COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Cadeddu, 2013 ONCA 729

DATE: 20131204

DOCKET: C55147 & C54351

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Cadeddu and Douglas Seaton

Appellants

Joshua D. Frost, for the appellant, John Cadeddu

Frances S. Brennan, for the appellant, Douglas Seaton

Shawn Porter, for the respondent

Heard: July 18, 2013

On appeal from the convictions entered on June 9, 2011
    and from the sentences imposed on August 11, 2011 by Justice C. Anne Tucker of
    the Superior Court of Justice, sitting with a jury.

Strathy J.A.:

A.

introduction

[1]

In
    the early morning hours of March 15, 2008, 75-year-old Harry Anger was brutally
    beaten with a baseball bat,
[1]
while in bed at his home in Port Colborne. The violence of the beating left
    blood spattered on the walls and ceiling of his bedroom. He received
    life-threating head injuries. The doctors kept him alive by putting him in a
    coma to reduce swelling on his brain caused by internal bleeding.

[2]

Anger
    partially recovered from his injuries. He was, however, left with impaired
    balance and memory problems. He had no memory at all of the attack and could
    not identify his assailant(s).

[3]

The
    crime scene yielded no clues as to the identity of the perpetrator(s). There
    were no signs of forced entry to the house. No rooms other than the bedroom
    were disturbed, and the intruder(s) left no fingerprints or other forensic
    evidence. The victims wallet, rings, notepad and cell phone were missing. The
    weapon used to inflict the beating was never found.

[4]

The
    police investigations quickly focused on the appellants, John Cadeddu and
    Douglas Seaton, each of whom was related to Anger and had a motive to harm him.
    The police discovered that Angers credit cards had been used at a gas bar in
    Grimsby, Ontario, in the early morning hours of March 15, 2008. Later that
    morning, an attempt had been made to withdraw cash at an ATM in Grimsby using
    one of Angers credit cards. That afternoon, one of Angers cards had been used
    at another gas station and at a Beer Store in London, Ontario.

[5]

Video
    surveillance at the ATM showed Cadeddu and Seaton attempting to withdraw cash
    from the machine. Surveillance at the Beer Store showed Cadeddu buying two
    cases of beer.

[6]

After
    being questioned by police, the appellants were jointly charged with attempted
    murder, break and enter, aggravated assault, theft under $5000, and using three
    stolen credit cards.

[7]

The
    Crowns theory was that Cadeddu and Seaton were either joint principals or that
    one had aided or abetted the other. At trial, Cadeddu and Seaton ran a
    cutthroat defence, with each denying responsibility for the crimes and pointing
    blame at the other. They admitted driving to Port Colborne in Seatons truck,
    along with Seatons wife, but Seaton testified that he and his wife had gone to
    a donut shop while Cadeddu went to Angers house. Cadeddu, on the other hand,
    testified that he had been asleep in the back of the truck when Seaton went
    into the house.

[8]

Both
    were convicted on all counts, except attempted murder, and were sentenced to
    eight years in the penitentiary, less credit for time served.

[9]

Cadeddu
    appeals his convictions, claiming, among other things, that the trial judge did
    not properly instruct the jury on party liability. Specifically, he says the
    trial judge gave a flawed and incomplete instruction on liability as a
    participant in a common unlawful purpose under s. 21(2) of the
Code
.
    Seaton has abandoned his conviction appeal, but seeks leave to appeal his
    sentence.

[10]

For the reasons
    that follow, I agree that the trial judges instructions on party liability
    were deficient. The curative proviso does not apply in the circumstances,
    because it cannot be said that a properly instructed jury would necessarily
    have arrived at the same verdict. I would therefore allow Cadeddus conviction
    appeal and order a new trial. I would grant Seaton leave to appeal his
    sentence, but dismiss the appeal.

B.

Factual Background

[11]

As I would order
    a new trial, I will outline only the evidence necessary to understand the
    position of the Crown and the appellants and to give context for the trial
    judges instruction on party liability.

[12]

Cadeddu was
    married to Angers step-granddaughter. At one time, Cadeddu and Anger had a
    good relationship, but it deteriorated as a result of a dispute over $60,000
    that Cadeddu believed Anger owed him. On a previous occasion, Cadeddu had
    called Anger a fucking low life, a piece of shit and told him that if he did
    not get his money within a week, he would be back, mark [his] words.

[13]

The police heard
    of this incident and interviewed Cadeddu on March 16, 2008, the day after Anger
    was beaten. Cadeddu denied any involvement in the assault. He said that he had
    never been to Angers home and had no idea where he lived. He told the police
    that he had been at his own home in London, Ontario, on the night Anger was
    beaten.

[14]

There was also
    bad blood between Anger and Seaton, who was Angers step-grandson. Anger held a
    mortgage on Seatons home and their formerly close relationship had become
    acrimonious due to a dispute over the mortgage.

[15]

On March 19,
    2008, after obtaining the video evidence, the police went to Seatons house to
    speak to him. When they knocked on the front door, he escaped out the back. His
    wife told the police that he was not at home, but the police found him hiding
    in the back yard. At the preliminary hearing, he testified that he ran because
    he thought there were criminals breaking down his front door. At trial, he
    admitted that he was running from the police.

[16]

The police
    arrested both Cadeddu and Seaton on March 19, 2008.

[17]

Seaton gave a
    statement to the police in which he admitted driving with Cadeddu to Port
    Colborne on the night in question. He said he parked his truck a short distance
    from Angers house. Cadeddu got out and returned about ten minutes later. Cadeddu
    told him that he had given Anger a little scare. He had one of Angers credit
    cards with him.

[18]

Seaton gave a
    second statement on April 1, 2008. He told the police that Cadeddu had told him
    that he was going to give Anger a little scare and that he had given Anger a
    little slap.

[19]

Both Seaton and Cadeddu
    testified at their joint trial. Their testimonies were essentially mirror images.
    Each denied going into Angers house, and implicated the other. Both admitted
    travelling to Port Colborne late that night, along with Seatons wife, but each
    said it was the others idea to go to Angers home and that it was the other
    who entered the residence.

[20]

Seaton testified
    that he and his wife drove to Port Colborne with Cadeddu because Cadeddu wanted
    to speak to Anger about the money he thought he was owed. He claimed that he
    slept most of the way and woke in Port Colborne when Cadeddu got out of the
    truck. He said that he pointed out Angers house to Cadeddu and told him where
    the bedroom was located. He and his wife, he said, then went to a nearby Tim
    Hortons. When they returned a short time later to pick Cadeddu up, he said that
    he had given Anger a little scare and just like a little cuff. Seaton denied
    that he went into Angers house.

[21]

Seaton said Cadeddu
    told him that Anger had given him the credit cards so that he would have some
    money until Anger was able to see him about the debt. He claimed that when he
    later found out about Anger being injured, Cadeddu, who was also there, was
    grinning. He asked Cadeddu about it and Cadeddu did not say anything.

[22]

Seatons wife
    confirmed that her husband was passed out in the car during most of the trip to
    Port Colborne and corroborated his evidence that they had gone to Tim Hortons
    while Cadeddu left the car for a short time. She claimed that Cadeddu admitted
    hitting Anger on the head and knee with a baseball bat.

[23]

Cadeddu, on the
    other hand, testified Seaton had told him that he was concerned about Angers
    mortgage on his house and that he wanted to go to Angers house to get the mortgage
    papers. Cadeddu claimed Seaton had told him that Anger would not be home that
    night. He said that Seaton had a key to Angers house. Cadeddu claimed he went
    along just because he wanted to go for a road trip. He said he was taking prescription
    pain medicine at the time, and he had been drinking throughout the evening and
    continued to drink beer in the car on the trip to Port Colborne. He would sleep
    for a while, wake up and have a drink, and then sleep some more. He said that
    at some point he heard Seaton say Thats Harrys [Angers] house. He looked
    up, but did not see Angers car. He went back to sleep and did not see Seaton
    or his wife get out of the truck. He denied committing any of the offences.

[24]

There was
    evidence that Seaton kept a baseball bat in his truck and that Cadeddu was
    aware of that fact. The baseball bat was not found in the truck when Seaton was
    arrested on March 19, 2008, and it was never located. There was also evidence
    that Seaton and his wife at one time had a key to Angers home, though a number
    of people had keys to it.

[25]

There were
    numerous inconsistencies in the appellants evidence, not only as between the
    evidence of the Seatons and Cadeddu, but also internal inconsistencies in each
    witnesss evidence and inconsistencies between their trial evidence and the
    statements they had given to the police on previous occasions.

[26]

With that
    background, I turn first to Cadeddus appeal of his convictions.

C.

CADEDDUS CONVICTION APPEAL

[27]

Cadeddu asserts
    that the trial judge made several errors in her instructions to the jury. In my
    view, the dispositive issue is the trial judges instruction concerning party
    liability
.
[2]

[28]

Party liability
    is set out in s. 21 of the
Code
. That section provides:

(1)

Every one is a party to an offence
    who

(a)

actually commits it;

(b)

does or omits to do
    anything for the purpose of aiding any person to commit it; or

(c)

abets any person in
    committing it.

(2)

Where two or more persons form
    an intention in common to carry out an unlawful purpose and to assist each
    other therein and any one of them, in carrying out the common purpose, commits
    an offence, each of them who knew or ought to have known that the commission of
    the offence would be a probable consequence of carrying out the common purpose
    is a party to that offence.

[29]

In this case,
    although not initially requested to do so by either the Crown or the defence,
    the trial judge gave an instruction on common unlawful purpose (s. 21(2)) in
    addition to instructing the jury on liability as a principal (s. 21(a)) and aiding
    (s. 21(b)) and abetting (s. 21(c)). The common purpose instruction was repeated
    in answer to a question from the jury.

[30]

For the reasons
    that follow, I would find that the instruction under s. 21(2) was incomplete
    and misleading. I would also find that the proviso in s. 686 of the
Code
does not apply
.
I would accordingly allow
    Cadeddus appeal from his convictions and would order a new trial for Cadeddu.
    In the circumstances, it is unnecessary to consider the other grounds of
    appeal.

(a)

The Trial Judges Charge and the Jurys Question

[31]

In the
    pre-charge discussions, Crown counsel asked the trial judge to instruct the
    jury on liability as joint principals under s. 21(1)(a) of the
Code
and
    on aiding and abetting under s. 21(1)(b) and (c). At that time, the Crown
    stated that he was not requesting an instruction on common unlawful purpose
    under s. 21(2). The defence made no request for a s. 21(2) instruction, and it
    was clearly not in their interests to do so.

[32]

After reviewing
    basic information about jurors duties, different forms of evidence given in
    the trial and the testimony and statements of the two accused, the trial judge
    gave an introductory instruction about modes of participation. Instead of starting
    with an explanation of the concept of principals, she began with a definition
    of aiding and abetting. She said:

A person also commits an offence, if he does anything or fails
    to do anything, that it is his duty to do so [
sic
], for the purpose of
    helping another person to commit the offence. Anyone who actively encourages
    someone else to commit an offence is just as guilty of an offence as the person
    who actually commits it.

[33]

While this starting
    point may have been somewhat confusing for the jury, the problem was soon
    rectified by a standard instruction describing the concepts of principals and
    joint principals, and of aiding and abetting.

[34]

Then, although
    not asked to do so by either the Crown or the defence, the trial judge gave an
    instruction concerning common unlawful purpose under s. 21(2) of the
Code
.
    The instruction she gave was as follows:

A person may also commit an offence by being involved with
    another person in a common unlawful purpose. If anyone in the group commits an
    offence, in carrying out their original common unlawful purpose, any other
    member of the group who knew, or should have known, that the events [
sic
]
    would likely be committed by someone in the group carrying out the original
    purpose, is guilty of the offence the other person actually commits.

[35]

This instruction
    did little more than paraphrase s. 21(2). As I explain more fully below, a
    proper instruction under s. 21(2) requires an explanation of the three elements
    of that mode of liability  agreement, offence, and knowledge  and must relate
    the evidence to those elements. The instruction in this case did neither. This
    made it incomplete and misleading. It was incomplete because it did not explain
    the elements of this form of liability or the evidence to be considered in
    relation to each element. It was misleading because it did not explain that the
    offence committed must be different from the original common unlawful purpose.

[36]

The balance of
    the charge contained a thorough and effective summary of the elements of the
    offences, a review of the relevant legal principles and a summary of the
    evidence and the parties positions. However, the trial judge said nothing more
    on the subject of common unlawful purpose liability. In particular, she did not
    review any of the elements of that mode of participation and did not explain
    how the evidence the jury had heard could be related to those elements.

[37]

The trial
    judges instructions in relation to each count were structured in an and/or
    fashion in relation to each accused. For example, on the count of breaking and
    entering and committing aggravated assault, the instruction was:

For you to find Doug Seaton and/or John Cadeddu guilty of
    breaking, entering and committing aggravated assault, Crown counsel must prove
    each of these essential elements beyond a reasonable doubt. One, that Doug
    Seaton and/or John Cadeddu broke into a place. Two, that Doug Seaton and/or
    John Cadeddu entered a place. Three, that Doug Seaton and/or John Cadeddu
    committed aggravated assault in the place.

[38]

The trial judge
    went on to explain the Crowns burden of proof beyond a reasonable doubt in
    relation to each element of the offence.

[39]

Immediately after
    the charge had been completed, the Crown and defence each requested that the trial
    judge clarify one aspect of her instructions, unrelated to this appeal. The
    trial judge agreed and did so in a very brief re-instruction. There were no
    other objections to the instructions and, in particular, no objection was taken
    to the instruction concerning s. 21(2) or any of the other issues raised on
    this appeal.

[40]

Shortly after
    the jury had begun their deliberations, they asked two questions. They first
    asked the trial judge to explain once again the difference between attempted
    murder and aggravated assault. The second question related to modes of
    participation. The jury asked:

Also, can you please re-explain the concept of principal and
    party?

[41]

The trial judge
    invited submissions from counsel on this issue and proposed that she repeat the
    instruction on Different Modes of Participation (
Thatcher
Instruction
    - Final 100-B), contained in David Watt,
Watts Manual of Criminal Jury
    Instructions
(Toronto: Thomson Carswell, 2005) at pp. 248-29.
[3]
However, Watt

cautions in a footnote, at p. 248, that [t]hese
    instructions should
only
be given where there is evidence that
    provides an air of reality to a submission that alternate routes to liability
    are available in the case (emphasis in original). In discussing this
    instruction with counsel, the trial judge asked whether a common unlawful
    purpose instruction was required. She said:

I even wonder about [the common unlawful purpose instruction
    contained in para. 5 of Watt Final 100-B], when its talking about the common
    purpose thing; that again gets rather confusing. It starts to sound like there
    is a bigger conspiracy rather than a party thing.

[42]

The Crown, however,
    requested that the instruction be given. In answer to the trial judges
    suggestion that the instruction could be omitted, Crown counsel stated:

Well save and except Your Honour, as you know, the Crowns
    theory is that this is a common joint enterprise.

As noted above, the Crown had not requested an
    instruction on s. 21(2) in the pre-charge conference, but the trial judge had
    nevertheless given the instruction.

[43]

The defence did
    not object to the Crowns request. The trial judge gave the following additional
    instruction to the jury:

I am going to deal with principals and parties first.  I am
    going to read you what I read you before, with a few additions, so it will help
    you to understand.  Under our law, a person may participate in an offence and
    be guilty of it in different ways.  A person may commit an offence by
    personally doing everything necessary to commit the offence, either alone or
    along with someone else who participates in the same way.  We call that person
    a principal.  A person may also commit an offence by helping another person to
    commit that offence.  This help may be doing something for the purpose of
    helping the other person to commit the offence.  We often refer to that person
    as a party.

A person may commit an offence by encouraging another person to
    commit that offence.  That, again, would be someone we would call a party.
A
    person may also commit an offence by being involved with it in a common
    unlawful purpose. If any of the group commits an offence in carrying out the
    original common unlawful purpose, any other member of that group who knew or
    should have known that the offence would likely be committed by someone in the
    group carrying out the original purpose, is guilty of the offence that the
    other person actually commits.

A person who commits an offence, if he does anything for the
    purpose of helping another person commit the offence; anyone who actively
    encourages someone else to commit an offence, is as guilty of the offence as
    the person who actually commits it.  So the person who commits it is the
    principal; anyone who otherwise is involved and encourages it in the way Ive
    just described, we refer to as a party.

Anyone have any questions further on that? That explains it?
    [Emphasis added.]

[44]

The re-charge
    on common unlawful purpose, emphasized above, was in substantially the same language
    as the original charge.

[45]

Neither the
    Crown nor the defence objected to this re-instruction after it was given.

(b)

Positions of the Parties

[46]

Cadeddu now
    submits that the charge and the re-charge on s. 21(2) were flawed because: (a) they
    failed to explain the elements of liability under that mode of participation;
    and (b) they failed to explain that the offence with which the accused is
    charged must be different

from the offence initially agreed upon and
    being carried out by the parties.

[47]

Cadeddu says
    that the trial judge gave the jury a route to liability  common unlawful
    purpose  that neither party had requested during the pre-charge conference. Having
    introduced the concept in skeletal form, the trial judge failed to put flesh on
    the bones by explaining the elements of that route and by relating the evidence
    to those elements. He submits that by essentially repeating the instruction in
    her re-charge in answer to the jurys question, the trial judge compounded the
    deficiency in the original charge. In the result, Cadeddu claims, the jury was
    left with an incomplete and confusing instruction.

[48]

The Crown
    acknowledges that these instructions were deficient because they did not
    explain the elements required for that mode of participation. The Crown also
    acknowledges that the trial judge did not define the original unlawful
    purpose for the jury, nor did she identify the actual offence committed or
    explain that this offence must be
different

from the original unlawful purpose. The Crown also agrees that these
    omissions are rendered more significant because they were repeated in the response
    to the jurys question.

[49]

The Crown
    submits, however, that this is an appropriate case in which to apply the
    proviso under s. 686 of the
Code
. It submits that the jury would
    inevitably have convicted Cadeddu, if had they had been given the correct
    instruction.

(c)

Principles of Party Liability

[50]

Section 21 of
    the
Code
is set out at para. 28, above. Subsection 21(1) deals with
    principals, aiding and abetting. Subsection 21(2) imposes a broader liability. It
    applies where one person commits an offence beyond the one with which the
    parties had originally planned to assist one another. It imposes liability on
    the other person if that person knew or ought to have known that the offence
    committed would be a probable consequence of carrying out the original common
    unlawful purpose. The Supreme Court explained in
R. v. Logan
, [1990] 2
    S.C.R. 731, at p. 746, that the objective of s. 21(2) is to deter joint
    criminal enterprises and to encourage persons who do participate to ensure that
    their accomplices do not commit offences beyond the planned unlawful purpose.

[51]

The distinctions
    between ss. 21(1) and 21(2) were described by Watt J.A. in
R. v. Simon
,
    2010 ONCA 754, 104 O.R. (3d) 340, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. No. 459, at paras. 39-43:

Persons who participate in the offence
actually
committed, whether as a principal, an aider or an abettor, have their liability
    determined under s. 21(1).

Section 21(2) extends liability for crime in two respects. The
    first has to do with the
persons
whose participation in an unlawful
    enterprise may attract liability. And the second relates to the
offence
for which participants in an unlawful criminal enterprise may be held liable:
R.
    v. Simpson
,
[1988] 1 S.C.R. 3
,
    at p. 15;
R. v. Turkiewicz, Barrow and MacNamara

(1979), 50 C.C.C. (2d) 406
(Ont. C.A.), at p. 409;
R. v. Howard and Trudel

(1983), 3 C.C.C. (3d) 399
(Ont. C.A.), at p. 408.

The
persons
to whom s. 21(2) extends liability are
    those whose participation in the offence actually committed would
not
be captured by s. 21(1). These persons have participated in a prior unlawful
    enterprise with others and either knew or, in most cases at least, should have
    known that one (or more) of the other participants in the original enterprise
    would likely commit the offence charged in pursuing their original purpose.

The
offence
to which s. 21(2) extends liability is not
    the original unlawful purpose to which the subsection refers. The offence
    of s. 21(2) is a different crime, one that a participant in the original unlawful
    purpose commits in carrying out that original purpose. And so it is that we
    sometimes say that s. 21(2) extends liability to those engaged in one unlawful
    purpose to incidental or collateral crimes: crimes committed by any participant
    (in the original purpose) in carrying out the original purpose that the other
    knew or should have known would likely be committed in pursuing the original
    purpose.

Under s. 21(2), the liability of a party to a common unlawful
    purpose for an incidental crime committed by another participant requires proof
    of the party's participation in the original unlawful purpose, the commission
    of the incidental crime by another participant and the required degree of
    foresight of the likelihood that the incidental crime will be committed.
    Consistent with general principle, each of these essential elements, earlier
    described as agreement, offence and knowledge, must be supported by an
    adequate evidentiary record to warrant submission of this basis of liability to
    the jury. What we require is some evidence on the basis of which a reasonable
    jury, properly instructed, could make the findings of fact necessary to establish
    each element of this mode of participation:
R. v. Cinous
,
[2002] 2 S.C.R. 3
,
    at para. 83;
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. [Emphasis in original.]

[52]

This passage makes
    the important point that the scope of s. 21(2) is broader than s. 21(1). It
    extends liability to those who would not be found responsible as aiders or
    abettors and it extends responsibility for offences other than the offence in
    which they participated, if they had the requisite degree of foresight in
    respect of the commission of the offence charged:
R. v. Ferrari,
2012
    ONCA 399, 287 C.C.C. (3d) 503, at para. 62,
per
Rosenberg J.A.,
    referring to
R. v. Jackson
(1991), 68 C.C.C. (3d) 385 (Ont. C.A.), at
    p. 421.

[53]

As noted in
Simon
,
at para. 43
,
there are three
    elements of liability under s. 21(2):

(a)

agreement
:
    participation of the party in a common unlawful purpose;

(b)

offence
:
    commission of an incidental and different crime by another participant; and

(c)

knowledge
:
    foreseeability of the likelihood of the incidental crime being committed.

A trial judge instructing a jury on this route to
    liability is required to explain these elements.

[54]

I will review
    each of these elements and discuss the instruction the jury should have been
    given with respect to each. Before doing so, it is worth noting that the
    wording of s. 21(2) is  on its face  ambiguous. The unlawful purpose could
    refer either to the offence with which the accused is charged or to a different
    offence. The Supreme Court identified this ambiguity in
R v. Simpson
,
    [1988] 1 S.C.R. 3, at p. 11. Justice McIntyre, who gave the judgment of the
    court, clarified that the unlawful purpose must be
different
from the
    offence charged. He stated, at p. 15:

While acknowledging that the words of s. 21 of the
Criminal
    Code
could be read to support either contention I am of the opinion that
    the unlawful purpose mentioned in s. 21(2) must be different from the offence
    which is actually charged. The "unlawful purpose" and "the
    offence" committed in the course of the pursuit of the unlawful purpose
    are different. The two subsections of s. 21 deal with different circumstances.
    Subsection (1) applies to make everyone a party to an offence who commits it or
    who aids and abets in its commission. Subsection (2) covers the case where, in
    the absence of aiding and abetting, a person may become a party to an offence
    committed by another which he knew or ought to have known was a probable
    consequence of carrying out an unlawful purpose in common with the actual
    perpetrator. [Citations omitted.]

[55]

As I have noted,
    the Crown concedes that this distinction was not explained to the jury.

(i)

Agreement

[56]

The foundational
    element of s. 21(2) is an agreement between a principal and a party (or
    parties) to carry out an unlawful purpose.  An unlawful purpose is one that is
    contrary to the
Code
. The unlawful purpose must be shared by all
    parties, and it must be different from the offence ultimately committed.

[57]

A party to an
    offence under s. 21(2) does not need to share the same motives or desires as
    the principal.  As Lamer C.J. stated in
R. v. Hibbert
, [1995] 2 S.C.R.
    973, at para. 42, the parties only need to have in mind the same unlawful goal,
    because to require a mutuality of motives and desires between the party and
    the principal would unduly restrict Parliaments intention in enacting the
    offence. Moreover, the agreement or common intention does not need to be formed
    in advance; it can arise at the time the offence is being committed:
R. v.
    Vang
(1999), 118 O.A.C. 75, at para. 24, leave to appeal to S.C.C. refused,
    [1999] S.C.C.A. No. 203. For instance, in
Vang
, this court found that
    even though the assault was commenced by only one party, once the accused
    joined the attack, they engaged in a common purpose to assault the complainant
    and to assist each other in carrying it out (at para. 25).

[58]

The trial
    judge is required to instruct the jury that they must be satisfied, beyond a
    reasonable doubt, that the accused and the other participant(s) agreed to carry
    out a common unlawful purpose and to help each other to do so. They must be
    referred to the evidence they can consider in determining whether there was
    such an agreement.

(ii)

Offence

[59]

One party to the
    common unlawful purpose must commit an offence that was not the offence intended
    by the parties, but is nonetheless related to the original unlawful purpose.
    The ultimate offence can, however, be very closely related to the common
    intent. For instance, as this court recently noted in
R. v.

McDonald
,
    2013 ONCA 442, 306 O.A.C. 250, at para. 21, the common purpose can be assault
    and the ultimate offence can be aggravated assault. In addition, once there is
    evidence that two or more accused acted in concert, s. 21(2) can apply even if
    it is unclear which of the accused actually committed the offence (i.e. which
    was the principal):
R. v. Wood
(1989), 33 O.A.C. 260, at para. 61,
    leave to appeal to S.C.C. refused, [1990] S.C.C.A. No. 73.

[60]

The jury
    must be instructed that in the course of carrying out their original agreement,
    a participant who was part of the original agreement, but
not
the
    accused, committed a
different
offence in carrying out the original
    agreement. It must be made clear to the jury that the offence committed is one
    that the members of the original agreement did not set out to commit, but one
    that took place in the course of carrying out their original agreement or plan.

(iii)

Knowledge

[61]

Generally, a person
    will be liable under s. 21(2) if he or she knew or ought to have known that the
    offence committed by the principal was a probable consequence of their unlawful
    agreement. As Watt notes,

at p. 258, to determine what the person actually
    knew about the likelihood of another participant in the original unlawful plan
    committing the offence, the finder of fact must look to the words, and conduct
    before, at the time and after the offence. When assessing foreseeability, the
    standard is that of a reasonable person in the same circumstances.

[62]

The trial judge
    must instruct the jury that the requisite knowledge can be established either
    by showing that the accused actually knew that the offence would probably be
    committed in carrying out the original agreement or that a reasonable person in
    the circumstances would know that one of the participants in the original
    agreement would probably commit the offence in carrying out the original
    agreement.
[4]

(d)

Instructing the Jury on s. 21(2)

[63]

It is well-settled
    that a jury in a criminal case must be properly instructed, not perfectly
    instructed:
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at

para.
    69
; R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 2.

However,
    a trial judge is required to give a legally adequate instruction:
McDonald
,
    at para. 39. The jury must be instructed concerning (a) the factual issues to
    be resolved; (b) the law to be applied; (c) the positions of the parties; and
    (d) the evidence relevant to the issues and to the positions of the parties:
R.
    v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.), at pp. 385-86.

[64]

When there is an
    air of reality to liability under s. 21(2), the trial judge is required to
    explain the three elements of that basis of liability, and what the Crown must
    prove in relation to each of those elements. He or she must also review the
    evidence the jury may consider in relation to those elements in determining
    whether that route to liability has been established. As Lauwers J.A. noted in
McDonald
,

at para. 39
:

In the circumstances of this case, especially in light of the
    complexity of the facts, the number of participants in the fight, and the
    Crown's emphasis on common purpose in its jury address, once the trial judge
    raised the prospect of a joint criminal enterprise route to liability, he was
    obliged to provide a legally adequate jury instruction on s. 21(2). To ground a
    conviction on the basis of common purpose, the jury was required to find the
    three elements of the offence: (1) an agreement to carry out an unlawful
    purpose, (2) the existence of a second offence, and (3) the requisite degree of
    knowledge that another participant would commit that second offence.

[65]

In this case,
    the trial judge gave an introductory instruction on different modes of
    participation that appears to have been taken from Watt, at p. 247,
[5]
but she may have overlooked a footnote that the instruction should only be
    given where alternative bases of liability should be left to the jury and that
    inapplicable paragraphs should be deleted. As well, in both the instruction and
    the re-instruction, the trial judge omitted reference to the requirement that
    the offence committed must be different from the original unlawful purpose.
    This difference is highlighted in Watt, at pp. 247-48, Notes on Use of the
    instruction on common unlawful purpose:

A brief caution is appropriate in connection with  the
    instruction on s. 21(2) of the
Criminal Code

[Section] 21(2)
only
applies where the unlawful
    purpose mentioned in the subsection and the offence committed are
different
.
     Unlike s. 21(1), which makes everyone a party to an offence who, alone or
    together with another, commits
that offence
or helps or encourages
    another who commits it, s. 21(2) makes [the accused] a party to an offence
    committed by another
person
that [the accused] knew or ought to have known
    was a probable consequence of carrying out an
unlawful purpose
with
    the actual perpetrator.

Section 21(2) cannot be invoked when two or more parties agree
    to commit an offence, then proceed to commit the very offence on which they
    have agreed. Trial judge must be vigilant to ensure that the reach of s. 21(2)
    does
not
exceed its grasp. [Citations omitted; emphasis in original.]

[66]

The description
    of common unlawful purpose given in this case was abstract, and provided the
    jury with little more than could be gleaned from a reading of s. 21(2). The
    trial judge did not (1) describe the original unlawful purpose (break and
    enter); (2) explain that for Cadeddu to be guilty under s. 21(2), Seaton had to
    commit a different offence (aggravated assault); and (3) explain that Cadeddu had
    to have the requisite degree of knowledge or foresight concerning the assault. Nor
    did the trial judge relate the evidence to the elements of the offence or
    explain what findings the jury was required to make before liability under s.
    21(2) could arise.

[67]

As the Crown
    acknowledges, the deficiency was amplified because it was repeated in answer to
    the jurys question. As Cory J. stated in
R. v. S. (W.D.)
, [1994] 3
    S.C.R. 521, at p. 530, questions from the jury require comprehensive and
    correct responses:

There can be no doubt about the significance which must be
    attached to questions from the jury and the fundamental importance of giving
    correct and comprehensive responses to those questions. With the question the
    jury has identified the issues upon which it requires direction. It is this
    issue upon which the jury has focused. No matter how exemplary the original
    charge may have been, it is essential that the recharge on the issue presented
    by the question be correct and comprehensive. No less will suffice. The jury
    has said in effect, on this issue there is confusion, please help us. That help
    must be provided.

[68]

The additional
    instruction was given to the jury in response to an issue that was troubling
    them. The answer was incomplete and unhelpful. It was the last thing the jury heard
    before they resumed their deliberations.

[69]

The
    circumstances here are similar to those in
R. v. Quinn
, 2009 ONCA 817,
    [2009] O.J. No. 817. In
Quinn
, the appellant, who was tried alone, was
    charged with various offences arising out of a home invasion. The Crowns case
    was that the appellant was an escort who had been invited into the
    complainants home.  It was alleged that once inside the home, she had unlocked
    the door to permit the principals to enter the house. Once they entered, they
    beat the complainant, ransacked the premises, and made off with various items,
    followed shortly thereafter by the appellant. The trial judge explained that
    the appellants liability could be established on the basis of aiding and
    common purpose and explained the requirements of each in general terms,
    without any reference to the elements of the specific offences charged. This
    was apparently done because there was agreement that the principals (who were
    not on trial) had committed the offences.

[70]

This court held
    that the instruction was insufficient:
Quinn
, at paras. 9-13. As in
    this case, the trial judge did not describe the elements of the offences
    charged, did not tie the common purpose to the specific offences charged, and did
    not explain that the common unlawful purpose must be different from the offence
    charged. Each also commingl[ed] the discussions of aiding and abetting with
    common purpose liability. In
Quinn
,
    this court
ordered a new trial. See also
R. v. King
(1974),
    18 C.C.C. (2d) 193 (Ont. C.A.), at pp. 197-98.

[71]

The failure of
    counsel to object to the trial judges charge is not a bar to an appeal based
    on misdirection, but it is a factor to be taken into account:
Jacquard
,
    at paras. 37-38. The accused is entitled to a properly instructed jury. Defence
    counsels failure to object does not, in the circumstances of this case,
    preclude an appeal on misdirection.

[72]

I conclude that
    in light of the deficiencies in the charge, Cadeddu is entitled to a new trial
    unless the proviso applies.

(e)

The Effect of the Curative Proviso

[73]

Section 686(1)(
b
)(iii)
    of the
Code
provides that an appellate court may dismiss a conviction
    appeal despite a legal error if the Crown satisfies the court that no
    substantial wrong or miscarriage of justice has occurred:
R. v. Roy
,
    2012 SCC 26, [2012] 2 S.C.R. 60, at para. 48. The rationale for the proviso is the
    public interest in avoiding the cost and delay of retrials where a properly
    instructed jury at a retrial would inevitably reach the same verdict:
R.
    v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 22.

[74]

In
R. v. Van
,
    2009 SCC 22, [2009] 1 S.C.R. 716, the Supreme Court confirmed that the curative
    proviso can be applied in two circumstances. The burden is on the Crown to
    demonstrate which category applies. The first category applies to an error so
    harmless or minor that it could not have had any impact on the verdict (at
    para. 34). The rationale is that it would detract from societys perception of
    trial fairness and the proper administration of justice if errors such as these
    could too readily lead to an acquittal or a new trial (at para. 35).

[75]

The second
    category is reserved for serious errors that would otherwise justify a new
    trial or an acquittal, but for the fact that the evidence against the accused
    was so overwhelming that any other verdict would have been impossible to
    obtain (at para. 34). When any other verdict would be impossible, depriving
    the accused of a proper trial is justified on the ground that the deprivation
    is minimal when the invariable result would be another conviction: at para. 36,
    citing
R. v. S. (P.L.)
, [1991] 1 S.C.R. 909, at p. 916.

[76]

The Crowns
    burden to establish the proviso applies is high due to the difficult task for
    an appellate court of evaluating the strength of the Crown's case
    retroactively, without the benefit of hearing the witnesses' testimony and
    experiencing the trial as it unfolded:
Van
, at para. 36. Accordingly,
    any measure of doubt regarding the strength of the Crowns case must be
    resolved in favour of the accused:
Sarrazin
, at para. 28.

[77]

The error in
    this case must necessarily fall into the second category because, as the Crown has
    acknowledged, it was not a trivial error. Thus, the appeal must be allowed
    unless the Crown can demonstrate that the evidence was so overwhelming the verdict
    would necessarily have been the same, even if the jury had received proper
    instructions on s. 21(2) of the
Code
. I must resolve any doubt about
    the strength of the Crowns case in favour of Cadeddu.

[78]

I am unable to
    find that a properly instructed jury would necessarily have arrived at the same
    verdict. As I have noted, liability under s. 21(2) is wider than under s.
    21(1).

[79]

It is possible
    that a jury properly instructed on s. 21(2) could have convicted the appellant
    on the basis that: the original common unlawful purpose was break and enter, or
    break and enter and commit assault; Seaton broke and entered the house and committed
    an aggravated assault on Anger with a baseball bat; and Cadeddu should have
    reasonably foreseen that Seaton would likely commit an aggravated assault in
    the course of carrying out their original purpose.

[80]

Of course, as
    with all jury verdicts, I cannot know the jurys reasoning process, or the
    extent to which it was influenced by the trial judges instruction on s. 21(2).
    There was no explanation of the concepts of agreement, offence and knowledge
    and no attempt to relate the evidence to each element. Nor can I know what
    evidence they accepted or rejected in convicting the appellant on any
    particular count.

[81]

Nonetheless, I must
    consider the jurys possible analysis in light of the instructions and the evidence.
    On the basis of the trial judges instruction, the jury could have convicted Cadeddu
    of aggravated assault without the third element for liability under s. 21(2)
    being made out. That is, they could have convicted him even if they believed
    his evidence or it raised a reasonable doubt about whether he was asleep in the
    car and did not know that Seaton had taken the baseball bat into the house.

[82]

I also cannot
    conclude that the evidence was so overwhelming that the jury would necessarily
    have convicted Cadeddu if given a proper instruction under s. 21(2). The
    evidence was not overwhelming that Cadeddu knew that Seaton had taken the bat
    into the house.

[83]

Therefore, while
    it was possible for the jury to convict Cadeddu had they followed the correct
    reasoning process, I cannot say that they did. The jury might well have
    acquitted Cadeddu, had they been properly instructed.

[84]

Nor can I
    conclude that the trial judges
W.D.
instruction provides the
    necessary assurance that the jury would have convicted Cadeddu had they been
    properly instructed on liability under s. 21(2). The lack of clarity of that
    instruction, coupled with the and/or instruction on each offence, could have
    led the jury to believe that they could convict Cadeddu simply because he was a
    participant in the original venture.

[85]

As a
    consequence, the incomplete instruction on common unlawful purpose makes it
    impossible to say that the outcome would necessarily have been the same, had
    the jury been properly instructed. I would therefore allow Cadeddus conviction
    appeal and order a new trial.

[86]

I turn now to
    Seatons sentence appeal.

D.

SEATONS SENTENCE APPEAL

(a)

The Trial Judges Reasons for Sentence

[87]

As noted above,
    the trial judge sentenced Seaton to a prison term of eight years, with credit
    for seventy days of time served. The trial judge considered the following:

(a)

The
    circumstances of the offence
: The victim, who was Seatons grandfather,
    was beaten in his home, in the night, with a bat. He sustained injuries that
    could have killed him. Those injuries continue to cause him pain and forced him
    to sell his business because they left him unable to manage it. He lost his
    motivation and faith in people.

(b)

The
    circumstances of the offender
: Seaton was 36 years old at the time of
    sentencing. He was married and had four children, the youngest born after his
    arrest. He had a minor (and dated) criminal record, to which the trial judge
    attached little weight. He was described as a good worker, husband and father
    and there were some seventeen reference letters that described him in glowing
    terms. He admitted to a drinking problem, but professed a desire to address it;
    he had not consumed alcohol since the offence. Although he expressed remorse
    for his actions on the evening in question, he did not accept responsibility
    for the offence.

(c)

Aggravating
    and mitigating factors:
The trial judge referred to the fact that the victims
    injuries were serious and permanent, almost fatal, and were caused by a weapon.
    The case was a home invasion, which was the result of planning and
    deliberation. The victim was elderly and vulnerable. His injuries had lasting,
    permanent, physical, emotional, and financial effects. The appellants had
    driven for over two hours to get to the victims home in the middle of the
    night, and entry to the home may have been obtained with a key given to the
    Seatons by the victim. Seaton had been to the house before, discussed the
    layout with Cadeddu and told him where Angers bedroom was located.

(d)

Seatons
    culpability
: The trial judge rejected Seatons submission that he had a
    lesser role in the offences and that he therefore deserved a shorter sentence
    than Cadeddu. She held that the jury convicted both men and that it was
    impossible to say whether they convicted as joint principals or one as a
    principal and the other as a party. She noted that Seatons vehicle was used to
    transport them to the scene and it was driven by Seatons pregnant wife. Seaton
    was aware that they were meeting with Anger that night and that harm might come
    to him. He had a key to Angers home and he was familiar with the layout. He
    took no steps to assist his grandfather once he knew that he may have been
    harmed. After the attack, Seaton benefitted from the use of the victims credit
    cards.

(e)

Sentencing
    principles:
The trial judge concluded that the primary sentencing
    principles in this case were denunciation and general deterrence, because of
    the underlying belief in our society that a mans home is his castle and that
    we must never become vigilantes.

(f)

Sentencing
    ranges:
The Crown characterized the case as a home invasion and
    suggested that the range was generally between four or five years and up to 15
    years, with a life sentence available. It argued that a sentence of more than
    10 years was required, suggesting 13 years was appropriate. Seaton submitted
    that a sentence of between 2 years less a day and 3 years was appropriate,
    based on his lesser culpability, his strong references and his positive
    pre-sentence report.

[88]

In the result, the
    trial judge concluded, for all the reasons given, and especially that the
    assault was a home invasion involving an elderly victim, that a sentence of
    eight years imprisonment was appropriate.

(b)

Submissions on Appeal

[89]

Seatons
    submission in this court is that he should have received a shorter sentence
    than Cadeddu for two reasons. First, he says that having acknowledged that the
    jurys route to conviction was not clear, the trial judge had to reach her own
    conclusions on the relative degree of culpability between the two accused and
    that she made no finding that Seaton wielded the weapon or inflicted harm on
    the victim. Therefore, Seaton submits, the trial judge implicitly concluded
    that he was an aider and that his culpability was less. Second, he says that in
    view of his less serious criminal record, when compared to Cadeddus, his
    sentence should have been less. Sentencing both men to the same term of
    imprisonment failed to reflect the significant community support received by
    Seaton and Cadeddus more serious, albeit dated, criminal record.

[90]

In response, the
    Crown submits that this case falls well within the range for home invasion
    cases referred to by this court in
R. v. Wright
(2006), 83 O.R. (3d)
    427 (C.A.), at paras. 16-24, which generally call for a stiff penitentiary
    sentence. The trial judge expressly rejected the submission that Seatons
    culpability was less and found that both men played an equal role in the
    offence. Seaton used his personal knowledge of the layout of the victims home
    to facilitate the commission of the offence. He knew that his grandfather had
    been harmed and did nothing to assist him. Instead, he profited from the use of
    his credit cards. The victim in this case suffered lasting physical, economic
    and emotional consequences.

(c)

Disposition as to Sentence

[91]

In my view, the
    sentence imposed on Seaton by the trial judge reflects no error in principle
    and is well within the range of sentences in the case of a home invasion in
    which the accused inflicts serious harm. The trial judge did not misapprehend
    the evidence or fail to consider relevant evidence. She gave appropriate
    consideration to the several aggravating factors and to the mitigating factors,
    which were few.  The trial judges conclusion that Seaton and Cadeddu were
    equally culpable was open to her:
R. v. L.M.
, 2008 SCC 31, [2008] 2
    S.C.R. 163, at paras. 14-15.

[92]

While Cadeddus
    more serious criminal antecedents may have warranted a departure from the
    principle of parity and a longer sentence for him, I consider Seatons sentence
    fit, having regard to all the relevant factors, including his less serious, and
    dated, criminal record.

E.

CONCLUSION

[93]

For the
    foregoing reasons, I would allow Cadeddus appeal, quash his conviction and
    order a new trial.

[94]

I would grant
    Seaton leave to appeal his sentence, but dismiss the appeal.

Released: December 4, 2013 (JL)

G.R. Strathy J.A.

I agree  John Laskin J.A.

I agree  E.E. Gillese J.A.

[1]
While the expert evidence described it as a long cylindrical object, counsel
    acknowledge that it was a baseball bat.

[2]
The appellant also submitted that the trial judge: (a) failed to instruct the
    jury that they must acquit both accused if they could not determine which one
    had committed the offence; (b) failed to give an instruction concerning
    propensity reasoning; and (c) failed to give an instruction limiting the jurys
    use of prejudicial hearsay evidence.

[3]
This instruction is based on
R. v. Thatcher
, [1987] 1 S.C.R. 652.

[4]

There is an exception to this objective standard
    in the case of murder. For constitutional reasons, a party cannot be convicted
    of murder on the grounds that they ought to have known that murder would be a
    probable consequence of their common unlawful plan with the principal.  As
    Rosenberg J.A. recently affirmed in
Ferrari,
at para. 61, the party must
    have known that the principal offender would probably commit murder: see also
Logan
,
    at pp. 744-745. Where the principal
    is convicted of murder, a party under s. 21(2) can be convicted of
    manslaughter.

[5]
Final 100-A, Parties (Introductory Instruction), para. 5.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chenier, 2013 ONCA 775

DATE: 20131219

DOCKET: C56925

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Patrick Chenier and Lianne Bisaillon

Respondents

Tracy Kozlowski, for the appellant

Michael Haraschuk and Matthew Leef, for the respondent
    Patrick Chenier

Stephanie E. Baker, for the respondent Lianne Bisaillon

Heard and released orally: December 13, 2013

On appeal from the stay entered on March 20, 2013 by
    Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant Crown appeals the order of Hennessy J. of the Superior
    Court of Justice dated March 20, 2013, staying the charges against the
    respondents.

[2]

The Crown contends that the trial judge made six errors in her s. 11(b)
    analysis: (1) she improperly penalized the Crown for late disclosure and the
    adjournment of the first preliminary hearing; (2) she wrongly attributed delay
    to the Crown when the preliminary hearing did not proceed on the second
    scheduled date because one co-accused was ready to plead guilty and the other
    co-accused dismissed his lawyer that day; (3) she incorrectly attributed delay
    to the Crown for the period between the conclusion of the preliminary hearing
    and the filing of the indictment; (4) she erred in attributing delay to the
    Crown with respect to the scheduling of the superior court pre-trial; (5) she
    incorrectly attributed delay to the Crown for the period between the superior
    court pre-trial and the scheduled date for the s. 11(b) hearing/trial; and (6)
    her prejudice analysis is flawed.

[3]

Although we do not agree with all aspects of the trial judges reasons
    on all of these issues, we do think that her legal analysis is consistent with
    the tenor and content of the leading decision of the Supreme Court of Canada on
    s. 11(b),
R. v. Godin
, [2009] 2 S.C.R. 26, and that her ultimate
    conclusion, in this very straightforward case, that after 25 months since the
    charges were laid, a stay was appropriate in the circumstances, is a reasonable
    one.

[4]

We emphasize two factors in reaching this conclusion.  First, the trial
    judges reasons are clearly driven by her knowledge of the court structures,
    procedures, and practices in her region; she clearly perceived the delay in
    this case as inconsistent with them.  Second, against the backdrop of extensive
    cross-examination of both respondents on their affidavits, the trial judge made
    strong factual findings about the prejudice flowing from these proceedings for
    both respondents.  We show proper deference to these findings and recognize
    that they were a crucial component of the trial judges reasons.

[5]

The appeal is dismissed.

Doherty
    J.A.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clovis, 2013 ONCA 755

DATE: 20131212

DOCKET: C57650

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Myus Clovis

Applicant/Appellant

Richard Litkowski, for the appellant

Shawn Porter, for the respondent

Heard and released orally: December 6, 2013

On appeal from the judgment of Justice
Nancy
    L. Backhouse
of the Superior Court of Justice, dated June 11, 2013, dismissing
    the application for
certiorari
and upholding the order of Justice
William P. Bassel
of the Ontario Court of Justice, dated October
    1, 2012, committing the appellant for trial.

ENDORSEMENT

[1]

Mr. Clovis appeals pursuant to s. 784(1) of the
Criminal Code
the decision of Backhouse J. dismissing his motion to quash the decision of
    Bassel J. committing him for trial on four firearms offences.

[2]

The central issue at the preliminary inquiry was whether there was some
    evidence which, if accepted by a properly instructed jury, could support the
    conclusion that the appellant had possession of a shotgun when it was located
    by the police in his residence approximately ten minutes after it had been
    fired on the street in front of his home.

[3]

As the reviewing judge noted, the decision to commit the accused for
    trial could be set aside only if there was a jurisdictional error.  She
    recognized that it is not the role of the reviewing court to weigh the
    evidence, but to decide if there was an evidentiary basis upon which the court
    below could form the opinion that the evidence was sufficient to justify a
    committal for trial.  To the extent that there was circumstantial evidence, the
    preliminary inquiry judge was required to engage in a limited weighing of the
    whole of the evidence.  No objection was taken by the appellant to the
    reviewing judges articulation of the relevant legal principles.

[4]

The appellant submitted that the jurisdictional error in this case
    occurred when the preliminary inquiry judge committed the accused based on what
    the appellant asserted were inferences that could not be reasonably drawn from
    the evidence.  The appellant submitted that the line between reasonable
    inference and speculation was crossed, and that there was not sufficient
    evidence upon which a jury could conclude beyond a reasonable doubt that the
    appellant had knowledge, consent and control over the firearm at the time it
    was located by the police.  The appellant argued that the only reasonable
    inference from the location of the gun, and the presence of a number of people
    in the apartment, some of whom were not known to the appellant, is that the gun
    was thrown into his bedroom by someone without his knowledge or consent.

[5]

We disagree.  The evidence at the preliminary inquiry went beyond the
    fact that the gun was found in an apartment rented solely by the appellant, and
    that he was present in the apartment between the time the gun was used outside
    and some ten minutes later when the police entered the apartment and found the
    gun in his bedroom.  There was evidence as to the size of the gun, the size and
    configuration of the apartment, the location and condition of the bedroom, as
    well as the evidence of the appellants friend, Mr. Aristide, who was present
    at the time, as to the appellants activities, the fact that the appellant did
    not like anyone going into his bedroom, and that he had told others to come in
    from the front porch earlier in the evening.  This was evidence from which it
    could reasonably be inferred that the appellant was exerting some level of
    control over what was occurring at his apartment, and that he would have known
    of and consented to the presence in his bedroom of the shotgun (a large object
    even with the stock removed), whether he put it there himself or whether it was
    thrown into the room by someone else.

[6]

It is not the role of the preliminary inquiry judge to resolve any
    competing inferences from the evidence.  We agree with the assessment of the
    reviewing judge that there was evidence from which the appellants knowledge,
    consent and control in relation to the firearm could be inferred. Accordingly,
    the appellant was properly committed for trial on the firearms offences.

[7]

For these reasons, the appeal is dismissed.

E.A.
    Cronk J.A.

David
    Watt J.A.

K.
    van Rensburg


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan, 2013 ONCA 774

DATE: 20131219

DOCKET: C55452

Doherty, MacPherson and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Duncan

Appellant

P. Andras Schreck and Candice Suter, for the appellant

Suhail Akhtar, for the respondent

Heard and released orally: December 12, 2013

On appeal from the conviction entered on February 29,
    2012 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting
    with a jury.

ENDORSEMENT

[1]

The appellant William Duncan appeals his conviction by Tausendfreund J.
    of the Superior Court of Justice, sitting with a jury, for possession of child
    pornography and making child pornography available.  The appellant abandoned
    his sentence appeal.

[2]

The appellant appeals on three grounds: (1) the trial judge did not
    instruct the jury properly on wilful blindness; (2) the trial judge erred by
    permitting the jury to view a 20 second portion of a video showing child
    pornography after the appellant admitted that there was child pornography on
    his home computer; and (3) the trial judge misstated in his jury charge an
    important aspect of the testimony of an expert witness.

[3]

We did not call on the Crown to address the second issue.

[4]

In our view, the appeal must be resolved in favour of the appellant on
    the first ground.  As the trial unfolded, the Crowns principal position was
    not that the appellant had actual knowledge of the child pornography on his
    home computer, but that he was wilfully blind about the child pornography that
    his house guest had placed and used on the computer.  The house guest was a
    young man who the appellant permitted to live with him, and with whom he later
    developed a sexual relationship.

[5]

The Crown concedes that the trial judges original charge on wilful
    blindness was too broad in that he told the jury that wilful blindness applied
    if the appellant knew that the child pornography
could be
accessed
    through Limewire or had a suspicion that it could be. [Emphasis added.]  The
    Crown acknowledges that the doctrine of wilful blindness has application only
    if the appellant suspected that child pornography
was
being accessed.

[6]

However, the Crown contends that the trial judges re-charge cured the
    problem.

[7]

The trial judge re-charged the jury as follows:

[W]hen I refer to count number one in the indictment, and this
    is possession of child pornography, and what I had indicated to you that if you
    find William Duncan  for you to find William Duncan guilty on count one, you
    must be satisfied beyond a reasonable doubt that William Duncan either accessed
    child pornography on his computer or was wilfully blind to the fact that it was
    being accessed.  That still stands. Beyond accessing, what possession includes
    is that not only accessing, but that William Duncan knew that child pornography
    was on the computer that day and was either  either knew it or was wilfully
    blind to the fact that it was on.  So, let me re-charge you then with respect
    to count one.  For you to find William Duncan guilty on count one, possession
    of child pornography, you must be satisfied beyond a reasonable doubt that
    William Duncan either accessed child pornography on his computer or knew that
    there was child pornography on his computer or was wilfully blind to the fact
    that child pornography was being accessed on his computer
or
was
    wilfully blind to the fact that child pornography was on his computer and
    wilfully blind in the sense that he either knew that child pornography
could
    be accessed
through Limewire
or had a suspicion that it could be
,
    or that he was wilfully blind to the fact that child pornography was on his
    computer or had
a suspicion
that it was on his computer but had made a
    conscious decision not to determine, if his suspicion was, in fact, an
    actuality.  And if so, if you are satisfied beyond a reasonable doubt of that,
    you must find him guilty.  [Emphasis added.]

[8]

We agree with the appellant that there are two problems with this
    re-charge.

[9]

First, the re-charge did not correct the original error in the charge;
    indeed, in the emphasized language above, the trial judge repeated and
    therefore reinforced the error.  The problem with the original charge, as the
    Crown now concedes, is that the trial judges definition of wilful blindness
    was too broad.  Similarly, however, in the re-charge the language, emphasized
    above, of could be and had a suspicion that it could be  does not say
    anything about the level of suspicion to engage the doctrine of wilful
    blindness: see, for example,
R. v. Briscoe
, 2010 SCC 13, at paras. 21
    and 23, and
R. v. Malfara
, 211 O.A.C. 200, at paras. 4-5.

[10]

Second,
    and with respect, the summary of wilful blindness set out above, starting with
    the words For you to find is very confusing.  We do not think that this short
    passage, packed with five or more possible routes to conviction, including some
    involving wilful blindness and others not involving it, would have been
    comprehensible to a jury.

[11]

The
    appeal is allowed, the convictions are quashed, and a new trial is ordered.

Doherty
    J.A.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.