COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Magno, 2015 ONCA 111

DATE: 20150217

DOCKET: C54361

Doherty, Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Magno

Appellant

Marie Henein, Matthew Gourlay and Christine Mainville, for
    the appellant

John Pearson, for the respondent

Heard: November 19 and 20, 2014

On appeal from the conviction entered on June 29, 2011 and
    the sentence entered on September 23, 2011 by Justice T. Ducharme of the Superior
    Court of Justice, sitting with a jury, with reasons for sentence reported at 2011
    ONSC 5552.

Hourigan J.A.:

Overview

[1]

John Magno appeals his conviction on charges of
    manslaughter, conspiracy to commit arson, arson causing bodily harm and arson
    for fraudulent purposes.  He also seeks leave to appeal his sentence of 12
    years imprisonment.

[2]

On the conviction appeal, the appellant submits
    that the trial judge erred in his
Vetrovec
warning to the jury and in
    admitting certain hearsay statements of the appellants alleged co-conspirators.
    The appellant also submits that the verdict is unreasonable. On the sentence
    appeal, he submits that the sentence imposed by the trial judge is unfit.

[3]

For the reasons that follow, I would dismiss the
    conviction appeal. While I would grant leave to appeal sentence, I would also
    dismiss the sentence appeal.

Facts

[4]

On the evening of December 24, 2001, the
    appellants hardware store, Woodbine Building Supply (WBS), was looted. Seven
    people were present during the looting: Tony Jarcevic, Jonathan Sam Paskalis,
    Shaun McMaster, Jason Regaldo, Chris Graham, Denver Read and Jennifer Read.

[5]

Later that night, Jarcevic and Paskalis set fire
    to WBS, causing a large explosion that completely destroyed the building. As a consequence
    of the explosion and fire, Jarcevic died and Paskalis was seriously injured.

[6]

The appellant made an insurance claim of approximately
    $3,000,000 for the destruction of WBS, which has not been paid.

[7]

Following an investigation into the fire, which
    included telephone wiretaps and vehicle probes, the police arrested all those
    who were present at WBS on the evening of the arson, as well as Adrian Roks and
    the appellant. For their roles in the scheme, Paskalis, McMaster and Roks were convicted
    of manslaughter and Regaldo was convicted of conspiracy to commit arson.

[8]

The appellant was charged with second-degree
    murder, conspiracy to commit arson, arson causing bodily harm and arson for
    fraudulent purposes. The sole issue at trial was whether the appellant was a
    participant in the conspiracy to burn down WBS. The appellant did not testify.

[9]

The Crowns theory at trial was that the
    appellant hired Paskalis to organize and commit an undetected arson at WBS. The
    alleged purpose of the arson was to save demolition costs and gain insurance
    proceeds to fund a condominium development on the land.

[10]

Defence counsel argued that all of the evidence
    implicating the appellant in the arson scheme originated from Paskalis, who was
    an inherently unreliable witness due to his history of criminal activity and
    lying to the authorities.
The theory of the defence was that Paskalis
    was attempting to shift the blame to the appellant for an arson that he
    orchestrated as a cover-up for the looting of WBS.

[11]

The defence relied on wiretap evidence to
    demonstrate collusion among the Crowns witnesses. In particular, defence
    counsel pointed to conversations intercepted by the police that revealed that Paskalis
    told Roks what to tell the police and that Paskalis was angry that Graham had given
    the police information that contradicted his story.

[12]

Further, Roks, Graham, Regaldo and McMaster all
    admitted at trial to discussing their stories with each other after the fire and
    to lying to the police after receiving instructions to do so from Paskalis.

[13]

Paskalis also admitted that he had met
    repeatedly with the other men after the fire to discuss what they were telling
    the police. In particular, he admitted to conspiring with Roks to lie to the police
    and to threatening Graham to change his story.

[14]

The Crown was permitted to adduce hearsay
    evidence of the appellants involvement in the arson scheme under the
    co-conspirator exception. In particular, Regaldo testified that Jarcevic said
    he was going to burn down the appellants store for insurance money and to get
    in good with Paskalis and the appellant. Regaldo also testified that on the
    night of the fire, Roks said he was going to the appellants house to provide
    the appellant with an alibi.  Further, Regaldo testified that, after the fire,
    Roks told him the appellant could not talk to him because there was a lot of
    heat.

[15]

McMaster also provided hearsay evidence
    implicating the appellant in the arson scheme. He testified that Paskalis and
    Roks told him the purpose of the fire was to collect the appellants insurance
    proceeds. McMaster also testified that Roks said he was going to be at the
    appellants house as an alibi. He further testified that, after the fire, Roks
    said he deleted photos showing a tie between Jarcevic and the appellant.

[16]

After receiving instructions from the trial
    judge, which included a
Vetrovec

warning to approach the
    evidence of the colluding witnesses with caution, the jury found the appellant
    guilty of the lesser included offence of manslaughter, as well as the three
    arson offences.

[17]

When considering the appropriate sentence, the trial
    judge found that the appellant was the chief instigator and operating mind
    behind the arson, had promised remuneration to the co-conspirators for their
    involvement, and had participated in the conspiracy to cover up the arson. The
    trial judge ordered a global sentence of 12 years imprisonment, less two
    years credit for pre-trial custody and restrictive bail.

Positions of the Parties

[18]

The appellant appeals the conviction on three
    grounds. First, he submits that the trial judge erred in his
Vetrovec
warning
    by instructing the jury that the colluding witnesses could potentially confirm
    each others evidence. The appellants position is that whether evidence is
    capable of being confirmatory is a question of law to be determined by the
    trial judge. Therefore, where witness collusion is indisputable, as in this
    case, the trial judge must instruct the jury that the evidence of the colluding
    witnesses cannot be mutually confirmatory, rather than leaving this
    determination to the jury.

[19]

Second, the appellant submits that the trial
    judge erred in admitting certain hearsay statements under the co-conspirator
    exception. In particular, he argues that the statements were not made in
    furtherance of any conspiracy involving the appellant; that the content of the
    statements originated from Paskalis, whom the trial judge found to be an inherently
    unreliable witness; and that the statements were not necessary, as all the
    co-conspirators, except the deceased Jarcevic, were available to, and did in
    fact, testify at trial.

[20]

Third, the appellant submits that the jurys
    verdict is unreasonable because all the evidence implicating the appellant
    originated from an unreliable witness, Paskalis. He argues that no other
    evidence supported the verdict, or, if it did, it was insufficient to ground
    the verdict without Paskaliss evidence.

[21]

The appellant also seeks leave to appeal the
    sentence, submitting that the trial judge unfairly dismissed an array of pro-social
    mitigating factors and that the sentence is unfit.

[22]

The respondent submits that the trial judge
    correctly instructed the jury on the evidence of the co-conspirators. In the
    respondents view, the evidence of these witnesses was not incapable of being
    mutually confirmatory. Although the witnesses admitted to colluding to
    frustrate the police investigation, it was up to the jury to determine whether
    that collusion affected the independence of the evidence the witnesses gave at
    trial.

[23]

Further, the respondent submits that the trial
    judge provided the jury with a clear, accurate and thorough
Vetrovec

warning in accordance with the framework set out in
R. v. Khela
,
    2009 SCC 4, [2009] 1 S.C.R. 104. He devoted nine pages of his charge to general
    instructions on this issue and gave additional witness-specific cautions. Most
    significantly, the trial judge instructed the jury that if they believed the
    witnesses colluded in terms of what they said at trial, their evidence could
    not be considered independent and mutually confirmatory.

[24]

With regard to the hearsay statements, the
    respondent submits that they were properly admitted under the co-conspirator
    exception. The necessity requirement is met not only where a witness is
    unavailable to testify, but also where he cannot be expected to provide
    evidence of the same value at trial, as was the case here. Further, weaknesses
    in the reliability of the evidence go to weight, for the jury to assess.

[25]

Next, the respondent submits that the verdict
    was not unreasonable as there was evidence of the appellants close
    relationship with Paskalis, as well as his motive for and involvement in the
    arson scheme. It was open to the jury to accept some, none or all of the
    evidence given by the colluding witnesses, and to consider additional
    inculpatory evidence.

[26]

Finally, the respondent submits that the
    sentence is fit for the primary motivator of the arson, and that the trial judge
    made no error in principle.

Issues

[27]

The issues are, therefore, as follows:

i.

Did the trial judge err in his
Vetrovec

warning by leaving it to the jury to determine whether the evidence of the
    co-conspirators was independent and thus capable of being mutually confirmatory?

ii.

Did the trial judge err in admitting certain
    hearsay statements of the co-conspirators?

iii.

Is the jurys verdict unreasonable?

iv.

Is the sentence imposed unfit?

Analysis

(i)
Vetrovec
Warning

[28]

The governing legal principles regarding
Vetrovec
warnings were summarized by Watt J.A. in the related case,
R. v. Roks
,
    2011 ONCA 526,
274 C.C.C. (3d) 1, at paras. 63-64, 67,
as
    follows:

Among the essential elements of a
Vetrovec

caution
    is an instruction about the essential characteristics of confirmatory evidence.
    Jurors are to be told that, in determining the veracity of the suspect
    evidence, they should look for evidence from another source tending to show
    that the untrustworthy witness is telling the truth about the guilt of the
    accused:
Khela
, at para.
37;
R. v. Kehler
,
    [2004] 1 S.C.R. 328, at paras. 17-19;
R. v. Sauvé
(2004), 182 C.C.C.
    (3d) 321 (Ont. C.A.), at para.
82, leave to appeal refused, [2005] 1
    S.C.R. xv. The trier of fact is to look for confirmation from some other source
    (the independence requirement) that the suspect witness is telling the truth in
    some part of his story that goes to show that the accused committed the offence
    charged (the implicative quality or materiality requirement):
Kehler
,
    at para. 19;
R. v. Vetrovec
, [1982] 1 S.C.R. 811, at p. 829.

The
independence
requirement insists that to be
    confirmatory, evidence must
not
be tainted by connection to the
Vetrovec
witness:
Khela
, at para. 39.

Despite the bar against mutual
    corroboration by those who were
participes

criminis
under the former accomplice rule, there may not be a similar injunction against
    mutual confirmation by
Vetrovec
witnesses, at least in the absence of a finding of collaboration or collusion
    among them:
R. v. Winmill
(1999), 131
    C.C.C. (3d) 380 (Ont. C.A.), at para. 120;
R. v. Pollock
(2004), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 161;
R.
    v. Naicker
(2007), 229 C.C.C. (3d) 187 (B.C.
    C.A.), at para.
34;
R. v. Illes
(2007),
    217 C.C.C. (3d) 529 (B.C. C.A.), at paras.
30-31,
    reversed on other grounds, [2008] 3 S.C.R. 134.
[Emphasis in original.]

[29]

In
R. v. Winmill
(1999),
42 O.R.
    (3d) 582
, Osborne J.A. considered the degree of
    collaboration or collusion necessary before the evidence of one unsavoury
    witness cannot be corroboratory of another unsavoury witness. In that case, three
Vetrovec
witnesses had collaborated with each other to some degree
    before they spoke to police. The trial judge instructed the jury to scrutinize
    the evidence of each of the three very carefully and to look for other
    supporting evidence before convicting the accused. In holding that the trial
    judges
Vetrovec
charge was sufficient, Osborne J.A. wrote, at paras.
    115-17, 120:

On a common sense basis, the jury should be directed to look
    for any evidence which the jury accepts, that would cause the jury to
    reasonably conclude that the untrustworthy witness is telling the truth. That
    evidence does not have to implicate the accused: this relic pertaining to the
    law of corroboration was jettisoned in Vetrovec. Supporting evidence could come
    from another untrustworthy witness, if the duly cautioned jury chooses to
    believe it. That is to say, it is for the jury to determine whether the
    evidence of one unsavoury witness can provide support for the evidence of
    another. If there are circumstances such as collaboration among the Vetrovec
    witnesses, the jury should be alerted to that fact which will obviously
    militate against using the evidence of one unsavoury witness to support the
    evidence of another. It is for the jury to determine whether an untrustworthy
    witness's evidence is so compromised by collaboration that it could not
    reasonably be used to support the evidence of another untrustworthy witness.
    The final credibility call is, I emphasize, for the jury.

Had the jury concluded that the evidence of Robert, Tina and
    Chris [the three unsavoury witnesses] was fatally compromised by collaboration,
    it would as a matter of common sense follow that the evidence of any one of
    them could not be used to provide support for the evidence of either of the
    others. As I have said, this is a matter that should be left to the jury to
    determine.

In my opinion, the Vetrovec charge was sufficient. The jury was
    directed by clear language to expose the evidence of Robert, Tina and Chris to
    special scrutiny. The trial judge reminded the jury that they discussed what
    they would say to the police and that each of them had made false statements to
    the police. Consistent with Vetrovec, it was for the jury to determine whether
    the evidence of any of Robert, Tina and Chris was compromised by a desire to
    protect themselves, or by their discussions about what they would say, and did
    say, to the police. The jury was duly warned about the danger of accepting
    their evidence.

I am not prepared to hold that the evidence of one unsavoury
    witness cannot provide support for the evidence of another. See R. v. Walzak
(1988),
    225 A.P.R. 89
(N.S.S.C. (App. Div.)). Such an inflexible rule would
    be inconsistent with Vetrovec, supra, and Bevan, supra. The jury was very much
    aware that Robert, Tina and Chris to some degree collaborated before they first
    spoke to the police. Indeed, their credibility was challenged at both ends of
    the spectrum during their cross-examination and in defence counsel's closing
    submissions. On the one hand, it was suggested that they had jointly discussed
    their versions of events and that that explained the structural similarity in
    their evidence. On the other hand, each of them was attacked on the basis of
    inconsistencies in his or her evidence when it was compared with the evidence
    of the other two unsavoury witnesses.

[30]

Therefore, collusion among
Vetrovec
witnesses
    does not necessarily prevent the evidence of one such witness from confirming
    the evidence of another. It is not enough that the unsavoury witnesses are
    tainted by allegations of collusion; the evidence they provide and that is
    potentially confirmatory of each others evidence must be so tainted by
    collusion that it loses its required independence and cannot reasonably be used
    as confirmation. This is a matter for the jury to decide.

[31]

The nature and content of a
Vetrovec
warning is highly dependent on the facts of the particular case. Appellate
    courts afford trial judges considerable deference in fashioning a warning that
    is appropriate in the circumstances. The warning will generally
be held to be sufficient where it: (i) draws the attention of the
    jury to the evidence requiring special scrutiny; (ii) explains why the evidence
    requires special scrutiny; (iii) cautions the jury that it is dangerous to
    convict on unconfirmed evidence of this sort, though the jury is entitled to do
    so if satisfied it is true; and (iv) tells the jury that in determining the
    veracity of the suspect evidence, it should look for evidence from another
    source tending

to

show

the

untrustworthy

witness

is

telling

the

truth

as

to

the

guilt

of the

accused:
Kehla
, at paras. 37, 44.

[32]

The critical role of confirmatory evidence and
    the importance of a clear instruction on the point were described by Fish J. in
Khela
, at para. 46:

[T]he absence or presence of confirmatory evidence plays a key
    role in determining whether it is safe to rely on the testimony of an impugned
    witness (
Harris
, at p. 222).  Accordingly, the instruction to the
    jury must make clear the type of evidence capable of offering support. It is
    not sufficient to simply tell the jury to look for whatever it feels confirms
    the truth of a witness testimony (see
R. v. Chenier
(2006), 205
    C.C.C. (3d) 333 (Ont. C.A.), at para. 34).

[33]

There is no obligation on the trial judge to
    provide an exhaustive list of all potentially confirmatory evidence. Indeed, in
    some instances the recitation of a seemingly endless list of evidence which is
    potentially supportive of the untrustworthy witness and, necessarily, the
    Crowns case, can result in an injustice to the accused by upsetting the
    required balance in the charge:
R. v. Bevan
,
[1993] 2 S.C.R.
    599,
at p. 613. Therefore, it is left to the trial judges
    discretion to identify potentially confirmatory evidence in a manner that does
    not impair the accuseds right to a fair and balanced charge.

[34]

In the present case, the trial judge provided a
    very thorough review of the law related to
Vetrovec
warnings. He
    reviewed in detail the reasons why the jury might conclude that there was
    collusion among the co-conspirator witnesses and tainting of their evidence. Specifically,
    the trial judge noted that:

·

the witnesses admitted to colluding to get their
    stories straight for the police, which raises the real possibility that some
    or all of them may have colluded with one another in terms of what they would
    testify to at this trial;

·

the witnesses received disclosure of the Crowns
    case;

·

Paskalis, McMaster and Regaldo sat through the
    preliminary hearing where the Crown presented its theory of the case;

·

Regaldo admitted that, by August 2002, he was
    aware that the police theory of the case was that the motive of the arson was
    insurance fraud;

·

the witnesses were all made aware, prior to
    providing their final statements to the police, that the police wanted
    information that would implicate the appellant;

·

Paskalis, McMaster and Regaldo remained friends
    and had contact with each other during the trial and were in custody when
    Paskalis and Regaldo gave their statements to police; and

·

Paskalis, Roks, Regaldo and Graham all provided statements
    to the police at a time when they were working to resolve the charges against
    them, which may have given them motive to tell the police a version of events
    that implicates the appellant.

[35]

After reviewing these facts, the trial judge
    summed up as follows:

As a result of those factors you may find that none of their
    evidence, none of the evidence of the untrustworthy witnesses, is sufficiently
    independent for you to rely upon it as corroboration one for the other. You may
    also find that, despite their past collusion, that their testimony at trial is
    not the result of collusion and is, in fact, independent from one another. That
    is for you to decide after considering all of the evidence.

[36]

Counsel for the appellant fairly concedes that,
    with the exception of the reference to the evidence of the co-conspirators as potentially
    confirmatory, the
Vetrovec
caution was correct. The issue then is
    narrowed to whether the evidence of the co-conspirators should have been left
    with the jury to determine if it was sufficiently independent to be mutually
    confirmatory.

[37]

The evidence of one
Vetrovec

witness
    can confirm the evidence of another
Vetrovec

witness
.
However,
    to be confirmatory, the evidence must be independent. Collusion among
Vetrovec
witnesses can, but will not necessarily, deprive the evidence of the requisite
    quality of independence.  The question is ultimately not whether the witnesses
    colluded, but rather whether there was collusion that rendered the evidence of
    one not independent from the evidence of the other.  The independence inquiry
    looks to the impact of collusory conduct on the independence of the evidence,
    not the independence of the witnesses from each other:
Winmill
, at
    paras. 115-116.

[38]

The appellant submits that the trial judge
    failed to fulfill his gatekeeper function because he instructed the jury that
    the evidence of the co-conspirators could potentially be confirmatory when that
    evidence was, in fact, not sufficiently independent. The Crown submits that the
    trial judge has no gatekeeping role in these circumstances and that the
    determination of whether the evidence is independent is part of the jurys
    fact-finding function.

[39]

I agree with the Crown that the determination of
    whether evidence is independent, and therefore potentially confirmatory of the
    testimony of a
Vetrovec
witness, is primarily part of the jurys
    fact-finding function. Independence in the context of the
Vetrovec
instruction cannot be confused with the absence of tainting or collusion in the
    context of similar fact evidence. While both address questions of the
    independence of evidence, they do so in very different contexts, which impacts
    the extent of the trial judges gatekeeping function.

[40]

In the case of similar fact evidence, which is
    presumptively inadmissible, the independence of the evidence  that is, the
    absence of collusion or tainting  is fundamental to determining the probative
    value and hence the admissibility of the evidence.  Consequently, a trial judge
    has a significant gatekeeping role to play and must exclude the proffered
    evidence unless satisfied on a balance of probabilities that the similarities
    are not the product of collusion or tainting:
R. v. Handy
,
2002
    SCC 56, [2002] 2 SCR 908,
at para. 112.

[41]

In contrast, when the independence of evidence
    arises in the context of its ability to rehabilitate a
Vetrovec
witness,
    there is no question about the admissibility of the evidence.  Rather, the
    question is how the trier of fact may use the admissible evidence. In this
    context, the trial judge has a more modest role to play in assessing the
    independence of the evidence. He or she must determine if the evidence is
    capable of being viewed as independent of the
Vetrovec
witness
    evidence. If there is a reasonable basis for a finding that the evidence is
    independent of the testimony of the
Vetrovec
witness, the trial judge must
    allow the jury to exercise its fact-finding function and make the ultimate
    determination as to the independence of the evidence.

[42]

In some cases, there will be evidence which, to
    the jurys untrained eyes, appears potentially confirmatory, but cannot in law
    be confirmatory.  In those cases, the trial judge must ensure that the jury is
    not misled by identifying the evidence and instructing the jury that it is not
    capable of providing independent confirmation of the
Vetrovec
witness. For
    example, where a prior consistent statement or impermissible hearsay evidence
    appears to be confirmatory, the trial judge would be obliged to explain to the
    jury why they cannot rely on that evidence as confirmatory. This is not a matter
    of usurping the jurys fact-finding function; they have no such function where
    they could not reasonably conclude that the evidence was independent.

[43]

It is the duty of the trial judge to carefully
    scrutinize the evidence and determine if it is capable of being independent. If
    there is any reasonable basis for it to be considered independent, the trial
    judge must allow the jury to exercise its fact-finding function. In my view,
    considerable deference is owed to a trial judge who is engaged in this analysis,
    as he or she is best positioned to determine whether the jury could reasonably
    conclude that the evidence is independent.

[44]

There are two bases upon which the appellant
    argues that the evidence of the co-conspirator witnesses in the present case is
    not independent. The first is that their testimony, particularly their cover-up
    story, was tainted and/or the product of collusion. The second is that Paskalis
    was the original source of the evidence.

[45]

In my view, the trial judge did not err in
    concluding that it was open to the jury to find that the co-conspirators evidence
    was independent. While there was significant evidence of collusion among the
Vetrovec
witnesses, there was a reasonable basis on which the jury could conclude
    that the witnesses evidence implicating the appellant was independent of each
    others.

[46]

With respect to the issue of collusion, the co-conspirators
    admitted to discussing their stories with each other both before and after
    providing statements to the police. The wiretap evidence also makes clear that
    they were attempting to minimize their involvement in the robbery and fire. In
    addition, the co-conspirators admitted at trial that they colluded to frustrate
    the police investigation. However, there was no clear evidence that the
    co-conspirators colluded for the specific purpose of implicating the appellant.
    The only collusion evidence that directly referred to the appellant was the
    direction given by Paskalis to Roks and Graham to tell the police that the
    appellant knew Paskalis was at WBS the night of the fire. Paskalis testified
    that this direction was meant to support his fabricated alibi that he went to
    WBS to pick something up, with the appellants permission, and when he arrived
    there, the building exploded. Therefore, while there was undisputed evidence
    that the co-conspirators colluded to exculpate themselves, there was no clear,
    let alone indisputable, evidence that they colluded specifically to implicate
    the appellant.

[47]

Further, the co-conspirators trial testimony differed
    from their post-arson police statements, which were intended to frustrate the
    police investigation. Most notably, at trial, the co-conspirators admitted that
    they colluded to cover-up the arson. However, they did not concede that they
    colluded regarding their trial evidence or that their evidence was tainted by reason
    of their knowledge of the Crowns theory, or their desire to co-operate with
    the police to reduce their sentences.

[48]

An inference could be drawn that the co-conspirators
    trial testimony was not independent because it was the product of collusion. However,
    it was also open to the jury to conclude that, while the co-conspirators statements
    to the police were the product of collusion, their trial testimony was not.
    Similarly, while an inference could be drawn that the co-conspirators tailored
    their evidence to fit the theory of the police and the Crown to help reduce
    their sentences, it was also open to the jury to conclude that the evidence had
    not been tainted in this way. Therefore, the jury had a role to play in
    determining if the co-conspirators

evidence was
    independent and the trial judge did not err in pointing to this evidence as
    potentially confirmatory.

[49]

With respect to the argument that the evidence
    could not be independent because Paskalis was the original source of it all, I
    note that the trial judge specifically instructed the jury that [i]f the
    evidence is connected to the untrustworthy witness, it cannot confirm his
    evidence.  He explained, for example, that if Roks reported something that
    Paskalis said to him, that evidence could not confirm the evidence of Paskalis.

[50]

The appellant submits that Paskalis was the
    actual source of statements attributed to Jarcevic to the effect that he was
    going to set fire to WBS for the insurance proceeds and that this was his opportunity
    to get in good with Sam [Paskalis] and John [the appellant].

[51]

According to the appellant, there is an irresistible
    inference on the entirety of the record that these statements originated from
    Paskalis because Jarcevic did not have any direct contact with the appellant. Rather,
    Paskalis was the only one who testified to having direct communications with
    the appellant about the arson scheme. Although Paskalis testified that Jarcevic
    and Roks were present at one of the meetings with the appellant, cellphone
    tracking evidence indicated, and the Crown conceded, that Jarcevic could not
    have been at the appellants home at the time of the alleged meeting.
    Therefore, the appellant submits that Paskalis must have been the source of Jarcevics
    belief that the appellant was involved in the scheme, which Jarcevic then passed
    on to Regaldo and McMaster.

[52]

On this basis, the appellant submits that the
    trial judges admission of the statements attributed to Jarcevic effectively
    permitted Paskaliss unreliable statements to be admitted into evidence,
    despite the trial judges determination that they should not be admitted due to
    their lack of reliability.

[53]

While it was open to the jury to find that
    Paskalis was the source of all Jarcevics statements implicating the appellant,
    I am not satisfied that this was the only available inference. Rather, it was
    open to the jury to find that the statements originated from the appellant himself.

[54]

The jury was correctly instructed that to rely
    on Jarcevi
cs
statements under the co-conspirator
    hearsay exception, they had to be satisfied beyond a reasonable doubt that the
    conspiracy existed and that, on a balance of probabilities, the appellant was a
    member of the conspiracy:
R. v. Carter
, [1982] 1 S.C.R. 938, at p. 946;
R. v. Barrow
, [1987] 2 S.C.R. 694, at para. 73.

[55]

Considering the statements in the context of an
    on-going criminal conspiracy, and given that the statements were on a subject
    matter within the particular knowledge of the appellant, being the WBS insurance
    proceeds, it was open to the jury to find that Jarcevics statements were sourced
    to the appellant, rather than by Paskalis. Therefore, the trial judge did not
    err in instructing the jury that these statements could potentially serve as independent
    and confirmatory evidence.

[56]

In conclusion, I find that there was no error in
    the trial judges
Vetrovec
instruction and that this ground of appeal
    must fail.

(ii)

Co-conspirator Hearsay Exception

[57]

The trial judge delivered lengthy reasons on the
voir dire
requested by the Crown to admit certain hearsay statements
    made by the alleged co-conspirators: see
R. v. Magno
,
2012 ONSC
    4001
. Due to serious concerns about the reliability of this
    evidence, the trial judge found this to be one of the exceptional cases where
    the co-conspirator exception to the inadmissibility of hearsay evidence should
    not automatically apply, and a principled analysis was required. The trial judge
    was, therefore, clearly alive to the potential unreliability of this evidence and
    significantly limited the hearsay statements that were admitted for
    consideration by the jury. In particular, he refused to admit statements made
    by Paskalis on the basis that Paskalis is an inveterate liar and his
    statements are, therefore, not reliable (para. 82). The trial judge also
    excluded certain statements he found were not in furtherance of the conspiracy.
    In the end, after carefully establishing their necessity and reliability, the
    trial judge admitted only 13 of the 27 hearsay statements the Crown attempted
    to introduce under the co-conspirator exception.

[58]

In my view, there is no basis to interfere with
    the trial judges ruling on the co-conspirator exception to the hearsay rule,
    as I agree with and adopt his reasoning. The arguments made on appeal were all
    made on the
voir dire
and the trial judge properly rejected them. I
    focus my analysis below on the three principal arguments made by the appellant
    in support of this ground of appeal.

[59]

First, the appellant submits that statements attributed
    to Roks in the testimony of Regaldo and McMaster should not be admitted.  The
    trial judge admitted those statements on the basis that there was very clear
    evidence that Roks was involved both in the original arson conspiracy and the
    post-arson cover-up conspiracy, and that he would not be a co-operative witness
    (paras. 85-86).
The
    appellant argues that the trial judge erred in this regard because t
here was no necessity that these statements be admitted since Roks
    was called as a witness and was not hostile.

[60]

I disagree. The issue of leading a
    co-conspirators hearsay declaration when the witness is available to testify
    was raised but not answered in
R. v. Chang
(2003), 173 C.C.C. (3d) 397
    (Ont. C.A.), at paras. 107, 110.

However, as noted by Blair
    J.A. in
R. v. N.Y.
, 2012 ONCA 745, 270 C.R.R. (2d) 294, at para. 78,
Chang

did not say that non-compellability is required to satisfy the necessity
    requirement. Rather,
it is
the availability
    of the evidence, not the availability of the witness
that is of
    ultimate significance, andwhile co-conspirators may be physically available,
    their testimony rarely is (
emphasis in original).

[61]

Our courts give the necessity criterion a
    flexible definition, capable of encompassing diverse situations:
R. v.
    Smith
,
[1992] 2 S.C.R. 915,
    at pp. 933-34. The necessity criterion is satisfied where it cannot be expected
    that evidence of the same value from the same or other sources will be
    available. Thus, the necessity criterion is fact-specific and its precise
    limits remain to be established in the context of specific cases:
Chang,
at para. 105;
R. v B. (K.G.)
, [1993] 1 S.C.R. 740, at p. 798.

[62]

In his ruling on the co-conspirator exception,
    the trial judge explicitly turned his mind to the fact that Roks was available
    to testify. He also noted that there must be an evidentiary basis for a finding
    of necessity and that it should not be based on mere speculation. The trial
    judge went on to consider Roks particular circumstances: His conviction for
    murder is currently under appeal, he has always maintained his innocence and,
    while he has previously testified, it is obvious that he will not admit making
    any statements that would implicate him in the conspiracy. The trial judge
    concluded that the necessity criterion was satisfied since Roks would not admit
    to making the statements. I see no flaw in this analysis. It was clear that
    Roks evidence at trial would not be of the same value as the hearsay statements.

[63]

Second, the appellant objects to certain statements
    attributed to Jarcevic
in the testimony of Regaldo and McMaster, which were admitted on the basis that

the defence has not identified anything about the
    reliability of his statements that would justify keeping them from the jury.

[64]

The appellant argues again, as he did with
    respect to the
Vetrovec

warning, that these statements must
    have originated from Paskalis, whom the trial judge found to be such an
    unreliable witness that none of his statements were admitted through the
    co-conspirator hearsay exception. The appellant submits that by admitting these
    statements, the trial judge effectively allowed Paskalis's statements into
    evidence, thereby contradicting his own decision to exclude them.

[65]

For this argument to prevail, the only available
    inference open to the jury was to find that Paskalis was the original source of
    all of the statements. However, for the reasons given above, I am not satisfied
    that this was the only available inference. Accordingly, this argument must
    fail.

[66]

Third, the appellant submits that statements
    made after the fire are not admissible because there was no evidence that the
    appellant was involved in a post-arson conspiracy. Therefore, he argues that these
    statements were not in furtherance of any conspiracy involving the appellant.

[67]

At trial, the Crown submitted that the appellant
    was a member of conspiracy, the object of which was to defraud the appellants
    insurer or, in the alternative, to evade detection after the arson. The
    appellant submitted that the object of the conspiracy was simply to commit the
    arson and, therefore, statements made after the arson could not be in
    furtherance of the conspiracy
.

[68]

The trial judge averted to the admonition of
    Martin J. A. in
R. v. Baron
and
Wertman

(1976), 14 O.R.
    (2d) 173 (C.A.), at p. 198, that to engraft a conspiracy to avoid detection
    and prosecution, as a matter of law, on every conspiracy to commit a crime
    would have far-reaching implications. However, he also noted that Martin J.A.
    expressly recognized that a post-offence conspiracy to evade detection and
    prosecution could be established by evidence in the same manner as any other
    conspiracy para. 37).

[69]

The trial judge was careful not to usurp the
    role of the jury to determine the object of the conspiracy, and limited his
    analysis to the question of whether the particular statements were capable of
    coming within the co-conspirator exception.  He concluded, at para. 51 of
    his ruling on the co-conspirator exception, that:

There is also evidence upon which the jury could find that Mr.
    Magno was a member of a post-arson conspiracy to avoid detection.  Whether
    this latter conspiracy was simply to avoid prosecution or whether it was part
    of a broader continuing conspiracy to defraud the insurer is a matter that must
    be left with the jury. The important point however, is that this means
    that post-arson comments made in furtherance of this conspiracy, however it is
    characterized, are also capable of being admitted under the co-conspirators
    exception.  Thus, I reject the defence submission that all utterances that
    post-date the arson are inadmissible as being incapable of being made in
    furtherance of a conspiracy.  These statements may well be and that is
    something for the jury to decide.

[70]

I agree with the trial judges analysis. It was
    open to the jury to conclude that the appellant was engaged in a post-offence
    conspiracy to evade detection and prosecution or in an on-going conspiracy to
    defraud the insurance company. Therefore, I reject the appellants argument
    that the statements made after the fire could not be in furtherance of a
    conspiracy.

(iii)

Unreasonable Verdict

[71]

The appellant submits that the verdict was unreasonable
    because it was based solely on the unreliable evidence of Paskalis and, if any
    other evidence supported the verdict, it was not sufficient to ground the
    verdict without Paskaliss evidence.

[72]

An appeal court may only interfere with a jury
    verdict on the basis that it is unreasonable where a properly instructed jury,
    acting judicially, could not reasonably have rendered the verdict:
R. v.
    Yebes
, [1987] 2 S.C.R. 168, at para. 25;
R. v. Biniaris
, 2000 SCC
    15, [2000] 1 S.C.R. 381, at para. 36. The appeal court independently weighs the
    totality of the evidence for the limited purpose of determining whether there
    is evidence supporting the verdict and whether the jury's conclusion conflicts
    with the bulk of judicial experience:
Biniaris,
at para. 40;
R. v.
    W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28;
R. v. Wills
,
2014 ONCA 178,
308 C.C.C. (3d)
    109,
at para. 29, affd 2014 SCC 73.

[73]

It is not the role of an appellate court to
    second-guess the jurys credibility assessments. A verdict based on credibility
    assessments, such as that in the present case, is unreasonable only if the
    trial courts assessments of credibility cannot be supported on any reasonable
    view of the evidence:
R. v. Burke
, [1996] 1 S.C.R. 474, at para. 7.

[74]

In cases where there are inconsistencies in the
    evidence and motives to concoct the evidence, a jury may reasonably and
    lawfully deal with such evidence in a variety of ways. It is open to the jury
    to accept all of the evidence, some of the evidence, or none of the evidence of
    each witness. Therefore, an appeal court cannot infer from the mere
    presence of contradictory details or motives to concoct that the jury's verdict
    is unreasonable:
R. v. François
, [1994] 2 S.C.R. 827, at p. 837.

[75]

In the present case, there was a body of
    evidence, independent of the evidence of the Paskalis, that reasonably
    supported a conviction, including:

·

the appellants financial motive in making an
    insurance claim on a policy that was about to expire;

·

the appellants very close relationship with
    Paskalis, including the fact that the appellant funded trips they took to Las
    Vegas together, paid for Paskaliss car insurance and acted as his surety in an
    unrelated criminal proceeding, from which the jury could infer that Paskalis
    was beholden to the appellant;

·

the numerous phone calls between Paskalis and
    the appellant prior to the fire;

·

the testimony of the co-conspirators regarding
    the appellants involvement in the conspiracy;

·

the discovery of the key for a padlock located in
    the parking area of WBS in Jarcevic's van after the fire and the absence of the
    padlock key from the set of keys the appellant provided to the police shortly
    after the fire; and

·

the evidence that on the night of the fire, the alarm
    and sprinkler systems  at WBS were inoperative, as was the alarm system at
    Sunrise Landscaping, another company owned by the appellant to which WSB
    inventory had been transferred.

[76]

It was the responsibility of the jury to evaluate
    and then accept or reject this evidence, in whole or in part, as it saw fit. While
    the appellant argues that the jury should not have accepted much of the
    evidence, I am not satisfied that a properly instructed jury, acting judicially,
    could not reasonably have rendered a guilty verdict based on this evidence.
    Accordingly, there is no basis for appellate interference on this ground of
    appeal.

(iv)

Sentence Appeal

[77]

At trial, the appellant submitted that an
    appropriate sentence was six to eight years imprisonment, less credit for
    pre-trial custody and restrictive bail conditions. The Crown submitted that the
    appropriate sentence was ten years over and above any such credit. The trial
    judge accepted the Crowns submission and imposed a sentence of 12 years, less
    two years' credit, for an effective sentence of ten years.

[78]

The appellant submits that for a first offender
    in his mid-50s with a long history of positive involvement in the community and
    no need for individual deterrence or incapacitation, this sentence is manifestly
    excessive. He notes that Paskalis and McMaster received much shorter sentences
    for the same crime.

[79]

The appellant also submits that the trial judge
    erred in treating as an aggravating factor the negative impact that the
    appellants sentence would have on his family.

[80]

On appeal, the appellant did not make any
    submission on the appropriate sentence that should be imposed, arguing only that
    the sentence should be reduced. In oral argument, counsel for the appellant
    conceded that she was not urging this court to impose a sentence less than the
    sentence imposed on Roks, which was 10 years' incarceration, less pre-trial
    custody. She only asked that the court consider the impact of pre-trial delays,
    the age of the appellant and the shorter sentence imposed on Paskalis.

[81]

I would not give effect to the sentence appeal.
    The sentencing judge gave thorough reasons for the sentence he imposed. He
    carefully reviewed the circumstances of the appellant and the relevant legal
    principles, including denunciation, deterrence and parity.

[82]

The appellant had a high degree of moral
    blameworthiness. He was involved in a conspiracy that was planned over time and
    motivated by greed. He must have known that the fire would put the lives of
    first responders
and nearby residents at risk.
Further, the conspiracy would not have been possible without the
    appellants involvement, as it was his insurance proceeds that were the object
    of the arson scheme. Given that the co-accused, Roks, received a 10-year
    sentence from this court, it would be difficult to say that a 12-year sentence
    for the appellant is inappropriate.

[83]

The sentencing judge accepted the appellants
    submission that his incarceration will be emotionally devastating for his
    family.  However, the sentencing judge concluded, as he was entitled to do,
    that this was not a mitigating factor and that the impact on the family
    underscores that they are victims of the appellant.  I see no error in this
    analysis.

[84]

In these circumstances, the trial judge
correctly concluded that the sentencing objectives of deterrence and
    denunciation must predominate. The reasons for sentence disclose no error in
    principle and the length of sentence imposed is within the range for a serious
    crime of this nature.

Disposition

[85]

For the reasons above, I would dismiss the conviction
    appeal. I would grant leave to appeal sentence, but also dismiss the sentence
    appeal.

Released: February 17, 2015 DD

C.W.
    Hourigan J.A.

I
    agree Doherty J.A.

I
    agree John Laskin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ogbamichael, 2015 ONCA 99

DATE: 20150210

DOCKET: C55501

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tekle Ogbamichael

Appellant

Lance Beechener, for the appellant

Kevin Rawluk, for the respondent

Heard:  February 10, 2015

On appeal from the sentence imposed by Justice Herold of
    the Superior Court of Justice on February 17, 2012.

APPEAL BOOK ENDORSEMENT

[1]

Counsel for the appellant has effectively said all that could be said on
    behalf of the appellant.

[2]

We will proceed on the basis that the appellant has satisfied us that
    there is an error in principle and we will review the sentence on that basis.

[3]

The appellant argues that the appropriate range of sentence includes a
    sentence of six months.  He submits, given the significant immigration
    consequences flowing from a sentence in excess of six months, that a sentence
    of just less than six months would be appropriate.

[4]

Immigration consequences are relevant in fixing the appropriate
    sentence.  However, immigration considerations cannot justify the imposition of
    a sentence that falls outside the appropriate range:
R. v. Pham
, 2013
    SCC 15 at para. 11.

[5]

Having regard to the appellants serious criminal background and the
    many violations of court orders, we cannot agree that a sentence of six months
    falls within, or is even close to, the appropriate range.  Even if we were
    inclined to impose a shorter sentence than the trial judge, it would be well
    above six months.

[6]

The appellant has served the sentence.  As we understand it, the
    appellant does not seek a variation of the sentence unless we were prepared to
    impose a sentence under six months.

[7]

Consequently, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Perrault, 2015 ONCA 105

DATE: 20150212

DOCKET: C57570

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Albert Perrault

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Michael Fawcett, for the respondent

Heard:  February 11, 2015

On appeal from the conviction entered by Justice Main of
    the Ontario Court of Justice, dated May 2, 2012 and the sentence imposed on
    August 14, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The trial judges reasons were responsive to the argument at trial and
    his description of the relationship between the complainant and the appellant
    was grounded in the evidence and an appropriate consideration in addressing the
    defence position that the complainant had attempted to frame the appellant.

[2]

We consider the potential cogency of the fresh evidence in the context
    of the trial record.  We do not accept that the proposed fresh evidence could
    reasonably undermine the credibility of the complainant on the material
    issues.  The fresh evidence is not admitted.

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pinas, 2015 ONCA 136

DATE: 20150227

DOCKET: C58930

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gauthuri Pinas

Appellant

Scott Pearl and Diana Lumba, for the appellant

Amy Rose, for the respondent

Heard and released orally: February 24, 2015

On appeal from the sentence imposed on May 5, 2014 by
    Justice Alison Harvison Young of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

Ms. Pinas appeals from a one-year sentence of imprisonment imposed
    following her guilty plea to robbery. Trial defence counsel who was not counsel
    on the appeal did not advise the sentencing judge until after sentence was
    imposed that a co-accused with similar participation in the offence had
    received a six-month sentence. Further, trial counsel did not advise the
    sentencing judge at all that the appellant was a permanent resident who would lose
    her right to appeal to the Immigration Appeal Division if sentenced to a term
    of imprisonment of six months or more.

[2]

As indicated in
R. v. Pham
, 2013 SCC 15, [2013] S.C.J. No. 100,
    at para. 24, an appellate court has the authority to intervene if the
    sentencing judge was not aware of the collateral consequences of the sentence
    for the offender, or if counsel have failed to advise the judge on this issue.

[3]

We therefore admit the fresh evidence in relation to the immigration
    consequences and turn to a consideration of the appropriate sentence.

The nature of the offence

[4]

The appellant was driving her friend, Tanya Campbell home. They picked
    up two men whom they knew slightly at a convenience store. The men asked both
    women if they knew of any flashy people in the area. The appellant mentioned
    Rudy Lamur and described him as wearing a gold chain. They picked up a third
    man at the request of the other two. The men told the appellant to get Lamurs
    telephone number. The girlfriend Campbell contacted Lamur to ask if she could
    visit him. Lamur agreed.

[5]

Campbell went to Lamurs door. The appellant remained in her car, but
    realized by that point that the men planned to rob Lamur. The men rushed past
    Campbell, tied up Lamur and another occupant and threatened them. Campbell
    returned to the appellants car. The men left the Lamur home, loaded the items
    they had stolen into the appellants car, and the appellant, still with her
    girlfriend in the car, drove away at the mens direction. The appellant did not
    know the men had weapons. The men removed all of the stolen items from her car.

The offender

[6]

At the time of the offence, the appellant was 24 years old and had no
    criminal record. She is a permanent resident of Canada. She has a troubled
    family history and childhood. She has two children, aged 10 and four. One of
    her children is disabled. She was remorseful and regretted her involvement in
    the robbery from the time of the offence. She assisted police with their
    investigation.

[7]

The Crown does not suggest that the six-month sentence imposed on the
    friend was unfit.

[8]

In our view, there is insufficient basis to distinguish between these
    two offenders. While the appellants friend, Tanya Campbell, was some six years
    younger, she retained Lamurs stolen debit card, unlike the appellant, who did
    not keep any of the stolen property. The appellant and Campbell played similar
    roles and had similar levels of moral culpability. Neither had a record.

[9]

Under these circumstances, a similar sentence of six month duration
    would have been appropriate for the appellant.

[10]

Now,
    having the benefit of information about the immigration consequences of such a
    sentence, it falls to the court to consider how to weigh those consequences in
    the sentencing balance.

[11]

As
    observed in
R. v. Hamilton
, 2004, 72 O.R. (3d) 1, at para. 158:

If a trial judge were to decide that a sentence at or near two
    years was the appropriate sentence in all of the circumstances for [the
    offender], the trial judge could look at the deportation consequences for [the
    offender] of imposing a sentence of two years less a day, as opposed to a
    sentence of two years. I see this as an example of the human face of the
    sentencing process. If the future prospects of an offender in the circumstances
    of [the offender] can be assisted or improved by imposing a sentence of two
    years less a day, rather than two years, it is entirely in keeping with the
    principles and objectives of sentencing to impose the shorter sentence. While
    the assistance afforded to someone like [the offender] by the imposition of a
    sentence of two years less a day rather than two years may be relatively small,
    there is no countervailing negative impact on broader societal interests
    occasioned by the imposition of that sentence.

[12]

The
    appellant has resided in Toronto since she was seven years old. She has sole
    custody of two young children, one of whom has been diagnosed with autism
    spectrum disorder. The appellant, although born in the Netherlands, no longer
    understands or speaks Dutch. She has no family or close ties in the
    Netherlands. Her children, were they to accompany her, would be uprooted from
    the only community they have known and all of their family and community
    support, except for their mother.

[13]

Reduction
    of the sentence by one day would not take the sentence outside the acceptable
    range and would improve the rehabilitative prospects for the appellant without any
    countervailing negative impact on broader societal interests.

[14]

Accordingly,
    the sentence imposed following plea is set aside and a sentence of six months
    incarceration less a day is substituted, which has now been served.

J.
    MacFarland J.A.

M.
    Tulloch J.A.

G.
    Pardu J.A.