CITATION: R. v. Roks, 2011 ONCA 526

DATE: 20110720

DOCKET: C48418

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Roks

Appellant

P. Andras Schreck and Candice Suter, for the appellant Roks

John Pearson, for the respondent

Heard: January 19, 2011

On appeal from convictions of conspiracy to commit arson and
          second degree murder entered by Justice Gloria J. Epstein of the Superior
          Court of Justice, sitting without a jury on June 11, 2007, and from the
          sentence imposed by Justice Epstein on November 27, 2007, on the conviction
          of conspiracy to commit arson.

Watt J.A.:

[1]

Things dont always work out according to plan.  Failures occur at
    different times and for different reasons. Sometimes, the flaw is in the plan.  At
    other times, the execution is faulty.

[2]

The plan in this case involved arson, fraud and use of the proceeds of
    crime.  The scheme was simple enough. Burn down a building after removing
    anything of value from it.  Submit a claim to recover the proceeds of a policy
    of fire insurance on the building and its contents.  And use the proceeds of
    the insurance claim to pay those involved in the plan and its execution, and to
    finance a new building on the same site.

[3]

The plan failed here when the execution began. The arsonists were too
    generous in their distribution of the accelerant, gasoline, inside the
    building. The volatile mixture exploded.  An inferno followed.  One arsonist,
    the principal, died.  Another was severely injured and will carry the scars of
    his involvement for the rest of his life.

[4]

A lengthy police investigation resulted in the arrest and prosecution of
    several alleged to have participated in some way or other in the scheme. The
    charges varied.  Some pleaded guilty, then testified for the Crown in the
    prosecution of others. One, John Magno, has yet to be tried.

[5]

Adrian Roks was tried for what the prosecutor alleged was a critical
    role in the scheme. A judge of the Superior Court of Justice, sitting without a
    jury, found Roks guilty of conspiracy to commit arson, arson
[1]
and second degree murder.

[6]

Roks appeals his convictions and the sentence imposed on him on the
    count of conspiracy to commit arson.  Roks says that the conviction of murder
    is unreasonable and that both convictions are flawed because the trial judge
    made improper use of some evidence and wrongly admitted other evidence.  He
    argues that the sentence imposed on the conviction of conspiracy to commit
    arson is erroneous in principle and outside the appropriate range of sentence
    for the offence.

[7]

The reasons that follow explain why I would dismiss the appeal from the
    conviction of second degree murder and substitute a conviction for manslaughter.
    I would also dismiss the appeal from conviction of conspiracy to commit arson,
    but allow the appeal from sentence and reduce the sentence to a term of six
    years to be served concurrently with the sentence for manslaughter.

A.        THE BACKGROUND FACTS

[8]

Several participants in the scheme alleged by
    the prosecutor testified at trial.  The appellant did not dispute that he
knew
about the conspiracy alleged by the prosecutor, but denied that he participated
    in it.  He did not support his denial with his own testimony.

[9]

A vignette of several principals provides a
    suitable beginning for an outline of the circumstances that gave rise to the
    appellants convictions.

1.         The Principals and
    Places

[10]

John Magno and his brothers, Frank and Carlo, owned two businesses
    that sold hardware and building supplies:  Woodbine Building Supply (Woodbine)
    and Sunrise Landscaping (Sunrise).

[11]

Woodbine operated out of a single storey building on Danforth Avenue
    near its intersection with Woodbine Avenue.  Customers could purchase hardware
    and building supplies on the main floor or in the basement.  The store was
    surrounded by houses and other commercial buildings.

[12]

The appellant operated a tanning salon, Even Tan, where several of
    the principals gathered from time to time.

[13]

Shaun McMaster met the appellant at Even Tan in June, 2000.
    McMasters role in the scheme was to supply a van, to help to move merchandise
    from Woodbine to Sunrise, and to act as a lookout on Christmas Eve, 2001, when
    the fire was to be set at Woodbine.  McMaster was outside Woodbine when the
    explosion and fire occurred.

[14]

On January 3, 2008, about seven months after the appellant had been
    convicted, McMaster pleaded guilty to and was convicted of manslaughter.

[15]

Jason Regaldo, a good friend of both McMaster and Tony Jarcevic, met
    the appellant at Even Tan.  Regaldo learned of the plan to set fire to Woodbine
    in November, 2001. His role was to remove inventory from Woodbine and store it
    in his garage.  Regaldo also agreed to remain outside Woodbine while Jarcevic
    and Paskalis set the fire, but he changed his mind and left before the explosion
    and fire occurred.

[16]

On July 24, 2004, Regaldo, who had a prior conviction for armed
    robbery, pleaded guilty to conspiracy to commit arson.

[17]

Sam Paskalis, a dedicated recidivist whose catalogue of convictions
    is dominated by crimes of dishonesty and offences against the administration of
    justice, met the appellant in early 2000. They became fast friends and, along
    with Magno, participated in a dizzying array of fraudulent schemes.

[18]

Paskalis role in the scheme was to ensure that the Woodbine
    inventory had been cleaned out before the fire and that the fire destroyed the
    building.  Along with Jarcevic, Paskalis was to set the fire, advise Magno of
    the fires progress and provide Magno with an alibi for the time of the fire.

[19]

On February 3, 2005, Paskalis pleaded guilty to manslaughter and
    arson with intent to commit fraud.

[20]

Tony Jarcevic was recruited to set the fire at Woodbine along with
    Paskalis.  Jarcevic had training in fire suppression.  In preparation, the
    windows at Woodbine were covered with tar paper, the sprinkler and alarm
    systems disconnected.  Gasoline was used as the accelerant and spread
    throughout the basement of the premises.

[21]

Jarcevic died in the explosion and fire.  Investigators found his
    body in the rubble of the basement on January 9, 2002.

2.         The Plan

[22]

In general terms, the plan involved removal of the inventory from
    Woodbine and its transfer to Sunrise or Regaldos garage, and a fire set on
    Christmas Eve, 2001, when fewer people were on neighbouring streets and
    emergency response would be slower.  After the fire, Magno would submit an
    insurance claim for the loss of the building and its contents and use the funds
    received to pay off the other participants and to develop the property.

[23]

The trial judge found that the plan involved the total destruction
    of Woodbine by fire.  The evidence about the extent of the destruction to be
    caused was conflicting.

[24]

According to Paskalis, he, the appellant and Magno were involved in
    the initial discussions about blowing up Woodbine. After several meetings
    with Magno, the selection of the arsonist was left to others, including the
    appellant, who chose Jarcevic because of his training in fire suppression.
    The execution of the arson phase of the plan was left to Jarcevic and Paskalis.
    The inventory at Woodbine was to be moved out to Sunrise or Regaldos place
    before the fire was set.

[25]

According to McMaster, Jarcevic told him that the fire was to cause
    smoke damage to the beams at Woodbine, but not consume the entire building or
    cause an explosion.  Jarcevic never mentioned any plan to blow up or
    destroy the building.

[26]

The fire was to be set on Christmas Eve, 2001.  The neigbouring
    residents would be at church.  Police divisions and the fire department would
    have fewer members on duty, thus their response time to the alarm would be
    slower. As Jarcevic explained to McMaster, the risk of injury to passersby
    would be lessened on Christmas Eve.

[27]

The plan also included compensation to participants in the scheme.
    The nature and amount of compensation varied but included cash, a partnership
    in an Oshawa nightclub to be purchased with the insurance proceeds, and units
    (at cost) in a condominium that was to be built on the Woodbine site after the
    fire.

[28]

Magno denied the plan about which the others testified. The trial
    judge did not believe Magnos evidence.

3.         The Preliminaries

[29]

On December 24, 2001, the removal of the Woodbine inventory to
    Sunrise and Regaldos garage was completed.  Paskalis and Jarcevic disconnected
    the sprinkler and alarm systems while two Woodbine employees put tar paper over
    the windows.

[30]

Magno went to his fathers house on Christmas Eve where several
    relatives and friends had gathered. The appellant, who was to provide an alibi
    for Magno, arrived around 9:00 p.m. after the final load of inventory had been
    removed from Woodbine.

4.         The Fire

[31]

Around midnight Jarcevic began to pour gasoline in the basement at
    Woodbine.  At around 12:15 or 12:30 a.m. on December 25, 2001, Jarcevic spoke
    to McMaster who was waiting in a van parked outside Woodbine.  Paskalis went
    downstairs into the basement to check on Jarcevics progress with the
    gasoline.  He noticed a blue flame appear in the boiler room. An explosion
    followed. Paskalis suffered very serious burns. He was hospitalized for several
    months, much of it in a medically-induced coma.

[32]

The fire at Woodbine was one of the largest in Torontos history.
    The explosion shook several nearby residences. The area around Woodbine was
    enshrouded in dense smoke.  Debris cluttered the north side of Danforth
    Avenue.  Heat from the fire bent and sagged the I-beams in the store.  The
    north end of the building suffered only minor smoke and fire damage, but
    otherwise remained intact.

5.         The Aftermath

[33]

Paskalis fled from the conflagration to a neighbours house. The
    neighbour called 911.  McMaster, who was outside keeping watch, repeatedly
    called Jarcevics cell phone, but got no response.  McMaster then called the
    appellant, told him that the building had just blown up and he (McMaster) did not
    know where Jarcevic and Paskalis were.  McMaster then called Regaldo to tell
    him what had happened.

[34]

Shortly before 1:00 a.m. on December 25, 2001, a friend called Magno
    to tell him about the fire.  Magno and his brothers drove to Woodbine and spoke
    to the police who told them that Paskalis had been injured.

[35]

A day or two after the fire, Regaldo spoke to the appellant at Even Tan
    about the Woodbine inventory stored in his garage.  He asked the appellant to
    contact Magno to do something about the stored property. The appellant told
    Regaldo to deal with the property himself because Magno was concerned about his
    associations during the police investigation that had already started.

[36]

A thorough search of the fire debris yielded Jarcevics body on
    January 9, 2002.  No items of commercial value were found in the rubble.

[37]

About four months after the fire, Magno made a claim on his
    insurance policy for loss of the building and its contents.  The claim was for
    about $3 million.

6.         The Police
    Investigation

[38]

The police investigation included authorized interception of private
    communications and repeated interviews of several of the alleged participants. At
    different times and in different circumstances, those who testified as
    prosecution witnesses at trial implicated the appellant in the plan alleged by
    the prosecutor.

[39]

The first to implicate the appellant was Regaldo, about one year
    after the fire.  Regaldo had given several admittedly untruthful accounts to
    investigators before he appeared for a bail hearing after his arrest.  He was
    upset at the appellant for lying at the preliminary inquiry. Regaldo was lodged
    in the holding cells at the courthouse when he first implicated the appellant
    in the Woodbine fire.

[40]

Paskalis implicated the appellant briefly on August 8, 2002, and in
    a more detailed way, about 10 months later, on June 5, 2003.

[41]

While McMaster and Paskalis were in pre-trial custody in 2003, they
    decided that if the appellant did not tell the truth when interviewed, they
    would implicate him. The appellant implicated McMaster in a statement in June,
    2003. McMaster implicated the appellant on February 17, 2005, while in but
    anxious to be released from custody.  McMaster thought that the appellant, not
    he, should be in jail for what had occurred.

[42]

The appellant was arrested on November 22, 2004.

B.        THE POSITIONS OF THE PARTIES AT TRIAL

[43]

At trial, the prosecutor contended that the appellant was a
    principal in the conspiracy to burn Woodbine so that Magno could receive the
    proceeds of the fire insurance claim on the building and its contents. The appellants
    reward was to be a share in an Oshawa nightclub to be purchased with the
    insurance proceeds, and a condominium unit to be constructed on the site of the
    destroyed Woodbine building.

[44]

The prosecutor argued that the appellants role involved planning
    the arson, recruiting the fire-setters, Jarcevic and Paskalis, and providing an
    alibi for Magno for the evening of the fire.

[45]

To establish the appellants liability for murder under s. 229(c),
    the prosecutor submitted that for the unlawful object of defrauding Magnos
    insurers, the appellant was a party to setting fire to Woodbine, an act that
    the appellant knew would likely cause someones death and did cause Jarcevics
    death.

[46]

The appellants position at trial involved a wholesale attack on the
    credibility of the prosecutions witnesses and the reliability of their
    evidence that implicated him.

[47]

At trial, counsel for the appellant (not Mr. Schreck) acknowledged
    that the evidence established a conspiracy to set fire to Woodbine in order to
    collect the proceeds of a fire insurance policy Magno held on the building and
    its contents. The appellant was aware of the conspiracy and knew the
    conspirators, but was not a participant in it nor a party to it.

[48]

The appellant also denied having anything to do with the arson.  He
    did not recruit anyone nor otherwise participate in setting the fire.

[49]

The appellant took issue at trial with the prosecutors reliance on
    s. 229(c) to establish his guilt for murder. The appellant said that s. 229(c)
    could
not
be used to establish murder where the death caused was of one
    of the principals in the pursuit of the unlawful object.  Further, according to
    the appellant, even if s. 229(c) could apply to the death of a participant, the
    appellant was not culpable. He had no connection to the unlawful object, did
    not participate in the dangerous act that caused death, and did not foresee
    anyones death as a probable consequence of carrying out the unlawful object.

C.        THE GROUNDS OF APPEAL

[50]

For the appellant, Mr. Schreck raises three grounds of appeal
    against conviction:

i.

that the trial judge erred in law in her self-instruction
        about the requirement of independence and materiality for evidence to be
        confirmatory of the testimony of a
Vetrovec
witness;

ii.

that the trial judge erred in admitting evidence
        of other discreditable conduct of the appellant and in relying on that evidence
        as confirmatory of the testimony of the
Vetrovec
witnesses and in
        rebuttal of any claim of innocent association; and

iii.

that the conviction of second degree murder is
        unreasonable in the absence of any evidence of subjective foresight of the
        likelihood of death.

[51]

On the appeal from sentence on the conviction of conspiracy to
    commit arson, Mr. Schreck makes three points:

i.            the trial judge
      erred in principle in considering, as an aggravating factor, the  meeting
      among the principals to hire some muscle to help Magno  collect
      some outstanding accounts;

ii.      the sentence imposed
      offends the parity principle when the sentences  imposed
      on other participants are taken into account; and

iii.     the sentence exceeds
      the range of sentence appropriate for the appellant and the
      offence of which he was convicted.

D.        THE APPEAL FROM CONVICTION

Ground #1: The Alleged
Vetrovec
Error

[52]

The first ground of appeal claims error in the trial judges
    self-instruction about the essential characteristics of confirmatory evidence
    for witnesses whose testimony is subject to a
Vetrovec
caution.

1.         The
    Background

[53]

The trial judge considered that the evidence of three witnesses,
    Paskalis, McMaster and Regaldo, warranted a
Vetrovec
caution.  Each was
    a participant in the conspiracy and arson. The evidence of each was central to
    the prosecutions case against the appellant.  Each had provided untruthful
    statements to the police. Each was motivated by self-interest.

2.         The
    Reasons of the Trial Judge

[54]

Early in her reasons, the trial judge described her understanding of
    the essential characteristics of confirmatory evidence. She pointed out that to
    be confirmatory of the testimony of a
Vetrovec
witness, evidence must
    strengthen the belief of the trier of fact that the
Vetrovec
witness was
    telling the truth, but need not fit into some specific category.

[55]

The trial judge described the requirements of independence and
    implicative quality (materiality) in these terms:

[31]     To qualify as
    confirmatory, the evidence need not be more consistent with the truth (as
    opposed to the falsity) of the suspect witnesss evidence. Confirmatory
    evidence does not have to emanate independently of the suspect witness, nor
    does it have to point to the defendants guilt. Evidence does not lose its
    confirmatory quality just because the defendant has accepted and offered an
    explanation for the evidence.
See:
R. v. Gagnon
(2000),
    147 C.C.C. (3d) 193 (Ont. C.A.), at paras.
12-16.

[32]
Gagnon
and
Vetrovec
further
    establish that
a number of circumstances viewed collectively
    can constitute confirmatory evidence even if they would not do so individually.

[33]     Significant in this case
    is the fact that supporting evidence can come from another untrustworthy
    witness, if the duly cautioned trier of fact chooses to believe it. See:
R.
    v. Winmill
(1999), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 115.

[34]     Evidence that the
    defendant has otherwise engaged in the same type of offence as that which is
    before the court can also corroborate the witnesss assertion that he committed
    the offence on the occasion in question.

[35]
Gagnon
also
    establishes that where the suspect witness inculpates two people, evidence
    corroborating his one inculpatory account will constitute corroboration of
    both.  Using this case as an example, where a witness such as Paskalis
    inculpates both Roks and McMaster, all of the other evidence inculpating
    McMaster (including his own testimony), corroborates Paskalis testimony
    against Roks.

3.         The
    Arguments on Appeal

[56]

For the appellant, Mr. Schreck says that the trial judge was wrong
    in her understanding of the essential characteristics of confirmatory evidence.
    To be confirmatory of a
Vetrovec
witness, evidence must have about it
    two essential features: independence and implicative quality (materiality).

[57]

According to Mr. Schreck, to satisfy the requirement of
independence
,
    evidence must originate in a source other than the suspect witness or other
    witnesses with whom the suspect witness has colluded. To meet the demand for
implicative
    quality
, the evidence must tend to show that the suspect witness is telling
    the truth about the guilt of the person charged, not about some ancillary or
    subsidiary issue of no moment to the proof of guilt.

[58]

Mr. Schreck submits that the trial judges faulty understanding of
    the essential characteristics of confirmatory evidence led her into error when
    she relied upon the mutually confirmatory testimony of other suspect witnesses
    and on evidence that was not independent as confirmatory.

[59]

For the respondent, Mr. Pearson says that, even though the trial
    judge did not have the benefit of the reasons in
R. v. Khela
, [2009] 1
    S.C.R. 104, her description of the essential characteristics of confirmatory evidence
    is consistent with the
Khela
requirements of independence and
    implicative quality.

[60]

Mr. Pearson contends that in her application of the principles
    governing confirmatory evidence, the trial judge made it clear that the
    evidence must originate in a source untainted by its connection to the suspect
    witness.  The trial judge found expressly that the
Vetrovec
witnesses
    had
not
colluded to falsely implicate the appellant, thus the evidence
    of one could confirm the testimony of another.

[61]

In a similar way, Mr. Pearson submits, the trial judge ensured that
    the confirmatory evidence upon which she relied, in the context of the case as
    a whole, provided comfort for her conclusion that the suspect witnesses
    evidence that the appellant was a party to the offences charged could be
    trusted.

4.         The
    Governing Principles

[62]

The principal complaint in this case has to do with the essential
    characteristics of confirmatory evidence and the capacity of the testimony of
    one witness, whose evidence is subject to a
Vetrovec
caution, to confirm
    the testimony of another witness, whose evidence is subject to the same
    caution.

[63]

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

[64]

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

[65]

To satisfy the
materiality
requirement, confirmatory evidence need
not
implicate the accused:
Khela
,
    at paras. 40-41;
Kehler
, at para. 16. The materiality requirement is met
    where the confirmatory evidence, in the context of the case as a whole, gives
    comfort to the trier of fact that the
Vetrovec
witness can be trusted in
    his or her
assertion
that the accused is the person who committed the
    offence:
Khela
, at para. 42;
Vetrovec
, at p. 833.  Where the only
    issue in dispute is whether the accused committed the offence, to be
    confirmatory, evidence must comfort the trier of fact that the
Vetrovec
witness
    is telling the truth
in that regard
before convicting on the basis of
    the
Vetrovec
witness evidence:
Khela,
at para. 43.

[66]

It is worth
    reminder that a trier of fact is entitled to convict on the evidence of a
Vetrovec
witness in the absence of confirmatory evidence where the trier of fact,
    cautioned about the danger of doing so, is satisfied that the witness is
    telling the truth:
Khela
, at para. 37;
Kehler
, at para. 22;
Sauvé
,
    at para. 82.

[67]

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

5.         The
    Principles Applied

[68]

I would not give
    effect
to this ground of appeal despite the trial judges
    misstatement of the independence requirement for confirmatory evidence.  My
    reasons follow.

[69]

Setting to one side for the moment the adequacy of the prosecutors
    proof of the fault element in murder under s. 229(c), the contested ground here
    had to do with the appellants participation in the scheme to burn down
    Woodbine and collect the proceeds of the fire insurance policy on the building
    and its contents.  The appellant admitted that there was a conspiracy and that
    he knew about it. The position he advanced at trial, unsupported by his own
    evidence, was that he did
not
participate in the conspiracy nor help or
    encourage its principals.

[70]

The appellant
    asserts no claim of error in the trial judges self-instruction about the
    danger of deciding the case on the unconfirmed testimony of the
Vetrovec
witnesses. The appellants complaint is about the trial judges incorrect
    understanding and application of the independence component of confirmatory
    evidence and her reliance on the testimony of other
Vetrovec
witnesses
    as confirmatory.

[71]

Each
Vetrovec
witness gave direct evidence of the appellants participation in the
    conspiracy. The trial judge found their evidence on this issue at once,
    truthful and compelling. It is a reasonable inference, in light of her reasons
    as a whole, that her conclusion about the appellants participation did not
    depend on the fact that the evidence of the
Vetrovec
witnesses was
    confirmed.

[72]

Second, the
    trial judge rejected the defence position that the
Vetrovec
witnesses
    had put their heads together to falsely implicate the appellant in the overall
    scheme. From this foundation, the trial judge was entitled to find mutual
    confirmation in the evidence of the
Vetrovec
witnesses. Of this, there
    was an abundance.

[73]

And finally, the
    trial judge grounded her finding of the appellants complicity on the
    cumulative effect of
all
the evidence, including the evidence of
    intercepted private communications to which the appellant was a party.

[74]

This ground of
    appeal fails.

Ground #2: Evidence of Extrinsic Discreditable
    Conduct

[75]

The prosecutor
    proffered and the trial judge admitted evidence of extrinsic misconduct by the
    appellant. The misconduct was contemporaneous with the conspiracy alleged in
    the indictment and involved the same principals. The main source of the
    evidence was the prosecutions chief witness, the arsonist Paskalis. A brief
    summary of the evidence is necessary to set up the discussion about its
    admissibility and the use that the trial judge made of it.

1.         The Background

[76]

According to
    Paskalis, he and the appellant owned and operated Olympic Cheque Cashing, a
    company that cashed cheques for fraudulent telemarketers. They also used a
    Western Union outlet registered to Olympic to find out where large sums of
    money were coming into Toronto.  They pulled these amounts.

[77]

Counsel for the
    appellant at trial admitted that the appellants fingerprints were found on a
    Western Union receipt associated with a telemarketing fraud. It was also
    admitted that the previous owner of the business had facilitated
    money-laundering through Olympic. Magno purchased the business in November,
    2001, and continued its fraudulent course, sharing the profits with Paskalis
    and the appellant. According to Magno, he purchased the business to provide a
    bank account for Paskalis who had an abysmal credit history.

[78]

Paskalis also
    used stolen credit card information to buy taxidermy fish. Some of the fish
    were kept in the dining room and garage of a home the appellant occupied with
    his former girlfriend and a roommate.

[79]

The appellant
    operated Even Tan. According to Paskalis, he used stolen credit card
    information taken from Even Tan customers, clients of a strip club or customers
    of Woodbine to pay for supplies for Even Tan. The appellant admitted his
    participation to McMaster.

[80]

Paskalis also
    testified about several other fraudulent schemes in which he and the appellant
    were involved, including the sale of encoded satellite cards, ordering supplies
    for Olympic in the names of phoney customers, and the disposal of counterfeit
    money.

2.         The Use of the Evidence

[81]

The trial judge
    admitted the evidence of extrinsic misconduct to confirm the testimony of the
Vetrovec
witnesses and to rebut the claim of innocent association advanced on the
    appellants behalf.

3.         The Positions of the
  Parties

[82]

For the
    appellant, Mr. Schreck contends that the evidence of extrinsic misconduct
    should not have been admitted. It was evidence of general propensity. Any
    similarities to the scheme alleged in the destruction of Woodbine by fire to
    collect the insurance proceeds were generic only.

[83]

Mr. Schreck says
    that even if the evidence were properly admitted, it cannot be summoned to
    confirm the evidence of the
Vetrovec
witnesses, especially Paskalis,
    since he was the source of it. The fundamental requirement of independence is
    not satisfied.

[84]

For the
    respondent, Mr. Pearson sees it differently. The trial judge got it right.
    First, in admitting the evidence.  And second, in her use of it.  The trial
    judge recognized that this evidence was propensity evidence, but concluded that
    its probative value predominated over its prejudicial effect. Her finding on
    where the balance fell between probative value and prejudicial effect is
    entitled to deference.

[85]

Further, Mr.
    Pearson says, the trial judge confined the use of the evidence to what the law
    permits and did not stray into any impermissible chain of reasoning.

4.         The Governing Principles

[86]

The parties
    share common ground about the governing principles, but differ about the
    conclusion that their application mandates in this case.

[87]

As a general
    rule, evidence of the
general
disposition of an accused is not
    admissible. The reason is simple. Proof of
general
disposition is a prohibited
    purpose.  It is no crime to be of bad character.  The guilt of an accused is to
    be proven, if at all, by evidence of what the accused did, not by evidence of
    the kind of person the accused is:
R. v. Handy
, [2002] 2 S.C.R. 908, at
    para. 72. To say the same thing in another way, we do not permit the prosecutor
    to adduce, much less to rely upon, evidence of an accuseds character as
    circumstantial evidence of guilt.

[88]

Discreditable
    disposition or character evidence, at large, creates nothing beyond moral
    prejudice. The prosecution is not entitled to lighten its load by labelling
    the accused as a bad person:
Handy
, at para. 72.

[89]

On the other
    hand, we do not exclude evidence that is relevant just because it tends to show
    an accused is of bad disposition, but only if it shows nothing more:
Handy
,
    at para. 71;
R. v. B. (F.F.)
, [1993] 1 S.C.R. 697, at p. 731. To be
    admitted, the probative value of the evidence must predominate over its
    prejudicial effect:
Handy
, at para. 71;
B. (F.F.)
, at p. 731.

[90]

To determine the
    admissibility of evidence that incidentally shows the accused to be a person of
    bad character requires an identification of the issue to which the evidence is
    relevant.  Probative value does not exist, nor can it be assessed, in the
    abstract, rather has to do with the ability of the evidence to advance or
    refute a live issue ripe for determination by the trier of fact:
Handy
,
    at paras. 69 and 73.

[91]

There is no exhaustive
    or expansive list of issues to which evidence that incidentally shows an accuseds
    disposition may be relevant. Each case is different.  Sometimes, the evidence
    may be relevant to rebut an accuseds denial of an essential element of an
    offence. Thus, evidence of prior discreditable conduct may rebut a claim
    advanced by an accused that his association with others involved in the
    commission of an offence was innocent, rather than culpable:
Handy
, at
    para. 72.

[92]

But relevance to
    a material issue is not enough for evidence that incidentally portrays the
    accused as a person of bad disposition to gain entry.  The probative value of
    the evidence on that material issue must overcome the moral and reasoning
    prejudice inherent in the evidence.

[93]

The nature of
    the admissibility rule, which governs the admissibility of similar acts and
    other extrinsic misconduct and requires the balancing of probative value and
    prejudicial effect, bespeaks an attitude of considerable deference by appellate
    courts to the decisions of trial judges:
R. v. B. (C.R.)
, [1990] 1
    S.C.R. 717, at pp. 733-734;
R. v. Kinkead
(2003), 178 C.C.C. (3d) 534
    (Ont. C.A.), at para. 86.

[94]

Appellate review
    of a trial judges assessment of the balance between probative value and
    prejudicial effect should also take into account the nature of the trial
    forum.  Where the trial was before a judge sitting alone, the risk of improper
    use of evidence of extrinsic misconduct is significantly reduced:
R. v. W.
    (L.)
(2004), 191 O.A.C. 22, at para. 9. Further, when the reasons of a
    trial judge expressly deny or foreclose any improper use of the evidence, we ought
    to take the trial judge at his or her word and not rummage about the record to
    test the veracity of his or her disclaimer:
R. v. OBrien
, 2011 SCC 29,
    at para. 16.

5.         The Principles Applied

[95]

I would not
    accede to this complaint of judicial error.

[96]

The extrinsic
    misconduct in this case disclosed the appellants involvement in other
    fraudulent schemes.  The schemes were contemporaneous with the scheme to burn
    down Woodbine and collect the proceeds of the fire insurance policy on the
    building and its contents.  The principals in the other schemes were common to
    the Woodbine scheme.

[97]

The prosecutor
    tendered this evidence of extrinsic misconduct to shore up the credibility of
    the
Vetrovec
witnesses and to rebut the claim of the appellant that his
    association with the principals in the Woodbine scheme was innocent, not
    culpable. It was on this basis that the trial judge admitted the evidence.

[98]

The evidence of
    extrinsic misconduct admitted in this case demonstrated that the principals in
    the Woodbine scheme had also been associated in other contemporaneous
    fraudulent enterprises. The evidence tended to show the closeness of their
    association and that it was criminal in its nature, not innocent. This evidence
    tended to rebut the position advanced by the appellant at trial that he knew
    about, but did not participate in the Woodbine conspiracy.

[99]

The use of the
    evidence of extrinsic misconduct to support the credibility of the
Vetrovec
witnesses is more problematic. Paskalis evidence about extrinsic misconduct
    could
not
be confirmatory of
his
credibility about the Woodbine
    conspiracy because it lacked the essential characteristic of independence. We
    must also be cautious about defining the issue on which the evidence of
    extrinsic misconduct bears too broadly, such as credibility, lest we dilute
    the standard required for admission:
Handy
, at para. 115.

[100]

I
    would not interfere with the trial judges decision about the admissibility of
    the evidence of extrinsic misconduct. It was rightly admitted to rebut the
    claim of innocent association. Even if she were wrong to have used this
    evidence to support the credibility of the
Vetrovec
witnesses, I would
    not give effect to the appellants complaint because the trial judge did not
    engage in any prohibited chain of reasoning and was satisfied that the
Vetrovec
witnesses were speaking the truth when they implicated the appellant.

Ground #3: The Unreasonableness of the
    Conviction of Murder

[101]

The
    principal ground of appeal relates exclusively to the conviction of murder.
    Pared to its core, the complaint is that the trial judges finding that the
    prosecutor had established the fault element in murder as defined in s. 229(c)
    of the
Criminal Code
beyond a reasonable doubt is unreasonable and not
    supported by the evidence adduced at trial.

[102]

Some
    reminders about the evidence relevant to this issue are essential to locate
    this ground of appeal in its proper setting.

1.         The Additional Background

[103]

No
    one gave direct evidence about the nature or extent of the appellants
    foresight of the likely consequences for the lives of others of the fire set at
    Woodbine on Christmas Eve in 2001. The appellant did not testify nor make any
    admissions to others about this subject.

[104]

In
    the late evening of Christmas Eve, 2001, Tony Jarcevic, a person with some
    training in fire suppression, spread gasoline around the basement of
    Woodbine, a single storey unoccupied commercial premises that had been purged
    of its inventory. Paskalis was with him. Jarcevic had been chosen for his task
    because of his specialized training.  The windows in the store had been covered
    with tar paper and the fire alarm and sprinkler systems had been disconnected
    before Jarcevic began spreading gasoline around in the basement.

[105]

The
    participants selected Christmas Eve as the opportune time to set the fire at
    Woodbine. Streets in the neighbourhood would be deserted. Emergency services,
    especially the fire department, would not be fully staffed.  Response time
    would be delayed.

[106]

The
    evidence was conflicting about the nature and extent of the damage that was to
    be done to Woodbine by the fire.  Regaldo characterized it as smoke and water
    damage involving burning the beams in the building.  Paskalis claimed that the
    plan involved total destruction, although his account had not always been
    consistent on this issue. The execution of the plan was left to the arsonists,
    Jarcevic and Paskalis.

[107]

The
    area around Woodbine includes both commercial buildings and homes. The
    residences closest to Woodbine are about 100 to 150 feet away.

[108]

According
    to the evidence of the other participants in the scheme, Magnos plan was to
    submit an insurance claim for destruction of the building and its contents.

2.         The Findings of the Trial
    Judge

[109]

In
    her reasons for judgment on the murder count, the trial judge considered two
    issues.  The first involved the
actus reus
, the second, the
mens rea
or
    fault element.

[110]

The
    trial judge held that s. 229(c) could apply where the victim of the unlawful
    homicide was a participant in the dangerous act. Her decision on that issue is
    not challenged on appeal.

[111]

The
    trial judge concluded that the foresight requirement in s. 229(c) did not
    oblige the prosecutor to foresee with precision the death actually caused.
    During the course of her reasons, the trial judge described the fault element
    on several occasions as foresight of the likelihood of harm or death.

[112]

In
    concluding that the prosecutor had proven the fault element in s. 229(c) beyond
    a reasonable doubt, the trial judge relied upon the following evidence and
    inferences:

i.

an inference from the
        precautions taken in setting the fire that the conspirators were aware that
        someones
death
was a
likely
consequence of their conduct;

ii.

an inference that causing someone harm or death is a likely consequence
        of spreading accelerants in and setting fire to a building;

iii.

the location of the premises near a main intersection and close to
        several residences;

iv.

the extent of the fire caused; and

v.

the plan to destroy the building and its contents to recoup the maximum
        return under the fire insurance policy.

3.         The Positions of the
  Parties

[113]

For
    the appellant, Mr. Schreck says that the cumulative effect of the evidence does
    not reasonably support the inference that the appellant, who neither set the
    fire nor was aware of the precise details of it, foresaw the likelihood that
    anyone would die as a result.

[114]

Mr.
    Schreck contends that, in the absence of any direct evidence that the appellant
    foresaw that someone would likely die in or from the fire, the available
    circumstantial evidence must support such a finding as the only rational
    inference available on the evidence as a whole. The cumulative effect of the
    evidence, Mr. Schreck submits, is simply not up to the task.

[115]

Mr.
    Schreck acknowledges that if the likelihood of death was
reasonably
foreseeable
    from setting the fire, it was open to the trier of fact to find that the
    appellant foresaw the likelihood that somebody would die from or in the fire.
    But, he says, the evidence cannot support an inference of objective foresight
    of the likelihood of death, thus cannot be invoked as evidence to fund a
    finding of subjective foresight on the appellants part.

[116]

Mr.
    Schreck points out that the fire was not to be a large fire. The conspirators
    took precautions, leaving the execution of their plan to a person with
    specialized training.  The appellant did not know any details about the use or
    amount of accelerant. The time selected minimized the risk to passersby and emergency
    workers. Foresight of the possibility or danger of death falls short of what is
    required.

[117]

On
    the other hand, Mr. Pearson says that the verdict is not unreasonable, rather
    fully supported by the evidence adduced at trial.

[118]

Mr.
    Pearson reminds at the outset that it is the cumulative effect of the evidence
    as a whole that must be measured against the standard of proof required of the
    prosecutor.  The plan in this case involved the total destruction of a
    commercial premises by fire. The building was located in an area that included
    houses, at a time when many residents could reasonably be expected to be home.
    To ensure that the destruction was complete, accelerants were used and expert
    help recruited. Precautions were taken to ensure a delayed response by
    emergency workers.

[119]

In
    the end, Mr. Pearson concludes, the determination made by the trial judge was
    one that a properly instructed trier of fact, acting judicially, could
    reasonably have rendered. And that is all that is required to put paid to a
    complaint of unreasonable verdict.

4.         The Governing Principles

Unreasonable
  Verdict

[120]

When
    a verdict or a finding of guilt is challenged as unreasonable or unsupported by
    the evidence, an appeal court must determine whether the verdict or finding of
    guilt is one that a properly instructed trier of fact, acting judicially, could
    reasonably have rendered:
R. v. Biniaris
, [2000] 1 S.C.R. 381, at para.
    36;
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 185; and
R. v. Corbett
,
    [1975] 2 S.C.R. 275, at p. 282. The test includes both objective and subjective
    assessments of the evidence adduced at trial. The appeal court must determine
    what verdict a reasonable trier of fact, properly instructed, could reasonably
    have rendered. In carrying out its mandate, the appeal court must review,
    analyze and, within the limits of appellate disadvantage, weigh the evidence.
    We must examine the weight of the evidence, not its bare sufficiency:
Biniaris
,
    at para. 36.

[121]

Where
    the review for unreasonableness is a finding of guilt entered at the end of a
    trial by a judge sitting without a jury, the reviewing appeal court may be able
    to identify a flaw in the evaluation of the evidence or in the analysis, which
    would serve to explain the unreasonable conclusion reached, and justify its
    reversal:
Biniaris
, at para. 37.  See also,
R. v. Burke
,
[1996] 1 S.C.R. 474, at paras. 5-7.

[122]

Under s. 686(1)(a)(i), an appeal court is entitled to review
    the evidence adduced at trial, to re-examine that evidence and to reweigh it,
    but only for the purpose of determining whether the evidence, as a whole, is
    reasonably capable of supporting the trial judges conclusion:
R. v. Burns
,
    [1994] 1 S.C.R. 656, at p. 663. We must bring to bear on the exercise of
    evidentiary review, re-examination and reweighing, our assessment, informed by
    judicial training and experience, not simply our own personal experience and
    insight:
Biniaris
, at para. 42. That we or any of us would have had a
    reasonable doubt about the appellants foresight of the likelihood that someone
    would die as a result of the set fire does
not
, standing alone, justify
    the conclusion that the finding of guilt of murder was unreasonable:
R. v.
    G. (A.)
, [2000] 1 S.C.R. 439, at para. 29.

[123]

In our assessment of the alleged unreasonableness of the
    finding of guilt in this case, we should remember that proof and determination
    of the intent or foresight when one person unlawfully kills another is often a
    difficult element for the prosecutor to prove and the trier of fact to
    determine:
Biniaris
, at para. 51. To succeed on this complaint that the
    finding of subjective foresight of the likelihood of death from the fire was
    unreasonable, the appellant must show that no properly instructed trier of
    fact, acting judicially, could reasonably have concluded that the appellant
    foresaw that someone would likely die from the fire at Woodbine:
R. v. Arias-Jackson
,
    [2007] 3 S.C.R. 514, at para. 2.

Unlawful
    Object Murder under s. 229(c)

[124]

To
    establish the appellants liability for murder in the death of Jarcevic, the
    prosecutor relied exclusively on the definition of murder in s. 229(c) of the
Criminal
    Code
. Under that definition, culpable homicide is murder:

(c)       where a person, for an unlawful
        object, does anything that he knows or ought to know
[2]
is likely to cause death, and thereby causes death to a human being,
        notwithstanding that he desires to effect his object without causing death or
        bodily harm to any human being.

[125]

The
    essential elements of murder, as s. 229(c) defines it, may be summarized as:

i.

an unlawful object (for an unlawful object);

ii.

a dangerous act (does anything that he knows is likely to cause death
        and thereby causes death to a human being); and

iii.

knowledge
        or foresight (that he knows is likely to cause death).

Each essential element warrants separate treatment.

[126]

In
    s. 229(c), the unlawful object is the purpose or goal the accused pursues,
    the end that the accused seeks to achieve by his or her conduct:
R. v. Shand
(2011), 104 O.R. (3d) 491 (C.A.), at para. 128. The unlawful object must be
    conduct which, if prosecuted fully by the accused, would amount to a serious crime,
    that is, an indictable offence requiring
mens rea
:
Shand
, at
    para. 127;
R. v. Vasil
, [1981] 1 S.C.R. 469, at p. 490.  The unlawful
    object that an accused pursues must be something other than to cause the death
    of the victim or to cause the victim bodily harm that the accused knows is
    likely to cause the victims death and be reckless whether the victim lives or
    dies:
Shand
, at para. 188.

[127]

It
    is critical that the unlawful object be distinct from and not merge with the
    dangerous act. The unlawful object must be a genuine object, not simply one
    aspect of the same general purpose of causing death or bodily harm likely to
    cause death:
Shand
, at para. 141. In addition, the unlawful object in s.
    229(c) must be something other than the harm foreseen as a consequence of the
    conduct that constitutes the dangerous act:
Shand
, at para. 136.

[128]

The
    dangerous act requirement or element in s. 229(c) emerges from the statutory
    language, does anything that he knows is likely to cause death and thereby
    causes death to a human being.

[129]

Under
    s. 229(c) the dangerous act must be clearly identified and defined.  It must be
    something done in furtherance of the unlawful object. The dangerous act is
    often, but need not be, an offence in itself:
Shand
, at para. 145;
Vasil
,
    at pp. 482-483.

[130]

The
    dangerous act in s. 229(c) must be a discrete act or a series of closely
    related acts that results in the death of a human being.  A general course of
    conduct, only loosely connected to the killing, does
not
satisfy the
    dangerous act requirement in s. 229(c):
Shand
, at para. 146. See also,
R.
    v. Cooper
, [1993] 1 S.C.R. 146, at pp. 157-158. An expansive approach to
    the dangerous act requirement is ill-suited to the causation demand in s.
    229(c) and sits uncomfortably with the fault element in this definition of
    murder:
Shand
, at para. 190.

[131]

The
    mental or fault element in s. 229(c), summarized earlier as foresight or
    knowledge, is linked to the dangerous act component of the
actus reus
.
    The fault or mental element refers to
knowledge
of the
consequences
of the dangerous act.  Knowledge of a specific consequence:
death
of a
    human being. And knowledge of the prospect of the consequence: the
likelihood
of its occurrence.

[132]

The
    knowledge or foresight to which s. 229(c) refers is the actual or subjective
    knowledge of the person charged, not the objective or constructive knowledge of
    a reasonable person in the same circumstances:
Shand
, at para. 188. An
    assessment of the
actual
knowledge of an accused is an intensely
    fact-specific inquiry that requires and involves a careful analysis of all the
    circumstances in which the dangerous act occurred.  The inquiry focuses on the
    accuseds knowledge contemporaneous with the dangerous act. Where the dangerous
    act consists of a series of acts, the knowledge must be concurrent at some
    point with an act in the series:
Shand
, at para. 153;
Cooper
, at
    p. 158;
R. v. Nygaard
, [1989] 2 S.C.R. 1074, at pp. 1088-1089.

[133]

Like
    any issue of fact, knowledge of a likely consequence of conduct may be proven
    by direct evidence, by circumstantial evidence, or by the two kinds of evidence
    in combination. Of evidentiary value in proof of knowledge are prior,
    concurrent or subsequent words and conduct of the accused.

[134]

The
    extent of the risk of death occurring as a consequence of the dangerous act is
    defined by the term likely. The accused must know that the death of a human
    being is a
likely
consequence of the dangerous act. The term likely
    refers to the probability of a consequence.  Proof that an accused was aware of
    the risk, possibility, danger or chance of death as a consequence of a
    dangerous act is inadequate to establish the mental or fault element in s.
    229(c):
Shand
, at paras. 153 and 209;
Cooper
, at p. 155.

[135]

A
    determination of the adequacy of the prosecutors proof of the foresight or
    knowledge requirement in s. 229(c) should
not
engage retrospectant
    reasoning from the
actual
consequences of the dangerous act, the death
    of a human being, to the actual foresight or knowledge of the accused in
    committing the dangerous act:
Shand
, at para. 210. In other words,
    the fact that someone died as a result of the accuseds dangerous act does not
    mean that the accused knew that the dangerous act was
likely
to kill
    someone.

[136]

A
    trier of fact, whether a judge or jury, may infer a state of mind, such as
    intention, from the doing of an act, or a series of acts. Where the prosecutor
    proves that an accused did one or several things the natural consequences of
    which would be a particular result, absent evidence of an explanation, the
    trier of fact may, but does not have to infer that the accused intended the
    consequence that occurred. The inference extends
only
to the natural and
    probable consequences of the conduct, not to every possible, conceivable or
    remote consequence. The inference is one of state of mind, drawn from the
    probable consequences of conduct.

[137]

Knowledge
    and foresight are states of mind. It seems reasonable to conclude that if
    intention can be inferred from the natural and probable consequences of
    conduct, by parity of reasoning, so should an inference of knowledge or
    foresight of those consequences be available. That said, in cases governed by
    s. 229(c), a trier of fact must be cautious about inferring actual knowledge
    based entirely or substantially on the common sense inference. To do so risks
    substituting a constitutionally impermissible mental or fault element for
    subjective foresight. Further, to do so may compromise the likelihood component
    in s. 229(c):
Shand
, at para. 209.

5.         The Principles Applied

[138]

For
    the reasons that follow, I am satisfied that the trial judges finding that the
    appellant committed murder was unreasonable and cannot be supported on a
    consideration of the evidence as a whole.  In place of the conviction of
    murder, I would substitute a conviction of manslaughter.

[139]

The
unlawful object
to which the appellant was a party was a fraud on Magnos
    insurers. A claim would be submitted to the insurers seeking compensation under
    the policy for the loss of the building and its contents, nearly all of which
    had been removed and stored elsewhere, caused by an unlawful act to which Magno
    was a party.

[140]

The
dangerous act
in this case, clearly distinct from the unlawful object of
    defrauding Magnos insurers, was setting the store premises on fire. Setting
    the fire was at once a dangerous act, committed intentionally, and one done in furtherance
    of but distinct from the unlawful object of defrauding Magnos insurer. The
    dangerous act was also unlawful.

[141]

The
    deficit in the prosecutors proof of murder in this case resides in the failure
    of the evidence as a whole to ground the conclusion that the appellant knew
    that the death of a human being would likely occur from setting the fire at
    Woodbine.

[142]

In
    the absence of any direct evidence on the foresight or knowledge issue, this
    element could be proven beyond a reasonable doubt only if the only rational
    inference available from the circumstantial evidence as a whole was that the
    appellant (actually) knew that setting the fire at Woodbine would likely cause
    somebodys death.  See,
R. v. Griffin
, [2009] 2 S.C.R. 42, at para. 33.

[143]

The
    trial judge founded her conclusion that the prosecutor had proven the fault or
    mental element required under s. 229(c) beyond a reasonable doubt on four
    considerations:

i.

the precautions taken in setting the fire by recruiting an arsonist with
        training in fire suppression;

ii.

that harm or death is a natural, even a likely consequence, of spreading
        accelerants in a building and setting them on fire;

iii.

the common sense inference of actual knowledge from constructive
        knowledge of the probable consequences of dangerous conduct; and

iv.

the scope of destruction planned, total destruction of the building and
        its remaining contents.

[144]

In
    my respectful view flaws in the trial judges analysis resulted in an
    unreasonable finding that the evidence established the fault element required
    for murder under s. 229(c).

[145]

To
    determine whether the appellants conviction of murder is unreasonable, some
    context is essential. The plan was to burn down Woodbine so that Magno could
    collect the proceeds of a fire insurance policy. The principals in the
    conspiracy were to share in those proceeds. The appellant was removed from the
    setting of the fire. He did not set the fire. He was not at Woodbine when the
    fire was set.  He was not told about how the fire would be set. He knew that
    the fire was to be set at night when people were not around. He knew that
    someone with fire suppression training would set the fire.  It is in this
    context that we must consider the reasonableness of the conclusion that the
    fault element in s. 229(c) was proven with the necessary certainty.

[146]

The
    trial judges description of the fault element in s. 229(c) alternates between
    correct and incorrect standards. The following passages reflect errors in
    describing the fault element in s. 229(c):

[242]  The Crown must therefore prove three
    elements to prove guilt of this offence beyond a reasonable doubt: (i) that
    action was taken for an unlawful object; (ii) there was subjective
foresight
    of death
(see the discussion of
R. v. Martineau
(1990), 58 C.C.C.
    (3d) 353 below); (iii) that death is thereby caused.

[263]  Under these circumstances, the
likelihood
    of harm or death was clearly foreseeable
. Whether the person harmed would
    be the one to set the fire, a resident of an adjacent building, or a firefighter
    called to the scene, is irrelevant for the purposes of s. 229(c).  As already
    noted above,
Meiler
clearly supports the proposition that neither the
    precise situation nor the specific individual harmed need be foreseeable.  It
    is sufficient to prove
subjective foreseeability of harm
to anyone. A
    normal or reasonable person would have foreseen this likelihood of harm.

[264]  I am therefore satisfied beyond a reasonable
    doubt that the
mens rea
requirements of s. 229(c) are met in this case:
    Roks knowingly conspired and assisted in the unlawful object of arson for the
    purpose of insurance fraud; I am also satisfied that he possessed subjective
    knowledge that
harm or death
was a likely outcome of the fire. Anthony
    Jarcevic died as a result of the fire. [Emphasis added.]

Subjective foresight of death is not enough. Subjective
    foreseeability of harm or the likelihood of harm, or the likelihood of harm or
    death is not enough. Nor is the stated conclusion subjective knowledge that
    harm or death was a likely outcome of the fire.  What is essential is
    subjective foresight of the
likelihood
of death.

[147]

Second,
    the reasons of the trial judge appear to proceed backwards from the size of the
    fire and the fact that Jarcevic died to the conclusion that the appellant must
    have known that someone would die. This analysis essentially substitutes
    objective foreseeability for subjective foresight and is constitutionally
    infirm:
Shand
, at para. 210.

[148]

Third,
    the trial judge appears to have relied heavily on the common sense proposition
    that harm or death is a natural and even likely consequence of spreading
    accelerants in a building then setting fire to them. While objective
    foreseeability is often advanced as an item of evidence to prove subjective
    foresight, care must be taken  in doing so under s. 229(c), lest liability be
    established on a constitutionally impermissible basis. What is more, the
    reference to the alternatives harm or death falls short of what is required
    under s. 229(c).

[149]

For
    these reasons, I would conclude that the conviction of murder is unreasonable
    and substitute for it a conviction of manslaughter.

THE SENTENCE APPEAL

[150]

The appellant applies for leave to appeal
    the sentence imposed upon him on his conviction for conspiracy to commit arson.
    For the reasons that follow, I would grant leave to appeal that sentence, allow
    the appeal, and reduce the sentence of imprisonment of ten years imposed by the
    trial judge to a term of six years to be served concurrently with the sentence
    imposed for manslaughter.

1.         The
    Background

[151]

The appellant was 31 years old at the
    time of the Woodbine fire and 37 when sentenced. He had no previous criminal
    record and owned and operated two tanning salons together with his wife. He
    enjoys strong family and community support.

[152]

Evidence was given about a discussion at
    Even Tan led by the appellant.  Magno was in financial difficulty. To alleviate
    his financial embarrassment, it was proposed that Jarcevic and McMaster would
    collect his debts using force if necessary.  Magno wanted no part of the scheme.
    Jarcevic and McMaster also demurred. Nothing came of the discussion. No
    collections occurred.

[153]

Paskalis, McMaster and Regaldo pleaded
    guilty to various offences arising out of their participation in the Woodbine
    scheme.

[154]

Paskalis pleaded guilty to manslaughter
    and arson. He had a lengthy criminal record for fraud and related crimes and
    was severely burned in the fire. His injuries required lengthy hospitalization
    including several months in a medically-induced coma.  Prior to the appellants
    trial, Paskalis was sentenced to imprisonment for a term of seven years, less
    credit of five years for time spent in custody prior to disposition. He served
    the balance of his sentence in the community.

[155]

McMaster was a first offender whose
    principal role was to assist in the removal of inventory from Woodbine and its
    transfer to Sunrise and Regaldos place. McMaster was outside Woodbine when the
    explosion occurred, but played no role in setting the fire.  He pleaded guilty
    to manslaughter
after
the appellants trial and was sentenced to a term
    of imprisonment of six and one-half years.

[156]

Regaldo had a previous conviction for
    armed robbery.  His role was similar to that of McMaster, except that he
    abandoned the others at Woodbine rather than remain outside as had been the
    original plan. After spending 561 days in pre-disposition custody, Regaldo was
    sentenced to time served and required to comply with the terms and conditions
    of a probation order.  He was sentenced prior to the appellants trial.

2.         The
    Positions of the Parties

[157]

For the appellant Mr. Schreck says that
    the trial judge made three errors in the sentence that she imposed. She erred
    in principle in considering the debt collection discussion as an aggravating
    factor, imposed a sentence that was disparate to the sentences imposed on other
    participants in the scheme, thus offended the principle of parity and, in the
    end, imposed a sentence that was outside the range of fit sentences for this
    offence and offender.

[158]

Mr. Schreck submits that an appropriate
    range of sentence would be a penitentiary sentence of four to six years.

[159]

Mr. Pearson takes the position that the
    sentence imposed after trial was fit for the appellant and his offence. He says
    that the trial judge was not wrong to take the debt collection discussion into
    account because it was the immediate precursor of the plan ultimately settled
    upon. Both had as their object the relief of Magno from his financial travail.

[160]

Mr. Pearson reminds that few mitigating
    factors exerted any influence here. The appellant did not plead guilty or co-operate
    with investigators. The trial judge found that the appellant was not
    remorseful. The sentencing objectives of deterrence and denunciation
    predominate because this offence was committed solely for financial gain and
    involved putting the lives and safety of emergency workers and nearby residents
    in unnecessary peril.

3.         The
    Governing Principles

[161]

The
    fundamental principle of sentencing is that the sentence imposed must be
    proportionate to the gravity of the appellants offence and the degree or
    extent of his responsibility for it. The controlling sentencing objectives are
    denunciation of criminal conduct committed for financial gain and deterrence to
    those who, for financial gain, are prepared to compromise the lives and safety
    of others, including emergency workers.

[162]

The
    principle of parity for which s. 718.2(b) provides is also of importance here.
    The appellant is entitled to expect a sentence that is similar to the sentences
    imposed on his associates whose offences and circumstances are similar to his.
    Parity does not signal equivalence. And parity must recognize that different
    aggravating and mitigating circumstances may be at work for those with a
    similar degree of responsibility for the offence.

4.         The Principles Applied

[163]

For
    the reasons that follow, I would set aside the sentence of ten years
    imprisonment imposed by the trial judge and reduce the sentence to a term of
    six years.

[164]

The
    discussion of strong arm methods of debt collection to help out Magnos
    precarious financial state was not a relevant aggravating factor on sentence.
    Nothing came of the proposal. Magno would have none of it, nor would the
    proposed muscle, Jarcevic and McMaster. These discussions did not form a part
    of the circumstances of this offence, conspiracy to commit arson, and were not
    otherwise relevant on sentence.

[165]

The
    sentence imposed after trial offends the principle of parity, even after
    generous allowance has been made for the discount associated with pleas of
    guilty and co-operation with the prosecution, and the enhancement warranted for
    prior criminal convictions. The sentence imposed here for conspiracy to commit
    arson substantially exceeds the sentences imposed on those who were convicted,
    after pleas of guilty, of manslaughter.

[166]

It
    is debatable whether lack of remorse was a relevant factor in determining the
    sentence to be imposed. The appellant pleaded not guilty, but was convicted
    after trial.  He was entitled to assert and maintain his innocence, despite the
    trial judges finding. To point to lack of remorse as an aggravating factor on
    sentence after a contested trial, is scarcely compatible with the presumption
    of innocence.  Further, it does not follow from the mitigating influence of a
    plea of guilty, that a plea of not guilty reflects lack of remorse and is
    aggravating.

CONCLUSION

[167]

For these reasons, under ss. 686(1)(b)(i)
    and (3) of the
Criminal Code
, I would dismiss the appeal from conviction
    of second degree murder, and substitute a conviction of manslaughter.

[168]

The appellant was not properly convicted
    of second degree murder but was guilty of manslaughter.  In this case the
    dangerous act of setting the fire at Woodbine was also unlawful, thus
    supporting a conviction of (unlawful act) manslaughter:
R. v. Nantais
,
    [1966] 2 O.R. 246 (C.A.), at p. 252;
R. v. Ruggiero
(1972), 9 C.C.C.
    (2d) 546 (Ont. C.A.) at pp. 547-548:
R. v.  Wigman
, [1927] 1 S.C.R. 246,
    at p. 264.

[169]

I would grant leave to appeal sentence, allow
    the appeal from sentence on the conviction of conspiracy to commit arson, and
    reduce the sentence to six years to be served concurrently with the sentence to
    be imposed for manslaughter.

The parties may
    make submissions in writing with regard to the sentence for manslaughter.  The
    appellant shall have 14 days from the day these reasons are released to deliver
    his submissions, and the  respondent  shall  have 14  days thereafter  to
    deliver its submissions.  The appellant shall have a further 10 days to deliver his Reply. If
    the parties believe that oral submissions are required instead, they may
    contact the Registrar.

RELEASED:  July 20, 2011  K.F.J.A.

David
    Watt J.A.

I
    agree K. Feldman J.A.

I
    agree Paul Rouleau J.A.

[1]
The conviction of arson was stayed by the trial judge.

[2]

The or ought to know alternative was declared
    unconstitutional in
R. v. Martineau
, [1990] 2 S.C.R. 633, at p. 648.