advice of counsel. Counsel for Zvolensky expressly put it to Qahwash and later argued to the jury that if Qahwash was not the shooter, he would have told police. He submits that the jury was left with only two alternatives: “Either Qahwash did not say anything because he was the shooter; or he did not say anything because he was acting on the advice of counsel. Neither goes to credibility.” [156] I do not accept that the jury was left with these simple alternatives. It was open to the jury to consider Qahwash’s pre-trial silence in considering the credibility of his evidence that Zvolensky was the shooter. [157] As the Supreme Court’s decision in Crawford [1995] 1 SCR 858 makes clear, at para. 38, the Crown cannot rely on pre-trial silence as evidence of guilt, but a co-accused can attack the credibility of another accused by referring to the other accused’s pre-trial silence. See also R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at p. 279; and R. v. Akins (2002), 59 O.R. (3d) 546 (C.A.), at para. 13. [158] Counsel for Zvolensky respected this boundary when questioning Qahwash: Q. I put it to you, sir, that when it comes time for this jury to consider your credibility on that issue, that that just doesn’t hold up? If you truly weren’t the shooter, even if there was some code of silence amongst your group, you would have said to that officer at least once over the course of that seven hour interrogation, in order to relieve the anxiety of your family, your friend, Julie, so that the officer could tell them as he offered to do, I wasn’t the shooter? A. I was – I was advised by the duty counsel not too say anything, so I didn’t say anything. Q. Right. Not even, I wasn’t the shooter? A. Anything. Anything you say could be used against you, so. [159] The trial judge correctly instructed the jury on this issue: You heard evidence that Mr. Qahwash did not give a statement to the investigating police officers, or answer questions the police asked him after his arrest and prior to the trial. It is very important that you understand what use you may make, and what use you must not make of this evidence. As a person charged with an offence, a defendant has the absolute right to remain silent on and after arrest. A defendant does not have to speak to the police. He does not have to answer any police questions. The right to silence (or, to remain silent) is fundamental, as is the right to choose when and how to exercise it. Since these rights are fundamental, the person who exercises them, has the right – I’m sorry – has the right to have his exercise of them not used in any way in your decision about whether he committed the offence with which he is charged, or any other offence. In other words, you must not use the defendant’s exercise of his right to silence to help you decide whether Crown counsel have proven his guilt of the offence charged or any other offence beyond a reasonable doubt. Three persons are charged and on trial together here. Any person charged with an offence has the right to make full answer and defence to that charge. Amongst other things, he has the right to challenge the testimony and the credibility of any witness, including any other person charged who testifies at trial. To challenge the testimony or credibility of Mr. Qahwash, Mr. Zvolensky and Mr. Cyr raised the fact that Mr. Qahwash did not tell the police on or after his arrest, what he said in the witness box here. Accordingly, you may consider the evidence about Mr. Qahwash’s pre-trial silence in assessing this credibility and helping you to decide the case of Mr. Zvolensky and Mr. Cyr. In deciding how much or little you will believe of or rely upon the testimony of Mr. Qahwash in deciding this case, you may take into account that he failed to provide the version of events he told you to police on or after arrest. But his failure to provide this version to the police may be due to other factors. For example, counsel routinely advise clients to remain silent, and in this case, Mr. Qahwash repeated that he was not answering any questions on the advice of duty counsel. If you conclude that the defendant’s failure to tell the police what he told you was for some reason relating to the accuracy or truthfulness of the story, you may take that into account in helping you decide how much or little you will believe of or rely upon what he told you from the witness box when deciding the case for Mr. Zvolensky and Mr. Cyr. On the other hand, if you decide that Mr. Qahwash’s failure to tell the police what he told you was for some other reason, for example, the advice of counsel, then you must not use that failure in deciding or helping you decide how much or little you will believe of or rely on what he said in the witness box in deciding this case. [160] The trial judge highlighted for the jury that if they concluded that Qahwash did not speak to police because of the advice of counsel, then his silence could not be used to assess his credibility. See also Crawford, at para. 38. [161] The trial judge appropriately balanced the interests of Qahwash and Zvolensky, doing so in accordance with the correct approach to dealing with a co-accused’s pre-trial silence established in the controlling authorities. There is no basis to intervene. K. Zvolensky’S denial to police that he was the killer [162] Qahwash’s counsel suggested in cross-examination of Zvolensky that Zvolensky had fabricated his evidence after hearing Qahwash’s evidence and reading the disclosure: Q. Prior to testifying you had the opportunity to hear Nashat Qahwash’s evidence? A. You’re right. Q. You’ve read the disclosure very carefully in this case? A. I’ve looked through the disclosure. Q. You’ve looked through it or you’ve learned it over the last three years very carefully? A. I’ve looked through the disclosure. I, I know it pretty good. I’m part of the case. Q. Right. I would think maybe you glanced over it more than just carefree. You’re facing first degree murder, right? A. No, I’ve looked through it, yes. You’re right. Q. You were either present at the scene or on your version, very near the scene of the shooting of Nadia Gehl, correct? [163] The Crown accepts that counsel for Qahwash had in substance suggested that Zvolensky had a motive to fabricate as soon as he was arrested and that Zvolensky used disclosure about unrelated kidnapping charges against Qahwash to fabricate an account that Cyr arranged for Qahwash to kill Gehl. [164] Zvolensky sought at trial to rebut this allegation by introducing statements made by Zvolensky on the day of his arrest. When asked by police at that time if he was the driver or the shooter, he responded repeatedly, “I’ve never shot anyone in my life.” He said that he would not give further details, on the advice of counsel. He said he had no reason to kill Gehl, that she was a wonderful person and that he had only a workplace and basketball relationship with Cyr. [165] These statements were made before he had access to disclosure. Zvolensky concedes that his co-accused was entitled to make the argument that he used disclosure to fabricate trial evidence, but submits that he should be able to rebut these allegations by adducing evidence of prior consistent statements. [166] The issue was whether Zvolensky fabricated his trial evidence that Qahwash was the shooter. Zvolensky was entitled to present evidence of prior statements that rebut the allegation of his fabrication: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 27, at paras. 31-33. However, the difficulty is that none of the pre-trial statements made by him establish that he said at that time that Qahwash was the shooter. [167] In any event, significant aspects of Zvolensky’s statements to police were inconsistent with his trial evidence. His bald denials would not reasonably, in this context, have had any impact on the jury. L. The trial judge’s error about the use of Qahwash’s statement [168] When the trial judge reviewed the evidence relating to Cyr, she summarized his evidence about the blackmail plot and then told the jury: You will consider the evidence of Mr. Qahwash, who testified that Mr. Zvolensky confessed to the murder of Nadia Gehl in the behest of Mr. Cyr, and for insurance money down the road. [169] This was legally incorrect. Qahwash’s evidence of Zvolensky’s confession was admissible against Zvolensky but not against Cyr: R. v. McFall, [1980] 1 S.C.R. 321, at pp. 338-339. [170] No one objected to this aspect of the charge. The trial judge warned the jury on many occasions that confessions or admissions were admissible only against the speaker. I am satisfied that this one slip which no one noticed would not have had any impact on the jury deliberations. M. Crown Closing [171] Each of the three appellants sought a mistrial after the Crown’s closing submissions to the jury. The trial judge refused, and the appellants renew this argument on appeal. They submit that a new trial is required on this ground. [172] The appellants submit that the Crown’s submissions were inflammatory and invited the jury to engage in a prohibited line of reasoning. [173] Qahwash and Zvolensky submit that when the trial Crown (not Crown counsel on appeal) told the jury they should look at the evidence “globally,” this amounted to an invitation to use Cyr’s confession to the UCO against them. I do not accept this submission. Crown counsel gave examples to the jury explaining how some pieces of evidence, viewed in isolation, might be meaningless, such as Cyr’s call to his wife to wake her up on the morning she was killed. But the combined evidence about the text Cyr sent to Zvolensky the previous day, the team captain’s evidence that there was no game on the Tuesday, the failure of Zvolensky to respond to the text, his immediate communications with Qahwash, and Zvolensky and Qahwash being together on the morning of the killing, at a time when they would normally be sleeping, cast the Cyr call to his wife in a different light. [174] The Crown did not invite the jury to use Cyr’s confession to the UCO against Zvolensky or Qahwash. Cyr’s evidence at trial that Zvolensky confessed to him was admissible. As a precaution, the trial judge gave the jury an additional warning: You must not consider anything Mr. Cyr said in this conversation [the statement to the UCO] in reaching your verdict for Mr. Zvolensky or Mr. Qahwash … That is impermissible. This evidence is not admissible against Mr. Zvolensky or Mr. Qahwash. If in the course of his address [Crown counsel] inferred in any way that you could consider this evidence in determining the verdict for Mr. Zvolensky or Mr. Cyr, [misnomer corrected on recharge], I want to make sure you understand that it is not permissible. [175] The trial judge gave the same warning many times, in mid-trial instructions, in final instructions and in the recharge. [176] Qahwash and Zvolensky also submit that the Crown invited the jury to speculate when he suggested to the jury that there must have been both a driver and a lookout. This was an inference the jury could reasonably draw. The execution-style killing occurred in broad daylight, close to a busy street and a bus stop. [177] Qahwash submits that the Crown invited the jury to convict him simply because of his association with Zvolensky. Here, the close relationship between Qahwash and Zvolensky was relevant to the issues at trial. [178] Qahwash submits that the Crown invited the jury to conclude that he had some unspecified motive to participate in the killing. The Crown told the jury that he did not have to prove motive and that only Qahwash knew why he participated. Qahwash’s counsel pointed to the absence of any proof of a motive, and the trial judge told the jury there was no evidence of motive on Mr. Qahwash’s part. [179] There are some parts of the Crown’s submissions that would have been better worded differently or avoided. [180] The first related to the presumption of innocence: These men, these three men they come here and they are cloaked. They are cloaked in the presumption of innocence. But at the time you took it off each one of them, only you can take that off. These three men are guilty. They are guilty as charged for one reason and only one reason that the evidence you have heard over the course of months now leaves no room for any other conclusion. [181] Although the trial judge said “she certainly did not take [the trial Crown’s] submissions in the fashion that the defence are describing,” she took the precaution of telling the jury the following: [I]n case there was any misunderstanding when Mr. Kelly referred to the “cloak of the presumption of innocence” the Crown does not use this phrase in any way to derogate from the presumption of innocence. This legal principle is enshrined in our criminal justice system. It is critical that you understand it and adhere to it. [182] It is also argued that the trial Crown denigrated the role of defence counsel: But there is something about this case that isn’t simple. It isn’t simple at all. What isn’t simple is that the three defendants’ stories and I use the word stories on purpose to suggest fiction. They are not true. Their stories are the only way these men could attempt to navigate around what is really a mountain of evidence against them. Their stories are convoluted and we will talk about why. They are complicated. They are illogical and their actions just don’t match. When we start looking at each of them, and we will, I’m going to suggest to you they make no sense internally. They could not even possibly be true. And each lawyer for each of the defendants stands and says not guilty for my client, please, and I’m paraphrasing. Now you can’t find these men guilty because I make the submission that you should. You sit independent of the Crown. You sit independent of the defendants. You’re judges. You don’t do anything because a lawyer says you should. What you do is you consider the evidence and you act on the evidence, that’s what you do. [183] The appellants submit that the trial Crown improperly told the jury to consider their duty to community and the community’s reaction: As you know I have suggested throughout this, that these three men are men you should find guilty of first degree murder. But we need to at least recognize something, because jurors don’t come out of murder trials feeling happy. This is not happy. You see you swore you would deliver a true and just verdict according to the evidence, without sympathy, without prejudice for anybody. Mr. Bains asked Mr. Cyr stand up and you are his country. Just recognize something, your obligation, your oath extends to those beyond the people in this room, beyond merely the three men on trial. Your obligation is to your oath and your oath is to your community. You are impartial. You certainly are not working for the Crown; you sit independent. You sit independent of everybody in this room because you are judges. But, it’s the community; it’s the community that is of central concern here, because in our community when a crime is committed it’s not merely committed against those most immediately involved. It’s committed against the community and the community rightly expects those who are provably guilty to be held accountable for the crimes they did, not for some lesser crime, for the crime they actually did. [184] The trial judge instructed the jury that it was to base its decision on the evidence and that its duty was to impartially assess the evidence without sympathy, prejudice or fear. Their task was to determine whether the Crown had proven the guilt of each of the defendants beyond a reasonable doubt. [185] Whether to grant a mistrial is a discretionary decision. Appellate intervention is appropriate only if the decision is clearly wrong or based on an error in principle: R. v. (G.A.), 2015 ONCA 159, 124 O.R. (3d) 758, at para. 51. [186] The trial judge was in the best position to measure the impact of the Crown’s submissions, taken in the context of the trial as a whole, and the defence submissions. The trial judge was in the best position to assess whether the jury would have interpreted the Crown submissions as denigration of the role of defence counsel or an invitation to consider extraneous matters. A mistrial is a remedy of last resort where other remedies such as corrective instructions are not enough to prevent a miscarriage of justice. [187] I am not persuaded that the submissions of the Crown made the trial unfair or gave rise to a miscarriage of justice. N. Was one of the jurors ineligible for jury service? [188] One of the jurors had volunteered as an auxiliary member of the Hamilton Police Service for about 5 years, ending eleven years before the trial. [189] The appellants submit that he was ineligible to serve as a juror and that this necessitates a new trial. [190] Section 3(1) of the Juries Act, R.S.O. 1990, c. J.3, provides that every person engaged in the enforcement of law is ineligible to serve as a juror, including: … without restricting the generality of the foregoing, sheriffs wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff’s officers, police officers, firefighters who are regularly employed by a fire department for the purposes of subsection 41 (1) of the Fire Protection and Prevention Act, 1997, and officers of a court of justice [Emphasis added.] [191] The Police Services Act, R.S.O. 1990, c. P.15, s. 2(1) excludes an auxiliary member of a police force from the definition of “police officer.” [192] The plain meaning of s. 3(1) of the Juries Act, describing “every person engaged,” is that persons who are currently so employed are excluded from jury service. I do not accept the argument that, because only medical practitioners who are “actively engaged” in practice are excluded by s. 3(1), this signifies a legislative intention to exclude those who were formerly engaged in law enforcement from jury service. Medical practitioners who are actively engaged in practice have patients to look after, and this is likely the rationale for their exclusion from jury duty. [193] The agreed statement of facts filed on the appeal notes that Juror #9 “volunteered as an auxiliary member of the Hamilton Police Services between November 27, 1995 and May 2001. He resigned in May 2001 but did not provide any volunteer services or attend any training in 2001.” [194] The agreed statement of facts also describes the duties of auxiliary members of the Hamilton Police Service: An auxiliary member is a civilian volunteer who assists Police Constables in the course of their duties. Auxiliary Members of the Hamilton Police Service serve in uniform and are called upon to perform tasks such as community-based crime prevention, traffic control, or patrol duties in community events like parades and fairs. [195] There is no air of reality to any reasonable apprehension of bias in relation to juror #9. His volunteer work for the Hamilton police some eleven years earlier did not disqualify him from sitting as a juror on a trial resulting from an investigation by the Waterloo Regional Police. No member of the Hamilton police force testified at the trial. There is no basis to say that he ever had any involvement in any criminal investigation. [196] In any event, ss. 670 and 671 of the Criminal Code are a complete answer to this ground of appeal: 670. Judgment shall not be stayed or reversed after verdict on an indictment (a) by reason of any irregularity in the summoning or empanelling of the jury; or (b) for the reason that a person who served on the jury was not returned as a juror by a sheriff or other officer. 671. No omission to observe the directions contained in any Act with respect to the qualification, selection, balloting or distribution of jurors, the preparation of the jurors’ book, the selecting of jury lists or the drafting of panels from the jury lists is a ground for impeaching or quashing a verdict rendered in criminal proceedings. [197] These curative sections were applied in R. v. Rushton (1974), 20 C.C.C. (2d) 297 (Ont. C.A.), where it was discovered after the verdict that a juror was the wife of a police officer and exempted from service under the version of the Juries Act then in force. They were also applied in R. v. Stewart, [1932] S.C.R. 612, where a member of the jury was ineligible because he had been convicted of an indictable offence. O. Juror and Court Services Officer conduct [198] The appellants submit the conduct of certain jurors and court service officers caused a miscarriage of justice and that a new trial is required on that ground. [199] The trial judge learned of potential issues surrounding the jurors and court services officers after the trial ended. She ordered that affidavits be taken from any of the staff who dealt with the jury during their deliberations so that a full record could be completed. She arranged for copies of the affidavits to be sent to Crown and defence counsel. [200] On July 17, 2014, the appellants obtained an order, pursuant to Criminal Code s. 683(1)(e), appointing the Honourable Stephen T. Goudge, Q.C. as a Special Commissioner to inquire into the investigation of the jury that tried the appellants. Between July 17, 2014 and March 23, 2015, the Special Commissioner, in the presence of counsel, questioned a number of individuals involved in the appellants' trial, including: the trial judge; the Regional Senior Justice; the Manager and Director of Court Services; the Court Services Supervisors; and the Court Services Officers (“CSOs”) overseeing the jury from Friday, April 28, 2012 until the verdict at 1:40 p.m. on Monday, April 30, 2012. [201] The Special Commissioner issued his report to counsel on October 28, 2015. [202] Based on the information disclosed in that report, the appellants obtained an order, on consent of the respondent, pursuant to s. 683(1)(b) of the Criminal Code, for the examination and cross-examination of the CSOs involved in the sequestration of the jury. [203] The examinations and cross-examinations took place in Hamilton on June 20 and 22, 2016. [204] This was a long trial, approximately fourteen weeks, although originally forecast to take seven or eight weeks. It was a difficult trial related to the death of a young woman. One juror had to reschedule overseas flights for his son’s wedding twice. Others had to reschedule medical appointments. Throughout this long trial, some of the CSOs remarked that one could not have asked for a nicer group of people. They spent weeks with them and commented upon their professionalism and punctuality. [205] By the end of the trial, the strain was starting to show. Some review of the events of the last days of the trial is required. [206] On Friday, April 27, 2012, the jury was dismissed at 12:24 p.m. after the Crown’s jury address and told to return at 2:30 p.m. They were kept waiting until 4:35 p.m. when the trial judge started her charge. On Saturday, April 28, the trial judge charged the jury in the morning and into the afternoon, with a lunch break. The jury waited for four and a half hours, including a dinner break, before the trial judge re-charged them and sent them to the hotel at 8:14 p.m. It appears that a CSO told them not to begin deliberating, as there might be objections to the charge. The trial judge said just before the re-charge “I understand they were upset that they were waiting for so long so I am glad that we got them out for supper.” [207] There is little dispute about the events that transpired at the hotel that evening. At this point the jury had not begun deliberating. [208] When the jurors arrived at the hotel late on Saturday, some of them wanted a drink. A CSO, Mr. Gent, tried to discourage them, telling them that was not wise. Some of the jurors reacted strongly to this. Mr. Gent said there was a “small mutiny” with half the jurors acting like “school children.” Mr. Gent described the jurors as “a little restless” and “anxious.” He said he agreed to let them “unwind and decompress.” Mr. Gent told them they could have two drinks at most. Mr. Gent, and Ms. Clarkson, the other CSO on duty, took the jury to a private room off the main room of the hotel bar. Mr. Gent and Ms. Clarkson sat at a table outside the private room. Neither could hear what the jurors were saying or any conversation with the server who took their drink orders, but they later said the jurors appeared jovial. Neither could recall which jurors drank alcohol or how much, although they said some of the jurors had two or three drinks. [209] After about two hours in the private room off the hotel bar, the jurors went to the fifth floor of the hotel. Several asked to continue socializing in one of the rooms. Mr. Gent agreed, and four to six jurors went into room 523. Mr. Gent then retired to his own room, just down the hall. Ms. Clarkson said she stayed in the hallway and watched until the jurors had gone into their own rooms before going to her room, where she sat up all night with the door open. [210] Ms. Clarkson testified that a half hour after she retired to her room, one of the jurors came to her to complain about the noise emanating from room 523. The juror was upset and asked to be taken out for a cigarette. [211] Ms. Clarkson went to Mr. Gent’s room to report the complaint at about 1:00 a.m. [212] Mr. Gent and Ms. Clarkson went down the hallway and knocked at the door, which was not opened immediately. He continued knocking until one of the jurors opened the door. Both CSOs observed a bottle of whiskey in the room. Some of the jurors were holding plastic cups with liquid in them. Mr. Gent told the jurors to break it up. He did not think the jurors were being particularly noisy. They were laughing more than anything. Several jurors responded that they wanted a couple more drinks, that they were adults and could handle it. “Mr. Gent told them they did not know what was ahead of them, that it was in their best interest to get some rest and that “people were relying on them to be sharp and at their best.” The jurors assured the CSOs that they would go to their rooms, but one of them shut the door to the room. The court service officers waited for five minutes, then knocked again. After three or four requests, the jurors dispersed to their individual rooms around 2:00 a.m. Another three jurors went to another room together, with the last juror going to her own room around 4:00 a.m. [213] Around 1:00 a.m., three jurors asked to be taken outside for a cigarette. [214] While outside, at one point, one of the male jurors expressed his resentment that they (the jurors) were being treated like children, and swore at Mr. Gent, stating that they just wanted to relax, “’cause they’ve been stuck in that fuckin’ stinking jury room for fuckin’ hours without much relief or knowing what the fuck is going on.” The female juror in the group told the upset juror to calm down. Mr. Gent told the upset juror that this was not a vacation and that they had a job to do and tried to convey to him the great importance of the jury’s role. [215] At that point, the second male juror stated that, “all they [the jurors] were doing was working for the government.” Mr. Gent recalled that this juror had only been in the country for ten years. He responded by asking if the juror had heard the trial judge explain his role as a juror, to which the juror said, “I don’t give a fuck what the judge says.” The juror immediately apologized. [216] Ms. Clarkson said that at one point she caught three jurors trying to leave the floor without a CSO to go for a smoke. She told them they had to be accompanied by her or Mr. Gent. [217] Both Mr. Gent and Ms. Clarkson said they saw no signs of intoxication on the part of the jurors. Ms. Clarkson did not think it proper that jurors consume alcohol. She wanted to call a supervisor, but Mr. Gent disagreed on the ground that the supervisor had not been sworn to oversee a sequestered jury. Ms. Clarkson ultimately agreed. [218] There were no signs of impairment the next day, Sunday, when the jurors returned to the courthouse to begin deliberations. The jury began deliberating on Sunday morning. The trial judge gave them a brief re-charge. [219] Around lunch time, one of the jurors had to be taken to hospital. A CSO accompanied her, and it took half an hour for a physician to see the juror. The trial judge instructed the jury, through a CSO, to stop deliberating until they were together. The juror returned around 4:00 p.m. The jury took a dinner break around the supper hour. [220] Court adjourned for the evening at about 9:15 p.m. [221] Ms. Clarkson said that the jurors had been told not to deliberate when they first left the courthouse. Mr. Gent did not specifically recall this, but he testified that it was common to give those instructions to jurors. [222] On the Sunday evening, some of the jurors asked again if they could socialize in one of the rooms. The two CSOs assigned to the jury that evening told them that if they did so, they were not to discuss the case. The juror responded, “Yes, no problem.” Several jurors gathered in one room, but all returned to their own rooms between 12:30 and 1:00 a.m. [223] One of the CSOs was asked whether the jurors indicated that they wanted to discuss the case in smaller groups. He responded: No. This, you have to remember this group was together for a long time, as far as a jury. So they were, they were, they were kind of social in terms of they knew each other very well, so it was more of a social thing and, and the only reason I can say that is because when I, when I took them for cigarettes smokes or breaks, they were very, you know, sharing in their cigarettes with each other and when they kind of communicated between each other … so it was more, I took it as more of a social opportunity to just sit down and kind of … [224] The jurors were told not to discuss the case unless they were all together: And that’s the same instruction we gave them when we arrived at the hotel prior to them going to their rooms when keys were distributed we reminded them – actually not only once but a couple times with regards to no discussions with regards to the case unless they were all present [225] One of the CSOs working the Sunday evening shift, Mr. Procyszyn, took a group of smokers to Tim Hortons on Monday morning because the hotel did not have coffee ready yet. He explained: “It’s not like Toronto where you have a lot of people walking around, there was very few people, there was no people actually on the street or inside the Tim Horton shop at the time.” There was no television or radio on and no newspapers visible. The jurors had coffee and smoked, sitting on two park benches across from the courthouse. They had no contact with any outside persons. Mr. Procyszyn stood between the two groups and, although he could not hear them, he told them not to discuss the case and was confident that they knew that rule. The jurors thanked Mr. Procyszyn for taking them to Tim Hortons: “I’ve never had a jury so appreciative of the fact that they, you know, they were being treated well at that point.” [226] The jury continued its deliberations on Monday morning. The verdicts were delivered at 1:40 p.m., and the jury was polled. The jury had reached a verdict earlier, but they ate their lunch while waiting for the court to be reassembled. [227] When examined by the Special Commissioner on December 18, 2014, Ms. Clarkson said she did not remember whether she reported her concerns about the jurors’ conduct on Saturday night to her supervisor on Monday morning or Monday afternoon, after the jury had been discharged. When cross-examined on June 20, 2016, Ms. Clarkson agreed she had spoken to one of her managers on Monday morning. The first written communication reflecting her complaint to a supervisor is an email sent at 4:14 p.m. resulting from a chain of multiple communications. [228] On this record, it is impossible to conclude that Ms. Clarkson made her concerns known to her supervisor before the jury was discharged. (1) Arguments on appeal [229] The appellants submit that the following conduct of the jurors and the court service officers caused a miscarriage of justice: · Unsupervised late night fraternization; · Separation of the jury on at least three occasions during which some jurors may have deliberated while others were not present; · Alcohol consumption by jurors at dinner; · Alcohol consumption after dinner; · Expression of contempt by a juror for the trial judge’s instructions and the trial process; · Inappropriate conversations between the court service officers and jurors; and · The failure of the court service officers to alert the trial judge as to the events of Saturday night. (2) Analysis [230] I begin my analysis with the observation that jurors are entitled to the same “strong presumption of impartiality” as judges, and that there is “a heavy burden on a party who seeks to rebut this presumption”: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. [231] Similarly, this court noted in R. v. Farinacci, 2015 ONCA 392, 328 C.C.C. (3d) 101, at para. 41, that “[j]urors, like judges, are presumed to govern themselves by the oath they swore to try the accused on the evidence adduced in the courtroom.” [232] Jurors perform a vital public service, which is at times arduous and stressful, often under circumstances that significantly disrupt their own personal lives. They should not be treated as if they are incarcerated while sequestered. [233] Section 647(2) of the Criminal Code mandates that when a jury is sequestered: [T]he jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge. [234] The purpose of this section is to protect jurors from outside influences that might affect their verdict. It does not prevent them from, for example, telling a server what they want to have for dinner or speaking to their own physician where the need arises during sequestration. [235] This section does not require that all twelve jurors must all be together at all times, unless they are in their hotel rooms alone. Jurors should be encouraged to relax when they are not deliberating. For some, this may mean watching a hockey game under the supervision of court services officers. For others, it will be doing yoga in their room. Sometimes medical emergencies require a juror to be separated briefly from the others. By no means is it necessary for all twelve jurors to go outside on a freezing January day if some of them need a cigarette. [236] It is undoubtedly a good practice for trial judges to tell jurors not to deliberate when they are not all together. However, some casual comment about the case while some of them are in smaller groups does not amount to a miscarriage of justice. These are a diverse group of people compelled to be with each other, and the only thing they have in common is the trial. It may well happen that someone will comment on the evidence while one juror is in the washroom, for example. The requirement of unanimity for a verdict removes any concern about such comments. In this case, in any event, there is no evidence that the jury was deliberating together or in smaller groups on the Saturday night. [237] Where there is no evidence that a juror’s ability to do their job has been impaired by alcohol, consumption of alcohol by a juror with or after dinner is no basis to set aside a verdict. [238] In R. v. Robinson, [1987] O.J. 416 (C.A.), leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 99, for example, fresh evidence was introduced on appeal that over a dinner break on the second evening of deliberations the jury consumed a total of six bottles of wine and six drinks of liquor. They returned to deliberate for some time before retiring for the night. This court refused to interfere with the conviction, indicating, “It is not drinking itself but intoxication that must be the test.”[1] [239] Supervision of a sequestered jury requires tact and delicacy on the part of court services officers. They will inevitably have to communicate with jurors about such matters as meals, hotel rooms, or, as here, a medical need or cigarette breaks. I see nothing improper here for Mr. Gent to have attempted to cajole the jury into calling it a night or maintaining a friendly relationship with the jurors. None of the CSOs discussed the case with the jurors. [240] I would expect that momentary expressions of frustration by jurors would be commonplace. There is no basis to conclude that there has been a miscarriage of justice, on that basis. [241] Here, there may have been good reason for the trial judge to start her charge at 4:35 on a Friday afternoon and to keep the jury sequestered over the weekend. Keeping in mind, however, the need to keep jurors from getting too fatigued or frustrated, it might have been a good idea to begin charging them on the Monday morning. [242] Ideally, CSOs should keep the trial judge appraised of all matters involving the jurors. Here, given the essentially harmless nature of what took place, no remedy would have been necessary in any event. P. Conclusion [243] I would, for all of these reasons, dismiss the appeals. The publication ban prohibiting the publication of any information which could identify any juror is continued. “G. Pardu J.A.” “I agree Robert J. Sharpe J.A.” Watt J.A. (concurring): [244] I have read the reasons of my colleague and agree with her, for the reasons she gives, that the appeals should be dismissed. In order to assist trial judges in future cases where individual accused seek severance from others with whom they are jointly indicted and presented for trial and to provide some guidance on jury management issues, I offer the suggestions that follow. Severance [245] It is difficult to underestimate the importance of a principled, case-specific approach to claims advanced by some or all jointly indicted accused of entitlement to separate trials. What is essential is that trial judges construct their analysis on a proper foundation and reach their conclusions on the basis of a reasoned consideration of all the relevant circumstances. This is not the place for the application of what are sometimes offered as the functional equivalent of bright-line exceptions, which are said, without more, to dislodge basic principle. [246] The basic rule originates in the common law and is of venerable lineage. The prima facie rule is that where the essence of the case for the Crown is that the persons charged were engaged in a common enterprise, they should be jointly indicted and jointly tried: R. v. Grondkowski; R. v. Malinowski, [1946] K.B. 369 (C.C.A.), at p. 371. [247] The prima facie rule of the common law, sometimes characterized as a presumptive rule, is grounded in sound social policy reasons. These reasons have been adequately rehearsed elsewhere, including by my colleague, and are in no need of restatement here. However, what should not be forgotten about this common law rule is that it was not developed in a vacuum. Like other common law rules, it is the product of judicial experience in the trial of criminal cases. And that experience no doubt would have included commonplace joint trial events such as antagonistic or cut-throat defences, evidence of limited admissibility and differences in the nature and extent of the evidence inculpatory of various accused. Yet the prima facie rule of joint venture – joint trial remains. [248] This common law rule continues to apply in Canada under s. 8(2) of the Criminal Code except to the extent that it is altered, varied, modified or affected by the Code or other federal enactment. The Criminal Code contains no express general provision about joinder of accused, like it does for joinder of counts in s. 591(1). [249] What the Criminal Code does do, in s. 591(3), is settle the standard to be met before the discretion to order separate trials for jointly indicted accused is engaged: "the interests of justice so require". [250] The language used to formulate the standard or test for severance is important. The "interests of justice" are not coextensive with the "interests of the accused". If that were so, not only would the standard be expressed in different terms, but also such a construction would substitute a rule of law for an exercise of judicial discretion: Grondkowski; Malinowski, at p. 372. [251] The phrase "interests of justice" requires consideration of the interest of the prosecution as an essential component of the analysis: R. v. X and others, [2012] EWCA Crim 2276, at para. 17. [252] The fact that a co-accused in a joint trial is running an antagonistic or "cut-throat" defence is common. Sometimes, as here, all advance similar claims. Equally familiar is the fact that one co-accused has implicated another or others in the offence(s) charged in a police interview or otherwise, something denied by the other co-accused and not admissible as evidence against them. So too the case of a co-accused who has exculpated himself but implicated others in an out-of-court statement may decide not to testify and rely on his out-of-court statement. On other occasions, a co-accused may give evidence adverse to another co-accused who has already given evidence and closed his case. See generally, R. v. Miah, [2011] EWCA Crim 945, at para. 59; R. v. Cairns, [2002] EWCA Crim 2838, [2003] 1 Cr. App. R. 38, at para. 52. [253] In many cases of joint criminal activity involving several co-accused, the evidence against one may be (or appear) much stronger than against another or others. In such cases, once the jury is sure that one accused is guilty, it may become more likely that they will be equally convinced of the guilt of another or others: X, at para. 16. [254] The examples given in the preceding paragraphs illustrate factors that a trial judge should consider in deciding whether the "interests of justice" require a separate trial for any or all co-accused. But they are not, as sometimes seems to be thought and advanced as dispositive nowadays, categorical exceptions to the presumptive rule of joint venture – joint trial. Their mere assertion is not a ticket out of Dodge. To be certain, where the case for severance is strong enough, the prejudice great enough, the circumstances particular enough, the presumptive rule must give way: R. v. Lake (1976), 64 Cr. App. R. 172 (C.A.), at p. 175. But not otherwise. [255] A final point concerns precautionary measures that should be put in place in cases where severance is refused. In mid-trial and final instructions, composed in clear and understandable language, trial judges should ensure jurors understand any limitations the law imposes on the use of evidence of limited admissibility. What is permitted. And what is prohibited. Jury Management Issues [256] I agree with my colleague that what occurred here during the sequestration of the jury did not amount to or result in a miscarriage of justice. [257] Jury trials, including what occurs after the jury has retired to consider its verdict, often take unexpected turns. Each case is different. Judges are not provided with a Manual of Jury Management or a crystal ball that would permit pre-emptive strikes to avoid events that might compromise trial integrity. What follows are some suggestions for future consideration. They are not meant as criticism of the trial judge in this case who was unaware of the in-sequestration events my colleague has described. [258] First, at least in trials that are expected to be lengthy and complex, a trial judge might consider briefly reminding court staff, in the absence of the jury and at the outset of the trial after the jury has been selected, to bring to his or her attention any issues associated with the management of the jury that may affect the jury's ability to perform its duties during the trial. For the most part, I expect many reports, those that do not affect the vital interests of the accused or bear on the substantive conduct of the trial, can be dealt with by instructions to court staff to communicate to the jury rather than by judicial in-court instructions. Sometimes, however, it may be necessary to bring the issue to the attention of counsel and discuss it with them in the absence of the jury before settling on a course of action. [259] Second, to the extent possible, trial judges should keep jurors apprised of scheduling issues, especially those that require adjustments to the schedule set for the concluding events of the trial, like the addresses of counsel, the judge's charge and the jury's deliberations. To the extent possible, what should be avoided are lengthy unexplained confinements of jurors in the jury room. Explanations should be carefully shaped to avoid disclosure of inappropriate information and steps taken to ensure accurate delivery by court staff or, if the occasion warrants it, by the judge in open court. [260] Third, in advance of delivery of the charge, but after counsel have addressed the jury, it may be prudent to advise the jury that court staff will provide them with information about what to bring and what to leave behind in the event that their deliberations extend overnight. [261] Fourth, in concluding instructions about the deliberation process, a trial judge might consider including a direction that deliberations to achieve a verdict are to take place only in the jury room and only when all jurors are present. This direction mirrors the standard opening instruction given by judges who permit jury room discussion of the evidence during the trial. This should go some way to forestall small group discussions and discussions while sequestered at a hotel. [262] A final point relates to supervision of sequestered jurors by court services officers when the jury has concluded its deliberations for the day and has left the courthouse. Unpredictable events happen, for example, a medical emergency involving a juror which requires accompaniment by a court services officer to a medical facility. It seems inadvisable that a single court services officer be left to supervise the remaining eleven jurors. The more prudent course would appear to be to ensure that no fewer than three court services officers be assigned to jurors during overnight accommodations. “David Watt J.A.” Released: April 4, 2017 [1] Contrast this approach with the conclusions of the United States Supreme Court in Tanner, 483 U.S. 107 (1987), where the court held that evidence of a jury’s drug- and alcohol- fueled “bacchanalia” was inadmissible, on the ground it was a matter intrinsic to their deliberations. See also Pena-Rodriguez v. Colorado, 2017 WL 855770 (US).