COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Josipovic, 2019 ONCA 633

DATE: 20190731

DOCKET: C65286 & C63663

Doherty, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Josipovic and Mato Josipovic

Appellants

Delmar Doucette and Daniel Santoro, for the appellant
    John Josipovic

John M. Rosen and Lindsay Trevelyan, for the appellant
    Mato Josipovic

Michael Bernstein, for the respondent Her Majesty the Queen

Heard: January 7 and 8, 2019

On appeal from the convictions entered by Justice
    Harrison S. Arrell of the Superior Court of Justice, sitting with a jury, on December
    18, 2015, and from the sentence imposed on Mato Josipovic on April 8, 2016.

Doherty J.A.:

I

overview

[1]

John Josipovic (John) and his younger brother, Mato Josipovic (Mato),
[1]
were charged with the first degree murder of James Louis Malone (Malone). The
    jury convicted both appellants of second degree murder. Each received a
    sentence of life imprisonment, without eligibility for parole for 13 years.

[2]

Both appellants appeal their convictions. Mato appeals his sentence.
    There is no appeal by the Crown from the acquittals on the first degree murder
    charge.

[3]

Most of the arguments on the conviction appeals focus on the trial
    judges charge to the jury. For the reasons that follow, I am satisfied that two
    of those arguments should succeed. I would quash the convictions and order a
    new trial for both appellants on the charge of second degree murder.

II

the positions of the parties

[4]

The deceased, Malone, was shot at point-blank range and killed as he lay
    on a street in the east end of Hamilton. It was accepted at trial that one of
    the appellants shot and killed Malone and that both appellants were present
    when Malone was killed.

[5]

The Crown argued that the appellants had agreed shortly before the
    shooting that they would hunt down and kill Malone. They went looking for Malone
    in Johns truck. They found him and chased him through the streets of the east
    end of Hamilton for several minutes, firing several shots. Eventually, they
    caught Malone and killed him.

[6]

Various witnesses saw parts of the chase that culminated in the shooting
    of Malone. Some identified the passenger of the truck as the shooter. The Crown
    argued that the evidence supported the inference that Mato was the passenger
    and that John was driving his truck throughout the chase.

[7]

The Crown submitted, however, that it did not matter, for the purposes
    of criminal liability, which brother actually fired the gun. The Crown argued
    that Malones killing was the product of, and done in furtherance of, the
    brothers plan to find and kill him. The Crown took the position that,
    whichever brother fired the fatal shot, both were guilty of first degree
    murder.

[8]

John testified and admitted that he shot and killed Malone. He testified
    that he had the gun throughout and fired all of the shots. He denied any plan
    with Mato to find and kill Malone. According to him, his brother had nothing to
    do with the killing. John advanced the defences of self-defence and provocation.

[9]

Mato also testified. He, too, indicated that John had the gun throughout
    the chase. Mato further testified that he saw John knock Malone to the ground
    with the shotgun, heard a shot as he exited the truck and then observed that
    Malone was deceased. Mato indicated that he was driving Johns truck and doing
    the best he could to get John to stop the pursuit. Mato denied that he was
    party to any plan to murder Malone, and insisted he had no involvement in the
    killing of Malone. He only wanted to go home, but felt he could not abandon his
    brother.

III

the facts

[10]

The
    appellants had known Malone since childhood. They grew up in the same part of
    the east end of Hamilton. John and Malone had been good friends.

[11]

Although
    the appellants had been in and out of trouble as young men, they had settled
    down, gotten good jobs, moved away from the old neighbourhood, and started
    families. They lived beside each other in Grimsby, a town to the southeast of
    Hamilton. Neither had been in trouble with the criminal law for many years.

[12]

Malone
    had remained in the old neighbourhood and had become firmly entrenched in the
    criminal underworld. He had a reputation for criminality, violence and
    intimidation. Malone had been a member of the Hells Angels Motorcycle Club,
    but had been forced out when he physically attacked another member. At the time
    of the homicide, Malone was the head of a gang known as Ruthless.

[13]

Various
    witnesses, including the appellants, testified that they were aware of Malones
    reputation for violence. The jury heard evidence of acts of serious violence
    committed by Malone over the years. They also heard that people who were
    victimized by Malone were afraid to go to the police.

[14]

John
    testified that he made a loan to an acquaintance. When that person did not
    fully repay John, he demanded repayment. The person told John that he was in
    Malones gang and intimated that John should not press him for payment. John
    told this person that he did not care about that persons relationship with
    Malone and that he wanted to be repaid.

[15]

About
    a week before the homicide, Malone spoke to John over the phone. He told him
    that his demands for repayment of the loan had insulted Malone. Within the
    next few days, John became concerned, for various reasons, that Malone would
    harm him and his family. He offered to forget the debt. Malone demanded payment
    of a $9,200 tax. Malone was well-known for using these kinds of extortion
    tactics.

[16]

John
    and Malone met on one occasion in the week before the homicide. Malones
    threats escalated to include Johns family. He physically assaulted John.

[17]

John
    saw no point in paying Malone the demanded tax. He believed that Malone would
    only demand more money and continue to threaten John and his family. John also saw
    no value in going to the police. He believed they would have no interest in
    helping him, and that if he went to the police Malone would have yet another reason
    to harm him.

[18]

John
    decided to do his best to protect himself and his family. He took certain defensive
    measures, including retrieving a shotgun from his parents barn and putting it
    in his truck.

[19]

Mato
    knew nothing about Malones attempt to extort John and his threats against John
    and his family. On the night of the homicide, Malone called Mato at work,
    saying he wanted to speak to him about his brother. Mato agreed to meet with
    him later that evening. Mato phoned John to ask him about Malones call, but
    ended the conversation without discussing the matter upon realizing his brother
    had been sleeping.

[20]

Mato
    and Malone eventually met at a pool hall at around 12:15 a.m. on the night of
    the homicide. The meeting began cordially, but quickly descended into threats
    aimed at John, should he not pay the tax imposed by Malone. Malone told Mato
    that he would also be required to pay the tax.

[21]

Mato
    became concerned for his own safety and decided to leave the pool hall. As he
    was walking across the street, he was attacked by Malone and at least one other
    person. Mato was struck several times. During the attack, Malone put a gun
    against Matos chest. Malone and the other assailant took Matos keys and tried
    to force him into his truck. Mato escaped and fled to a nearby store. Malone
    took Matos truck.

[22]

Mato
    called John and told him what had happened. John immediately left his house and
    drove to get his brother. He had the shotgun with him.

[23]

Mato
    waited at the store from which he had called his brother. While Mato was
    waiting, Malone called and threatened him. When John arrived at the store, Mato
    got into Johns truck. John was in the drivers seat. Mato told his brother
    what had happened. John could see that Mato had been beaten. It was about 1:20
    a.m.

[24]

The
    brothers decided to look for Matos truck. As they were driving around, they saw
    Malone walking his dogs. According to the brothers, this was a pure coincidence
    and they had not gone looking for Malone. The Crown maintained that the
    brothers were, in fact, searching for Malone, having decided to kill him and
    put an end to his assaults and threats.

[25]

John
    drove up to Malone and spoke to him about attacking Mato that night. Malone
    responded with crude language, threatening to kill Johns wife and son, as well
    as John and Mato.

[26]

Immediately
    after Malones threat, one of the appellants fired the shotgun at Malone,
    grazing his neck and tearing the collar of his jacket. Malone fled. A chase
    ensued. At times, both appellants were in the truck chasing Malone and at times
    one of the appellants was on foot and the other was in the truck. Malone was on
    foot throughout the chase.

[27]

Eventually,
    the truck, with both appellants inside, caught up to Malone on the street. One
    of the brothers exited the truck, struck Malone across the head with the
    shotgun, knocking him to the ground and breaking the stock of the shotgun. That
    brother then shot Malone in the head at point-blank range.

[28]

The
    jury heard considerable evidence about the chase that ended with the shooting
    of Malone. Much of the evidence came from persons who saw parts, but not all,
    of the chase. Not surprisingly, their evidence differed in many respects.

[29]

John
    and Mato also described the events. Their evidence was consistent. On their
    evidence, John was initially driving the truck, but jumped from the drivers
    seat to fire the shotgun at Malone after the initial confrontation. According
    to John, he snapped when Malone threatened his family. Mato moved into the
    drivers seat.

[30]

The
    appellants testified that after the initial encounter, Mato was driving the
    truck and John, armed with the shotgun, was either chasing Malone on foot or
    sitting in the passenger seat. According to both brothers, John fired all of
    the shots and John was the person who struck Malone across the head with the
    shotgun, and then shot him in the head, as he lay on the ground.

[31]

Some
    of the evidence from the witnesses who saw parts of the chase supported the
    inference that Mato was the passenger and the shooter. Parts of their evidence were
    also consistent with the Crowns contention that the driver of the truck and
    the individual on foot with the gun were working in tandem in an effort to
    corral Malone. One witness also described what appeared to him to be an
    effort by the driver of the truck to run Malone over.

[32]

Based
    on the timing of the 9-1-1 calls, the fatal shot was fired at 1:26 a.m., about
    three or four minutes after the initial shot was fired. In total, six shots
    were fired at Malone.

[33]

After
    Malone was killed, the brothers immediately drove home to Grimsby. The police
    quickly identified Johns truck as being at the scene of the shooting. They had
    Johns home under surveillance by early the next morning. They saw John
    standing by a fire in the fire pit in his yard. Subsequent forensic examination
    of the fire pit revealed traces of clothing. The Crown theorized that John was burning
    the bloodstained clothing that either he or Mato was wearing at the time of the
    shooting.

[34]

In
    his evidence, John acknowledged that he had removed the toolbox from the back
    of his truck shortly after the homicide. He said he did so because it was
    broken during the chase. The Crown argued that he removed the toolbox in an
    effort to change the appearance of his truck.

[35]

John
    also testified that he threw the shotgun into a bin at a scrapyard. The gun was
    never recovered. The Crown argued that John threw the gun away in an attempt to
    destroy evidence relevant to the homicide.

IV

the grounds of appeal

[36]

Both
    appellants submit that the trial judges instructions, read as a whole,
    conflated the positions advanced by the appellants into a single defence
    position which effectively treated the appellants as a single entity for the
    purposes of the jurys deliberations. The appellants contend that in doing so,
    the trial judge adopted a perspective that strongly favoured the Crowns joint
    enterprise theory and seriously undermined each appellants right to have their
    case considered individually on its own merits and independently of the merits
    of the case against the other appellant.

[37]

Mato
    also submits that the trial judge failed to relate the principles applicable to
    liability as an aider to the elements of the offence of murder, or to the
    evidence in this case. Counsel argues that, apart from generic instructions on
    aiding, the trial judge put the case to the jury almost exclusively in terms of
    the potential liability of the shooter. Counsel contends that instead of
    instructing the jury on the elements of the offence of murder as they applied
    to an aider, the trial judge wrongly presented the jury with the option of
    finding that the appellants were liable for the murder as co-perpetrators.
    Counsel maintains that on the evidence, there could only be one perpetrator
    the shooter. The non-shooters liability depended on an application of the
    aiding and abetting provisions in s. 21(1)(b)(c).

[38]

Counsel
    further submits that the trial judge wrongly instructed the jury that if they
    found the perpetrator guilty of murder and were satisfied that the other
    brother aided in the killing, they must convict the aider of murder as well.
    Counsel submits that this instruction is wrong in law and that the aider is not
    necessarily guilty of the same offence as the perpetrator.

[39]

There
    is substantial merit to both arguments. To some extent, they are interrelated.
    The failure to adequately describe and distinguish potential liability as an
    aider from liability as a perpetrator contributed to the conflation of the
    cases for and against the two appellants.

A.

the conflation of the appellants into a single entity

[40]

Criminal
    liability is personal. In cases involving more than one accused, the jury must
    be told that the case for and against each accused must be assessed separately.
    This instruction is particularly important when the Crown puts forward a joint
    venture theory of liability and the accused testify and advance very different
    positions.

[41]

The
    trial judge made reference to this fundamental principle early in his
    instructions:

It is important to remember, however, that although the accused
    have been charged and are being tried together, each is a separate individual
    who cannot be found guilty of any offence unless the evidence relating to him
    proves his guilt of that offence beyond a reasonable doubt. Each person is
    entitled to separate consideration in relation to this charge. Each is entitled
    to have his case decided on the basis of his own conduct and state of mind, and
    from the evidence that may apply to him.

[42]

Unfortunately,
    the rest of the trial judges instructions do not reflect or apply this
    admonition. When the trial judge turned to the specific elements of the offence
    of murder and the defences available to the charge, he repeatedly used the
    phrase John and/or Mato when describing potential liability and the potential
    applicability of the defences. For example, in describing the elements of first
    degree murder, as applied to both appellants, the trial judge told the jury
    that they must be satisfied beyond a reasonable doubt that:

·

John and/or Mato Josipovic caused the death of Louis Malone;

·

John and/or Mato Josipovic caused the death of Louis Malone
    unlawfully;

·

John and/or Mato Josipovic had the state of mind required for
    murder;

·

the murder was not provoked; and

·

John and/or Mato Josipovics murder of Louis Malone was both
    planned and deliberate.

[43]

After
    referring to the elements of the offence, the trial judge said:

If Crown counsel has not satisfied you beyond a reasonable
    doubt of each of these essential elements, you must find John and/or Mato
    Josipovic not guilty of first degree murder.

If Crown counsel has satisfied you beyond a reasonable doubt of
    each of these essential elements, you must find John and/or Mato Josipovic
    guilty of first degree murder.

[44]

There
    were literally dozens of references to the phrase
John and/or Mato

    in the jury instructions, particularly in respect of the elements of the offence
    of murder and the defences available. The terminology used by the trial judge
    was not, in and of itself, misleading or improper. Jury instructions must,
    however, be evaluated not by reference to the suitability of individual phrases
    and words, but rather by reference to the overall meaning conveyed, having
    regard to the context of the evidence and the trial as a whole: see
R. v.
    Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 10.

[45]

I
    would not go so far as the appellants would urge and find that the repeated use
    of the phrase John and/or Mato effectively neutered the trial judges earlier
    instruction to the jury that they must consider the case against each appellant
    separately. I would, however, agree that the repeated use of that formulation
    gave the instruction a tone which suggested, at least to some extent, that the
    cases for and against the two brothers stood or fell together.

[46]

In
    one respect, the trial judges reference to John
and
Mato possibly causing
    Malones death was potentially misleading and without foundation in the evidence.
    Malone died from a single gunshot to the head. There was one shooter and no
    basis upon which a jury could find that John and Mato, acting together, caused
    Malones death as co-perpetrators: see
Pickton
, at para. 63 (per LeBel
    J. concurring). By leaving it open to the jury to conclude that John
and
Mato had caused Malones death, the trial judge invited a finding of liability
    on a basis that had no support in the evidence, and improperly linked the
    liability of John and Mato together.

[47]

It
    was essential that the trial judge tell the jury that in addressing the
    liability of the appellants, and in particular the elements of the crime of
    murder and the defences, the jury must consider the potential liability of each
    appellant separately. To properly do so, the trial judge should have told the
    jury that they should first decide whether the Crown had proved the identity of
    the shooter beyond a reasonable doubt. If so, the jury should consider the shooters
    liability on the basis of the trial judges instructions in respect of
    individuals who actually commit the crime (s. 21(1)(a)). The jury should have
    been told to next consider the liability of the non-shooter as an aider or abettor
    (s. 21(1)(b) and (c)) as the trial judge would explain those terms.

[48]

Drawing
    a clear distinction between the legal basis for the perpetrators liability and
    the bases for liability of the helper is important because the facts which the
    Crown must prove beyond a reasonable doubt are different depending upon whether
    liability flows as a perpetrator or as an aider. In a case in which liability
    for one accused flows as a perpetrator and liability for another flows as an
    aider or abettor, the trial judge must clearly draw that distinction.

[49]

The
    manner in which the trial judge described the elements of the offence of murder
    did not make that distinction clear, but instead treated the two appellants as
    a single entity. In describing the causation requirement for the offence of
    murder, the trial judge told the jury that it must be satisfied that John
    and/or Mato Josipovic caused the death of Louis Malone. As explained above,
    the causation requirement has application only to the perpetrator, not to an
    aider. One can aid in a murder without in any way causing the victims death: see
R. v. Dooley
, 2009 ONCA 910, at paras. 117-24.

[50]

The
    trial judges instruction on the
mens rea
requirement for murder also failed
    to draw the distinction between liability as a perpetrator and liability as an
    aider. The trial judges instructions tracked the
mens rea
requirement
    in s. 229(a). That requirement applies to the perpetrator. The aiders
mens
    rea
is different. To be guilty of
    murder, the aider
must know that the perpetrator had the requisite
    intent and the aider must intend to assist the perpetrator in the homicide: see
R. v. Zoldi
, 2018 ONCA 384, at paras. 21-22;
R. v. Briscoe
, 2010
    SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18. The trial judges failure to
    clearly articulate the difference between the
mens rea
required for a perpetrator and
the
mens
    rea
required of the aider invited the jury to consider the liability of
    the appellants together as a single unit.

[51]

The
    trial judge should also have told the jury that even if they could not identify
    the shooter beyond a reasonable doubt, there was an alternative basis upon
    which they could convict either or both appellants. The jury could convict if
    satisfied beyond a reasonable doubt that either or both appellants had
    participated in the killing, in the sense that the brother had either shot
    Malone or aided or abetted his brother in the killing of Malone. If the jury
    reached that conclusion with respect to either brother, that brother was guilty
    of murder and it was unnecessary for the jury to decide the exact nature of the
    brothers participation in the killing. For example, if the jury accepted the
    Crowns theory that the brothers agreed to hunt down and kill Malone, and that
    he was killed in furtherance of that plan, both were participants in the
    murder, regardless of who fired the shot: see
R. v. Portillo
(2003)
, 176 C.C.C. (3d) 467 (Ont. C.A.),
    at para.
71;
R. v. Suzack
(2000), 141 C.C.C. (3d) 449
    (Ont. C.A.), at paras. 152-
56.

[52]

On
    the basis of liability described above, the jury did not have to make a finding
    as to which brother was the shooter or the aider. The jury still, however, had
    to consider the case against each appellant separately by reference to the
    evidence admissible against each appellant.

[53]

The failure to delineate
    the separate bases for liability when describing the elements of the offence of
    murder was exacerbated by the trial judges treatment of the defences of
    self-defence and provocation. He left both defences as available to both appellants
    and did not distinguish between the two appellants when explaining the defences.

[54]

Mato did not advance
    either the defence of self-defence or provocation. In my view, there was no air
    of reality to the defence of self-defence as applied to Mato.
[2]
It is also doubtful that there was any air of
    reality to the defence of provocation, as applied to Mato. Both defences were
    in direct contradiction to the defence Mato advanced in his evidence. He
    contended that he did not participate in the killing and throughout the events
    which culminated in Malones death, he only wanted to go home.

[55]

By
    assigning Johns defences to Mato as well as John, the trial judge not only
    undercut Matos actual defence, but further linked the fate of both appellants
    and invited the jurors to reach common verdicts.

[56]

The
    difficulties created by the improper linking of the defences to both appellants
    are clear in the trial judges explanation of the elements of self-defence.
    When instructing the jury on the requirement that the conduct of John and/or
    Mato be reasonable in the circumstances, the trial judge said:

The issue is quite simple: was it reasonable for the accused to
    shoot Lou Malone in response to the alleged threats of force he had made to
    John and his family during the previous week; and to them both and their
    families that night on Robins Avenue, just prior to the first shot being fired?
    Was it reasonable to continue to chase Lou Malone after the first shot was
    fired and fire four more times before the fatal shot while he lay on the
    sidewalk?

You also heard the evidence of John and Mato Josipovic that, in
    their opinion, the police were not an option with Lou Malone; and their
    evidence that they felt they had no other option but to do what they did,
    because if they did not stop Lou Malone, he would get them and their family.

[57]

In
    the first paragraph of the above-quoted passage, the trial judge told the jury
    to consider the reasonableness of the brothers conduct as if the various
    threats and assaults by Malone had been made to both brothers jointly. He also
    told them to approach the brothers conduct on the basis that they were acting jointly
    in the chase that led to the fatal shot. The trial judges assumption of joint
    conduct, for the purpose of considering the reasonableness of the appellants
    conduct as an element of the self-defence charge, was consistent with the
    Crowns case, but entirely inconsistent with the evidence presented by the
    appellants.

[58]

In
    the second paragraph of the above-quoted extract, the trial judge attributed to
    Mato evidence that he never gave. Mato did not testify that he saw no other option
    but to do what they did. To the contrary, Mato testified that there was a
    clear option  they could leave. According to him, he urged his brother to
    leave the area. Once again, the manner in which the trial judge instructed the
    jury on the elements of the defence of self-defence suggested that both
    brothers were jointly advancing that defence. They were not.

[59]

In
    fairness to the trial judge, near the end of his instructions, he fairly and
    thoroughly set out the individual positions of the appellants. I am not
    satisfied, however, that his instructions in respect of the defence arguments would
    overcome the very strong impression created by the rest of his instructions
    that the appellants stood or fell together on the murder charge.

[60]

The
    trial judge also presented the appellants as a unit rather than as individuals
    when explaining the operation of the burden of proof to the evidence of an
    accused as described in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. The trial
    judge told the jury:

If you accept the
    evidence of John and Mato Josipovic in this case, then you must find them not
    guilty. Even if you do not necessarily accept their evidence, but conclude that
    it leaves you with a reasonable doubt, you must find them not guilty.
Thirdly, even if you reject their evidence, you must still go on and decide
    whether on the basis of the evidence you do accept, has the Crown proven their guilt
    beyond a reasonable doubt? [Emphasis added.]

[61]

The
    trial judge repeated this instruction, as applied specifically to self-defence,
    later in his instructions:

I repeat this instruction to you: If you accept the evidence
    about self-defence of John and Mato Josipovic in this case, then you must find
    them not guilty. Even if you do not necessarily accept their evidence, but
    conclude that it leaves you with reasonable doubt, then you must find them not
    guilty. Thirdly, even if you reject their self-defence evidence, you must still
    go on and decide if, on the basis of the evidence that you do accept, has the
    Crown proven their guilt beyond a reasonable doubt?

[62]

The
    jury was not required to accept the evidence of both appellants to acquit
    either. Nor was the jury required to have a doubt about the evidence of both
    appellants to acquit either. For example, if Matos evidence left the jury with
    a reasonable doubt about his participation in the homicide, he was entitled to
    an acquittal, regardless of what the jury made of Johns evidence. The trial
    judge wrongly collapsed what should have been separate
W.(D.)
instructions applicable to each appellant into a single instruction clearly
    suggesting to the jury that the reasonable doubt standard should be applied to
    the appellants evidence considered together.
[3]

[63]

The
    trial judges instructions on the use the jury could make of the after-the-fact
    conduct also improperly presented the appellants as a single entity. He
    referred to the after-the-fact conduct (summarized above, at paras. 33-35) as
    things that John and/or Mato are alleged to have done. The trial judge
    proceeded to accurately review the evidence and then said:

You may use this evidence, along with all the other evidence in
    this case, in deciding whether the Crown has proven John and/or Mato
    Josipovics guilt beyond a reasonable doubt. However, you must not infer John
    and/or Mato Josipovics guilt from this evidence unless, when you consider it
    along with all the other evidence, you are satisfied that it is consistent with
    their guilt and is inconsistent with any other reasonable conclusion.

[64]

Assuming,
    without deciding that the after-the-fact conduct had some probative value on a
    live issue at trial as against John, it could not assist the jury in respect of
    the case against Mato. There was simply no evidence that he had anything to do
    with the fire, the removal of the toolbox from the back of Johns truck, or the
    disposal of the shotgun by John. The argument that, because there was evidence
    that John and Mato acted in concert in killing Malone, it could be inferred
    that the common design extended to the destruction of the evidence, thereby
    making the destruction of the evidence admissible as evidence of joint
    involvement in the killing, suffers from a fatal circularity. In my view,
    unless there was evidence that Mato was somehow involved in, or at least had
    knowledge of, his brothers after-the-fact conduct, no inferences against Mato
    could be drawn from that evidence.
[4]

[65]

The
    trial judge should have told the jury that the after-the-fact conduct evidence
    had no relevance to Matos liability. Instead, he continued to link the
    appellants by inviting the jury to consider evidence of after-the-fact conduct
    against both appellants, even though it had no application to Mato.

B.

the INstructions on liability as an aider

[66]

I
    have canvassed the instructions on aiding to some extent in my analysis of the
    first ground of appeal. I have explained that in outlining the essential
    elements of the crime of murder, the trial judge should have separately described
    those elements as they applied to the shooter and to the helper. As articulated
    in
R. v. Huard
, 2013 ONCA 650, at para. 64:

Since the
actus reus
and
mens rea
of aiding and
    abetting are different from the corresponding elements of the principal
    offence, jury instructions in a case in which an accused is alleged to have
    participated in the commission of an offence as an aider or an abettor should
    not only explain the essential elements in aiding or abetting, but should also
    link those elements to the essential elements of the offence charged, so that
    the jury understands what the Crown must prove to establish an accuseds
    liability for the specific offence as an aider or an abettor.

[67]

Although
    the trial judge made reference to aiding in the course of discussing the
    elements of the offence, he never explained what the Crown had to prove to
    establish liability for murder as an aider. He did not relate the generic
    description of aiding to the specifics of this case, or the evidence that could
    assist the jury in determining whether either appellant was liable as an aider.

[68]

The decision
    trees provided to the jury for each appellant to assist them in their
    deliberations also described liability exclusively from the perspective of the
    perpetrator. They could provide no assistance to the jury when considering
    liability as an aider.

[69]

Matos
    counsel at trial submitted that the decision trees should also explain
    liability as an aider. The trial judge declined to do so as he was of the view
    that:

If they are parties, either joint or aiders, then its going to
    be the same answer on both decision trees. If they are acting separately, it
    may be different answers on each decision tree.

[70]

A
    decision tree expressly outlining the route to liability as an aider could well
    have been helpful to the jury. The trial judge was wrong in suggesting that an
    aiders liability must be the same as the perpetrator.

[71]

As
    it turns out, the jury asked a question about liability as an aider and the use
    of the decision tree. Counsel for Mato submitted that the jury should be told
    that the aider was not necessarily guilty of the same offence as the shooter.
    The trial judge disagreed. He told the jury:

If you are satisfied beyond a reasonable doubt that one
    defendant aided the other defendant, as explained to you in section 20 of my
    charge, then whatever decision you make with regard to the defendant who is not
    the aider applies equally to the aider.

[72]

An
    aider is not necessarily guilty of the same offence as the perpetrator. An aider
    may not know that the perpetrator intends to commit murder. In that case, the
    aider is guilty of manslaughter, even if the perpetrator is guilty of murder: see
R. v. Jackson
, [1993] 4 S.C.R. 573, at pp. 581-83;
R. v. Chambers
,
    2016 ONCA 684, at para. 66.

[73]

The
    trial judge should have left manslaughter with the jury as a possible verdict
    in respect of the aider. I do not think, however, that, standing alone, this
    non-direction would vitiate the convictions for second degree murder. On this
    evidence, it is very doubtful that if the jury was satisfied that one of the
    brothers aided the other in the killing, the jury would have had a doubt as to
    whether the aider knew that the shooter, who was chasing Malone through the
    streets for three or four minutes, firing several shots at him, had the
    intention to kill Malone.

[74]

The
    failure to leave manslaughter as a possible verdict with respect to the aider
    does, however, add further fuel to the appellants claim that the trial judge
    treated the appellants as a single unit for the purposes of the instructions,
    and implicitly invited the jury to return the same verdicts with respect to
    each appellant.

V

conclusion

[75]

The
curative proviso
cannot be applied to the
    legal errors described above. While it is fair to characterize the case against
    both appellants as formidable, the errors in the trial judges instructions are
    not minor or insignificant: see
Zoldi
, at para. 53.

[76]

Considered
    cumulatively, the errors resulted in a significant disconnect between the manner
    in which the trial judge presented the case to the jury and the narrative
    revealed by the evidence. I think there was a very real risk that the jury
    would approach the liability of the brothers jointly, premised on instructions
    which focused almost exclusively on the legal liability of the perpetrator and
    erroneously presented the appellants as potential co-perpetrators.

[77]

I
    would allow the appeal, quash the convictions and order a new trial for both
    appellants on the charge of second degree murder.

Released: DD JUL 31 2019

Doherty J.A.

I agree C.W. Hourigan
    J.A.

I agree Harvison Young
    J.A.

[1]

Mato is sometimes referred to as Mike.

[2]
There is also a strong argument that there was no air of reality to the defence
    of self-defence as it applied to John. The Crown, however, argues only that the
    defence should not have been left in respect of Mato. As I would order a new
    trial, it will be for the trial judge at the new trial to determine whether
    there is an air of reality to Johns self-defence claim: see
R. v. Phillips
,
    2017 ONCA 72, at para. 98;
R. v. Cinous
, 2002 SCC 29, [2002] 2
    S.C.R. 3, at para. 130 (per Binnie J. concurring).

[3]
Because the defences of provocation and self-defence both have an objective/subjective
    component, the usual
W.(D.)
instruction would have to be modified: see
R. v. Sadiqi
, 2013 ONCA 250, at para. 21;
R. v. Reynolds
,
    2013 ONCA 433, at para. 9;
R. v. Reid
(2003), 65 O.R. (3d) 723, at
    paras. 72-73 (C.A.).

[4]

The Crown does not argue that the after-the-fact conduct of
    John could be admissible against Mato as conduct in furtherance of the
    agreement to kill Malone: see
R. v. Baron and Wertman
(1976),
14 O.R. (2d) 173 (C.A.)
, at 197-99.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kitsopoulos, 2019 ONCA 571

DATE: 20190705

DOCKET: C60531

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harry Kitsopoulos

Appellant

Anthony Moustacalis and Christen Cole, for the appellant

Gerald Brienza, for the respondent

Heard and released orally: June 27, 2019

On appeal from the conviction
    entered on January 30, 2015 and the sentence imposed on May 4, 2015 by Justice Feroza
    Bhabha of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The trial judge accepted the evidence of Melissa Singh that the
    appellant was privy to the discussions about the actual fraudulent nature of
    the bank transaction. After having reached this conclusion based on her
    acceptance of Melissa Singhs evidence and rejection of the evidence of the
    appellant, the trial judge went on to say that, even if she had not accepted
    Ms. Singhs evidence, she would have found the appellant guilty on the basis of
    his own testimony through the application of the doctrine of wilful blindness.

[2]

The appellant submits that finding the appellants guilt established
    through the application of the doctrine of wilful blindness flawed the trial
    judges
W.(D.)

analysis on her primary finding that the
    appellant was actually aware of the fraudulent nature of the bank transaction.

[3]

We are satisfied that this complaint cannot be sustained on the record.

[4]

When read as a whole, the reasons of the trial judge do not support the
    submission that she found the appellants guilt established on the basis of
    wilful blindness.

[5]

In the result, we are satisfied that this ground of appeal
    mischaracterizes the basis upon which the trial judge found the appellants
    guilt established. We hasten to add, however, that we agree with the trial
    judge, that the appellants guilt could also have been established on the basis
    of the doctrine of wilful blindness, or said otherwise, deliberate ignorance.

[6]

The appeal from conviction is dismissed. The appellant abandoned his
    sentence appeal in court. Accordingly, the sentence appeal is dismissed as
    abandoned.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2019 ONCA 590

DATE: 20190710

DOCKET: C67141

Rouleau, Tulloch and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Oral Carver Lewis

Appellant

Jennifer Myers, for the appellant

Davin Garg, for the respondent

Heard: July 8, 2019

On appeal from the sentence
    imposed on March 20, 2019 by Justice K. Corrick of the Superior Court of
    Justice.

APPEAL BOOK
    ENDORSEMENT

[1]

The appellant has abandoned his conviction appeal.

[2]

On the sentence appeal, counsel agree that, by error, the trial
    judge was misinformed as to the amount of pre-sentence custody served by the
    appellant that was available for credit on the sentence set by the trial judge.
    It understated the credit he ought to have been given by two months. As a
    result, leave to appeal sentence is granted and the credit to be given to his
    three year sentence is fixed at 27.5 months for a net sentence of 8.5 months.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Locknick, 2019 ONCA 625

DATE: 20190725

DOCKET: C64954

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Anthony Locknick

Appellant

Kenneth Grad and Karen Heath, for the appellant

Christopher Walsh, for the respondent

Heard: June 28, 2019

On appeal from the conviction entered by Justice Gregory
    J. Verbeem of the Superior Court of Justice on March 21, 2017.

Lauwers
    J.A.:

[1]

While the appellant was incarcerated on unrelated charges, he conspired
    to smuggle drugs into the Windsor Jail and Joyceville Penitentiary. The police
    intercepted the appellants telephone conversations with his alleged
    co-conspirators. Twenty-three individuals were charged collectively on a
    65-count information. About 41.5 months later, the appellant was convicted of two
    counts of conspiracy to traffic in a controlled substance.

[2]

The appellant appeals his conviction on two grounds. First,
    he argues that the trial judge erred in refusing to stay the prosecution for
    undue delay pursuant to s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
, under the principles set by
the Supreme Court of Canada in
R. v. Jordan
,

2016 SCC 27, [2016] 1 S.C.R. 631, and
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659.

[3]

Second, the appellant contends that the trial judge erred in refusing to
    exclude evidence obtained from a wiretap authorization, predicated on
    information gathered pursuant to several earlier dial number recorder warrants.
    The initial warrant was issued in circumstances that gave rise to a reasonable
    apprehension of bias. The issuing justice gave correspondence to the police officer
    seeking the warrant, in which he requested clarification and more specifics on
    several points in the Information to Obtain (ITO). The appellant submits that
    the issuing justice effectively advised the officer on how to prepare the ITO, which
    raised a reasonable apprehension that the justice was biased against the appellant.
    The appellant asserts that his rights under s. 8 of the
Charter
were
    breached and the evidence obtained should have been excluded under s. 24(2).

[4]

I would dismiss the appeal for the following reasons.

A.

Did the delay in the prosecution breach the appellants
    rights under s. 11(b) of the
Charter
?

[5]

The first issue in this appeal is whether the trial judge
    was correct in his attribution of the delay in the
Jordan
analysis. The
    structure of that analysis and the need to apply it on an individual basis, even
    in the context of a multi-party, multi-count trial, was outlined by this court
    in
R. v. Gopie
, 2017 ONCA 728,
140 O.R. (3d) 171,
at para. 128.

[6]

The trial judges
    reasons for dismissing the appellants application for a stay
under
    s. 11(b)
consume 45 pages
    and 231 paragraphs of text, and are reported at 2017 ONSC 3563.
His
    detailed analysis regrettably belies the expectation expressed in
Jordan
, at para. 111, that the new
    framework reduces, although does not eliminate, the need to engage in
    complicated micro-counting.

[7]

The trial judge was
    intimately familiar with the context, the facts, the people involved and the
    numerous moving parts engaged in the complex pretrial and trial process.
While
    his decision must be reviewed on a correctness standard, I note that the
    underlying facts are to be reviewed on the standard of palpable and overriding
    error:
R. v. Jurkus
, 2018 ONCA 489,
    363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No.
    325. I note as well the point made in
Jordan
, at para. 71, that the
    analysis will depend on the trial judges good sense and experience, both of
    which are evident in his reasons. I do not intend to repeat the trial judges
    detailed and laborious analysis.

[8]

It is common ground that the total delay from the date of the charge to
    the anticipated end of the trial was 41.5 months, in excess of the 30-month presumptive
    ceiling set for cases going to trial in the Superior Court of Justice:
Jordan
, at
para. 47.

[9]

The trial judge made several adjustments that reduced the delay from
    41.5 months to 29.25 months, which is below the 30-month ceiling, before
    accounting for the complexity of the case or for transitional exceptional
    circumstances. In his view, both of these considerations would have justified the
Jordan
delay even if it had exceeded the presumptive ceiling. (I note
    that the actual delay, calculated using the actual date of the trials
    completion rather than the anticipated end date, was about two weeks longer,
    and several cases have suggested that the actual delay should be used:
R. v.
    Williamson
,

2016 SCC 28, [2016] 1 S.C.R. 741;
R. v. Gordon
,
    2017 ONCA 436, 137 O.R. (3d) 776; and
R. v. Faulkner
, 2018 ONCA 174, 407
    C.R.R. (2d) 59.)

[10]

The
    trial judge raised three separate grounds for reducing the total delay.

[11]

First,
    I agree with the trial judge that 1.5 months must be counted as defence delay
    in scheduling the
Garofoli
application (named after
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421) for all the accused jointly. The court and the Crown were
    ready to proceed but the defence was not. The appellant has not established
    that the trial judge was incorrect in this determination. This reduces the
Jordan
delay to 40 months.

[12]

Second,
    the trial judge deducted three months to account for the unexpected, unforeseen
    and unavoidable delay caused by the preliminary inquiry judges desire to
    review the content of each intercept separately. As this court noted in
R.
    v.
Antic
, 2019 ONCA 160, at
    para. 11, application for leave to appeal to S.C.C. filed, 38605 (
April 25, 2019),
there are some events that no
    one can anticipate and those events should simply be removed from the delay
    analysis. See
Jordan
, at paras. 73-75. The Crown had taken all
    reasonable steps to mitigate the delay. The appellant has not established that the
    trial judge was incorrect in making this deduction. This reduces the
Jordan
delay to 37 months.

[13]

Third,
    and most significantly, the trial judge deducted 7.75 months to account for the
    mistrial that occurred. If this deduction is correct, it reduces the
Jordan
delay to 29.25 months, below the presumptive ceiling. Adding an additional two
    weeks, to account for the actual end of the trial, would bring the total delay
    to 29.75 months, also below the ceiling. Justice King, the judge previously
    assigned to the case, declared himself to be in conflict of interest about two months
    after he reserved his ruling on the standing issue in the original
Garofoli
application. The parties agree that the conflict event constituted a discrete
    exceptional circumstance.

The trial judges assessment of the mistrial delay

[14]

The
    trial judge held that the discrete exceptional delay caused by King J.s conflict
    began on February 1, 2016, which was the first day of the original proceeding,
    and terminated on September 20, 2016, the first date after the conflict arose
    that the appellant and Crown were ready to proceed, but the court was not.

[15]

The
    trial judge rejected the co-accuseds argument that the delay started on April
    8, 2016, the first assignment court date after the conflict that gave rise to
    the mistrial arose. As a result of the conflict and the related mistrial, there
    was no meaningful progress at all on the
Garofoli
application between
February 1, 2016, when the
    application commenced, and April 8, 2016
. The parties were required to
    embark on trial scheduling anew.

[16]

The
    first date offered for the parties one-week fresh
Garofoli
application was September 13, 2016. Mr. Locknicks counsel
    was not available on that date but was available on September 20, 2016. The
    court was not available on September 20, 2016. The trial judge agreed with the
    appellant that because the court could not accommodate the parties until
    December 5, 2016, the time between September 20, 2016 and December 5, 2016
    should not be deducted. The trial judge acknowledged the unusual difficulty in
    the courts availability caused by six out of twelve judges having some sort of
    conflict in presiding over this matter. He noted that not being able to offer
    the parties more than one week in a nine-month period does not accord with the
    justice systems duty to mitigate delay resulting from a discrete exceptional
    circumstance or the necessity to prioritize cases that have faltered due to an
    unforeseen event.

[17]

This
    led the trial judge to conclude, at para. 149, that he would attribute 7.75
    months (February 1, 2016 to September 20, 2016) to the discrete exceptional
    circumstance, bringing the delay for s. 11(b) purposes to 29.25 months, under
    the
Jordan
presumptive ceiling
    of 30 months. I agree with the trial judges conclusion.

[18]

The
    trial judge also considered two additional factors that, in the event that he
    erred in concluding that the remaining delay fell below the 30-month ceiling, would
    have nevertheless justified the delay: complexity and transitional
    circumstances.

Complexity

[19]

This
    was a particularly complex case. The trial judge acknowledged that the accused
    were charged on a multi-count conspiracy indictment involving an alleged drug
    trafficking network. He noted there were three distinct conspiracies, all
    involving the appellant and various combinations of the co-accused and
    unindicted co-conspirators. He set out other details about complex features at
    paras. 178-182 of his reasons.

[20]

The
    trial judge found that, from an evidentiary perspective, the proceeding was
    moderately complex: the evidence primarily consisted of intercepted
    communications, potentially the results of the execution of number recorder
    warrants, tracking warrants and production orders, together with observations
    made during physical surveillance; given the nature of the counts, the
    co-conspirators exception to the hearsay rule would likely be engaged; and there
    was voluminous disclosure, an anticipated two-week trial, and an unknown number
    of witnesses to be called by the Crown. He further held that the legal issues
    in the context of the
Garofoli
application
    are of moderate to marked complexity, and the nature of the offences, the
    nature of the evidence, and the legal issues involved on the pretrial
    applications made this case above moderate in its complexity. In
Jordan
,
    the court noted, at para. 79, that such determinations fall well within the
    trial judges expertise.

[21]

The
    trial judge found that it was in the interests of justice to structure the
    prosecution as the Crown did. He found that the Crown proposed and executed a
    concrete plan to minimize the impact of a joint prosecution on the overall
    delay, while the matter was before the Ontario Court of Justice. Similarly, he
    held it was in the interests of justice to have a single trial on the
    three-count conspiracy indictment, as it represented an efficient manner of
    dealing with the charges that promoted judicial economy. At the Superior Court of
    Justice the Crown took steps designed to mitigate and minimize delay to all of
    the accused every time the matter was before an assignment court.

[22]

The
    inference is that there was a margin for
Jordan
purposes. In my view
    this reasoning was sound.

Transitional circumstances related to
Morin

[23]

This
    case originated in a time covered by

the delay guidelines specified by
    the Supreme Court of Canada in

R.
    v. Morin
,
[1992] 1 S.C.R.
    771. The trial judge adverted to several circumstances that he found to be
    exceptional in a transitional sense, since the parties had been proceeding
    under the guidance of
Morin
for 33 months and 19 days from the date the
    information was sworn to the date
Jordan
was released and the rules
    changed.

[24]

Considering
    the
Morin
guidelines,

the
    trial judge calculated seven months of institutional delay in the Ontario Court
    of Justice and 5.5 months of institutional delay in the Superior Court of
    Justice. The total institutional delay of 12.5 months did not exceed the acceptable
    range of 14 to 18 months permitted under the
Morin
guidelines.

[25]

The
    trial judge elaborated on two points related to neutral delay. First, 2.5
    months of delay between the last day of the originally scheduled preliminary
    hearing on November 7, 2014 and the first continuation date on January 22, 2015
    was neutral. The transcripts revealed that the difficulty in scheduling the
    continuation dates resulted from competing defence counsel schedules. Second,
    5.5 months of delay between March 30, 2016, when counsel were notified that
    King J. had declared a conflict, and September 13, 2016, the first date offered
    by the court for rehearing the
Garofoli
application, was neutral. The
    mistrial resulted from an unforeseeable event not attributable to the court or
    Crown. He held that such events necessarily increase the inherent time
    requirements of the case.

[26]

The
    trial judge noted that even if the 2.5 months between November 7, 2014 and
    January 22, 2015 was found to be institutional delay, and the neutral period
    after April 8, 2016 was limited to three months (resulting in a further 2.25
    months of institutional delay), the total institutional delay would be 17.25
    months, still within the
Morin
guidelines.

[27]

In
    the trial judges view, the Crown made good faith efforts to minimize delay
    throughout the proceedings: at paras. 217-220. He took no issue with defence
    efforts to move the case along: at paras. 221-222.

[28]

Finally,
    the trial judge acknowledged that the appellant experienced prejudice because
    his liberty was restricted, having been in custody at the time of the charges
    and having remained in custody until he applied for bail in December 2015.
    Nevertheless, since the total institutional delay was within the
Morin
guidelines,
    the trial judge concluded that, under the previous state of the law, the appellants
    s. 11(b) rights were not infringed. Even if there had been an infringement, the
    appellants interests in a speedy trial were outweighed by societys interest
    in having the matter tried on the merits, particularly given the seriousness of
    the offences.

[29]

The
    appellant has not established that the trial judge made any error in assessing
    the complexity of the case or in his assessment of the application of the
Morin
guidelines.

[30]

For
    these reasons, I would not give effect to the argument that delay led to a
    breach of s. 11(b) of the
Charter
under the principles
set by the Supreme Court in
Jordan
and
Cody
.

B.

Was the trial judge correct in ruling
that
    the justice who issued the DIAL NUMBER RECORDER warrants was not biased?

[31]

This
    is the second issue in this appeal. As noted, the appellant argues that the
    justice who issued the initial dial number recorder warrant had effectively
    advised the police on how to repair the corresponding ITO in a memo given to
    the officer seeking clarification and more specifics on several points in the ITO.
    The appellant asserts that this raised a reasonable apprehension that the
    issuing justice was biased against the appellant. The appellant argues that
    this breached his s. 8
Charter
rights and the evidence obtained should
    have been excluded under s. 24(2).

[32]

To
    obtain the dial number recorder warrants, an officer applied for judicial
    authorization. The first application for the initial warrant was declined, after
    which the issuing justice provided correspondence to the officer. The entire
    text of the issuing justices memorandum is set out at para. 108 of the trial
    judges reasons:

Hoffman J. did not issue the warrant at that time. Instead, he
    directed correspondence to P.C. Hamlin dated April 9, 2013, stating:

Attention P.C. Hamlin WPS

April 9/13 10:45 PM

Re Warrant request J306

If you decide to make any
    alterations and resubmit this please include a copy of this document as well as
    the original warrant submitted today. For security reasons I do not keep copies
    of either.

As well add a note indicating which
    paragraphs have been altered to assist me in my re-review.

1)

Paragraph (Par) 15  I
    do not understand what the sentence I have summarized the aspects of the
    informants means.

a.

Par. 15  crimes
    of dishonesty must include at least all theft related offences, fraud related offences,
    perjury related offences, personation related offences as well as obstruct
    police and obstruct justice.

b.

Par 15 re
    reliability of Informant #1  (a); best to differentiate if possible between
    information obtained from direct contact with persons involved and other
    sources if this can be done and if it does not jeopardize revealing Informants
    ID.

c.

Par 15 re
    reliability of Informant #1  (f); best to differentiate between direct and
    indirect contact and explain how information can be obtained by indirect
    contact if this can be done and if it does not jeopardize revealing Informants
    ID.

2)

Pars 17-18; Is Wayne
    Locknick the same person as Wayne Anthony Locknick but used different named
    query on different systems. If so please clarify?

3)

Pars 19-20: same
    question as above for Mike Stiller and Michael Stiller.

4)

Par 58 -- Is Source A
    the same person as Informant 1 in par 15? Either way please clarify and if
    different nothing about reliability of Source A?

5)

Par 59 a)  best to
    differentiate if possible between information obtained from direct contact with
    persons involved and other sources if this can be done and if it does not
    jeopardize revealing Informants ID.

a.

Par 59 c)
    Additional detail regarding how it has been verified may be more helpful.

b.

Par 59 re
    negative consideration for Informant 2; crimes of dishonesty include
    ---------------- please standardize definition as outlined in par 15.

6)

Par 60 a)  f): Did
    Informant #2 receive this information directly from Locknick or some other
    means if this can be revealed without jeopardizing the Informant identity?

7)

Par 61  How do you
    know Brown is a high level drug dealer?

8)

Par 65  Again is
    Source A the same person as Informant 1?

a.

Re a), and b);
    Approximately when did this take place, even what year or within what period of
    time?

9)

Par 67  69; Update
    these pars with any new information added further to these requests

[33]

The
    second application was also declined. Eventually, the third application for the
    warrant was granted. Three other dial number recorder warrants were eventually
    issued as well. Later, the police successfully applied for judicial
    authorization for intercepts. In seeking the wiretap authorization, the police
    relied on information gathered pursuant to the dial number recorder warrants.

[34]

The
    trial judge dismissed the appellants application to exclude evidence (reasons
reported at 2017 ONSC 4833)
.
    He concluded that the appellant failed to demonstrate serious grounds to
    rebut the strong presumption of judicial impartiality, and failed to establish
    reasonable apprehension of bias.

[35]

The
    trial judge found that, in all the circumstances, the purpose and effect of [the
    issuing justices] correspondence was to obtain clarity and specificity with
    respect to certain aspects of the content of the April 9, 2013 ITO [filed in
    support of the first application], in an effort to assess the reliability of
    elements of the information already set out therein, and to determine whether
    that information was sufficient to satisfy the requisite grounds to issue the
    warrant sought: at para. 127. The trial judge pointed out that there was no
    evidence of additional correspondence between the issuing justice and the
    officer after the first application.

[36]

The
    trial judge said the issuing justices questions about the informants prior
    convictions for crimes of dishonesty sought to elicit information that was necessary
    and directly relevant to his assessment of the reliability of the information
    provided by the informants. The trial judge held that instead of directing or
    advising the officer about the specific wording or substance of a subsequent
    ITO, the issuing justice identified the categorical nature of the information
    he needed to assess whether the warrant should issue. Further examples of
    benign clarification included the issuing justice requesting that the officer
    differentiate between information obtained from direct contact with persons
    involved and other sources to the extent that it could be done without risking
    exposure of the informants identity. The trial judge noted this clarification
    was appropriate because it was potentially relevant to the issuing justices
    assessment of the reliability of that information. Overall, the trial judge found
    that the issuing justice did not effectively draft the content of the ITO, nor
    did his inquiries impair his ability to act objectively and neutrally when
    considering subsequent warrant applications.

[37]

The
    trial judge found that the issuing justice had not inserted himself into the
    ITO drafting process in a manner designed to ensure the warrant would issue, by
    vetting and editing an unsworn draft ITO, or otherwise: at para. 128. Instead,
    the issuing justice fulfilled his duty in accordance with the principles
    articulated in
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, by not being reluctant to ask questions or to
    require more information. The issuing justice never suggested what the
    substantive content of the responses to his inquiries should be. He did not
    indicate that a warrant would necessarily issue if he received particular
    responses to his inquiries in a subsequent ITO, or at all. The issuing justice
    sought clarification with respect to certain aspects of the information already
    provided in the April 9, 2013 ITO, to give him a greater appreciation of the
    reliability of that information so that he could make an impartial
    determination of the merits of the application.

[38]

In
    the context of the issuing justices duty as outlined in
Araujo
, the trial judge found that an
    informed person, viewing the matter realistically and practically, and having
    thought the matter through, would not view the conduct as giving rise to a
    reasonable apprehension of bias
.
A reasonable person would conclude that
    the issuing justice was engaged in appropriate efforts to fully appreciate the
    evidence relied upon in support of the warrant police sought to be issued.

[39]

I
    agree with the trial judges assessment. I would not give effect to this ground
    of appeal.

[40]

Finally,
    since there were no
Charter
breaches, a review of the impact of the alleged breaches under s. 24(2) of the
Charter
is not required.

C.

Disposition

[41]

I
    would dismiss the appeal.

Released: D.W. July 25, 2019

P. Lauwers J.A.

I agree. David Watt
    J.A.

I agree. M. Tulloch
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Magdales, 2019 ONCA 572

DATE: 20190705

DOCKET: C65628

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raphael Magdales

Appellant

Ravin Pillay, for the appellant

Sarah Egan, for the respondent

Heard and released orally: June 27, 2019

On appeal from the conviction entered on November 8, 2017
    by Justice Alan D. Cooper of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of a single
    count of trafficking in cocaine, after a brief trial before a judge of the
    Ontario Court of Justice. The charges arose out of observations made by
    officers who had the appellant under surveillance and of items seized from
    automobiles under the control of the appellant and another man searched
    incident to the arrest of each.

[2]

The appellant advances three grounds of
    appeal against the conviction recorded at trial. He says that the trial judge
    erred:

i.

in finding that the only reasonable
    inference from the circumstantial evidence adduced at trial was that the
    appellant trafficked cocaine to another man, the sole occupant of a motor vehicle;

ii.

in failing to provide sufficient
    reasons for his conclusion that the appellants guilt had been established
    beyond a reasonable doubt; and

iii.

in rendering a verdict that was
    unreasonable and unsupported by the evidence.

[3]

In our view, none of the grounds of
    appeal advanced warrant our intervention

[4]

The trial judge was well aware that the case for the Crown consisted of
    circumstantial evidence. After referring to the requirements of
R. v.
    Villaroman
, 2016 SCC 33, the trial judge examined the evidence adduced at
    trial to determine whether, taken as a whole, that evidence excluded all
    reasonable inferences other than guilt.

[5]

In reaching his conclusion about the adequacy of the evidence adduced to
    satisfy the rigours of
Villaroman
, the trial judge was cognizant of
    the absence of any forensic evidence linking the appellant to the bag
    containing the drugs seized from the alleged purchasers motor vehicle on
    arrest and of any forensic evidence linking the alleged drug purchase to the
    currency found in the appellants vehicle.

[6]

The trial judge considered and rejected the principal reasonable
    inference advanced on the appellants behalf at trial as incompatible with
    guilt. That inference was that the parties, or at least one of them (the
    purchaser) was lost and the purchaser sought directions from the appellant.
    This putative inference, which was unsupported by the evidence of either party,
    might better have been characterized as speculation. It was not incumbent on
    the Crown to negative every possible conjecture no matter how irrational or
    fanciful which might be consistent with the innocence of the appellant. Any
    other reasonable possibility advanced must be based on logic and experience
    applied to the evidence, or absence of evidence, not on speculation:
Villaroman
,
    at para. 37.

[7]

It was open to the trial judge to conclude, that taken as whole, the
    evidence adduced met the
Villaroman
standard. It follows that this
    ground of appeal fails.

[8]

Nor are we persuaded that the trial judges reasons are insufficient to
    permit meaningful appellate scrutiny. This was a simple case. The witnesses
    were few. Their evidence was uncomplicated. The trial judge correctly
    identified the critical issue as whether the appellant transferred the baggie
    of cocaine, found on the floor of the other drivers vehicle on arrest minutes
    later, to that person. His reasons were brief. He could have said more. But
    that is not the test. By that standard, almost every set of reasons would get a
    failing grade. He said enough for our purposes. And that is all that counts.

[9]

The final ground of appeal challenges the verdict as unreasonable. This claim
    we test by considering whether the conclusion reached is supportable on any
    reasonable view of the evidence adduced at trial:
Villaroman
, at para.
    56. See also,
R. v. George-Nurse
, 2018 ONCA 515, at para. 26.

[10]

For
    all practical purposes, rejection of the appellants first ground of appeal
    determines this ground of appeal. Since we are satisfied that the trial judges
    finding of guilt meets the standard required by
Villaroman
in cases
    which consist entirely or substantially of circumstantial evidence, we also
    conclude that the verdict cannot be set aside as unreasonable.

[11]

The
    appeal from conviction is dismissed.

[12]

The
    appellant did not appeal sentence. However, with the concurrence of the
    respondent, we would extend the time for him to do so, grant leave to appeal
    and allow the appeal from sentence, and set aside the victim surcharge ordered
    by the trial judge. The balance of the sentence imposed, including any
    ancillary orders, shall remain intact.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mayor, 2019 ONCA 578

DATE: 20190708

DOCKET: C64272

Tulloch, van Rensburg and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Mayor

Appellant

Mark C. Halfyard, for the appellant

Jason A. Morische, for the respondent

Heard: April 12, 2019

On appeal from the
    conviction entered on April 28, 2017, by Justice Paul R. Sweeny of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

OVERVIEW

[1]

After the Hamilton Police Service received an
    anonymous tip that the appellant was dealing drugs from his car, their High
    Enforcement Action Team (HEAT) began an investigation of the appellant in
    December 2015. An officer with the team conducted surveillance on the appellant
    on four occasions without observing any signs of drug trafficking. In the
    course of the investigation, the officer learned that the appellants drivers
    licence was suspended.

[2]

On January 17, 2016, the appellants vehicle was stopped by that
    officer and another HEAT member.
They arrested him for driving
    with a suspended licence. The officer who had previously investigated the
    appellant rearrested him for impaired driving after observing signs of
    impairment. Another officer arrived to provide backup and searched the vehicle.
    The search revealed cocaine, cell phones, and drug-related paraphernalia. The appellant
    was then

charged with
    possession of a controlled substance for the purpose of trafficking.

[3]

The appellant brought a
Charter
application challenging the
    legality of his arrest and the search of his vehicle, and seeking to exclude
    the items seized. After the application was dismissed he was convicted of the
    drug offence.

[4]

The appellant appeals his conviction. He
    contends that the trial judge erred in dealing with his
Charter

application
    in two ways, both of which are related to the trial judges conclusion that the
    appellants arrest and the consequent search of his vehicle were legal.

[5]

First, the appellant says that the trial judge did not
    apply the proper test when he concluded that the police had
the authority
to arrest him under the
Highway Traffic Act
,
R.S.O. 1990, c. H.8,

rather
    than determining whether they used
this authority as a
    ruse to further
their drug investigation.

S
econd, the appellant argues
    that the trial judge reversed the onus of proof.

THE LAW

[6]

The Ontario Legislature has given the police
    broad powers to stop motor vehicles for highway regulation and safety purposes,
    and, in some circumstances, to arrest drivers of motor vehicles. Section 216(1)
    of the
Highway Traffic Act
gives an officer the power to stop a vehicle,
    even if the stop is random and the officer lacks reasonable and probable
    grounds or even reasonable suspicion:
R. v. Gonzales
, 2017 ONCA 543, 136
    O.R. (3d) 255, at para. 55. The Supreme Court upheld this power as
    constitutional in
R. v. Ladouceur
, [1990] 1 S.C.R. 1257. Likewise, s.
    217(2) of the
Highway Traffic Act
authorizes an officer to make a
    warrantless arrest of a person who the officer believes on reasonable and
    probable grounds to be driving while suspended. If the officer is satisfied
    that a person is driving while suspended, the officer also has the duty to
    detain and impound the vehicle:
Highway Traffic Act
, s. 55.2(1).

[7]

However, the existence of these powers does not
    automatically make motor vehicle stops lawful because the police are not free
    to use these powers for some other purpose, including to further a criminal
    investigation. The Legislature granted the police these powers for the purpose
    of ensuring road safety:
Brown v. Durham Regional Police Force
(1998),
    43 O.R. (3d) 223 (C.A.), at pp. 242-243. The court must ensure that the police
    use these powers in a manner consistent with this purpose. As a result, if the
    police do not have road safety purposes subjectively in mind, they cannot rely
    on the
Highway Traffic Act
powers to authorize the stop:
Gonzales
,
    at para. 60. If the police cannot point to any other legal authority for the
    stop, the stop will not be authorized by law and so will violate s. 9 of the
Charter
:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54. The court
    must thus determine whether the officer actually formed a legitimate
    intention to make the detention or arrest for road safety purposes:
R. v. Sandhu
,
    2011 ONCA 124, 268 C.C.C. (3d) 524, at para. 62.

[8]

A detention or arrest pursuant to a
Highway
    Traffic Act
power can be lawful if the officer has either only road safety
    purposes in mind or has both road safety and other legitimate purposes in mind.
    In
Brown
, Doherty J.A. accepted that as long as the police have a road
    safety purpose subjectively in mind, they may also have other legitimate
    purposes in mind: at p. 238. The investigation of criminal activity is one such
    legitimate purpose:
Brown
, at p. 240. Indeed, in
Brown
, Doherty
    J.A. found that motor vehicle stops which were partially motivated by a desire
    to investigate crime were lawful because the police also had road safety
    purposes in mind: at pp. 239-240. Doherty J.A. noted that a
Highway Traffic
    Act
stop where the police are furthering some other legitimate interest is
    lawful provided that the additional police purpose is not improper or pursued
    through improper means, and does not entail an infringement on the liberty or
    security of the detained person beyond that contemplated by the purpose
    animating s. 216(1) of the
Highway Traffic Act
: at p. 236. See also
Gonzales
,
    at para. 58. In many cases it will be unhelpful to take an either/or approach
    to whether a stop is for road safety or some other legitimate purpose. See for
    example
Sandhu
, at para. 59.  An officer may thus have a road safety
    purpose in mind even if the officer simultaneously has a criminal law purpose
    in mind:
Sandhu
, at para. 62.

[9]

However, if the officer does not have a
    legitimate road safety purpose in mind and is using the
Highway Traffic Act
authority as a mere ruse or pretext to stop a vehicle in order to investigate a
    crime, then the detention will be unlawful. As Doherty J.A. held in
Brown
,
    the
Highway Traffic Act
powers will not authorize police stops if the
    police use these powers as a ruse to justify a stop for another purpose: at
    p. 234. Likewise, in
R. v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851, at
    para. 36 (citations omitted), the Supreme Court emphasized that courts should
    not permit the police to invoke road safety detention powers as a plausible
    façade for an unlawful aim. Accordingly, in
R. v. Humphrey
, 2011 ONSC
    3024, 237 C.R.R. (2d) 109, at para. 88, Code J. held that using
Highway
    Traffic Act
powers as a mere ruse or pretext for a broad and unfounded
    criminal investigation would violate s. 9 of the
Charter
.

[10]

Consequently, the court must make a factual determination as to
    whether the officer had a road safety purpose in mind or whether the officer
    was using the
Highway Traffic Act
power as a ruse to conduct a criminal
    investigation. In determining the police purpose, the court must consider all
    the circumstances, including the evidence of the officers, the evidence of the detained
    person, the circumstances of the stop, and the police conduct during the stop:
Brown
,
    at p. 238;
Gonzales
, at para. 67.

APPLICATION

[11]

In this case, the trial judge summarized the
    evidence about the legality of the appellants arrest as follows:

The evidence of [the officers] was
    that this was an investigation into the suspended driving because the drug
    investigation had led nowhere. They are entitled to investigate for suspended
    driving. The HEAT unit laid 27 charges for driving while suspended in 2016.

[12]

After referring to the appellants position on
    the application and the relevant principles from
Brown
,

the trial judge
    noted that in this case the position of the police is stronger than a random
    stop and he stated that the flaw in the [appellants] analysis is that the
    officers had a valid purpose for the stop. The accused was arrested for driving
    while suspended. The trial judge then went on to consider the search.  He
    concluded his reasons by stating that he was satisfied the officers had
    authority to stop and arrest the appellant for driving while suspended, and
    therefore, there was no breach of ss. 8 or 9 of the
Charter
.

[13]

In our view, the trial judge did not resolve the
    central issue on the application, which was whether the police used

powers that the Legislature granted for a
    road safety purpose as a ruse to search the appellants vehicle as part of a
    drug investigation. Instead, he appears to have treated the existence of the
    power to arrest the appellant for suspended driving in s. 217(2) of the
Highway
    Traffic Act
as dispositive. He erred in law in so doing. It was incumbent
    on him to determine whether the officers subjectively formed an intention to
    arrest the appellant for the road safety purpose that motivates the s. 217(2)
    grant of authority to police. If the officers did not subjectively form this
    intention, then their reliance on s. 217(2) was a ruse and s. 217(2) could not
    authorize the arrest.

[14]

The Crown points out that there was evidence
    from the officers that the sole purpose of the stop was to investigate the
    appellant for driving with a suspended licence, and that the drug investigation
    at that time was closed. While this may well be the case, the trial judge did
    not engage with this evidence, nor did he make any necessary findings of fact.
    It was incumbent on him to do so.

[15]

Without expressing any view on the merits of the
    application, we note that the evidence included not only the officers
    explanations for the stop, but also all of the surrounding circumstances. These
    included the fact that the appellant was stopped by the same members of a
    specialized, plainclothes police unit who had been investigating him, without
    success, for a drug offence; that he had been placed under surveillance at
    midnight; that the officers disagreed about whether they set out to investigate
    the appellant for driving while suspended, or whether they decided to do so
    because it was a slow night; that the notes of one of the officers included a
    reference to the drug investigation; and that the police inventory of the
    contents of the vehicle listed only drugs, cell phones and drug paraphernalia. As
Brown
and
Gonzales
establish, the trial judge should have considered
    all of these circumstances to determine the legality of the appellants arrest,
    and in particular whether the traffic stop was a pretext to further a drug
    investigation.

[16]

The conclusion that the trial judge did not make
    the necessary findings and apply the proper test in considering whether the
    appellants arrest was lawful, is sufficient for the determination of the
    appeal. We therefore allow the appeal, set aside the appellants conviction,
    and direct a new trial before a different judge.

M. Tulloch J.A.

K. van Rensburg J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGean, 2019 ONCA 604

DATE: 20190715

DOCKET: C63230 & C65107

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

C63230

Her Majesty the Queen

Respondent

and

Randy McGean

Appellant

AND BETWEEN

C65107

Her Majesty the Queen

Respondent

and

Isaac Lucas

Appellant

Erec Rolfe, for the appellant Randy McGean in C63230

Brian Snell, for the appellant Isaac Lucas in C65107

James Clark, for the respondent in C63230 and C65107

Heard: June 25, 2019

On appeal from the
    convictions entered on September 6, 2016, with reasons reported at 2016 ONSC
    5572, and the sentences imposed on October 12, 2016 in C63230, and January 13,
    2017 in C65107, by Justice Joseph R. Henderson of the Superior Court of Justice,
    sitting without a jury.

REASONS FOR DECISION

A.

overview

[1]

The appellants, Randy McGean and Isaac Lucas, were charged and convicted
    of conspiracy to traffic heroin and conspiracy to traffic cocaine, among other
    related drugs and weapons charges. Mr. McGean received a sentence of 11 years
    on the conviction for conspiracy to traffic heroin, eight years concurrent on
    the conviction of conspiracy to traffic cocaine, and three months consecutive
    for each of the two breach of weapons prohibition order counts, followed by
    other concurrent sentences for the remaining convictions, for a global sentence
    of 11 years and six months. Mr. Lucas was sentenced to nine years on the
    conspiracy to traffic heroin, and seven years concurrent on the conspiracy to
    traffic cocaine, together with a victim surcharge for both.

[2]

Both appellants appeal their conspiracy convictions. Mr. McGean appeals
    his conviction for conspiracy to traffic cocaine, but does not dispute the
    conviction for conspiracy to traffic heroin. Mr. Lucas challenges his
    conviction for the conspiracy to traffic heroin, but he does not dispute the
    fact that he was involved in the trafficking of both heroin and cocaine, nor
    does he dispute his conviction for conspiracy to traffic cocaine. Both
    appellants argue that the trial judge misapprehended the evidence, thus
    rendering the verdicts unreasonable.

[3]

In addition to the conviction appeals, both appellants seek leave to
    appeal their respective sentences on the basis that the sentences were
    unreasonable.

B.

analysis

[4]

We see no merit in either the conviction or sentence appeals.

(1)

Mr. McGeans Conviction Appeal

[5]

Mr. McGean submits that the trial judge misapprehended the evidence and,
    as a result, concluded that he was a member of the conspiracy to traffic
    cocaine.

[6]

In
R. v. Carter
, [1982] 1 S.C.R. 938, at p. 947, the Supreme
    Court established a three-stage test for the co-conspirators exception to the
    hearsay rule. First, the trier of fact must find beyond a reasonable doubt on
    all the evidence that the conspiracy exists. Second, the trier of fact must
    find that the evidence that is directly admissible against the accused, which
    excludes hearsay statements by co-conspirators, proves, on a balance of
    probabilities, that the accused was a member of that conspiracy. Only if these
    first two stages are met can the trier of fact, at the third stage, consider
    the acts and declarations of a co-conspirator in furtherance of the conspiracy
    as evidence against the accused on the issue of the accuseds guilt. Mr. McGean
    does not challenge the trial judges finding that a conspiracy existed at stage
    one.

[7]

Mr. McGean argues that the trial judge erred at stages two and three of
    his analysis of the co-conspirators exception to the hearsay rule. At stage two
    the trial judge misapprehended the evidence of a phone call between the
    appellant and Mr. Lucas, which was the only conversation involving Mr. McGean
    in the Barrie deal, one of the two cocaine conspiracies. At stage three, Mr.
    McGean argues that the trial judge misapprehended the evidence with respect to
    the two cocaine conspiracies, and that the evidence did not support the trial
    judges finding that he played a pivotal role in both transactions.

[8]

We reject Mr. McGeans argument on stage two of the
Carter
test.

[9]

In a call following the Barrie deal in which Mr. McGean and Mr. Lucas
    were discussing a recent purchase of cocaine, Mr. Lucas stated that he was
    loyal to Mr. McGean. Mr. McGean stated yeah yeah in response. The trial judge
    found, at para. 134 of his reasons, that Mr. McGean had acknowledged Mr. Lucas
    pledge of loyalty and thus accepted that Mr. McGean was a member of the
    conspiracy.

[10]

Contrary
    to Mr. McGeans argument, it was open to the trial judge to find that Mr.
    McGean had acknowledged Mr. Lucas comments by stating yeah yeah as the
    pledge of loyalty was made in the context of a discussion about the quality of
    cocaine from the Barrie deal.

[11]

Furthermore,
    this call was not the sole basis of the trial judges conclusion that Mr.
    McGean was a member of the conspiracy in relation to the Barrie deal. At para.
    136 of his reasons, the trial judge also found that the agreement between Mr.
    McGean and Mr. Lucas pursuant to which Mr. Lucas would act as Mr. McGeans
    enforcer formed part of the conspiracy in relation to the Barrie deal. This was
    not an unreasonable finding.

[12]

Mr.
    McGeans argument that the second stage of the
Carter
test was not met
    fails.

[13]

We
    also reject Mr. McGeans argument on stage three of the
Carter
test.

[14]

The
    focus of stage three of the
Carter
test is a determination of the
    ultimate issue of guilt:
Carter
, at pp. 944, 947. At this stage, the
    statements of the co-conspirators are admissible against the accused provided
    that those statements were made in furtherance of the conspiracy:
Carter
,
    at p. 947;
R. v. Bogiatzis
, 2010 ONCA 902, 285 C.C.C. (3d) 437, at
    para. 35, quoting
R. v. Chang
(2003), 173 C.C.C. (3d) 397 (Ont. C.A.),
    at para. 120. Statements by co-conspirators that are not made in furtherance of
    the conspiracy are inadmissible against the accused:
Chang
, at paras.
    120-121. If the in furtherance requirement is met, the statements of the
    co-conspirators are admissible against the accused. The trier of fact must then
    determine in step three whether these statements, taken together with all the
    other admissible evidence, are sufficient to prove beyond a reasonable doubt
    that the accused was a member of the conspiracy:
Carter
, at p. 947.

[15]

The
    trial judge found, at para. 157 of his reasons, that the statements of Mr.
    McGeans co-conspirators were admissible against Mr. McGean and conducted his
    stage three
Carter
analysis on this basis. Mr. McGean does not
    challenge this admissibility finding in his stage three submissions. Nor does Mr.
    McGean submit that the in furtherance requirement under stage three that
    concerns admissibility was not met. Instead, the focus of Mr. McGeans stage
    three submissions is that the trial judge misapprehended the evidence in
    determining the ultimate issue of guilt.

[16]

The
    Crown alleged three broad conspiracies involving the appellants and several
    others. Two conspiracies involved the purchase of a kilogram of cocaine. The
    third involved the purchase of a kilogram of heroin. The evidence consisted of
    police surveillance and intercepted private communications. The defence called
    no evidence.

[17]

A
    significant amount of evidence adduced at trial demonstrated that Mr. McGean
    was a member of the conspiracy to traffic cocaine. The trial judge found that
    Mr. McGean was an instrumental part of the conspiracy to traffic cocaine. The
    trial judge found that Mr. McGean made the final decisions regarding what to
    purchase, the price to pay, and how and when to receive and distribute the
    product. In our view, this finding was supported by the evidence. He relied on
    this evidence to conclude that the Crown had proved Mr. McGeans guilt beyond a
    reasonable doubt. When considered in totality, the evidence painted a clear
    picture of Mr. McGean at the top of an ongoing conspiracy to purchase and
    distribute cocaine. Thus we see no reason to interfere with the trial judges
    findings on the ultimate issue of guilt.

(2)

Mr. Lucas Conviction Appeal

[18]

Mr.
    Lucas submits that the trial judge rendered an unreasonable verdict on the
    conspiracy to traffic in heroin because the evidence was only consistent with
    him being a low-level dealer. There was no evidence to show that he entered
    into any agreement to purchase a large amount of heroin or that the small
    amounts of heroin he sold came from the September 24, 2013 purchase that formed
    the basis of the conspiracy that the trial judge found to exist. Furthermore,
    Mr. Lucas contends that the trial judge framed the scope of the conspiracy in
    an overly broad manner by including the distribution of heroin as part of the
    conspiracy.

[19]

We
    disagree.

[20]

It
    is settled law that there is no requirement that all members of a conspiracy
    play an equal role:
R. v. J.F.
, 2013 SCC 12, [2013] 1 S.C.R. 565, at
    para. 54;
R. v. Root
, 2008 ONCA 869, 241 C.C.C. (3d) 125, leave to
    appeal refused, [2009] S.C.C.A. No. 282, at para. 68. Furthermore, it was open
    to the trial judge to infer Mr. Lucas membership in the heroin conspiracy from
    his own actions. As the Supreme Court held in
J.F.
, at para. 52, where
    a person, with knowledge of a conspiracy, doessomething for the purpose of
    furthering the unlawful object, with the knowledge and consent of one or more
    of the existing conspirators, this provides powerful circumstantial evidence
    from which membership in the conspiracy can be inferred.

[21]

In
    this case, the trial judge reasonably inferred Mr. Lucas membership in the
    heroin conspiracy from his role as an enforcer for Mr. McGean. The trial judge
    found that the agreement between Mr. Lucas and Mr. McGean, pursuant to which
    Mr. Lucas would act as Mr. McGeans enforcer, extended to the heroin
    conspiracy: at paras. 143, 161. The trial judge was thus entitled to infer that
    Mr. Lucas was a member of the heroin conspiracy because he knew of the heroin
    conspiracy and acted as an enforcer for the purpose of furthering its unlawful
    object with the consent of one of the principal conspirators, namely Mr.
    McGean.

[22]

Moreover,
    there was additional evidence supporting the trial judges conclusion that Mr.
    Lucas role was more than that of a low-level dealer. As the trial judge found
    at para. 124 of his reasons, on September 29, 2013, Mr. Lucas asked Mr. McGean
    for permission about what to do with the heroin in his possession and who he
    should give it to. Mr. McGean told him to give it to another conspirator, Mr.
    Hook. Mr. Lucas then called Mr. Hook and asked him how he should prepare the
    product. Mr. Hook told him to break it down using vitamin C. We agree with the
    Crown that these comments suggested a joint venture and that Mr. Lucas was a
    member of a broader agreement to distribute.

[23]

Furthermore,
    the evidence that the trial judge considered did link the heroin in Mr. Lucas
    possession to the September 24, 2013 purchase. As the trial judge found at
    para. 121 of his reasons, on the day before the purchase, Mr. Lucas and Mr.
    Hook had discussed the need to break down the heroin they planned to purchase
    with vitamin C and vinegar. Only six days later, Mr. McGean directed Mr. Lucas
    to speak to Mr. Hook about the heroin in Mr. Lucas possession. Mr. Hook then
    instructed Mr. Lucas on the same method of breaking down the heroin that Mr.
    Hook and Mr. McGean had previously discussed. This was compelling evidence
    linking Mr. Lucas to the agreement to purchase heroin on September 24, 2013.

[24]

Finally,
    we reject the argument that the trial judge framed the conspiracy overly
    broadly by including distribution as part of the conspiracy. As the Crown
    submits, trafficking includes distribution and distribution was central to the
    trafficking charge. The definition of traffic contained in s. 2(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19 makes this clear.

(3)

Sentence Appeals

[25]

We
    also dismiss both sentence appeals.

(a)

Mr. McGeans Sentence Appeal

[26]

There
    is no basis to interfere with the sentence that Mr. McGean received.

[27]

Mr.
    McGeans first argument is that the trial judge erred in finding that the
    amount of heroin trafficked was one kilogram. He submits that there were other
    reasonable inferences from the circumstantial evidence and that the trial
    judges finding that the quantum was one kilogram thus violated the principles
    governing inferences from circumstantial evidence set out in
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[28]

We
    reject this argument.

[29]

As
Villaroman
states, at para. 56, it remains for the trier of fact to
    determine whether a proposed alternative inference is reasonable enough to
    raise a doubt. The trier of fact is entitled to reject a proposed alternative
    inference that is based on speculation, not logic and experience:
Villaroman
,
    at para. 37.

[30]

In
    this case, the trial judge reasonably rested his finding on quantum on the
    evidence that the $80,000 to $90,000 pricing that Mr. McGean and Mr. Hook
    discussed in their conversation a day before the purchase fit with the price
    for one kilogram of heroin: at para. 122. While the appellant submits that the
    pricing figure could relate to the value of the sales that the quantity being
    discussed was worth, the trial judge was entitled to reject this proposed alternative
    inference as speculative. The appellant also relies on Mr. Hooks statement to
    him that they could return 17 of them if the quality is poor and asserts that
    this was inconsistent with the quantum of heroin being one kilogram. As the
    defence called no evidence, neither Mr. Hook nor Mr. McGean provided any explanation
    for what this reference to 17 of them could mean. The reference to 17 of
    them could reasonably be understood as a reference to returning a portion of
    the heroin if the quality was poor, which is not inconsistent with a one
    kilogram quantum. Accordingly, the trial judge was entitled to conclude that
    this proposed alternative inference did not raise a reasonable doubt.

[31]

Mr.
    McGeans second argument is that his sentence should be reduced if this court
    set aside his cocaine conspiracy conviction. Our dismissal of the conviction
    appeal renders this argument moot. In the result, the sentence appeal is
    dismissed except that the victim surcharge imposed by the trial judge is set
    aside

(b)

Mr. Lucas Sentence Appeal

[32]

Similarly,
    we would not interfere with the sentence that Mr. Lucas received. Mr. Lucas
    first argument is dependent on this court overturning the heroin conspiracy
    conviction. We have declined to interfere with the heroin conspiracy
    conviction. This ground of appeal thus fails.

[33]

Mr.
    Lucas second argument is that the sentence was excessive because his
    involvement in the heroin conspiracy was at a low level. We reject this argument.
    The trial judge expressly recognized that Mr. Lucas role in the conspiracies
    was not as significant as Mr. McGeans. He specifically stated that Mr. Lucas
    involvement in the heroin conspiracy was that of a lower level distributor.
    As a result, the trial judge imposed a sentence on Mr. Lucas that was two years
    and six months lower than the sentence Mr. McGean received. The trial judge
    detailed several aggravating factors that justified a sentence above the low
    end of the sentencing range. He emphasized that Mr. Lucas had a lengthy
    criminal record, trafficked multiple hard drugs in large quantities, and his drug
    offences were commercial operations that required planning and deliberation.
    There is no basis for this court to reweigh those factors or to interfere with
    the trial judges exercise of discretion.

C.

Disposition

[34]

Accordingly,
    the conviction appeals are dismissed. Leave to appeal sentence is granted to
    both Mr. McGean and Mr. Lucas, but the sentence appeals are also dismissed. The
    victim surcharges ordered by the trial judge are set aside for both.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.