WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is
    made under section 486.4, on application of the prosecutor in respect of a
    victim or a witness, or on application of a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application of the
    prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes
    of subsection (2) are

(a) an offence under section
    423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for
    the benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection
    16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information
    Act
; or

(d) an offence under subsection
    21(1) or section 23 of the
Security of Information Act
that is committed
    in relation to an offence referred to in paragraph (c).

(3)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for an order
    shall

(a) apply in writing to the
    presiding judge or justice or, if the judge or justice has not been determined,
    to a judge of a superior court of criminal jurisdiction in the judicial
    district where the proceedings will take place; and

(b) provide notice of the
    application to the prosecutor, the accused and any other person affected by the
    order that the judge or justice specifies.

(5)     An applicant for an order
    shall set out the grounds on which the applicant relies to establish that the
    order is necessary for the proper administration of justice.

(6)     The judge or justice may
    hold a hearing to determine whether an order should be made, and the hearing
    may be in private.

(7)     In determining whether to
    make an order, the judge or justice shall consider

(a) the right to a fair and
    public hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness
    or justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in
    encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed
    order on the freedom of
expression
of those affected by it; and

(h) any other factor that the
    judge or justice considers relevant.

(8)     An order may be subject to
    any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other information that
    could identify the person to whom the application relates as a victim, witness
    or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT
    OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Campbell, 2020 ONCA 221

DATE: 20200317

DOCKET: C62024 & C62289

Benotto, Huscroft and Jamal
    JJ.A.

DOCKET: C62024

BETWEEN

Her Majesty the Queen

Respondent

and

Orville Campbell

Appellant

DOCKET:
C62289

AND BETWEEN

Her Majesty the Queen

Respondent

and

Stanton David

Appellant

Philip Campbell, for the appellant Orville Campbell

James Lockyer and Mindy Caterina, for the appellant
    Stanton David

Deborah Krick and Linda Shin, for the
    respondent Her Majesty the Queen

Heard: February 19, 2020

On appeal from the conviction entered on
    November 4, 2015 by Justice I.V.B. Nordheimer of the Superior Court of Justice.

By the Court:

[1]

The appellants were convicted of first-degree
    murder. They appeal the convictions on the basis that the first-degree murder
    verdict was unreasonable. They also submit
that the
    trial judge erred in his charge to the jury on post-offence conduct, party
    participation, the
Vetrovec
warning, the pathology evidence, and the
    use of the criminal record of the deceased.

[2]

They seek a new trial on first-degree murder or
    in the alternative, a new trial on second-degree murder.

[3]

We have concluded that the verdict on first-degree
    murder was unreasonable and that there was no error requiring a new trial on
    second-degree murder
.

[4]

For the reasons that follow, we dismiss the
    appeal but substitute a verdict of second-degree murder and remit the matter to
    the Superior Court for sentencing.

FACTS

Background

[5]

In the spring of 2012, the appellants Orville
    Campbell and Stanton David were in custody. Campbell

s charges were ultimately withdrawn, but while he was in jail, his
    girlfriend Chelise Strong began a relationship with Ricardo Vincent. Campbell
    was released from prison on May 4, 2012. Over the following days, he
    encountered Vincent and animosity ensued.

[6]

On May 10, 2012, outside of a convenience store
    on Glamorgan Avenue in Scarborough, Campbell stared at Vincent from inside his
    car and Vincent yelled at Campbell to

fuck off

. Later
    that day Campbell left a voicemail for Strong saying

Tell your little boyfriend I

m not scared of him. If he wants an issue I

m not scared of him. Why is he telling me to fuck off.

On May 13, Campbell was at a night club in
    Scarborough with friends and coincidentally ran into Strong and Vincent. Vincent
    threatened to

fuck him up
 and
said that Strong didn

t want his

broke ugly ass

.
    Campbell retorted that he was still having sexual relations with Strong.
    Campbell later texted Strong saying: (i)

Now I see wat [sic] it is, tell ur lil bf when I see him he better
    have it

and (ii)

Yo if da nigga even try

s to crack to me he

s dead he better kno wha it is, and as for u jus holla at me! I

m done havin my feelings hurt from u parin
    wit nighas

.

[7]

After the incident at the nightclub, Campbell
    met with L.S., a friend of Vincent and an acquaintance of both appellants. L.S.
    told Campbell that it did not make sense to argue over a girl. L.S. told Vincent
    to either kill Campbell or to

lay
    low

.

[8]

On May 28, 2012, the appellant David was
    released from custody. On May 29, 2012, a mutual friend, Clayton Robichaud,
    introduced Campbell to David. David purchased marijuana from Campbell and the
    two began texting and speaking on the phone regularly. They appear to have
    become fast friends. Campbell, David and Robichaud were aspiring music artists.

[9]

On June 20, 2012, Campbell, David, L.S.,
    Robichaud, and others gathered at 6 Glamorgan Avenue to shoot a rap video.
    David was asked to get a gun to contribute to the

urban look

of the
    video. He borrowed a .357 revolver from a friend. It was used in the video.
    David can be seen dancing with the revolver. Scenes from the music video
    included Campbell, L.S., and others. David testified that he returned the gun
    to the friend after the video shoot. L.S. testified that in the days leading up
    to the shooting, he saw Campbell and David sharing the revolver and that they
    were the

only two with access

to the weapon.

June 22, 2012

[10]

On June 22, 2012, Campbell had plans to drive to
    Barrie to pick up some marijuana to sell. He drove to Barrie with some friends
    and purchased marijuana, returning to 6 Glamorgan around 3:30 p.m. By chance
    Vincent was there. Campbell saw Robichaud, sold some marijuana, and then left
    with friends to continue selling. David had also gone to 6 Glamorgan that
    morning to finish shooting the rap video. He had the revolver with him, which
    he claims he borrowed again from his friend. Around 4:00 p.m., David drove into
    the parking lot and met with friends. Robichaud, who had been hanging out with
    Vincent and L.S., invited David to have a drink with them. After the drink,
    David walked to a different area and waited for other friends to show up.

The nine minutes at 6 Glamorgan

[11]

Campbell returned to 6 Glamorgan around 5:31
    p.m. Nine minutes later, Vincent was dead.

[12]

When Campbell arrived at 6 Glamorgan, he testified
    that Vincent told him to get the fuck out of here.

[13]

L.S. was sitting with Robichaud about 150 feet away
.
L.S. testified that he saw a confrontation
    by Vincent

s car. Campbell and
    David and two or three other men were near the car. Vincent got out of his car
    and moved toward the playground/splash pad area. The group of men followed. L.S.
    testified that he saw Campbell with a gun and heard him tell Vincent

I told you bro, I

m locked and loaded

.
    The confrontation then ended.

[14]

In the moments following, Campbell texted
    someone about selling marijuana. Vincent walked back to his car. Campbell and
    David and the other men followed. Vincent was standing near the front of his
    car. L.S. saw Campbell acting like he had a gun. Campbell and David walked
    behind Vincents car and met very close together on a grassy area. L.S. did not
    hear what was said and he did not see a gun. However, he testified that it
    looked like

something

was handed over and he believed it was a
    gun. L.S. testified that after Campbell and David met behind Vincents car,
    David began moving like he had the weapon. David moved first toward Vincent. Campbell
    followed but then stopped. David was

not moving fast

, he
    was

sliding through the cars

. L.S. said that David appeared to be
    trying to hide his arm behind his hip as David walked along the passenger side
    of the car
.
David had his arm
    held at an angle like he was concealing a gun.

[15]

Campbell also walked toward Vincent but stopped.
    David continued to move toward Vincent. L.S. heard five shots fired: two
    together and then three more. L.S. looked back and saw David holding a revolver
    and looking around. Campbell had his mouth wide open

like the kid from Home Alone

.

[16]

Although brief, there was a separation in time
    between the exchange of insults between Campbell and Vincent and the meeting of
    Campbell and David behind the car.

[17]

The Crown alleged that Campbell passed the gun
    to David and instructed him to kill Vincent. They were charged with
    first-degree murder and tried before a jury as joint principals.

Motion for directed verdict

[18]

At the conclusion of the Crown

s case, the appellants brought motions for
    directed verdicts, seeking to remove first-degree murder from the jury

s consideration. In dismissing the
    application, with reasons reported at 2015 ONSC 6738, the trial judge concluded
    that if the jury found that Campbell and David participated in Vincent

s killing, then they could draw inferences
    of planning and deliberation from the following facts:

·

Campbell had previously
    sent a text message to Strong that amounted to a threat against Vincent;

·

Campbell and David were
    friends;

·

The gun was brought by
    one of them to the area where the shooting occurred;

·

Shortly before the
    shooting Campbell said he was locked and loaded;

·

Immediately before the
    shooting Campbell and David met behind Vincents car and the gun was allegedly
    passed from Campbell to David;

·

There is no evidence
    that either Campbell or David demonstrated surprise or alarm that might suggest
    the shooting was an unexpected event. L.S. expressly denied that Campbell
    looked shocked after the shooting;

·

While there is some evidence
    that words were exchanged between Campbell and David and Vincent prior to the
    shooting, there was a gap in time between that exchange and the shooting that
    tends to discount any suggestion that the shooting resulted from a sudden or
    impulsive act.

[19]

The trial continued.

Defence evidence

[20]

Campbell and David testified. Campbell denied
    having a gun on the day of the shooting and denied instructing David to shoot Vincent.
    He testified that after the confrontation with Vincent, David offered him a
    gun, but he declined it. He heard two gunshots, which did not come from David.
    He heard three more shots and saw Vincent

twist

and hit the
    ground. He did not see Vincent with a gun.

[21]

David testified that he heard Vincent yelling at
    Campbell. He said he went up to Vincent who had a gun. In an attempt to see the
    gun, he lifted Vincent

s shirt,
    but Vincent slapped away his hand and said no. The argument continued between
    the Vincent and Campbell. David heard Vincent threaten to kill Campbell. He
    then went to Campbell and offered him his gun, but Campbell declined. David
    heard a shot and then a second shot and saw Vincent with a gun. David started
    to

skate

toward Vincent and fired because it was

him or me

. David denied knowing anything about the dispute between Campbell
    and Vincent and denied being told by Campbell to shoot him.

Jury charge

(a)

The two scenarios

[22]

Two scenarios were put to the jury as to how Vincent
    came to his death:

1.

When the two men were behind Vincents car,
    Campbell told David to shoot Vincent; or

2.

David was acting alone. David used the gun
    to shoot Vincent when Vincent fired shots at him. On this scenario, David
    asserts self-defence.

[23]

Because the jury found both Campbell and David guilty
    of first-degree murder, the jury clearly relied on scenario one
.

(b)

Planning and deliberation

[24]

The trial judge correctly instructed the jury on
    the elements of planning and deliberation. Then, the charge continued:

[I]n terms of determining whether the murder was planned and
    deliberate you may wish to consider evidence that:

1. There was a gun that was used that was brought either by
    Orville Campbell or by Stanton David to the location;

2. Prior to the shooting Orville Campbell said to Ricardo
    Vincent I am always locked and loaded, if you accept that Mr. Campbell said
    that;

3. There was nothing apparently said between Orville Campbell
    and Stanton David immediately prior to the shooting taking place that might
    indicate surprise or alarm or otherwise suggest that the shooting was an
    unexpected event or done as a matter of impulse;

4. There was no discussion between Orville Campbell and Stanton
    David on the one hand, and Ricardo Vincent on the other, that would suggest the
    shooting resulted from a sudden or impulsive act;

5. The events of the shooting were preceded by a dispute
    between Orville Campbell and Ricardo Vincent that had been ongoing for some
    period of time, and during the course of which Mr. Campbell had made threats
    against Mr. Vincent; and

6. Neither Orville Campbell nor Stanton David remained at the
    scene or rendered any assistance to Ricardo Vincent.

These are not the only pieces of
    evidence that you will want to consider. There are other pieces of evidence
    that might argue against any conclusion that the murder of Mr. Vincent was
    planned and deliberate. The pieces of evidence that I have mentioned are just
    some factors that may assist you in deciding whether the murder of Ricardo
    Vincent was the result of a planned and deliberate act. That is not a
    conclusion that you would have to come to, but it is a conclusion you could come
    to. These factors may assist you or they may not. It will be up to you to
    decide.

[25]

The
    jury returned a guilty verdict.

ISSUES ON APPEAL

Campbell and David

[26]

Campbell and David appeal on the basis that the
    verdict of first-degree murder was unreasonable
.
They rely on the lack of evidence to support planning and
    deliberation and errors in the jury charge.

[27]

They also submit that the trial judge improperly
    invited the jury to rely on post-offence conduct to find planning and
    deliberation; failed to give a corrective instruction with respect to the Crown

s misstatement of the pathology evidence;
    erred by not limiting the use of the evidence of Vincents criminal history; and
    failed to provide an adequate
Vetrovec
instruction with respect to L.S.

Campbell

[28]

Campbell submits the trial judge erred in
    instructing the jury to assess Campbell

s liability as a principal in the homicide.

DISCUSSION

First-degree murder

[29]

We begin with the appellants

primary submission: the verdict of first-degree
    murder
was unreasonable.

[30]

The appellants submit that the verdict of first-degree
    murder was unreasonable because there was no evidence that could support a
    finding of planning and deliberation.

[31]

A verdict is unreasonable if a properly
    instructed jury, acting judicially, could not have come to that verdict:
R.
    v. Biniaris
,
2000 SCC 15
, [2000] 1
    S.C.R. 381, at paras.
36-42
.

[32]

In
R. v. Robinson
,

2017 ONCA 645, 352 C.C.C. (3d) 503, this
    court confirmed at para. 31, that, when considering a claim that a jury verdict
    is unreasonable, the court:

must engage in a limited weighing of the
    evidence. Cromwell J. described the boundaries of that exercise in
R.
    v. W.H.
,
2013 SCC 22
, [2013] 2 S.C.R. 180, at paras.
27-28
:

On one hand, the reviewing court must give
    due weight to the advantages of the jury as the trier of fact who was present
    throughout the trial and saw and heard the evidence as it unfolded. The
    reviewing court must not act as a 13th juror or simply give effect to vague
    unease or lurking doubt based on its own review of the written record or find
    that a verdict is unreasonable simply because the reviewing court has a
    reasonable doubt based on its review of the record.

On the other
    hand, however, the review cannot be limited to assessing the sufficiency of the
    evidence. A positive answer to the question of whether there is some evidence
    which, if believed, supports the conviction does not exhaust the role of the
    reviewing court. Rather, the court is required to review, analyse and, within
    the limits of appellate disadvantage, weigh the evidence  and consider
    through the lens of judicial experience, whether judicial fact-finding
precludes
the
    conclusion reached by the jury. Thus, in deciding whether the verdict is one
    which a properly instructed jury acting judicially could reasonably have rendered,
    the reviewing court must ask not only whether there is evidence in the record
    to support the verdict, but also whether the jurys conclusion conflicts with
    the bulk of judicial experience. [Citations omitted; emphasis in original.]

[33]

A murder is planned if it is the product of

a calculated scheme or design which has
    been carefully thought out, and the nature and consequences of which have been
    considered and weighed
.
A
    murder is

deliberate

if it is

considered,

not impulsive

,

slow in deciding,

cautious,

implying that the accused must take time to weigh the advantages
    and disadvantages of his intended action:

R. v. Nygaard
, [1989] 2 S.C.R. 1074, at
    p. 1084.

[34]

The Crown here was required to prove beyond a
    reasonable doubt that each of Campbell and David had carefully thought out and
    calculated a scheme, considered the nature and consequences, and weighed the
    pros and cons of the murder. We conclude that the evidence does not establish
    that a reasonable jury could have been satisfied beyond a reasonable doubt that
    these conditions were met.

[35]

The Crown

s position with respect to the evidence that could ground the jury

s finding of planning and deliberation
    shifted significantly between trial and appeal.

[36]

At trial the Crown relied on the text message
    that Campbell sent to Strong threatening Vincent. Recall, it was on May 13,
    2012  about five weeks earlier  that Campbell told Strong:

tell ur lil bf when I see him he better
    have it

.

[37]

With respect to David, the Crown relied on his
    desire to defend Campbell from the insults from Vincent. The following excerpt
    represents the bulk of the Crown

s closing:

Then the issue becomes, is this planned and deliberate?  Because
    if its planned and deliberate, its first degree murder. Now, a plan can be simple
    and senseless. It doesnt have to be the
work
of an evil
    genius or anything like that.
It
doesnt have to be complicated.
    It doesnt have to be like in the movies. And
certainly,
take
    the gun, slide up on him and shoot him until
hes
dead is
    a simple but deadly
plan.

And then the issue is deliberate. Planned and deliberate. You require
    both elements for it to
be
first degree murder. If its
    not planned and deliberate, its second degree murder

This is something that had been
threatened.
This
    was something that was long
standing.
This is something
    where people have had lots of time, in
particular
Mr.
Campbell,
to
think
about whether he wants
    to do it, and this is, in my respectful view, on behalf of
both gentlemen,
planned and
deliberate.

Again, with respect to David,
deliberations dont
have to be

they
dont
have to be,
again,
like
intellectual
exercises where
everything
makes
    a lot of sense. It could be
relatively
simple.
It
can be, you know what, this guy is dissing my friend, and yes,
    this is in
broad
daylight but no one here is going to say
    anything because the code is in place, and dead
men dont
    talk, and Im going to be out of here in two seconds, and you know what, I am
    going to do a solid for my buddy, Im going to take that gun and Im going to
    shoot him because he deserves it. That could be deliberation. Again, it doesnt
    mean a work of genius.

[38]

In other words, the Crown at trial relied on the
    animus between Campbell and Vincent  dating back five weeks  to suggest that
    Campbell had developed and carefully thought out a scheme to kill Vincent. As
    for David, the Crown appeared to say that his planning and deliberation took
    place when he was handed the gun
.

[39]

On appeal, Crown counsel

s written submissions amplified the rather amorphous jury closing by
    the Crown. The Crown put forward the following evidence from which the jury
    could find planning and deliberation:

(i)

Animus and motive:
    Campbells anger about Strong.

(ii)

Threats: the text
    messages sent to Strong on May 10 and 13, 2012.

(iii)

Friendship between
    Campbell and David.

(iv)

Presence of a gun on
    June 22, 2012.

(v)

No appearance of shock
    after the shooting.

(vi)

Intimidation of Vincent:
    L.S.s evidence depicted a sequence of evidence during which Campbell and David
    (and others) followed and tried to intimidate Vincent. L.S. testified how
    Campbell, David, Campbells cousin and one or two others swarmed Vincent in a
    half circle around him. Campbell was in Ricardos face and circling him and
    holding his waist. The group followed Vincent to his car, tailing him, and
    Campbells cousin blocked Vincents way. L.S. testified that at one point,
    Campbell had a revolver in his hand and said to Vincent, I told you bro, Im
    locked and loaded. When Vincent was moving to his car, he was followed by the
    group.

(vii)

The exchange of the firearm.

(viii)

The gap in time after
    the firearm exchange and the shooting.

(ix)

No evidence that
    Campbell or David remained at the scene or rendered assistance to Vincent.

[40]

During oral submissions, the Crowns position
    changed significantly. It was submitted that the planning and deliberation took
    place  not in the weeks leading up to the murder  but in the nine minutes
    that the appellants were at 6 Glamorgan. More particularly, it was the exchange
    between the two at the back of Vincent

s car where the planning and deliberation took place
.

[41]

The Crown submits that, by accepting scenario
    one, the jury effectively concluded that the murder was planned and deliberate.
    The reasoning goes like this
.
Campbell
    handed the gun to David and told him to shoot. By taking the gun and shooting,
    David agreed. It was analogous to a contract killing, which satisfies the
    requirements for planning and deliberation
.
Simply put, inherent in the instruction to shoot is planning and
    deliberation.

[42]

We do not accept that the evidence of the
    Campbell and David meeting behind Vincents car could possibly establish
    planning and deliberation. L.S.

s evidence was that he saw them. He did not hear what was said. The
    exchange was after Campbell had arrived, walked to the splash pad area and
    walked back. It was thus nearer to the end of the nine minutes. There was no
    time at the back of the car for a carefully thought-out scheme with a weighing
    of the advantages and disadvantages. Nor was there evidence to support the
    planning and deliberation.

[43]

Further, the evidence relied on is equally
    consistent with an impulsive act: Campbell was angry with Vincent and
    impulsively told David to shoot. The evidence of planning and deliberation with
    respect to David is even flimsier: he took the gun from his friend and shot.

[44]

Putting the Crown

s position at its highest, when the appellants were behind Vincents
    car, Campbell passed the gun to David and told him to shoot. David took the gun
    and slid alongside the cars and shot. These facts  even when viewed in the
    context of the animus between Campbell and Vincent  do not constitute planning
    and deliberation. There is no evidence from which the jury could infer a
    carefully thought-out scheme with time to weigh the advantages and
    disadvantages of the intended action; Campbell, David and L.S. all testified
    that the shooting happened rapidly.

[45]

The evidence before the jury that a gun was
    brought to 6 Glamorgan, that Campbell had threatened Vincent through Strong and
    told Vincent that he was always locked and loaded could not, absent
    impermissible speculation, have satisfied the jury beyond a reasonable doubt
    that Campbell and David had planned and deliberated about the murder before the
    shooting. The appellants did not go to 6 Glamorgan looking for Vincent. They
    met there by chance. The threats were made through Strong five weeks earlier
    and there was evidence that Campbell was in another relationship. The fact that
    the appellants left the scene is equally consistent with an impulsive act as it
    is with planning and deliberation.

[46]

The evidence before the jury was sufficient for
    the jury to find motive and intent. The risk is that this could lead the jury to
    a determination of planning and deliberation. The danger was referred to in
Robinson
,
at para. 37:

A lay jury,
    unaccustomed to the sometimes subtle distinctions drawn in the criminal law
    among various culpable mental states, might move quickly from a finding that
    the appellant decided to inflict bodily harm that he knew would probably cause
    death, to a finding that the appellant had planned to inflict harm that he knew
    was likely to cause death. Looking at the evidence through the lens of
    judicial experience, an appeal court must have regard to the real risk that
    evidence demonstrating the intention to commit murder  could be improperly
    treated by a jury as equally cogent evidence of planning, if not deliberation.

[47]

We conclude that the verdict of first-degree
    murder cannot stand. We turn to consider whether a new trial is required on
    second-degree murder.

Is a new trial required?

[48]

The appellants have submitted that a new trial
    is necessary because of errors in the jury charge. They say that the jury
    charge was in error with respect to post-offence conduct, the
Vetrovec
warning, the pathology evidence and the use of the criminal record of the
    deceased. Campbell also submits that the jury charge was in error with respect
    to party participation. Below, we examine each of these submissions in turn.

(a)

Post-offence conduct

[49]

The trial judge referred to the fact that
    neither appellant remained at the scene. The jury was told this could be
    considered in relation to planning and deliberation.

[50]

The appellants submits that, without a limiting
    instruction, this fact could have tainted their decision on intent for murder.
    Therefore, a new trial is necessary on second-degree murder.

[51]

We do not agree.

[52]

The evidence was mentioned only in the context
    of planning and deliberation for first-degree murder. The jury would only have
    reached consideration of whether the shooting was planned and deliberate after
    concluding that the appellants caused Vincents death and had the requisite
    intent for murder. Accordingly, the jury must have accepted scenario one, that
    Campbell instructed David to shoot. While it would have been preferable for the
    jury instructions to include the prohibited use of the post-offence conduct,
    under the circumstances it was of no moment. The jury clearly decided  in
    accordance with scenario one  that Campbell told David to shoot when they were
    at the back of the car. Intent for murder was unrelated and could not be
    informed by the fact that they left the scene.

[53]

Further,
no one
stayed at the scene when
    the shots were fired
.
The
    evidence was uncontradicted that everyone fled
. There
    was nothing specific to the conduct of the appellants in this regard and
no risk of misuse of the evidence by the jury.

(b)

The
Vetrovec
warning

[54]

The appellants submit that the trial judge

s warning regarding the testimony of L.S.
    was inadequate. L.S.  they say  was an unsavoury (or
Vetrovec
)

witness
    and there should have been a stronger warning.

[55]

In the wake of the shooting, L.S. spoke on the
    phone with a police officer and promised he would help with the investigation.
    However, he did not follow through due to a code that prevented him from
    speaking to police. On March 9, 2013, police executed a search warrant at his
    apartment and found a sawed-off shotgun. He was arrested that day and he provided
    his first statement about the shooting, which was given under oath and
    videotaped. L.S. was subpoenaed to attend the appellants preliminary inquiry
    on April 17, 2014, but instead drove to Vancouver to sign a management deal for
    his rap-artist career. He was eventually pulled over by the OPP near Thunder
    Bay. He was arrested and flown to Toronto. L.S. ultimately testified at both
    the preliminary inquiry and the trial.

[56]

The trial judge instructed the jury to approach L.S.s
    evidence as follows:

While Im on the subject of witnesses in this
    case, let me deal with [L.S.], who you know gave evidence as a witness for the
    Crown. [L.S.] is currently facing charges relating to weapons offences. [L.S.]s
    trial on those charges has not yet been held. A prosecution witness who is
    awaiting trial himself on charges may have an interest in giving evidence favourably
    for the prosecution in this trial. Favourable evidence here may help the
    witness out with his own case later, or the witness may believe that it will do
    so. In this case you will remember that while [L.S.] said he thought of that
    possibility, he was told very clearly by the homicide investigators, when he
    agreed to give a statement, that there would be no special treatment for him on
    his charges, arising from giving a statement to the police.

You have also
    heard that [L.S.] lied while under oath at the preliminary hearing. [L.S.] admits
    that he did so and he told you why he did not tell the whole truth at that
    time. Experience and common sense tells you that in light of these
    circumstances there is good reason to look at [L.S.]s evidence with care and
    caution. You are entitled to rely on [L.S.]s evidence of course, but given
    these circumstances you may wish to look for some confirmation of [L.S.]s
    evidence from somebody or something other than [L.S.] before you rely upon [L.S.]s
    evidence in deciding whether Crown counsel has proven the case against Orville
    Campbell and Stanton David beyond a reasonable doubt.

[57]

The appellants submit that this warning did not
    impart the appropriate level of caution for the jury, particularly when L.S.
    was the primary Crown witness. The appellants submit that a clear caution was
    necessary to tell the jury that it was dangerous to convict on the unconfirmed
    testimony of L.S.

[58]

In the circumstances of this case and this
    witness, the
Vetrovec
instruction was appropriate and sufficient. The
    precise language used in a
Vetrovec
instruction is at the discretion
    of the trial judge. While L.S. had unrelated outstanding charges, he knew that
    the police and Crown would give him no consideration for his testimony at this
    trial. He also had no criminal record, was employed and had no
animus
towards Campbell and David. On the spectrum of unsavory witnesses, L.S. was on
    the lower end.

[59]

When an instruction is warranted, trial judges
    have the discretion to tailor it according to the circumstances of each case
    and the witness. In
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at
    para. 37, the Supreme Court approved of the following general framework as
    guidance for trial judges on the content of a
Vetrovec
instruction.
    The trial judge should:

a.

draw the attention of
    the jury to the evidence requiring special scrutiny.

b.

explain why the
    evidence is subject to special scrutiny.

c.

caution the jury that
    it is dangerous to convict on unconfirmed evidence of this sort, though they
    are entitled to do so if satisfied that the evidence is true.

d.

explain that the jury,
    in determining the veracity of the suspect evidence, should look for evidence
    from another source tending to show that the untrustworthy witness is telling
    the truth as to the guilt of the accused.

[60]

These guidelines are not to be applied in a
    rigid or formulaic way (
Khela,
at para. 38).

[61]

The
Vetrovec
instruction given by the
    trial judge accomplished each of the four objectives set out in
Khela.
The
    instruction: told the jury that the evidence requiring special scrutiny was the
    testimony of L.S.; explained why L.S.s evidence ought to be approached with
    care and caution; cautioned the jury that it would be dangerous to convict on
    the unconfirmed evidence of L.S.; while not using the word dangerous the
    trial judge warned the jury (there is good reason to look at [L.S.]s evidence
    with care and caution); explained to the jury that when determining the
    veracity of L.S.s evidence, they could look for independent confirmatory
    evidence from another source tending to show that he was telling the truth as
    to the guilt of the accused; and gave examples of such evidence. There is no
    special language that is required:
R. v.
Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 86
.

(c)

Pathology evidence

[62]

The appellants submit that the trial judge erred
    by not correcting the Crowns closing with respect to the pathology evidence.
    The background follows.

[63]

The
    evidence was that five shots were fired. Davids claim of self-defence rested
    on his testimony that the first two were fired by Vincent. Vincent had five
    gunshot wounds. No gun or bullet cases were found at the scene. The jury needed
    to decide whether the five wounds were caused by five shots, or fewer.

[64]

Dr. Hunt, the forensic pathologist who conducted
    the autopsy, could not determine the order of the shots or the distance from
    which they were fired. Dr. Hunt was asked whether he could determine the number
    of shots fired to cause the wounds. His opinion was that there were five
    separate gunshot wounds. However, in his autopsy report, he had concluded that
    the entry wound to the deceaseds chest may have been a re-entry wound from a bullet
    that had first entered then exited his left forearm. Defence counsel asked him
    to consider a scenario in which the deceased had his left arm diagonally across
    his chest to imply he was holding a gun. Dr. Hunt agreed that in such a
    scenario, it was certainly a possibility that the bullet which entered the
    back and exited the chest then also entered the forearm.

[65]

In
    his closing, the Crown told the jury:

Now, theres an explanation from the pathologist how three
    gunshots could have caused four injuries to Mr. Vincent ... The problem is from
    three shots to five injuries.

Now there was a lot of cross-examination about that. The
    suggestion was put to the pathologist, well, what if the arm is in front? And what
    if the bullet hits the arm and then continues into the chest? Then couldnt you
    have three shots causing five injuries? And he says, no, I considered that.

So if I am Mr. Vincent holding a gun like David would have you
    believe it was held, unless that bullet travels around and comes through like
    this, that shot is not going through the arm and doing the type of damage where
    youd have three shots causing five wounds.

Theres no injury to Mr. Vincent through the back of his
    forearm. There is no way that Mr. Vincent took two shots. If he took two shots,
    that means that man only took three. Three shots does not cause five gunshot
    wounds. Not in this scenario, not with an injury to the back. It never
    happened. It never happened.

So if Mr. Vincent wasnt firing the
    two shots, and we know he wasnt, it offends common sense, it offends
    pathology, it offends what we know about bullets travelling in a straight line,
    why do they say this?

[66]

The
    appellants argue that, by claiming that Dr. Hunt had considered and rejected the
    three-gunshot scenario and by suggesting that it offended pathology and common
    sense, the Crown misstated Dr. Hunts testimony. While expressing some doubt
    that the wound to the deceaseds right chest was an entry wound, he unequivocally
    agreed that it was possible that the deceased had been shot only three or four
    times.

[67]

We do not agree that the Crowns closing required a
    corrective instruction. In the entire context of Dr. Hunts evidence, the Crown
    did not misrepresent it. Dr. Hunts opinion was that there
were
    five separate gunshot wounds. While he considered the possibility that one of
    the forearm wounds might have entered the right chest, he indicated that it was
    low in terms of probability. He said: I know its a possibility, but taking
    into consideration the wound appearance, it seems like its a separate wound.
    While Dr. Hunt did not rule out the possibility that the forearm wound and
    chest wound were inflicted from the same bullet, he explained his opinion as to
    why this was not likely.

[68]

The trial judge did bring this to the jurys
    attention:

As I earlier
    mentioned, Dr. Hunt said there were five bullet wounds on Mr. Vincents body.
    You know that [L.S.], Mr. Campbell and various people who called 911 reported
    hearing approximately five gunshots.
At the same time
    though, Dr. Hunt did say that it was possible that the five entry wounds on Mr.
    Vincents body were not necessarily caused by five separate bullets.
We do know that no one else was struck by any bullets, and we also
    know that the police did not find any other bullet holes, for example in any of
    the vehicles that were parked in the area.

(d)

Vincents criminal record

[69]

Vincent
    had prior convictions related to two ex-girlfriends that included aggression
    towards their new boyfriends. The appellants submit that the trial judge erred
    when he instructed the jury that the record was only relevant to self-defence. They
    say that this was circumstantial evidence that supported the claim that Vincent
    was the aggressor on earlier occasions and therefore also on the day of the
    shooting. They submit that this was relevant to the appellants credibility,
    motive and animus.

[70]

We
    do not agree. The prior convictions were only relevant to Davids claim of self-defence.
    No further instruction was appropriate or necessary.

(e)

Party participation

[71]

Campbell
    submits that the trial judge erred by not including an instruction on party
    participation. There was no evidence, he says, that Campbell actually committed
    the offence. Further, there should have been an instruction of potential
    liability under ss. 21(1)(b) and (c) of the
Criminal Code
, R.S.C. 1985,
    c. C-46.

[72]

We
    disagree. The Crown relied on Campbells role as principal to the murder. A
    direct physical contribution to the death is not required to prove causation. It
    was open to the jury to find that his actions in giving David the gun and
    instructing David to shoot were a significant contributing cause of Vincents
    death (see:
R. v. Woodcock
, 2015 ONCA 535, 336
    O.A.C. 322;
R. v. J.S.R.,
2012 ONCA 568, 112
    O.R. (3d) 81)

[73]

In
    our view, it inured to the benefit of Campbell
not
to
    have party participation put to the jury for that would have imported more paths
    to conviction. As trial counsel for Campbell said in his closing address: the
    only available basis on which you can say that Mr. Campbell caused Mr. Vincents
    death is through Mr. Campbell directing or instructing Mr. David to shoot him.
    This, trial counsel said, was the key question.

[74]

A
    charge on party participation was not necessary and it would have imported
    unnecessary confusion.

CONCLUSION

[75]

The
    appeal is dismissed pursuant to s. 686(1)(b)(i) of the
Criminal Code
but
    a verdict of second-degree murder is substituted for first-degree murder
    pursuant to s. 686(3). The matter is remitted to the Superior Court for
    sentencing.

Released: March 17, 2020

MLB

M.L. Benotto J.A.

Grant Huscroft J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Darnley, 2020 ONCA 179

DATE: 20200309

DOCKET: C62610

Feldman, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kara Darnley

Appellant

Philip Campbell, for the appellant

Susan L. Reid, for the respondent

Heard: November 28, 2019

On appeal from the conviction entered by Justice Susan E.
    Healey of the Superior Court of Justice, sitting with a jury, on April 13, 2016.

Paciocco J.A.:

OVERVIEW

[1]

The Crown charged Kara Darnley, an Ontario Provincial Police peace
    officer, with criminal offences relating to two events, what I will call the
    witness record incident and the drug investigation file incidents. The Crown
    theory is that, in both incidents, Cst. Darnley abused her position as a peace officer
    out of loyalty to her fiancé, Jody Vanier, whom the police suspected of involvement
    with illicit drug use.

[2]

Even before these events occurred, the police had concerns that through
    her relationship with her fiancé, Cst. Darnley was too close to drug users. Her
    superiors partnered her with Cst. Fischer who was investigating Cst. Darnley in
    an undercover capacity.

[3]

At her trial, Cst. Darnley argued that the Crown had failed to prove any
    of the charged offences. She was convicted of breach of trust in connection
    with both incidents. She was acquitted of obstruction of justice in connection
    with the witness record incident.
[1]

[4]

Cst. Darnley then sought to raise the entrapment defence against the
    drug investigation file incidents, based on the role played by Cst. Fischer. The
    trial judge rejected this defence.

[5]

Cst. Darnley appeals both convictions, alleging errors during the jury
    trial and in the disposition of the entrapment defence.

[6]

For reasons that follow, I would find that the trial judge committed jury
    direction errors relating to reasonable doubt, and that the jury rendered
    inconsistent verdicts relating to the witness record incident. I would also
    find that errors were made relating to the entrapment defence. I would
    therefore allow Cst. Darnleys appeal and set aside both convictions. I would substitute
    an acquittal for the breach of trust charge relating to the witness record
    incident and order a new trial on the breach of trust charge relating to the
    drug investigation file incidents.

MATERIAL FACTS AND LEGAL BACKGROUND

A.

THE
    OFFENCE OF BREACH OF TRUST

[7]

Section 122 of the
Criminal Code
, R.S.C., 1985, c. C-46 creates
    the offence of breach of trust. It provides:

Every official who, in connection with the duties of
    his office, commits fraud or a breach of trust is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding five years, whether
    or not the fraud or breach of trust would be an offence if it were committed in
    relation to a private person.

[8]

The five elements of s. 122 were set out in
R. v. Boulanger
, 2006
    SCC 32, [2006] 2 S.C.R. 49, at para. 58, as follows:

1. The accused is an official;

2. The accused was acting in connection
    with the duties of his or her office;

3. The accused breached the standard of responsibility and
    conduct demanded of him or her by the nature of the office;

4. The conduct of the accused represented a serious and marked
    departure from the standards expected of an individual in the accuseds
    position of public trust; and

5. The accused acted with the intention to use his or her
    public office for a purpose other than the public good, for example, for a
    dishonest, partial, corrupt, or oppressive purpose.

B.

THE
    WITNESS RECORD INCIDENT

[9]

On December 20, 2010, Cst. Darnley, while off duty, attended her
    fiancés apartment, which he shared with his roommate, Mike Drozdoski. She, her
    fiancé, and Mr. Drozdoski socialized with Mark Jeffrey and his partner Christine
    Kuyvenhoven, the couple that resided in the next apartment. Later that evening,
    Ms. Kuyvenhoven called 9-1-1 about Mr. Jeffrey but was too intoxicated to
    speak. She handed the phone to Cst. Darnley who acknowledged when asked that
    she was a police officer. OPP officers attended the residence and Mr. Jeffrey
    was charged with domestic assault. The police also found 400 grams of marijuana
    in Mr. Jeffreys apartment.

[10]

Based upon concerns with Cst. Darnleys off-duty activities stemming
    from her relationship with her fiancé, including one incident where she
    allegedly transported her fiancé and his drug supplier to an alley to drop something
    off, the Ontario Provincial Police launched an investigation of Cst. Darnley.
    On March 23, 2012, Cst. Fischer was placed with Cst. Darnley. Cst. Fischer had
    been disciplined for illegal conduct (stunt driving) and presented herself to
    Cst. Darnley as a disgruntled, problem officer.

[11]

Two days later, on March 25, 2012, the eve of Mr. Jeffreys trial, Cst. Darnley
    accessed electronic police records and printed the witness statements that police
    had collected during the Jeffrey investigation. She solicited Cst. Fischers
    assistance when the printer jammed.

[12]

The following morning, Mr. Jeffrey pleaded guilty to the assault. No
    witnesses were called to testify. Cst. Darnley was nonetheless charged with
    breach of trust and obstruction of justice for her conduct relating to the
    witness records.

[13]

Specifically, the charges allege: (1) that Cst. Darnley committed the
    breach of trust by releasing confidential police information regarding
    statements given to members of the Huronia West OPP for the purposes of a criminal
    prosecution; and (2) that Cst. Darnley wilfully attempted to obstruct justice
    by printing witness statements in relation to a criminal court proceeding and
    disclosing those statements to witnesses of that proceeding.

[14]

The Crown offered alternative theories at the trial that: (1) Cst.
    Darnley tainted herself as a witness by accessing the statements; or (2) she
    tainted the evidence that her fiancé and Mr. Drozdoski would offer by sharing
    the statements of other witnesses with them. However, the charges against Cst.
    Darnley are particularized. They allege that her guilt arises from the release
    or disclosure of the statements, not her own use of them. Therefore, the first
    theory could not be accepted. The central issue at the trial, and the only
    factual issue in contest on this charge, was whether Cst. Darnley released or
    disclosed the statements to any of the witnesses.

[15]

The Crown presented no direct evidence that she had done so. It relied instead
    on the testimony of Cst. Fischer that Cst. Darnley admitted that she had
    printed the statements so that her fiancé and his roommate Mr. Drozdoski would
    know what other witnesses had said, and that her fiancé and Mr. Drozdoski looked
    at the statements.

[16]

Cst. Darnley did not testify in her own defence. She defended the
    allegation by urging that Cst. Fischer was not credible, and that the Crown had
    failed to prove that Cst. Darnley had released or disclosed the statements to
    witnesses.

[17]

Building on other evidence in the case, Cst. Darnleys trial counsel also
    raised the suggestion that Cst. Darnley may have printed the statements in the
    public interest, so that the witnesses could review their own statements before
    testifying. If there was a reasonable doubt about this, Cst. Darnley would be
    entitled to an acquittal, since, as indicated, the fifth necessary element of
    the offence of breach of trust is that the accused acted with the intention to
    use his or her public office for a purpose other than the public good:
Boulanger
,
    at para. 58.

[18]

Specifically, Cst. Darnleys trial counsel relied upon the testimony of Sgt.
    Lloyd, an officer involved in the investigation of the charges against Mr.
    Jeffrey. The officer testified that the police generally make sure that
    witnesses have a chance to review their own statements before testifying, but
    he had no recollection of preparing the witnesses personally, nor could he
    confirm that someone else did so in connection with Mr. Jeffreys trial. Cst.
    Darnley was not subpoenaed to testify at Mr. Jeffreys trial the way a civilian
    witness would be, but instead received an officer notice. She was directed by
    the Crown to attend as a police witness, and she did so in full police uniform.
    Moreover, Cst. Darnley had made no attempt to hide the fact that she was
    printing the witness statements, even asking Cst. Fischer, whom she had known
    at that point for only two days, to assist her with a paper jam when printing
    the documents.

[19]

The jury convicted Cst. Darnley of breach of trust but acquitted her of
    the obstruction of justice charge in connection with the witness record
    incident.

C.

THE DRUG
    INVESTIGATION FILE INCIDENTS

[20]

During the two and a half months following Mr. Jeffreys trial, Cst.
    Darnley and Cst. Fischer worked and socialized together extensively. On several
    occasions, Cst. Darnley expressed concern about her fiancés drug use and his
    friends, and on one occasion, Cst. Fischer witnessed Cst. Darnley using a
    police database to check on one of her fiancés friends. However, no clear
    evidence of criminality had been obtained. The police decided to conduct an
    integrity play, and then another due to a technical malfunction during the
    first.

(i)

The First Integrity Play

[21]

A fake investigation file was created and placed in a yellow folder entitled
    Confidential Drug Targets, Wasaga Beach. The folder was also labelled with the
    names of three of her fiancés friends. Reports and photographs were placed in
    the file, suggesting that surveillance was being conducted on the men.

[22]

On June 10, 2012, the file was left on the detachment photocopier. A concealed
    camera was trained on the area. That evening, when no one else was present,
    Cst. Fischer, while wearing a recording device, sent Cst. Darnley to the
    photocopier. Cst. Darnley discovered the file. She was alarmed, having recently
    parked her car at one of the target homes. In her conversations with Cst. Fischer,
    she expressed uncertainty about what to do and wondered whether she should say
    anything to her fiancé. Cst. Fischer offered to go with her if she decided to
    tell her fiancé. Cst. Darnley decided to photograph the file, and Cst. Fischer
    offered to be a lookout. With Cst. Fischers encouragement, Cst. Darnley
    checked the CPIC printouts in the yellow folder to determine when the
    investigation began, and Cst. Fischer reassured Cst. Darnley that the file
    would not have been planted intentionally. Cst. Fischer made comments that could
    be taken to be discouraging Cst. Darnley from approaching Sgt. Lloyd, the
    purported investigator of the surveillance file.

[23]

Later that evening, Cst. Darnley admitted that she had called her fiancé
    to warn him not to hang out with his friends anymore. When the shift ended, she
    invited Cst. Fischer to her home. Her fiancé was asleep and Cst. Fischer again
    assured Cst. Darnley she would be a second voice if she decided to talk to him.
    The next day, Cst. Darnley acknowledged to Cst. Fischer that she had talked to her
    fiancé and had showed him the photographs of the file. She said that she had
    asked him not to say anything to anyone about them.

(ii)

The Second Integrity Play

[24]

Since the camera that was meant to record Cst. Darnleys discovery of
    the yellow folder had malfunctioned, police decided to conduct a second integrity
    play. On June 18, 2012, a box marked with the names of her fiancés friends,
    and the title Lloyds Surveillance Box was placed on a filing cabinet in the
    criminal investigation office. Cst. Darnley discovered the box and Cst. Fischer
    served as a lookout so that Cst. Darnley could examine and photograph the
    contents of the box. Again Cst. Fischer made comments to allay Cst. Darnleys
    concerns that the box may have been planted.

[25]

The following evening, June 19, 2012, Cst. Darnley searched Sgt. Lloyds
    desk, but found nothing. Then Cst. Fischer accompanied Cst. Darnley home after
    Cst. Darnley decided to speak with her fiancé. Cst. Fischer taped the
    conversation. In that conversation, Cst. Darnleys fiancé declined Cst.
    Darnleys invitation to see the photographs, they discussed who could be
    providing information to the police, and Cst. Darnley warned him to stay away
    from the suspected men and commented that she was telling him about the
    investigation to protect me and you.

[26]

Cst. Darnley was arrested on July 4, 2012. Her phone was searched and
    the photos she took were secured, along with a text she had sent to Cst.
    Fischer confirming that she had advised her fiancé about the contents of the surveillance
    box.

(iii)

The Drug Investigation File Charges

[27]

As indicated, Cst. Darnley was charged with both the witness record
    incident and the drug investigation file incidents.

[28]

With respect to the breach of trust charge relating to the drug
    investigation file incidents, the parties agreed that the sole issue for the
    jury was why Cst. Darnley accessed and photographed the files and shared this
    confidential information with her fiancé. The Crown urged that her intention
    was to protect herself and her fiancé and that this was done in her self-interest.
    Cst. Darnley argued to the contrary that her surreptitiously recorded
    statements show that she accessed and shared the information with her fiancé in
    order to preserve the integrity of her position as a police officer by
    ensuring that her fiancé, her future husband, discontinued his association with
    the suspected drug users, drug dealers, something that was undermining her ability
    to maintain her proper role as a police officer.

[29]

After the jury convicted Cst. Darnley on this count, she moved that the
    charge be stayed. She said that the integrity plays exceeded the acceptable
    limits of police conduct by entrapping her. Entrapment can occur in two ways,
    either: (1) the authorities provide an opportunity to persons to commit an
    offence without reasonable suspicion or acting
mala fides
; or (2)
    having a reasonable suspicion or acting in the course of a
bona fide
inquiry, they go beyond providing an opportunity and induce the commission of
    an offence:
R. v. Mack
, [1988] 2 S.C.R. 903, at p. 959. Cst. Darnley
    argued both branches in the alternative. On May 17, 2016, the trial judge
    dismissed the motion.

ISSUES

[30]

Cst. Darnley raises the following issues on appeal:

A.

the trial judge
    erred by misdirecting the jury on the meaning of reasonable doubt;

B.

the trial judge
    erred by providing improper and conflicting jury instructions on the public
    good element of breach of trust and the Crown burden relating to motive;

C.

the jury verdict of
    guilty of breach of trust relating to the witness record incident is
    inconsistent with its verdict of acquittal of obstruction of justice relating
    to the same incident and is therefore unreasonable;

D.

the jury erred in
    finding breach of trust in connection with the drug investigation file
    incident, given that Cst. Darnley was not trusted and the information in the
    drug investigation file was not confidential;

E.

the trial judge
    misapplied the law of entrapment in denying her post-verdict application for a
    stay of proceedings relating to the drug investigation file incidents.
    Specifically, the trial judge erred by,

1.

improperly
    reasoning that peace officers must be held to elevated standards of moral
    restraint or fortitude; and

2.

misunderstanding
    the average person inquiry by asking whether any OPP officer faced with the two
    integrity scenarios would inevitably have been induced to commit the breach of
    trust.

ANALYSIS

A.

DID THE
    TRIAL JUDGE MISDIRECT THE JURY ON REASONABLE DOUBT?

[31]

These are the impugned passages from the trial judges reasonable
    doubt direction. The contentious words are underlined:

(1) A reasonable doubt is a real doubt that logically arises
    from the evidence or the lack of evidence. It is a doubt based on reason and
    common sense after considering all of the evidence as a whole.
It may be a doubt created by an inference or conclusion you
    have drawn from the facts as you find them, provided that the inference or
    conclusion is not a speculation or guess, but a much stronger conclusion
    arising from the proven facts and based on the evidence alone.

(2) If your doubt is about something you have imagined or made
    up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it
    is a doubt based on sympathy or prejudice, then it is not a reasonable doubt.
It must be a doubt about an essential element of the offences
    charged, and must arise from the evidence
. [Emphasis added.]

[32]

The Crown concedes that both of the underlined passages are in error.

[33]

First, a reasonable doubt need not arise from the evidence:
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise
    from the absence of evidence, from what the Crown has failed to prove:
R.
    v. Lifchus
, [1997] 3 S.C.R. 230, at para. 36.

[34]

Moreover, an inference need not arise from proven facts, which is a
    standard that is never applicable to an accused:
R. v. Robert
(2000),
    143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to
    proven facts suggests an obligation to establish those facts to a standard of
    proof, yet a reasonable doubt can arise from evidence that, while not proven to
    be true to any standard of proof, has not been rejected.

[35]

It is also incorrect to link a reasonable doubt to a conclusion drawn
    from the facts. An acquittal need not be based on a conclusion about innocence
    but can rest on an inability to conclude guilt.

[36]

It is also an error to suggest that an exculpatory inference must be a
    much stronger conclusion than a speculation or guess. That language imports
    the need for a strong inference, when an exculpatory inference relating to a
    required element of the offence need merely raise a reasonable doubt:
Villaroman
,
    at para. 20.

[37]

The Crown contends that, in these passages, the trial judge was
    attempting to prevent the jury from accepting the speculative claims made by
    the defence about what Cst. Darnley was thinking. I need not resolve whether
    Cst. Darnleys arguments were speculative because even if the trial judge was
    attempting to discourage speculation by the jury, she stated the law
    incorrectly.

[38]

There is no force in the Crowns contention that these errors lose their
    significance when the jury charge is read as a whole. Errors relating to the
    burden and standard of proof may not be reversible if the charge, when read as
    a whole, makes it clear that the jury
could not have been
    under any misapprehension
as to the correct burden and standard of proof
    to apply (emphasis added):
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at p.
    758. This is not a case for inferring that these errors did not confuse or
    mislead the jury.

[39]

First, the trial judge provided a precise and misleading direction about
    drawing exculpatory inferences, and she linked reasonable doubt to evidence-based
    conclusions. These errors go to the very concept of a reasonable doubt. They
    cannot be corrected by admonitions to give the accused the benefit of the
    doubt.

[40]

Moreover, none of the correct directions relied upon by the Crown as
    ameliorative address how exculpatory inferences are to be evaluated, a key
    feature of the misdirection

[41]

Nor can the trial judges misdirection that a reasonable doubt must arise
    from the evidence be overcome. The first impugned paragraph opens with the
    correct direction to the jury that a reasonable doubt can arise from the lack
    of evidence and the reasonable doubt direction ends with the same point. But
    this does not remove the risk of misapprehension that arises from an
    unequivocal direction that a doubt must arise from the evidence. There is no
    way to reconcile those comments, and no basis to conclude that the jury would
    follow one direction and not the other.

[42]

Cst. Darnleys appeal counsel argues correctly that the errors made by
    the trial judge undermined both the presumption of innocence and the burden of
    proof. They effectively reverse the burden of proof and lower the standard of
    proof required of the Crown. Such errors are magnified in this case, where Cst.
    Darnley defended herself based on what the Crown had failed to prove. Given the
    seriousness of these errors and the absence of any reasonable tactical basis
    for the defence accepting this misdirection, the failure of trial counsel to
    object to the charge is of no moment.

[43]

I would allow this ground of appeal from both convictions.

B.

DID THE
    TRIAL JUDGE PROVIDE CONFLICTING JURY INSTRUCTIONS ON THE PUBLIC GOOD ELEMENT
    OF BREACH OF TRUST AND THE CROWN BURDEN RELATING TO MOTIVE?

[44]

It is uncommon for criminal offences to require proof of motive.
    Typically, the Crown need not prove why someone has chosen to engage in
    criminal activity, and it is standard to direct juries to this effect. Accordingly,
    the trial judge directed the jury that [m]otive  is not one of the essential
    elements that Crown counsel must prove. And again, [a] person may be found
    guilty of an offence, whatever his motive, or even without a motive.

[45]

However, in a breach of trust charge, it is necessary to inquire into
    the purpose for the accused persons breach of the standards of
    responsibility and conduct of their office; for the offence to be complete that
    purpose must be other than the public good.

[46]

Historically, courts have used the term motive when describing this
    purpose element:
R. v. Williams
(1762), 97 E.R. 851 (K.B.);
R. v.
    Borron
(1820), 106 E.R. 721 (K.B.). In truth, this is an imprecise use of
    the term motive. As the trial judge explained, motive describes why the
    accused acted as they did. Motive is what induces a person to act:
The
    Concise Oxford Dictionary of Current English,
7th ed. The same dictionary
    defines purpose as the object to be attained, thing intended, and so,
    purpose may not be the same as motive. For example, a persons purpose in using
    corporate resources may be to complete work on their property, but their motive
    may be financial: see
R. v. Bradt
, 2010 CMAC 2, 414 N.R. 219.

[47]

But in the factual allegations against Cst. Darnley relating to the drug
    investigation file incidents, motive and purpose are not easily
    distinguishable. The Crown theory was that Cst. Darnleys improper purpose was
    to protect herself and her fiancé, and both the Crown and the trial judge used
    the term motive to describe that purpose. Accordingly, Cst. Darnley argues
    that the trial judge erred in giving the standard motive direction in this
    case, since it is entirely possible that jurors would have been misled by it,
    thereby disregarding a required element of the breach of trust offence. Specifically,
    the jury may have relied on the motive direction to ignore the requirement that
    the Crown prove beyond a reasonable doubt that the appellants purpose was other
    than the public good.

[48]

I would not give effect to this ground of appeal. The motive direction
    was required with respect to the charge of obstruction of justice, and arguably
    with respect to the breach of trust charge relating to the witness records
    incident; if the jury was satisfied that Cst. Darnley wanted witnesses to know
    what other witnesses said in their police statements so that they could testify
    accordingly (her purpose), in order to convict, the jury would not need to know
    why she wanted this (her motive).

[49]

Certainly, it would have been prudent for the trial judge to clarify the
    relationship between motive and purpose with respect to the breach of trust
    charge relating to the drug investigation file incidents. However, approaching
    the matter functionally, there is no realistic risk that the jury would have
    used the generic motive direction to disregard the repeated and pointed
    emphasis given in the course of the trial and in the charge to the sole issue
    between the Crown and the defence, namely why Cst. Darnley accessed, copied,
    and shared the drug investigation files with her fiancé.

C.

ARE THE
    JURY VERDICTS RELATING TO THE WITNESS RECORD INCIDENT INCONSISTENT?

[50]

As indicated, Cst. Darnley faced two charges relating to the witness record
    incident:

COUNT 1. KARA DARNLEY stands charged that on or about the 25th
    day of March, in the year 2012, at the Town of Wasaga Beach, in the Central
    East Region, she did, being an official, to wit: a sworn police officer with
    the Ontario Provincial Police, commit a breach of trust in connection with the
    duties of her office, by releasing confidential police information regarding
    statements given to members of the Huronia West OPP for the purposes of a
    criminal prosecution, contrary to the
Criminal Code
of Canada.

COUNT 2. KARA DARNLEY stands charged on or between the 25th day
    of March, in the year 2012, and the 26th day of March 2012, both dates
    inclusive, at the Town of Collingwood, in the Central East Region, she did wilfully
    attempt to obstruct the course of justice in a judicial proceeding, by printing
    witness statements in relation to a criminal court proceeding and disclosing
    those statements to witnesses of that proceeding, contrary to the
Criminal
    Code
of Canada.

[51]

The jury convicted her of Count 1 but acquitted her of Count 2. Cst.
    Darnley argues that these verdicts are genuinely inconsistent, and both could
    not reasonably have been returned, rendering the conviction unreasonable:
R.
    v. R.V.
, 2019 ONCA 664, 147 O.R. (3d) 657, at para. 77, leave to appeal
    granted, [2019] S.C.C.A. No. 345.

[52]

Cst. Darnleys onus of establishing inconsistent verdicts is difficult
    to meet. The verdicts will not be inconsistent if, approaching the matter
    realistically and not theoretically, there is any rational or logical basis for
    the verdicts rendered:
R. v. McShannock
(1980), 55 C.C.C. (2d) 53
    (Ont. C.A.), at pp. 55-56;
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R.
    381, at para. 7. In determining this, the appeal panel must consider the evidence,
    the positions of counsel, the legal ingredients of the offences, and the trial
    judges instructions to the jury
[2]
:
R.V.
, at para. 85.

[53]

Cst. Darnley contends that, examined in this way, there is no rational
    or logical basis for the inconsistent witness record incident verdicts. The critical
    components of Cst. Darnleys argument can fairly be expressed this way:

(1)

If the jury was satisfied
    only as to the uncontested fact that Cst. Darnley accessed the witness records,
    she could not be convicted of either count. This is because the counts
    particularize, respectively: the
release
of
    confidential police information regarding statements given to members of the
    Huronia West OPP (the breach of trust count); and printing and
disclosing
those statements to witnesses to that
    proceeding (the obstruction of justice count). Both charges require more than
    mere access;

(2)

The acquittal on the
    obstruction of justice charge could be explained if the jury was left in
    reasonable doubt about whether Cst. Darnleys purpose was to provide witnesses
    with their own statements, since providing witnesses with their own statements
    does not obstruct justice. But such a finding cannot explain the breach of
    trust conviction that was entered, because this offence requires an intention
    to use public office for a purpose other than the public good. Even if Cst.
    Darnley was not authorized to assist other witnesses in witness preparation,
    doing so is not a purpose other than the public good and it would not be a
    serious and marked departure from the standards expected of a police officer
    subpoenaed to court as a police witness;

(3)

On the face of the charges, both
    verdicts would be appropriate if a finding was made that Cst. Darnley shared
    the contents of the witness statements, but not the witness statements
    themselves. This is because the alleged breach of trust charge specifically contemplates
    releasing confidential police
information
regarding statements (emphasis added) but the obstruction of justice charge is
    particularized to require disclosure of the
printed
    statements
themselves. However, this theory cannot provide a rational
    basis for the inconsistent verdicts. The only evidence that Cst. Darnley shared
    anything was Cst. Fischers testimony that Cst. Darnley admitted to showing the
    statements to witnesses. There is simply no evidentiary foundation for a
    finding that she shared the confidential police information but not the printed
    statements themselves; and

(4)

If the jury was convinced
    beyond a reasonable doubt that Cst. Darnley did share the printed statements of
    one or more witnesses with one or more of the other witnesses, the only proper
    outcome would be a conviction on both counts. Witness tainting is so obviously
    wrong that, manifestly, it is not in the public interest, supporting a
    conviction for the breach of trust charge. Similarly, by its nature, witness
    tainting subverts the evidence about to be presented to a court and can only be
    undertaken with intent to obstruct justice, supporting a conviction of the obstruction
    of justice charge.

[54]

I agree with Cst. Darnley. Given the charges, the verdicts cannot
    logically or rationally be explained based on any of the holdings that could
    arise on the evidence.

[55]

The Crowns effort to undermine this ground of appeal is defeated by the
    arguments above. Point (1) rebuts the theory that the jury could have convicted
    Cst. Darnley of breach of trust for merely accessing witness records. Point (2)
    rebuts the theory that the obstruction of justice acquittal must have been
    based on a reasonable doubt about whether her intention in accessing and
    sharing the statements was to assist in witness preparation. As explained, this
    theory cannot account for the inconsistent verdicts. Point (3) rebuts the Crowns
    attempt to rely on the difference in wording between the charges.

[56]

I would allow this ground of appeal, relating to Count 1 for breach of
    trust in connection with the witness record incident.

D.

DID THE
    JURY ERR IN FINDING A BREACH OF TRUST THAT DID NOT EXIST, RELATING TO
    INFORMATION THAT WAS NOT CONFIDENTIAL?

[57]

Cst. Darnley argues that the integrity plays were conducted because she
    was not trusted. Without trust, it is improper for the jury to have convicted
    her of breach of trust. In addition, she argues that since she accessed only a
    mock police file, no confidentiality was breached.

[58]

I disagree. Proof of actual trust of the accused is not an element of
    the offence of breach of trust. As the elements of the offence make clear, the
    trust that is breached arises from the office held and the duties and
    responsibilities bestowed, not from a subjective belief that the accused is
    likely to honour the trust that the officials office requires.

[59]

I need not determine whether misuse by an official of mock information
    can support a breach of trust conviction because the files accessed by Cst.
    Darnley included actual police records, albeit assembled in a misleading way to
    pique Cst. Darnleys interest.

E.

DID
    THE TRIAL JUDGE MISAPPLY THE LAW OF ENTRAPMENT RELATING TO THE DRUG
    INVESTIGATION FILE INCIDENTS?

[60]

Cst. Darnley argues that the trial judge erred in law in identifying the
    legal standards to be applied in determining whether entrapment occurred, specifically,
    whether the police went beyond providing her with an opportunity to commit an
    offence by inducing the commission of an offence. Cst. Darnley argues that the
    trial judge: (a) improperly reasoned that peace officers must be held to
    elevated standards of moral restraint or fortitude; and (b) misunderstood the average
    person inquiry by asking whether any OPP officer faced with the two integrity
    scenarios would
inevitably
have been induced to
    commit the breach of trust.

[61]

I would find that both errors occurred. They are contained in the
    ultimate paragraph of the trial judges analysis:

The question is whether the average person should be ascribed
    the same strengths and weaknesses as the particular accused, in this case a
    police officer. I think that this must be so, as the test suggests that we are
    to consider the scenario as viewed through the eyes of someone in the
    position of the accused. The hypothetical average citizen may not, for
    example, understand all of the repercussions of the release of confidential
    police information and may not be fully apprised of an OPP officers duties to
    uphold his or her sworn oath of secrecy and oath of office. As a result, he or
    she may find it understandable that Darnley could be easily lured to reveal
    confidential information to her fiancé.
But another
    officer, in the same position as Darnley, is not likely, in my view, to come to
    the conclusion that any OPP officer faced with the two integrity scenarios
    would have inevitably been induced to commit a breach of trust given his or her
    knowledge of their obligations
. [Emphasis added.]
[3]

[62]

It is convenient to begin with the second error identified by Cst.
    Darnley, namely, the trial judges misunderstanding of the average person
    inquiry. This is a key inquiry in determining whether the police went beyond
    providing an opportunity to commit an offence and induced the commission of an
    offence. It involves asking whether an average person, with both strengths and
    weaknesses, in the position of the accused would be induced into the commission
    of a crime:
Mack
, at pp. 959, 966. Based on this inquiry, if the
    average person, with strengths and weaknesses, in the position of the accused might
    also have committed the offence, this inquiry supports a finding of
    entrapment:
Mack
, at p. 979. This is not the standard the trial judge
    applied. She asked instead whether an OPP officer faced with the two integrity
    scenarios
would have inevitably been induced to commit a
    breach of trust
given his or her knowledge of their obligation
    (emphasis added). This is a more exacting test than should have been applied.

[63]

There are two problems with this statement. First, in
Mack
, the
    Supreme Court of Canada did not require a standard of inevitability. Lamer
    C.J., at pp. 959-960, explained how to determine whether the police have gone
    beyond providing an opportunity and inducing the commission of an offence:

[T]o determine whether the police conduct gives rise to this
    concern,
it is useful to consider whether the conduct of
    the police would have induced the average person in the position of the accused
     I believe such a test is useful not only as an analytical mechanism. [It]
    may be inevitable that, when apprised of the factual context of an entrapment
    case, members of the community will put themselves in the position of the
    accused;
if a common response would be that anyone could have been
    induced by such conduct, this is a valuable sign that the police have exceeded
    the bounds of propriety. [Emphasis added.]

[64]

Put otherwise, it is a helpful analytical exercise to consider whether the
    commission of an offence would be inevitable or even a common response:
Mack
,
    at p. 960. If so, this is a valuable sign on its own that the police have
    exceeded the bounds of propriety in the inducement used. This does not mean,
    however, that the inevitability standard is the threshold required before the
    average person factor supports a finding of entrapment. The balance of
Mack
makes this clear.

[65]

The second problem is that, in her inquiry, the trial judge applied an
    improper conception of the relevant strengths of the average person by
    effectively concluding that a police officer must be taken to have elevated standards
    of moral restraint and fortitude. The trial Crown invited this reasoning by
    submitting that Cst. Darnleys status as a police officer really changes the
    analysis. He continued:

Because if its the average police officer whos sworn an oath
    of secrecy, has sworn an oath of office, is under a code of conduct, that
    changes it. And if thats the analysis in my respectful submission its over
    and done with at that point. The average police officer would not be touching
    or doing this type of conduct at all, but its an interesting issue.

[66]

What the Crown was clearly suggesting was that because of the oaths an
    officer makes and the code of police conduct, the moral standards and the
    standards of resistance to temptation expected of police officers in entrapment
    cases are elevated. Indeed, the Crown theory that average police officers would
    abide by their oaths and resist inducements would elevate the standard to the
    point where police officers could never successfully invoke an entrapment
    defence.

[67]

The trial judge accepted this invitation by relying expressly on the
    oath of office and then finding that although a hypothetical average citizen
    may find it understandable that Darnley could be easily lured to reveal
    confidential information to her fiancé, an officer would not have been induced
    to commit a breach of trust given his or her knowledge of their obligations.

[68]

Although it is correct to account for the status of the accused as a
    police officer in establishing the factual context of the event, it is an error
    to elevate the standard of resistance expected of an accused police officer.

[69]

As indicated, the relevant inquiry examines whether an average person,
    with both strengths and weaknesses, in the position of the accused would be
    induced into the commission of the crime. Naturally, to give context to the
    inquiry, the hypothetical average person must be contemplated to be a police
    officer engaged in the relevant policing activity. In the criminal negligence
    context,
R. v. Porto
, 2016 ONSC 7353, 3 M.V.R. (7th) 334, affd 2018
    ONCA 291, 23 M.V.R. (7th) 1, illustrates that a police officer engaged in the
    course of his or her duties in executing a high-speed response to an emergency
    has created an elevated risk of danger that heightens the care required.
    Similarly, in the criminal negligence context, an officer trained in the use of
    firearms may be expected to exercise that training in dangerous circumstances:
R.
    v. Gosset
, [1993] 3 S.C.R. 76. In this sense, it is possible to speak of
    elevated standards for police officers. This was done in
Gosset
, at
    para. 39, as well as in both the lower court and appeal decisions in
Porto
:
    see 2016 ONSC 7353, at paras. 67, 75; 2018 ONCA 291, at para. 6. For this
    reason, the trial judge was correct in the entrapment context in considering
    Cst. Darnleys knowledge of the repercussions of releasing confidential police
    information, and that Cst. Darnley encountered the information in police files
    while on duty at the police detachment.

[70]

However, it is improper when applying the average person test to ascribe
    elevated standards of moral restraint or fortitude where a police officer is
    charged.

[71]

First, the underlying factual assumption required to do so is
    controversial. There was no basis on the trial record, nor can it be judicially
    noticed, that officers attain higher standards of moral integrity and
    resistance to temptation than average persons, that they are less susceptible
    to the emotions of compassion, sympathy, and friendship, or more immune from
    mental illness or substance addiction  factors that
Mack
calls into
    consideration where relevant: at p. 966.

[72]

More importantly, ascribing moral superiority and a heightened
    resistance to criminal inducement to police officers subverts the average
    person standard. In this case, the trial judge recognized that an average
    person could be easily lured to reveal confidential information to her fiancé.
    Yet, she went on to consider how a police officer would have responded and
    denied the defence, primarily for this reason.

[73]

In sum, had the trial judge confined herself to the factual
    circumstances of a police officer trained in handling confidential police
    information and the implications of its release, she would have been proceeding
    appropriately. By holding Cst. Darnley to higher moral standards and standards
    of resistance to emotional pressure, she erred.

[74]

The Crown asked that if we find the trial judge to have erred in the
    entrapment analysis we should go on, as in
Mack
, and determine the
    issue rather than send it back for a new trial. Since this charge must go back
    to trial because of the reasonable doubt error in any event, I would decline to
    do so.

[75]

However, given the possibility of a new trial, I will comment on the
    Crowns submission that even if entrapment is ultimately established, this
    would not be one of those clearest of cases where a stay of proceedings is
    warranted. In fact, it would be an error of law to withhold a stay based on the
    clearest of cases test where entrapment has been found.

[76]

The defence of entrapment can only be established in the clearest of
    cases:
Mack
, at p. 976. Because there might not have been an offence
    to prosecute without the entrapment, the conviction for that crime is
    inappropriate. For this reason, Lamer C.J. said unequivocally, for the court in
Mack
, at p. 967, the proper remedy is a stay of proceedings. The trial
    judge was correct in recognizing this.

CONCLUSION

[77]

I would allow the appeal from the conviction on Count 1 of the
    indictment, the breach of trust conviction relating to the witness record
    incident and quash the conviction. I would do so because of the reasonable
    doubt error, and the inconsistent verdict error.

[78]

I would not order a retrial on this charge. As explained, given the
    specific allegations made, there is no logical or rational basis for justifying
    different outcomes between this charge (Count 1) and the obstruction of justice
    charge (Count 2). The obstruction of justice acquittal was not appealed and
    remains. In the circumstances, it would be unfair to permit the Crown to seek a
    conviction in a retrial of Count 1 for the same allegation for which Cst.
    Darnley stands acquitted. Ordering a new trial would invite a new jury to
    return a verdict inconsistent with Cst. Darnleys acquittal:
R.V.
, at
    para. 140. I would therefore substitute a verdict of acquittal on this charge.

[79]

I would also allow the appeal from the conviction on Count 2, the breach
    of trust charge related to the drug investigation file incidents, based on the reasonable
    doubt error and the entrapment error. I would quash the conviction and order a
    new trial on this charge.

Released: K.F. March 9, 2020

David M. Paciocco J.A.

I agree. K. Feldman J.A.

I agree. P. Lauwers J.A.

[1]
Cst. Darnley was also charged with an additional, redundant count of breach of
    trust in connection with the drug investigation file incidents, but that charge
    was withdrawn after the evidence concluded.

[2]
To be clear, a misdirection cannot be relied upon to explain inconsistent
    decisions:
R. v. R.V.
, 2019 ONCA 664, 147 O.R. (3d) 657.

[3]
Since it is necessary to quote this passage in order to identify the appealed
    errors, it should be pointed out that, in asking what another OPP officer would
    understand or think, the trial judge applied an unconventional perspective that
    should not be replicated. Objective inquiries are not typically conducted by
    imbuing the objective actor with appropriate characteristics and circumstances
    and then asking what such a person would understand or think of the impugned
    conduct of the accused. Instead, they are conducted by identifying the relevant
    characteristics and circumstances of the objective actor and then asking what
    that hypothetical person would have done in all the circumstances:
R. v.
    Creighton
, [1993] 3 S.C.R 3. The trial judge did return to this more
    conventional measure in the last passage of her decision.