COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Huard, 2013 ONCA 650

DATE: 20131029

DOCKET: C52019

MacFarland, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shane Huard

Appellant

Brian H. Greenspan and Jill D. Makepeace, for the
    appellant

John McInnes, for the respondent

Heard: June 27, 2013

On appeal from the conviction entered by The Honourable Bruce
    G. Thomas of the Superior Court of Justice, sitting with a jury, on February
    11, 2010.

Watt J.A.:

[1]

Three crack users in Windsor
    had a plan.  It was a simple plan.  Set up a drug deal.  Show up at the
    designated place, at the appropriate time.  Rip off the dealer.  Grab the crack
    cocaine.  Run.

[2]

A problem developed in the
    execution of the plan. The dealer was not alone. A fight started. One of the
    crack users got stabbed.  All three left empty-handed.

[3]

Two days later, two men
    approached another drug dealer on a street corner.  This time, a shot was
    fired.  The dealer died.  The two men fled.

[4]

Within days of the shooting,
    two men
[1]
were arrested for killing the drug dealer. One of them was Richard Zoldi, the
    man who had been stabbed when the rip-off failed. The second was Shane Huard
    (the appellant), another man involved in the original incident.

[5]

Zoldi and the appellant were
    jointly indicted, but tried separately.  One jury convicted Zoldi of second
    degree murder.  Another convicted the appellant of first degree murder.

[6]

The appellant contends that
    the final instructions of the judge who presided at his trial were inadequate
    and unbalanced in favour of the Crown.  He also submits that his conviction of
    first degree murder, as an aider or abettor, offends s. 7 of the
Charter
because the shooter, Zoldi, was only convicted of second degree murder.

[7]

At the conclusion of the
    appellants oral argument, we dismissed the appeal for reasons to be provided
    later. These reasons explain why we rejected the grounds of appeal advanced by
    Mr. Greenspan on the appellants behalf.

THE BACKGROUND FACTS

[8]

A brief canvass of some
    features of the evidence adduced at trial provides an appropriate context in
    which to examine the complaints about the inadequacy and imbalance in the
    charge to the jury.

[9]

The principal issues
    contested at trial were the identity of the persons involved in the shooting of
    the deceased and the extent of the appellants liability if he were found to be
    a party to the shooters crime.

The Stabbing of Richard Zoldi

[10]

On
    August 24, 2006, the appellant, Richard Zoldi, and Derek Cleary were together
    at a crack house in Windsor. Zoldi, using Clearys phone and pretending to be
    Cleary, called T.K., a crack dealer from whom Cleary had previously purchased
    drugs. Zoldi, as Cleary, told T.K. he wanted to buy some drugs. The true
    purpose of the three men was to rip-off T.K.

[11]

When
    Cleary, Zoldi, and the appellant arrived at the pre-arranged location, a
    parking lot, they discovered that T.K. had brought another man, Patrick Morris,
    with him. Cleary got into the car.  When shown the drugs, Cleary admitted that
    he had no money to pay for his purchase. The appellant then got into the back
    seat and asked to see the drugs. He was rebuffed. A fight began.  Morris
    stabbed Zoldi in the shoulder. The appellant pursued T.K. and Morris but they
    entered their car and drove away.

[12]

Zoldi,
    the appellant, and Cleary left the parking lot in a taxi.

The Threat

[13]

Immediately
    after the planned rip-off had failed, Zoldi telephoned T.K. and threatened him,
    along with his associates, with retribution for the stabbing. Zoldi told T.K.
    that he (Zoldi) knew the restaurant premises from which T.K. and his cohorts may
    have carried on their trafficking business. Zoldi thought Troy Hutchinson, who
    worked at the restaurant, was associated with T.K. in the trafficking business.

The Gun

[14]

In
    August 2006, Thomas Bradley got a gun to protect himself from others whom he
    thought had robbed him twice. The gun was a Browning semi-automatic pistol.

[15]

Shortly
    after he got the gun, Bradley loaned it to Robert Gravel because Gravel was
    concerned that he might be robbed of his prescribed narcotics.  Gravel lived
    across the hall from the appellant.

[16]

Late
    in the evening of August 24, 2006, the same day that Zoldi was stabbed, Gravel
    noticed some activity around the appellants apartment.

[17]

The
    next day, Gravel came over to the appellants apartment to report what he had
    seen the previous evening. He offered to help the appellant in the event that
    any trouble arose and showed the appellant his handgun. Gravel left the gun in
    the appellants apartment for a short time while he returned to his own
    apartment after his girlfriend called him.

[18]

When
    Gravel returned to the appellants apartment, he didnt see the gun he had left
    there. Gravel asked about the gun. The appellant and another man, Zoldi, who
    was also there, told Gravel that the gun was under the cushions on the couch.
    Gravel looked under the cushions but found no gun. The appellant and Zoldi
    insisted that the gun was under the cushions.

[19]

Minutes
    later, the appellant and Zoldi left the apartment. Zoldi carried a plastic bag
    in his hand. The bag was bulging with something that appeared to be soft.
    Gravel went back to his apartment. He never found his gun.

The Set-up

[20]

Zoldi
    and the appellant arrived at a local crack house during the afternoon of August
    26, 2006. There, along with others, they smoked crack. Among the others at the
    crack house that afternoon was Susan Sladic. The dealer from whom Sladic often
    bought her drugs was Troy Hutchinson, a man who worked at the same restaurant as
    T.K.

[21]

According
    to Sladic, Zoldi produced a gun and made it apparent to everyone in the crack
    house.  Later, Zoldi told Sladic to set up a drug deal with Hutchinson so that
    they (Zoldi and the appellant) could rip Hutchinson off. The appellant had said
    the same thing to Sladic earlier in the evening. Sladic reluctantly agreed,
    called Hutchinson from the crack house, and set up the buy at one of their
    usual sites, a parking lot in a residential area.

[22]

After
    Zoldi spoke to Sladic in the washroom at the crack house, Zoldi and the
    appellant were alone in the bathroom for about 5 to 10 minutes.

[23]

Zoldi,
    Sladic, and the appellant left the crack house in a car driven by a fourth
    person, a person whom Zoldi had known for a couple of years. Sladic was to be
    dropped off at the intersection of Ford and Reginald, a place near where the
    drug deal with Hutchinson was to take place.  Several times during the trip,
    the appellant said to Sladic, you aint seen nothing, so dont say nothing.

[24]

Hutchinson
    was a no-show. Sladic telephoned him. The meeting site was changed to the
    corner of Ford and Reginald. Sladic was picked up in a car and returned to the
    crack house.

The Shooting

[25]

Troy
    Hutchinson left his girlfriends apartment around midnight on August 26, 2006.
    As Hutchinson stood on a street corner, he was approached by two white men who
    walked out of a driveway. One of the men shot Hutchinson. After the shooting,
    Hutchinsons assailants punched and kicked him as he lay on the sidewalk.

[26]

Several
    persons witnessed different aspects of the activities that preceded,
    accompanied, and followed the shooting of Troy Hutchinson. No one identified
    either assailant. The general descriptions the various witnesses provided of
    the persons involved and their clothing were not entirely consistent.

[27]

Emergency
    assistance arrived at 12:39 a.m. on August 27, 2006.  Hutchinson was fully
    conscious, but refused to identify his attackers.  He did mention a robbery.
    Police found $300 in cash but no wallet when they searched Hutchinsons
    clothing.

The Cause of Death

[28]

Troy
    Hutchinson died of blood loss caused by a bullet that had passed through his
    liver and right kidney before lodging in his spine.  He may also have suffered
    some blunt force trauma although Hutchinsons size (he weighed over 300 pounds)
    and skin colour (Hutchinson was black) inhibited an affirmative conclusion
    about trauma.

The Forensic Evidence

[29]

Police
    found a .22 calibre semi-automatic pistol in a backyard not far from the place
    where Hutchinson had been shot to death. The magazine contained six unfired
    cartridges. A single fired cartridge remained in the gun because the defective
    ejection mechanism had failed to eject it on firing. The fired cartridge could
    have been removed manually by racking the gun and then reloading it to fire
    another shot.

[30]

Investigators
    found no ejected fired cartridges at the scene of the shooting.  Ballistic
    experts could not identify the weapon found nearby as the gun that fired the
    fatal bullet because the fragments removed from Hutchinson were too damaged to
    permit an affirmative conclusion. There were some common characteristics
    observed on the bullet removed from Hutchinson and those fired from the
    recovered handgun. No fingerprints were detected on the gun.

[31]

The
    day after the shooting, police found some clothing in a nearby yard.  On a
    black T-shirt, analysts detected gunshot residue. Zoldi could not be excluded
    as the source of DNA found on the outside and inside of the black T-shirt.
    Another shirt found at the same time had insufficient DNA for comparison.

[32]

The
    recovered firearm was a Browning .22 calibre semi-automatic pistol, the same
    model that Gravel had until it went missing in the appellants apartment the
    day before Troy Hutchinson was shot to death.

The Positions of the Parties at
    Trial

[33]

The
    Crown contended that the appellant participated in a plan to rob and kill
    Hutchinson that was motivated by Zoldis desire for revenge because he had been
    stabbed by an associate of Hutchinson in the abortive rip-off days earlier.
    According to the Crown, the appellant took Gravels gun after Gravel returned
    to his own apartment for a few minutes. The appellant then gave the gun to
    Zoldi. The appellant and Zoldi went together to meet Hutchinson at Ford and
    Reginald, where Zoldi shot Hutchinson and both men beat him. The appellant
    planned to flee to Timmins after the shooting and attempted to flee from police
    when he was apprehended.

[34]

Counsel
    for the appellant at trial advanced the argument that the Crown had failed to
    prove beyond a reasonable doubt that the appellant was at the corner of Ford
    and Reginald when Hutchinson was killed. None of the eyewitnesses identified
    him.  No forensic evidence connected him to the scene.  The witnesses called by
    the Crown to link the appellant to Zoldis plan for revenge, the gun, and his
    presence at the time and place of the killing were unreliable and could not
    satisfy the degree of proof required.

THE GROUNDS OF APPEAL

[35]

The
    appellant advances two grounds of appeal.

[36]

Mr.
    Greenspan says that the trial judges charge to the jury was inadequate and
    unbalanced in favour of the Crown. The defence position, he submits, was not
    put to the jury in such a way that the jury could appreciate its substance and
    how the evidence adduced at trial supported that position. Further, Mr.
    Greenspan urges, the appellants conviction of first degree murder as a party,
    an aider, or an abettor, offends s. 7 of the
Charter
because the
    principal, Zoldi, was convicted only of second degree murder.

Ground #1: Inadequate and Unbalanced Charge

[37]

The
    jury at the appellants trial was required to consider and decide, at most, two
    issues. The first was whether the appellant was the man with Zoldi on the
    corner of Ford and Reginald when Zoldi shot Hutchinson to death. The second,
    reached only if the jury was satisfied beyond a reasonable doubt that the
    appellant was with Zoldi at the time of the shooting, was whether, and to what
    extent, the appellants conduct attracted criminal liability.

The Arguments on Appeal

[38]

For
    the appellant, Mr. Greenspan asserts no error in the manner in which the trial
    judge instructed the jury on the first issue. The second issue, on the other
    hand, he says, is a different story.  He makes four submissions with respect to
    this ground of appeal.

[39]

Mr.
    Greenspan says that the manner in which the trial judge instructed the jury, in
    particular his reference to decision trees to explain the issues the jury was to
    decide, failed to leave the jury with an adequate appreciation of the position
    of the appellant on the issue of liability and the evidence that supported that
    position. The charge, including the discussion of the decision trees, contained
    no meaningful references to the position of the appellant or to the evidence
    that tended to support it. This omission was compounded by a serial recital of
    the evidence that supported the position of the Crown.

[40]

Mr.
    Greenspan also argues that the trial judge failed to relate the evidence to the
    conduct and fault elements of which proof was required before the appellant
    could be found guilty, as an aider or an abettor, of any offence in play at
    trial  manslaughter, second degree murder, or first degree murder. The only
    evidence reviewed and related to those issues was the evidence upon which the
    Crown relied. The jury was left without any appreciation of the defence or how the
    position of the defence affected the jurys determination of the adequacy of
    the Crowns proof of the fault element for each offence on the basis of aiding
    or abetting.

[41]

Mr.
    Greenspan contends that the trial judge failed to provide the jury with a more
    detailed caution about their treatment of competing inferences and the need for
    them to refrain from engaging in speculation. The jury was not reminded, as it
    should have been, that if it found that the evidence was as consistent with an
    intention to rob Hutchinson as it was with an intention to kill him, it could
    not find the appellant guilty of murder.

[42]

As
    a final point, Mr. Greenspan says that the trial judge erred in failing to
    adequately instruct the jury about the limited use it could make of evidence of
    the appellants post-offence conduct. The jury should have been told that it
    could not use that evidence to determine the level of the appellants
    culpability if it first found that he was a participant in the unlawful killing
    of Hutchinson.

[43]

For
    the respondent, Mr. McInnes begins his written submissions with two reminders
    about the genesis of the charge that is now said to be fatally defective for
    want of adequate instructions about the defence position.

[44]

First,
    Mr. McInnes says, a statement outlining the position of the defence and the
    evidence trial counsel wanted to be marshalled in support of it was read to the
    jury by the trial judge, as trial counsel had submitted it for that very
    purpose.

[45]

Second,
    Mr. McInnes continues, trial counsel for the appellant, a very experienced and
    capable criminal lawyer, made no objection to the substance or the form of the
    charge to the jury. Not in five days of pre-charge conferences that preceded
    delivery of the final product. Nor after the instructions had been given and a
    written copy distributed to the jury.

[46]

Mr.
    McInnes invites our recollection of the extent of a trial judges obligation to
    review the substantial parts of the evidence, and to relate them to the
    position of the defence so that the jury appreciates the value and effect of
    the evidence. That obligation, he submits, does not extend to a regurgitation
    of
all
the evidence, much less to a duty to turn over every piece of
    circumstantial evidence to catalogue the inferences potentially available from
    it. The use of a decision tree does not elevate the trial judges obligation or
    make it different in kind.

[47]

To
    the specific allegations of error or omission, Mr. McInnes responds that, read
    as a whole, the charge recited the critical features of the evidence, enjoined
    speculation and, in the case of the instructions about evidence of post-offence
    conduct, was cast in terms expressly approved by the appellants counsel at
    trial. The jury was left with an adequate understanding not only of the
    position of the appellant, but also about the evidence relied upon in support
    of that position.

The Governing Principles

[48]

Several
    basic principles have a say in our decision in this case.

The
    Fundamental Requirements of a Jury Charge

[49]

The
    function of a charge to the jury in a criminal case is to equip the
    decision-maker, the jury, to make a decision in accordance with the governing
    legal principles, not to tell the jury what decision to make.

[50]

To
    fulfil its function, a jury charge must leave the jury with an understanding of:

i.

the factual issues to be determined;

ii.

the legal principles relating to the factual issues and the evidence
    adduced at trial;

iii.

the positions of the parties; and

iv.

the evidence relevant to the positions of the parties on the various
    issues.

R. v. MacKinnon
(1999), 43 O.R. (3d) 378
    (C.A.), at p. 386;
R. v. Charles
, 2011 ONCA 228, 270 C.C.C. (3d) 308, at
    para. 17; and
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 29.

The
    Structure of Jury Charges

[51]

In
    jury charges, substance controls. Form, not so much. No particular approach or
    standard formula is compulsory. Provided the charge fulfills its purpose and
    satisfies its requirements, the manner in which it does so is of no great
    moment:
MacKinnon
, at p. 386.  That said, an orderly or systematic
    approach to final instructions seems more likely to enhance a jurys
    understanding of the precise nature of its task and how to discharge it by
    following a series of logical steps corresponding to the essential elements of
    the offence charged.

[52]

In
    the absence of a mandatory overall structure for a jury charge or for a
    compulsory internal template, the controlling question for an appellate court
    in every case of alleged inadequacy in final jury instructions is whether the
    instructions, considered as a whole, satisfy the requirements of the
    authorities.  The issue on appellate review is not whether another approach
    might have better equipped the jury to perform its task.  For that might be
    said in almost every case with the infinite wisdom of hindsight.  The standard
    is adequacy, not perfection.

The
    Obligation to Review and Relate Evidence

[53]

It
    is well established that, except in cases in which it would be needless to do
    so, a trial judge must review the
substantial
parts of the evidence
    and give the jury the position of the defence so that the jury may appreciate
    the value and effect of that evidence and how the law is to be applied to the
    facts as it finds them:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at
    pp. 497-499;
MacKinnon
, at pp. 386-387; and
R. v. Largie
,
    2010 ONCA 548, 101 O.R. (3d) 561, at para. 124.

[54]

In
    the six decades that have passed since
Azoulay
was decided, appellate
    courts have considered the extent to which a trial judge must rehearse the
    evidence adduced at trial for the jury to fulfil the substantial parts of the
    evidence mandate of
Azoulay
.  Several principles emerge.

[55]

First,
    in final instructions, a trial judge is under no obligation to review
all
the
    evidence. The term substantial is a measure of substance and quality, not
    volume:
Largie
, at para. 125.

[56]

Second,
    a review of the evidence does not mean a serial and undifferentiated recitation
    of large parts of the judges notes of the evidence of each or most of the
    witnesses who have testified at trial. The role of the trial judge is to decant
    and to simplify:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 13;
Largie
, at para. 125. What is necessary are references to the evidence
    that are sufficient, in the context of the case and the entirety of the charge,
    to alert the jury to the specific parts of the evidence that are of
    significance to its decision on particular issues and to the positions of the
    parties on those issues:
MacKinnon
, at pp. 386-387. The degree of
    detail required is a variable, not a constant:
Largie
, at para. 125.

[57]

Third,
    a trial judge is under no obligation to rehash each and every argument advanced
    by counsel. However, at bottom, the charge, read as a whole, must leave the
    jury with an adequate understanding of the evidence relied upon by the parties
    on the issues raised:
MacKinnon
, at p. 387.

[58]

Fourth,
    non-direction on a matter of evidence, in other words, a failure to mention an
    item of evidence in final instructions, amounts to a reversible error
only
if the single item of evidence to which no reference has been made is the
    foundation of the defence advanced:
Daley
, at para. 55. Finally, when
    the position of the defence is that gaps in the circumstantial evidence adduced
    by the Crown fail to establish an accuseds guilt beyond a reasonable doubt, it
    is
not
incumbent upon the trial judge to recite those discrepancies in
    the charge, at least when counsel for the defence has outlined those
    discrepancies in his or her closing address:
R. v. Ambrose; R. v. Hutchison
,
    [1977] 2 S.C.R. 717, at pp. 725-726;
MacKinnon
, at p. 388; and
John
    v. the Queen
, [1971] S.C.R. 781, at pp. 791-792.

Modes of
    Participation

[59]

The
Criminal Code
makes no distinction between principals and secondary
    parties in proof of guilt. Those who aid or abet another who commits a crime
    are as guilty as the person who actually commits it:
R. v. Briscoe
,
    2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13.  As a result, a person who
    provides a gun to another who shoots someone to death may be found guilty of
    the same offence as the person who pulls the trigger:
Briscoe
, at
    para. 13.

[60]

The
    air of reality standard controls whether a particular basis of liability,
    whether a definition of an offence or a mode of participation, will be open for
    the trier of fact to consider. What is essential is that the trial record
    reveals some evidence on the basis of which a reasonable jury, acting
    judicially, could make the factual findings necessary to ground liability on
    the particular basis advanced.  When the mode of participation relied upon to
    establish liability is aiding or abetting, the evidence at trial must be
    capable of sustaining a finding that more than one person was involved in the
    commission of the offence:
R. v. Isaac
, [1984] 1 S.C.R. 74, at p. 81;
R.
    v. Sparrow
(1979), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458; and
Largie
,
    at para. 141.

[61]

The
actus reus
and
mens rea
of aiding and abetting are distinct
    from those of the principal offence:
Briscoe
, at para. 13. Both aiding
    and abetting require proof of two optional elements:

·

conduct
[2]
;
    and

·

fault.

[62]

The
conduct
element requires proof that the aider or abettor provided
    actual assistance to the principal by doing something that assisted the
    principal to commit the offence or encouraged the principal to do so.  It is
    not enough that the conduct of the aider or abettor had the effect of helping
    or encouraging the principal or resulted in the principals committing the
    offence:
Briscoe
, at paras. 14-15.

[63]

The
fault
element in aiding or abetting arises from the phrase for the
    purpose of, which is expressly stated in s. 21(1)(b) and is implied in s.
    21(1)(c).  The fault element includes both intent and knowledge. The aider or
    abettor must intend to help or encourage the principal to commit the offence
    and must know that the principal intends to commit that offence:
Briscoe
,
    at paras. 16-17. The aider or abettor need not share the intent of the
    principal to commit the offence:
Briscoe
, at para. 18.

[64]

Since
    the
actus reus
and
mens rea
of aiding and abetting are
    different from the corresponding elements of the principal offence, jury
    instructions in a case in which an accused is alleged to have participated in
    the commission of an offence as an aider or an abettor should not only explain
    the essential elements in aiding or abetting, but should also link those
    elements to the essential elements of the offence charged, so that the jury
    understands what the Crown must prove to establish an accuseds liability for
    the specific offence as an aider or an abettor.  Whether the aider or abettor
    is tried jointly with the principal, or, as here, separately, is of no moment
    the principles governing the liability of the aider or abettor remain the same:
Sparrow
, at pp. 457-458.

The Use of
    Decision Trees

[65]

A
    decision tree is a deliberation aid commonly used in jury trials in this
    province.  It displays, in visual form, the various issues that the jury is or
    may be required to decide and the consequences of the decisions open to the
    jury on each issue for its further deliberations and final verdicts. The issues
    are put in the form of questions, in precisely the same terms as those
    questions appear in the charge.  Each question reflects an essential element of
    the offence charged.

[66]

Nothing
    is wrong and much is right about the use of decision trees as deliberation aids
    for jurors. They are especially helpful in trials that involve several counts,
    accused, and issues whether related to definitions of the offence, modes of
    participation, or defences advanced. But decision trees should not be
    conscripted to do the work assigned to others, like the charge to the jury.
    Decision trees are not and should not be transformed into substantive legal
    instructions.

Appellate
    Review of Jury Instructions

[67]

In
    any review of the adequacy of jury instructions, we must not lose sight of the
    setting in which the charge is given. Several participants play a role in a
    criminal jury trial. The jury decides the facts. The judge determines the law.
    Counsel advance their positions and remind the jury about the evidence that
    supports those positions:
Daley
, at para. 28;
Jacquard
, at
    para. 33.  The judge is not there to argue, inquire or examine, accuse or
    defend, or to make decisions on the facts or on the guilt or innocence of the
    person charged:
Daley
, at para. 28.

[68]

Perfection
    is not the standard against which we are to evaluate the adequacy of jury
    instructions. The participants in a jury trial are entitled to a properly
    instructed jury, not a perfectly instructed jury:
Daley
, at para. 31;
Jacquard
,
    at para. 2; and
R. v. Malott
, [1998] 1 S.C.R. 123, at para. 15.
    Appellate courts take a functional approach to claims of inadequacy, testing
    the instructions as a whole against their ability to fulfil their intended
    purposes, not according to the extent to which they adhere to or depart from
    some predetermined formula or pattern:
Jacquard
, at para. 14;
R.
    v. Cooper
, [1993] 1 S.C.R. 146, at p. 163; and
John
, at pp.
    792-793.

[69]

A
    jury charge must also be even-handed, the instructions fair and balanced.  A
    jury charge should not be a partisan broadcast:
Largie
, at para. 127; and
R. v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at paras. 117-118.

[70]

The
    lack of an obligation on a trial judge to review
all
the evidence upon
    which an accused relies has implications for those who claim that the review in
    a particular case was inadequate.

[71]

First,
    although a trial judge must give the jury a fair picture of the defence and
    provide sufficient references to the evidentiary support for it so that the
    jury can appreciate its value and effect, the trial judge is not required to
    paint in the details, to repeat or comment upon every argument advanced by
    counsel, or to catalogue the field of available inferences from each piece of
    circumstantial evidence:
Daley
, at para. 55; and
R. v. Clayton-Wright
(1948), 33 Cr. App. R. 22 (C.C.A.), at pp. 28-29.

[72]

Second,
    the extent to which the evidence must be reviewed and related to the position
    of the defence is one of fairness:
Daley
, at para. 57.  When the
    position of the defence is that the Crowns case simply cannot satisfy the
    standard of proof required, it is debatable whether it is the obligation of the
    trial judge to embark on a serial review of the alleged inadequacies:
R. v.
    Garon
, 2009 ONCA 4, 240 C.C.C. (3d) 516, at paras. 82-83; and
Ambrose
and
Hutchison
, at pp. 725-726.
    As mentioned, the failure to put an individual item of evidence supportive of a
    defence to a jury is misdirection only if the item of evidence is the sole
    evidentiary support for the defence:
Daley
, at para. 55.

[73]

Third,
    a trial judge is under no obligation to review every item of evidence adduced
    at trial:
Azoulay
, at p. 498;
Daley
, at para. 55. The
    obligation is to review the substantial features of the evidence and to relate
    that evidence to the critical issues in the case so that the jurors will
    appreciate the value and effect of the evidence:
Azoulay
, at pp.
    497-498;
Daley
, at para. 54; and
MacKinnon
, at p. 385.  Where
    the same evidence relates to more than one issue, there is no need to review
    the evidence twice, where once will do:
Jacquard
, at para. 14.  It is
    of no moment whether the evidence is direct or circumstantial.

[74]

Fourth,
    while failure to object to a jury charge on a ground said later to amount to
    error is not dispositive on appeal, the failure to object affords some evidence
    that trial counsel did not consider the charge incomplete or unfair as later
    alleged:
Jacquard
, at paras. 35-37. It is all the more so when counsel
    has had extensive opportunity to review drafts of proposed final instructions
    and ample time to offer suggestions for inclusions, deletions, and improvements
    to ensure appreciation of the case advanced.

The Principles Applied

[75]

I
    would not give effect to this ground of appeal for several reasons.

[76]

First,
    it is essential to recall the context in which this complaint of error arises.

[77]

The
    defence advanced by very experienced counsel at trial, unsupported by the
    appellants own testimony or evidence from any witnesses called on his behalf,
    was that he was neither of the two men present when Hutchinson was shot and
    beaten at the corner of Ford and Reginald. The appellant took the position that
    the cumulative force of the case for the Crown fell short of the standard
    required to prove his presence at the killing ground, and thus, his
    participation in the unlawful homicide that occurred there.  Not there.  Not
    guilty.

[78]

Experienced
    trial counsel made no complaint about the manner in which the defence position
    and the evidence supportive of it was left to the jury.  Trial counsel drafted
    the position at the trial judges request and it was read to the jury in the
    precise terms in which it was drafted.  In other words, the defence advanced
    and the supportive evidence was fully and fairly put to the jury, at least
    according to trial counsel.

[79]

Further,
    the appellant advances no claim of error in the substance of what the trial
    judge told the jury about the basis upon which the appellants liability as an
    aider or an abettor in the offences of manslaughter, second degree murder, and
    first degree murder was to be decided.

[80]

Second,
    it is important to remember the true nature of the appellants complaint. Reduced
    to its essentials, the complaint is that the trial judge failed to mention to
    the jury alternative inferences consistent with the position of the defence and
    available on the evidence adduced at trial.  Put another way, the error alleged
    is of non-direction on items of evidence, more accurately, on competing
    inferences from evidence admitted at trial.

[81]

In
    this case, the trial judge instructed the jury on the position of the defence
    and on the exculpatory inferences counsel suggested should be drawn from it.
    The closing address of defence counsel contained a similar recital in greater
    detail.  The result was that the position of the defence and supportive evidence
    was fairly put in a case remarkable for its factual simplicity.

[82]

Third,
    the submission that the charge was incomplete and unbalanced cannot be
    sustained in light of the conduct of the defence at trial.  The pre-charge
    conference extended over five court days. Trial counsel was content with the
    use of the decision trees and the instructions given about them. He took no
    objection to the legal instructions or the evidentiary references. He made no
    objection after the charge had been delivered.

[83]

In
    connection with the specific complaint about the instructions on the evidence
    of post-offence conduct, the charge does not reflect error.  Nothing the trial
    judge said or did not say left or could have left the impression with the jurors
    that they could use this evidence to determine the level of the appellants
    culpability.  Use was confined to the issue of participation, an inference
    jurors were told they could only draw if they rejected the appellants
    explanation that his flight was attributable to his possession of drugs.

[84]

The
    claim of inadequacy and imbalance cannot be sustained.

Ground #2: The Conviction of First
    Degree Murder Offends s. 7 of the
Charter

[85]

The
    second ground of appeal enlists s. 7 of the
Charter
to displace the
    application of the principle established by the decision of the Supreme Court
    of Canada in
R. v. Rémillard
(1921), 62 S.C.R. 21, over 90 years ago.
    The submission invokes the disparity between the deprivation of liberty that
    follows a conviction of an aider or abettor of first degree murder and that
    which follows the conviction of the principal of second degree murder.

[86]

A
    brief reference to the relevant findings, followed by a paraphrase of the
    positions of counsel and a summary of the governing legal principles provides
    an adequate foundation upon which to decide this issue.

The Background

[87]

In
    the beginning, the appellant and Zoldi were jointly charged with first degree
    murder. They appeared together for a joint trial in the Superior Court of
    Justice.  As the joint trial was about to begin, Zoldis then counsel applied
    to be removed as counsel of record. The order was made, along with an order
    severing Zoldis trial from the trial of the appellant.

[88]

In
    part because of the potential application of s. 11(b) of the
Charter
, Crown
    counsel proceeded against the appellant first.  Neither party called Zoldi as a
    witness at the appellants trial.

[89]

Zoldis
    trial proceeded more than a year after the appellant had been convicted of
    first degree murder.  Zoldi was convicted of second degree murder and sentenced
    to imprisonment for life.  His parole ineligibility period was fixed at 13
    years.

[90]

The
    position of the Crown at both trials was that Zoldi was the shooter; the
    appellant, an aider or abettor.

The Positions of Counsel on Appeal

[91]

For
    the appellant, Mr. Greenspan acknowledges that the decision in
Rémillard
establishes the principle that a party may be convicted of a more serious
    offence than the principal. But, he submits, this principle requires
    re-examination in light of the requirements of s. 7 of the
Charter
that
    demand that any deprivation of a persons liberty interests comply with the
    principles of fundamental justice.

[92]

Mr.
    Greenspan says that it is (or should be) a principle of fundamental justice
    that the less morally culpable should not be convicted of a greater (more
    serious offence or punished more severely than the more morally culpable. In
    this case, fundamental justice requires that the appellants conviction of
    first degree murder be vacated and a conviction of second degree murder or
    manslaughter be substituted.

[93]

For
    the respondent, Mr. McInnes takes the position that no principle of fundamental
    justice is at work here. He acknowledges that the law disfavours what appear to
    be inconsistent verdicts, but, at the same time, it recognizes that prospect
    because separate trials may be ordered for those jointly indicted and separate
    trials enhance the likelihood of inconsistent verdicts.

[94]

Mr.
    McInnes emphasizes that criminal liability is individual and falls to be
    determined according to the substantive and adjectival law that applies to
    individual accused.  A principal may have a defence not available to an aider
    or an abettor.  An aiders or an abettors liability cannot be circumscribed by
    what another jury does later, on potentially different evidence and in
    accordance with different legal instructions.  It would be unjust to permit the
    appellant to obtain a windfall because a different jury, trying a different
    accused, on different evidence, found him guilty of a lesser offence.

The Governing Principles

The Decision
    in Rémillard

[95]

In
Rémillard
, the principal was tried first and convicted of manslaughter
    on an indictment that charged murder.  At the subsequent trial of the alleged
    aider or abettor, defence counsel asked the trial judge to instruct the jury
    that the appellant could not be convicted of murder because the principal had
    only been convicted of manslaughter. The trial judge refused to do so. The
    appellant, the alleged aider or abettor, was convicted of murder.

[96]

The
    Supreme Court of Canada unanimously held that the trial judge had not erred in leaving
    the charge of murder with the jury.  Each judge gave separate reasons for
    judgment.

[97]

The
    reasons of Mignault J. contain the most considered analysis of the issue and
    make three points:

i.

the verdict of the first jury (manslaughter) is entirely irrelevant in
    the trial before the second jury;

ii.

the verdict in the first trial is not
res judicata
; and

iii.

the guilt of the aider or abettor cannot be measured against the guilt
    of the actual perpetrator because the
Criminal Code
makes all
    participants, principals, aiders, and abettors alike parties to and guilty of
    the offence.

Rémillard
, at pp. 33-35.

[98]

It
    is also worth notice that s. 23.1 of the
Criminal Code
makes it clear
    that an aider or abettor can be convicted of an offence even though the person
    aided or abetted cannot be convicted of the offence.  Said in another way,
    conviction of the principal is not a condition precedent to, or in any way
    limitative of, the conviction of an aider, abettor, or other secondary party.

The
    Principles of Fundamental Justice

[99]

The
    principles of fundamental justice lie in the basic tenets of our legal system:
Reference
    re s. 94(2) of the

Motor Vehicle Act
, [1985] 2 S.C.R. 486, at p. 503.
    A mere common law rule does not suffice to constitute a principle of
    fundamental justice. What is required are principles upon which there is some
    consensus that they are vital or fundamental to our societal notion of justice:
Rodriguez v. British Columbia (Attorney General)
, [1993] 3 S.C.R. 519,
    at pp. 590-591, and 607.  The principle must also be identified with enough
    precision to yield a manageable standard against which to measure deprivations
    of life, liberty, or security of the person:
R. v. Malmo-Levine
;
R.
    v. Caine
, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 113.

The Principles Applied

[100]

I would not give
    effect to this ground of appeal for several reasons.

[101]

First, the
    decision in
Rémillard
makes it clear that an aider or abettor can be
    convicted of a more serious offence than the principal. Said somewhat
    differently, the culpability of the aider or abettor is
not
co-extensive with or limited by the liability of the principal.

[102]

Second, the jury
    verdict in Zoldis case is only conclusive as between the Crown and Zoldi. The
    verdict is based on the evidence adduced at Zoldis trial and the legal
    principles in accordance with which his liability was determined there. The
    verdict is not an
in rem
determination of the legal character of the
    unlawful killing of Troy Hutchinson:
Rémillard
, at pp. 34-35.

[103]

Third, to hold
    otherwise would be to ignore the effect of both sections 21 and 23.1 of the
Criminal
    Code
. Section 21 abolishes the distinction between principals and
    secondary participants: all are parties to the commission of an offence.
    Section 23.1 permits conviction of an aider or an abettor even if the principal
    cannot be convicted, as for example, where the principal is found not
    criminally responsible on account of mental disorder. Section 23.1 appears to
    represent a legislative determination that reinforces the individual nature of
    criminal liability, leaving the level of culpability of secondary participants
    at large, unbounded by decisions about the principals liability.

[104]

Fourth, the
    principle for which the appellant contends would be of uncertain application.
    In this case, for example, it would require an
ex post facto
correction
    of a verdict untainted by error on the basis of an irrelevant consideration
    the subsequent verdict of another jury in another trial.

[105]

Finally, I am
    unable to fashion any principle of fundamental justice that would warrant the
    remedy sought by the appellant. The principle would be at odds with fundamental
    principles that criminal liability is individual, determined on the basis of
    evidence properly admissible against the person whose liability is at issue,
    and in accordance with the principles of law that govern that determination.
    Neither is the proposed principle compatible with an established principle of
    fundamental justice
res judicata
.

CONCLUSION

[106]

For these
    reasons, I would dismiss the appeal.

Released:  October 29, 2013 (J.MacF.)

David Watt J.A.

I agree.  J. MacFarland J.A.

I agree.  Gloria Epstein J.A.

[1]
A third person, Susan Sladic, was also charged, but the charge was withdrawn in
    return for her testimony.  Sladic was a customer of the deceased who set up the
    transaction during which the deceased was killed.

[2]
The term conduct includes omissions where there is a statutory or common law
    duty to act, as for example, the duty to provide necessaries of life imposed
    under s. 215(1) of the
Criminal Code
.