COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saleh, 2019 ONCA 819

DATE: 20191015

DOCKET: C61319 and C62272

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fadi Saleh

Appellant

Marie Henein and Kenneth Grad, for the
    appellant

Michael Bernstein, for the respondent

Heard: April 23 and 24, 2019

On appeal from the conviction entered on
    November 14, 2015 by Justice Julianne A. Parfett of the Superior Court of
    Justice, sitting with a jury.

Brown J.A.:

I

A.

OVERVIEW

[1]

The appellant, Fadi Saleh, was found guilty by a
    jury of the first degree murder of Hussein El-Hajj Hassan following a
    seven-week trial. It was his second trial on the first degree murder charge; in
    2013 this court overturned Salehs prior conviction for first degree murder:
R.
    v. Saleh
, 2013 ONCA 742, 303 C.C.C. (3d) 431 (
Saleh 2013
).

[2]

Hassan sold cocaine for a living in Ottawa and
    Eastern Ontario. Two of his suppliers were Rafei Ebrekdjian, who lived in
    Toronto, and Saleh, who lived in the Capital Region. Saleh acted as a middleman
    between Hassan and Ebrekdjian.

[3]

The Crowns theory was that at some point in
    2004, Hassan decided to cut Saleh out of the sales chain by going directly to
    Ebrekdjian to purchase drugs, in retaliation for which Saleh orchestrated
    Hassans murder in August 2004.

[4]

Central to the Crowns case was the evidence of
    Mark Yegin, who testified that he witnessed Saleh and Shant Esrabian shoot
    Hassan in a secluded, rural area west of Ottawa. In
Saleh 2013
, Watt
    J.A. commented on the manifest unreliability of Yegin who was charged with
    the same murder and had a substantial motive to assign blame to others:

at
    para. 91.

[5]

Salehs grounds of appeal all concern the trial
    judges charge: the paths to liability for first degree murder that she left
    with the jury; the legal adequacy of her cautions pursuant to
Vetrovec v. The
    Queen
, [1982] 1 S.C.R. 811; and her failure to instruct the jury on the
    use they could make of a jail-cell conversation between Saleh and Ebrekdjian.

[6]

For the reasons that follow, I would allow the
    appeal, set aside the conviction, and direct a new trial on the charge of first
    degree murder.

B.

THE EVENTS LEADING UP TO SALEHS RE-TRIAL

Hassans disappearance and the police
    investigation

[7]

On August 19, 2004, Hassan travelled from Ottawa
    to Toronto to meet Ebrekdjian to purchase cocaine. Upon his return to Ottawa,
    Hassan told his business partner, Johnny Geagea, that he had advanced $170,000
    directly to Ebrekdjian and would receive the drugs on August 21. Hassan also
    told his wife, Soumia Labrouki, that he had advanced a total of $570,000 to
    Ebrekdjian but had yet to receive any cocaine.

[8]

Hassan went missing on Friday, August 20, 2004.
    He had told his wife, Geagea, and others that he was going to Cornwall from
    Ottawa that evening with Mark Yegin to meet up with Paul Porter, a Hells
    Angels member, and Paul Nassif, another individual who worked in the Cornwall
    cocaine business, to discuss distribution problems Hassan was encountering in
    Cornwall. Hassan told Geagea that Yegin had set up the meeting. The plan for
    the night of August 20 was for Hassan and Yegin to pick up Porter, who lived
    just west of Ottawa, and then go to meet Nassif.

[9]

Hassans cousins, Abbas Hage-Hassan and Habib,
    were also planning to make the trip; Abbas and Habib were to travel in one car
    and Hassan and Yegin in another. They would all meet up at Nassifs house.

[10]

Hassan and Abbas left the house of a mutual
    friend, Marwan Sablani, in separate cars at around 7:30 p.m. Hassan told Abbas
    that he would pick up Yegin, who lived in an apartment used by Hassan as a
    stash house, and then drive to Cornwall. While on the road, Hassan called his
    wife just before 8 p.m. and Nassif at 8:11 p.m. He told Nassif that he was
    going to be a little late.

[11]

Abbas and Habib arrived at Nassifs house around
    8:45 p.m., but Hassan never showed up. Abbas and Nassif tried to reach Hassan
    by phone. Eventually, Sablani reached Yegin, who said that he did not know
    where Hassan was and that the meeting had been cancelled.

[12]

Labrouki reported her husband missing on August
    22, 2004.

[13]

A few days later, Labrouki and Abbas met with
    Saleh and Ebrekdjian. When they asked Ebrekdjian what had happened to Hassan
    and the $570,000 Hassan had given him, Ebrekdjian responded that Hassan had
    sent someone to pick up the drugs from him in Toronto on August 21 and Hassan
    actually owed Ebrekdjian an additional $80,000. While Saleh offered to help
    find Hassan, he said that Hassan was not a good man and doesnt respect the
    rules of  selling drugs. Saleh also asked Hassans wife not to mention his
    name to the police.

[14]

Yegin provided a videotaped statement to the police
    on September 14, 2004. He told them that he had not gone to Cornwall with
    Hassan on August 20. Instead, he went to Salehs house and then to the casino
    in Gatineau.

[15]

The police installed wiretaps targeting Yegin,
    Ebrekdjian, Saleh, and Esrabian, who had a business relationship with Saleh in
    narcotics trafficking.

[16]

In May 2005, Saleh gave a statement to the
    police. He confirmed that he had been good friends with Hassan, but denied ever
    having had a business relationship with him. Saleh said that on the night of
    August 20, 2004, he had been at a casino in Gatineau with Yegin, Esrabian, and
    someone named George Santos, and that he had no idea what had happened to
    Hassan.

[17]

On June 27, 2005, Yegin, Esrabian, Ebrekdjian,
    and Saleh were arrested for the murder of Hassan.

[18]

Yegin accepted a police offer of use immunity
    and provided a sworn videotaped statement. In it he said that: Saleh had killed
    Hassan on August 20 by shooting him in the head; Saleh was the sole shooter;
    and Saleh had used two different guns.

[19]

On June 28, 2005, Yegin led the police to
    Hassans body, which was buried in a wooded area off Highway 417, west of
    Ottawa. Yegin was released, as was Ebrekdjian, who was not charged.

[20]

The next day the police conducted a search of
    the vicinity where Hassan was buried and found three .45 calibre shell casings.

[21]

In the face of this evidence, Yegin changed his
    story, now claiming that Esrabian had shot Hassan twice, following which Saleh
    fired one bullet into Hassans head. Following this statement, the police re-arrested
    Yegin and charged him with first degree murder.

The earlier trials

[22]

Yegin, Saleh, and Esrabian were all committed to
    trial.

[23]

Esrabians trial was held in 2008. Yegin refused
    to testify at that trial despite having testified at Esrabians preliminary
    inquiry. Yegin was cited for contempt of court and sentenced to three years
    incarceration, reduced by credit for pre-sentence custody. Esrabian was
    convicted of first degree murder by a jury; his appeal from conviction was
    dismissed:
R. v. Esrabian
, 2013 ONCA 761, 308 C.C.C. (3d) 362, leave
    to appeal refused, [2014] S.C.C.A. No. 293.

[24]

Yegins jury trial for first degree murder was
    held in late 2008. He was acquitted.

[25]

At Salehs first trial in early 2010, Yegin
    refused to testify, was again held in contempt of court, and sentenced to four
    additional years in jail. The Crown relied on the evidence that Yegin had
    provided at Salehs preliminary inquiry. Saleh was convicted.

[26]

This court overturned Salehs conviction and
    ordered a new trial, in part because the trial judge did not instruct himself
    properly on permitting Yegins preliminary hearing testimony to be introduced
    into evidence.

[27]

Salehs re-trial was held in late 2015. The jury
    convicted him of first degree murder.

C.

ISSUES ON APPEAL

[28]

On this appeal, Salehs overarching submission
    is that the trial judges charge set out unduly complicated routes to
    liability. Two results follow from the trial judges approach according to Saleh.
    First, the charge obscured the real question in the case, which Saleh contends tracked
    that framed by this court in
Esrabian
, at para. 26: (i) was the
    shooting in furtherance of an agreement to kill Hassan? and, if so, (ii) was
    Saleh part of that agreement?

[29]

Second, the trial judge left with the jury two routes
    to culpability not available on the evidence: (i) Saleh fired one of the shots
    that killed Hassan; and (ii) liability under s. 231(5)(e) where the predicate
    offence was the kidnapping of Hassan.

[30]

More specifically, Saleh advances five separate grounds
    of appeal:

(i)

The trial judge erred by inviting the jury to
    speculate that Saleh shot Hassan and thereby caused one of the two fatal wounds
    in the absence of any evidence to support such a theory;

(ii)

The trial judge erred by leaving the theory of
    party liability for first degree murder with the jury and incorrectly instructed
    the jury on the issue;

(iii)

The trial judge erred by leaving with the jury
    first degree murder under
Criminal Code
s. 231(5)(e) based on the
    predicate offence of kidnapping Hassan;

(iv)

The trial judge erred in her
Vetrovec
instruction by (a) allowing the jury to consider hearsay evidence as
    potentially confirmatory of Ebrekdjians account of events, and (b) failing to
    instruct the jury that confirmatory evidence had to be material to Salehs
    participation in the killing; and

(v)

The trial judge erred by failing to instruct the
    jury that no adverse inference could be taken from Saleh explaining to
    Ebrekdjian during a jail-cell conversation that he did not have to speak to the
    police.

II

[31]

As the first three grounds of appeal concern the
    trial judges instructions on alternative routes to liability for first degree
    murder, I will address these grounds together. It is first necessary to review
    some of the evidence in more detail.

A.

THE EVIDENCE AT SALEHS RE-TRIAL

[32]

At Salehs re-trial, the jury heard evidence
    from Yegin, Geagea, and Ebrekdjian. Esrabian did not testify. Saleh did not
    testify in his defence.

Yegin

[33]

In August 2015, prior to the trial, Yegin had
    been admitted into the witness protection program upon his agreement to testify
    at Salehs re-trial. In order to remain in the program, he was required to give
    evidence at the trial. Yegin was the only witness who gave direct evidence about
    the killing.

[34]

Yegin testified that he had no idea that Hassan
    was going to be killed on August 20, 2004. His understanding of the plan for
    that evening was that Hassan would meet with Porter to straighten out problems
    with rival drug dealers in Cornwall. The meeting was Salehs idea. Yegin spoke
    to Hassan to see if he was interested in the meeting. Hassan was.

[35]

According to Yegin, earlier on August 20 he was
    at Salehs residence in Gatineau hanging out with Esrabian and Saleh. Yegin
    then left and went back to his apartment, where Hassan joined him at around 8
    p.m. Hassan and Yegin then left for Porters residence, which was located west
    of Ottawa, in a Jeep that Yegin had borrowed from Esrabian. Yegin was the
    driver.

[36]

Hassan and Yegin drove west on Highway 417.
    After passing the Bayshore area, they saw Saleh drive by using Yegins car. According
    to Yegin, Saleh made a hand motion directing Yegin to follow his car. Hassan
    expressed surprise at seeing Saleh. Yegin testified that he thought Hassan knew
    Saleh would be coming to the meeting with Porter.

[37]

The two cars exited the highway at Panmure Road
    and eventually drove to the end of a street. According to Yegin, when he
    arrived at the dead end, Salehs car was facing towards Yegins approaching
    Jeep, with its headlights on. Saleh was out of the car walking on the road.
    Yegin parked the Jeep about 30 feet from Salehs car. Saleh walked over to the
    Jeep. Yegin rolled down the window. Saleh came to the window and told Hassan
    that he wanted to talk to him.

[38]

Hassan got out of the Jeep. He and Saleh began
    to argue in Arabic. Yegin remained in the Jeep.

[39]

While still seated in the Jeep, Yegin looked to
    his left, turned around, and saw Esrabian. Yegin had not seen Esrabian leave
    the other car.

[40]

During his testimony, Yegin drew a sketch of his
    recollection of who stood where at the time of the shooting. It was marked as
    Exhibit 25 and is attached as Appendix A to these reasons. On his sketch, Yegin
    used an O to place Esrabian to the left of the Jeep, and an X to indicate
    where Saleh and Hassan were standing, having a heated discussion.

[41]

Yegin testified that Esrabian then shot Hassan.
    At that time, Esrabian was about 10 feet away from Yegin and a similar distance
    from Hassan: Very close. Like 10 feet.

[42]

Hassan did not go down on the first shot.
    According to Yegin, Hassans body jerked back, there was a second shot, and
    Hassan fell to the ground.

[43]

Yegin testified that there was then a third
    shot, with Saleh shooting Hassan at close range in the head. Yegin saw Saleh
    take out his gun and shoot Hassan in the head: [Hassan] was on the ground and
    I remember a gun pointed right at his head. I remember the blast, I remember
    seein blood splattered on his head.

[44]

During cross-examination, it was put to Yegin
    that at Salehs preliminary inquiry Yegin had agreed with the question that he
    witnessed the bullet go into Hassans head. The following exchange ensued at trial:

Q.  All right.  So you witnessed the bullet go
    into the head?

A.  Sir, its not like the movies where you
    see a-a-a....  When I saw  said that, I seen him shoot the gun.  I seen blood
    splatter over his head.  So my limited knowledge of that, he was shot in the
    head.  Did I actually see the bullet go right into his skull, like fragments
    and everything? No. But I say that, cause he got.... He was shot at his head,
    and I just seen blood splatter all over. Okay? So I understand your point. Did
    I see the bullet go in the head? I did not see it, but I-I knew that the bullet
    went to his head, because theres blood splatter.

[45]

When confronted with the pathologists evidence
    that there was no wound to Hassans head, Yegin remained steadfast that he had
    seen a shot to Hassans head: I cant argue with the path-pathologist. I know
    what I saw. I know there was a shot to the head, and there was blood splatter.
    I remember it like yesterday.

[46]

When asked how many shots he heard fired, Yegin
    stated: I wanna say three, but it could be more; There coulda been another
    shot.

[47]

Yegin testified that Esrabian had used a .45
    Taurus handgun to shoot Hassan. Yegin did not see which gun Saleh used, but
    that he remembered seeing the Taurus and a black revolver at Salehs house
    after the killing.

[48]

Yegin stated that after the shooting, Saleh came
    toward him and said it had to be done. Saleh asked Yegin to help carry Hassan
    into the woods and dig a hole to bury the body. According to Yegin, by this
    time it was kinda dark  like dusk.

[49]

Yegin began to dig a grave with a shovel but
    testified that he got too freaked out and started to walk away. Saleh told
    him to meet up at his house. Yegin then left. At that point in time, Hassan had
    not been buried.

[50]

On his way back to Salehs house in Esrabians
    Jeep, Yegin stopped at a gas station, disabled Hassans cell phone and later
    disposed of it.

[51]

According to Yegin, by the time he arrived back
    at Salehs house, Saleh and Esrabian were already there. Another individual,
    Akram Sleiman, showed up with a knapsack filled with a large amount of money.

[52]

Yegin testified that Saleh told everyone to
    change their clothes, which eventually were discarded. They then drove to
    Yegins apartment, where Hassan had left his car. Yegin drove that car to
    another location in Ottawa. Yegin, Esrabian, and Saleh then went to the
    Gatineau casino to establish an alibi.

[53]

According to Yegin, Saleh later told him that
    the motive for the killing was that Hassan had tried to purchase drugs directly
    from Ebrekdjian.

Geagea

[54]

Geagea testified that as of the summer of 2004,
    he and Hassan were using Saleh for most of their drug purchases. Saleh, in
    turn, was sourcing his supply from Ebrekdjian.

[55]

Several months before Hassans disappearance,
    Geagea and Hassan went to Toronto to purchase drugs directly from Ebrekdjian. Geagea
    testified that Hassan later told him that Saleh found out they had gone
    directly to Ebrekdjian, prompting an argument.

[56]

Geagea and Hassan had breakfast together on the
    morning of August 20, 2004. Hassan told Geagea that he had gone to Toronto to
    give Ebrekdjian $170,000 for additional cocaine and expected to receive the
    drugs the next day. Geagea told Hassan that he had heard there was a hit out on
    him. Geagea was uncertain from whom the threat emanated and acknowledged that
    Hassan owed money to various individuals.

Ebrekdjian

[57]

Ebrekdjian testified
[1]
that he had been supplying
    cocaine to Saleh, who in turn was selling to Hassan. According to Ebrekdjian,
    the money Saleh supplied continually came up short. When Hassan approached
    Ebrekdjian to purchase cocaine directly from him, Ebrekdjian told Saleh about
    it as a courtesy. The news upset Saleh.

[58]

On August 19, 2004, Hassan dropped off $170,000
    with Ebrekdjian in Toronto for the purchase of cocaine. When Ebrekdjian later
    counted the money, it was short. Ebrekdjian phoned Hassan, who said he would
    make up the shortfall later. Ebrekdjian then phoned Saleh and told him to take
    the money and return it to Hassan. Ebrekdjian testified that Saleh sent Sleiman
    to collect the money, which he did in the early morning of August 20. Ebrekdjian
    testified that he had no idea Hassan had been killed. Saleh had told him Hassan
    had gone to Lebanon.

The pathology evidence

[59]

An autopsy was performed on Hassans body on
    June 29, 2005. By the time of the trial the attending pathologist had retired,
    so Dr. Christopher Milroy, a forensic pathologist, provided evidence about the
    autopsy result based on his review of the file.

[60]

Dr. Milroy testified that the autopsy disclosed
    an apparent close-range gunshot to the upper anterior left chest, between the
    third and fourth ribs, which struck the pulmonary artery. He opined that he
    would expect a person suffering such a wound to collapse immediately. The
    bullet was still lodged in Hassans body; it was extracted and sent for
    ballistics analysis.

[61]

There was some blackening or soot staining in
    the chest wound. Soot staining is only observed when a bullet has been fired at
    close range. That led Dr. Milroy to conclude that it was a shot from a close
    distance, within inches.

[62]

The autopsy revealed a second bullet wound to
    the right-upper abdomen, with the bullet going into the proximal abdominal
    aorta and likely exiting the body at the left flank. Dr. Milroy was a bit more
    cautious about saying  about whether this one was close. It could well have been.
    In his view, the absence of blackening and soot staining for this wound
    indicated that the shot was not fired from within a few inches but was what
    pathologically is termed distant or indeterminate. In reality, however, it
    could be something like two feet away.

[63]

According to Dr. Milroy, both wounds were fatal;
    either would have caused death within minutes. Dr. Milroy could not tell which
    shot was fired first. They may have been fired in rapid succession.

[64]

Hassans skull was recovered intact. Fractures were
    observed, but Dr. Milroy opined that they were caused by significant blunt
    trauma applied after death. Dr. Milroy testified that there was no evidence of
    a bullet injury to Hassans head, in terms of penetrating the skull.
    Notwithstanding the significant skull fractures, Dr. Milroy opined: we can
    exclude either of those scenarios of a bullet having entered or crossed the
    head.

[65]

As revealed by the following exchange, Crown
    counsel asked Dr. Milroy whether it was possible that a shot had been aimed at
    Hassans head but failed to penetrate or perforate the skull, instead making
    contact with the side of the skin:

Q.   From the information you have available
    to you that youve reviewed, what if anything can you say about the possibility
    of a shot being aimed towards the head, not penetrating or perforating the
    skull, but making contact with the side of the skin as it were?

A.   Yes.  So obviously a shot at the head may
    miss closely and then it can do any degree of damage to the skin, from just
    grazing the surface to actually lacerating the skin to actually lacerating the
    skin and just grazing the skull itself.

If it had lacerated the skin and grazed the
    skull, or just lacerated the skin, we would have expected to have seen some
    evidence for that.  But a very superficial graze of the skin would be lost with
    the post-mortem changes. So what I would say is whilst it cannot be excluded,
    it also has to be fairly stated there is no evidence from the pathology point
    of view to support that.

[66]

On cross-examination, Dr. Milroy repeated that
    from a pathology point of view, there was no evidence of a grazing shot to
    Hassans head.

Ballistics evidence

[67]

Another expert, Grant Veitch, provided an
    opinion about the bullet recovered from Hassans body, three .45 calibre shell
    casings found at the crime scene, and a .45 calibre Heckler and Koch Model USP
    Tactical semi-automatic pistol found during a search of Ebrekdjians home.
    Veitch concluded that:

(i)

the bullet recovered from Hassan was a .45
    calibre;

(ii)

all three expended shell casings found at the
    scene were fired from the same gun;

(iii)

the bullet recovered from Hassan could have come
    from the same or similar calibre and type of firearm as the shell casings; and

(iv)

the expended shell casings and the recovered
    bullet were probably fired from a .45 calibre handgun, such as an Eagle Gun
    Apache Mark 2 Carbine or a Taurus Millennium .45 calibre, or similar model.

Cell phone evidence

[68]

Finally, cell phone and tower records were
    adduced into evidence. They revealed that the cell phones of Hassan, Yegin, and
    Esrabian were all present near the scene of the crime on the evening of August
    20. At the time, Salehs cell phone was either out of battery, turned off, or
    out of range. A fourth phone, registered in the name of Frank Machevelli,
    moved alongside the other phones throughout the evening of August 20 and may
    have belonged to Saleh. The Crown nevertheless argued that Yegin possessed this
    phone on the night of the killing. Yegin testified that it was very common
    for them to pass phones around.

B.

FIRST GROUND OF APPEAL: LEAVING WITH THE JURY
    THE THEORY THAT SALEH CAUSED ONE OF THE FATAL WOUNDS

(i)

HOW THE ISSUE AROSE AT THE RE-TRIAL

[69]

In his opening, Crown counsel anticipated that
    the jury would be left with three routes by which Saleh could be found guilty
    of first degree murder: (i) he was present at the scene of the shooting, but
    was not necessarily the shooter; (ii) he was not present at the scene of the
    killing but was part of a plan to kill Hassan; or (iii) while not part of a
    plan to kill Hassan, Saleh was part of a scheme to lure Hassan to a remote
    location  kidnapping by fraud  knowing that Hassans murder was a probable
    consequence of what would transpire.

[70]

During the pre-charge conference, the trial
    judge asked Crown counsel to describe their theory about the cause of Hassans
    death. The Crown identified a shot fired by Esrabian as the cause of Hassans
    death and described Saleh as part of the plan to murder Hassan. The Crown
    alternatively characterized Salehs conduct as giving rise to culpability for
    first degree murder either as an aider and abetter or a joint principal, even
    if Saleh was not the shooter or was not at the scene.

[71]

In the early stages of the pre-charge
    conference, Crown counsel stated that there is no evidence upon which we would
    urge the jury to find that [Saleh] physically or factually caused the death of
    Hassan. Later in the conference, Crown counsel stated that Dr. Milroys
    evidence did not completely foreclose the possibility of a grazing shot to the
    head, although the shot would not cause anything more than the marring of a
    fatally injured man. Yet, later, the Crown submitted that a possible scenario
    on the evidence was that Esrabian came up, as Yegin described, shot once, then
    shot twice more but missed, Saleh stood over Hassan, pulled the trigger, and
    the bullet went through Hassans torso.

[72]

The trial judge regarded that as a perfectly
    legitimate scenario based on Mr. Yegins evidence. In response to defence
    counsels submission that there was no evidentiary anchor for the suggestion
    that Saleh shot Hassan in the chest, the trial judge stated:

[Y]ou keep coming back to that, and yet we
    have evidence from Dr. Milroy that the shot to the chest was a close-range
    shot. We have evidence from Yegin that the last shot was a close-range shot.
    The one and only shot fired by Mr. Saleh was a close-range shot. We only have
    one close-range shot. We have evidence from Yegin that the last shot, the shot
    that he says Mr. Saleh fired, was a close-range shot. He says it was to the head,
    but he could have been mistaken.

[73]

Defence counsel contended that there was no way
    the jury could find that Saleh fired any fatal shot. Although Yegin was
    unwavering in his testimony that Saleh shot Hassan in the head, the pathologist
    testified that there was no bullet wound to the head. Accordingly, there was no
    evidentiary foundation for the jury to conclude that Yegin was mistaken on the placement
    of Salehs shot. That would be an unreasonable irrational position to take.

[74]

In closing submissions to the jury, the Crown
    canvassed several modes of participation by Saleh. Crown counsel spent most of
    his closing advancing a theory of liability based on Salehs presence at the
    scene of the killing, not firing a fatal shot, but operating as the hub of the
    wheel,  the main orchestrator of the whole thing, the boss, with Yegin and
    Esrabian acting as his subordinates. According to the Crown, Saleh orchestrated
    the plan to lure Hassan to a remote location near Panmure Road where the murder
    could be carried out undetected. When Yegin brought Hassan to the remote site,
    Saleh was there. Esrabian shot Hassan, as did Saleh. Although Salehs shot to
    Hassans head as described by Yegin did not cause his death, it was open to the
    jury to find that Saleh was responsible for one of the shots to Hassans torso
    that did kill him. Saleh directed the cover-up of Hassans murder. All that
    demonstrated a planned and deliberate murder, which made Saleh guilty of
    first-degree murder.

[75]

The Crown also briefly canvassed with the jury a
    path to liability under which Saleh fired one of the fatal shots:

One path to Mr. Saleh being found guilty of
    first-degree murder is that he was a principal or party in the planned and
    deliberate murder of the victim. Youll be asked to examine whether he caused
    the death, whether the death was caused unlawfully, whether it was intentional,
    and whether it was planned and deliberate. You may find that Mr. Yegin is mixed
    up about the sequence of the shots or whos responsible for the particular
    shots, and in that regard, you may look at the evidence of Dr. Milroy who talks
    about distances between the  the  I guess the muzzle of the gun when its
    discharged and the injuries observed to the victim, and it may be that you will
    come to the conclusion that Mr. Saleh is responsible for one of the shots to
    the torso.

[76]

Finally, the Crown also offered the jury an
    alternative path to finding Saleh guilty of first-degree murder, submitting
    that the luring or tricking of Hassan under false pretences to go to the remote
    site constituted a kidnapping. Since Saleh knew that the killing was a
    probable outcome of what happened that night, where it happens during the
    kidnapping, that too is a first-degree murder.

[77]

In his closing, defence counsel took the
    position that Saleh did not plan or participate in the killing of Hassan: Saleh
    was not present when Hassan was killed; nor did he participate in any planning
    of Hassans death. The only witness whom the Crown called who could place Saleh
    at the scene of the killing was Yegin, an admitted liar for whom the truth was not
    a travelling companion. As the jury could not rely on Yegin, so goes the
    Crowns case.

(ii)

THE CHARGE

[78]

In her charge, the trial judge instructed the
    jury that there was more than one way for the Crown to prove Salehs guilt of
    first degree murder. First, they could convict Saleh of first degree murder if
    they were satisfied that he had committed a planned and deliberate murder of
    Hassan either as (i) a principal who shot Hassan and caused one of the two
    fatal wounds or (ii) as a person who was otherwise an active participant in
    [Hassans] killing but not a direct cause of his death. Alternatively, if they
    were satisfied that Saleh kidnapped Hassan with the intent to confine him
    against his will, the kidnapping and murder were part of the same series of
    events, and Saleh was an active participant in the killing of Hassan, liability
    for first degree murder would also be established.

[79]

In the section of the charge dealing with
    whether Saleh caused Hassans death, the trial judge noted Dr. Milroys
    evidence that there was no shot into Hassans head and no evidence from a
    pathology point of view that there was a grazing shot to the head. She reviewed
    Yegins evidence about what he saw and heard, as well as the ballistics
    evidence. She concluded this section of her charge by stating;

If you are satisfied beyond a reasonable doubt
    that Fadi Saleh shot Hussein El-Hajj Hassan or was otherwise an active
    participant in his killing, you should find that the Crown has proven this
    element of the offence of murder. You would go to the next question.

[80]

In a subsequent section dealing with whether Saleh
    had the state of mind required for murder, the trial judge again reviewed the
    evidence of Dr. Milroy and Yegin, reminding the jury that the pathology
    evidence indicated there was no shot to Mr. Hassans head. She continued: If
    you have concluded that Mr. Saleh shot Hussein El-Hajj Hassan and thereby
    caused one of the two fatal wounds, you should have no difficulty finding
    beyond a reasonable doubt that he had the state of mind for murder.

(iii)

THE PARTIES POSITIONS ON APPEAL

[81]

The crux of Salehs submission on this ground of
    appeal is that the evidence could not support the conclusion that Saleh fired
    one of the fatal shots. First, the evidence of Yegin and the pathologist was
    diametrically opposed or mutually exclusive. Even if the jury rejected
    Yegins evidence that Saleh had shot Hassan in the head, there still needed to
    be some affirmative evidence that Saleh fired one of the shots to the body in
    order to leave this scenario with the jury.

[82]

Saleh contends that where two versions of a
    particular event are diametrically opposed, usually there is no air of
    reality to a halfway scenario that arises on neither version. Therefore, the
    trial judge erred in providing an in-between scenario whereby both the
    pathologist and Yegin could be believed at the same time, when their evidence
    was mutually exclusive. Doing so called for the jury to speculate. While it is
    for the jury to choose among reasonable inferences available from the evidence,
    the jury cannot be invited to draw speculative inferences that do not flow from
    the presence or absence of evidence:
R. v. Figueroa
, 2008 ONCA 106, 232
    C.C.C. (3d) 51, at para. 35;
R. v. Pomeroy
, 2008 ONCA 521, 91 O.R.
    (3d) 261, at para. 95. As well, the halfway scenario improperly allowed the
    Crown to call its own witness a liar and invite the jury to believe the very
    opposite of what the witness had said:
R. v. Walker
(1994), 18 O.R.
    (3d) 184 (C.A.), at pp. 197, 198-99.

[83]

Finally, Saleh contends that the trial judge misapprehended
    the evidence, failing to appreciate that the pathologist and Yegin did not use
    the term close range in the same manner.

[84]

The Crown disagrees, submitting that there was
    an evidentiary basis to support a reasonable inference that one of Hassans
    fatal gunshot wounds was caused by a bullet fired by Saleh. The jury was not
    required to accept all of Yegins evidence in determining whether there was an
    evidentiary basis supporting an inference that the appellant shot Hassan. Nor
    was the evidence of Dr. Milroy and Yegin mutually exclusive. The trial judge
    did not invite the jury to speculate, as there was evidence to support a
    reasonable inference that one of Hassans fatal gunshot wounds was inflicted by
    the appellant. The evidence showed that there was only one close range shot,
    which Esrabian could not have fired if the jury accepted Yegins evidence that
    Esrabian fired when he was 10 feet away from Hassan.

(iv)

ANALYSIS

[85]

Saleh does not argue that allowing the jury to
    consider the scenario in which he fired one of the fatal shots resulted in
    procedural unfairness, nor does he take issue with the proposition that a trial
    judge has a duty to instruct the jury on all routes to liability that arise
    from the evidence, even if the Crown chooses not to rely on a particular route:
R. v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at paras. 19 and 27;
R.
    v. Farrant
, [1983] 1 S.C.R. 124, at p. 139.
[2]

[86]

Instead, the essence of Salehs argument is that
    the evidence of Yegin and the testimony of the pathologist are irreconcilable, leaving
    no air of reality to a Saleh-as-fatal-shooter route to culpability as a
    co-principal who actually committed the offence of murder:
R. v. Largie
,
    2010 ONCA 548, 101 O.R. (3d) 561, at para. 141, leave to appeal refused, [2011]
    S.C.C.A. No. 119.

[87]

I am not persuaded by this argument. The
    evidence of the pathologist was that: (i) there were two fatal wounds, one to
    the upper-left chest that resulted from a shot from a close distance as there
    was some soot staining in the wound, and one to the right-upper abdomen shot
    from further away as there was no soot staining; and (ii) there was no bullet
    injury to Hassans head.

[88]

During his testimony, Yegin drew a sketch of his
    recollection of where Saleh and Esrabian were standing relative to Hassan at
    the time of the shooting: see Appendix A to these reasons. As the trial judge
    noted, on that evidence Esrabian was not close enough to fire a shot from a
    close distance  inches  that would cause the upper chest wound. Saleh was.
    On Yegins evidence, one person  Saleh  was close enough to cause the upper
    chest wound, while another  Esrabian  was far enough away to cause the wound
    to the abdomen that lacked any soot stain. Viewed in that way, the evidence of
    Yegin and the pathologist was not mutually exclusive, and the scenario of
    Saleh-as-fatal-shooter was supported by some evidence and not speculative.

[89]

Saleh contends, however, that such a scenario
    cannot account for Yegins evidence that Saleh shot Hassan in the head, not the
    upper left chest. The evidence the jury heard from Yegin regarding what he saw
    Saleh do was that: (i) I remember a gun pointed right at his head; (ii) I
    seen him shoot the gun. I seen blood splatter over his head. So my limited
    knowledge of that, he was shot in the head; (iii) I just seen blood splatter
    all over; (iv) Did I see the bullet go in the head? I did not see it, but I
    I knew that the bullet went to his head, because theres blood splatter. In
    sum, Yegin testified that he saw Saleh point a gun at Hassans head, shoot it,
    and while he did not see a bullet go into Hassans skull, from the blood
    splatter that he did see Yegin concluded the bullet must have gone into
    Hassans head.

[90]

Based on her view of the evidence as a whole,
    the trial judge explained to counsel why she would leave the Saleh-as-fatal-shooter
    scenario for the jurys consideration:

I mean I may see things differently than
    Counsel do, but I think it is at least possible, based on the evidence, that
    the jury could accept some of Mr. Yegins evidence, or find hes mistaken on
    this whole issue of the shot to the head and so on, and so forth, which we know
    never happened  That he could be mistaken, and that in fact the second shot to
    the chest was fired by Mr. Saleh. Thats open for them to conclude

[91]

That assessment of the evidence was open to the
    trial judge. When taken as a whole, the evidence of the pathologist and the
    ballistics expert, on the one hand, and that of Yegin, on the other, was not
    diametrically opposed or mutually exclusive. The trial judge did not invite the
    jury to speculate. An inference that Saleh fired one of the fatal shots was one
    that could be reasonably and logically drawn from the group of facts
    established by the evidence:
R. v. Morrissey
(1995), 22 O.R. (3d) 514
    (C.A.), at p. 530. The trial judge properly left to the jury the task of
    assessing a mode of participation in which Saleh fired a fatal shot, in light
    of the jurys assessment of the credibility of Yegins narrative of events.

[92]

Accordingly, I would reject this ground of
    appeal.

C.

SECOND GROUND OF APPEAL: INSTRUCTIONS ON AIDING
    AND ABETTING

(i)

THE ISSUES STATED

[93]

At the pre-charge conference, the Crown
    submitted that if the jury concluded that Saleh was not the shooter, or had a
    reasonable doubt whether he was, then it remained open to find him guilty of
    first degree murder as an aider or abettor on the basis that the killing was his
    plan, which he facilitated through the fraud of luring Hassan out of Ottawa and
    providing a gun to Esrabian. The defence objected to leaving liability under
Criminal
    Code
ss. 21(1)(b) or (c) because this fact pattern in my respectful
    submission really lends itself to the co-principals instruction, the legal
    causation component.

[94]

In his factum, Saleh repeats his argument that
    it was an error to leave party liability under ss. 21(1)(b) or (c) with the
    jury. However, at the hearing, Saleh modified his position, acknowledging that
    party liability as a mode of participation for first degree murder could be
    left with the jury. The focus of his submission is now on the inadequacy of the
    trial judges instructions.

[95]

Saleh argues that the trial judge committed two
    errors in her instructions on secondary liability. First, she did not properly
    instruct the jury on the fault element for liability for a planned and
    deliberate murder as an aider or abettor: i.e., that the Crown had to prove
    that Saleh knew Esrabian intended to commit a planned and deliberate murder and
    intended to help him commit such a murder. The trial judges repeated
    references to whether Saleh was otherwise an active participant in the
    killings did not adequately instruct the jury on the essential elements for
    planned and deliberate first degree murder as an aider or abettor. Second, the
    trial judge did not adequately instruct the jury on the essential features of
    the evidence that could inform its consideration of this path to liability.

[96]

I shall consider each argument in turn.

(ii)

FIRST ISSUE: DID THE TRIAL JUDGE FAIL TO
    INSTRUCT PROPERLY ON THE ELEMENTS OF PARTY LIABILITY?

Governing principles on secondary liability
    under
Criminal Code
ss. 21(1)(b) and (c)

[97]

The trial judge left with the jury multiple
    paths to liability for first degree murder. As noted by LeBel J. in his
    concurring reasons in
Pickton
, although the ultimate legal liability
    is the same for a principal or for an aider or abettor, the findings of fact
    necessary and the specific legal principles which apply to each are different:
    at para. 73. Accordingly, a trial judges instructions must ensure that the
    jurors understand, for each route of liability, the issues of fact that require
    their decision, as well as the legal principles that govern and the essential
    features of the evidence that inform that decision:
R. v. Almarales
,
    2008 ONCA 692, 237 C.C.C. (3d) 148, at para. 60.

[98]

The
actus reus
and
mens rea
for aiding or abetting are distinct from those of the principal offence:
R.
    v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13. The act or
    omission relied upon must in fact aid or abet, and it must also have been done
    with the particular intention to facilitate or encourage the principals commission
    of the offence, with knowledge that the principal intends to commit the crime:
Briscoe
,
    at paras. 14, 16-18;
Pickton
, at para. 76.

[99]

To be found liable for first degree murder as an
    aider or abettor of a planned and deliberate murder, an accused must have
    knowledge that the murder was planned and deliberate; wilful blindness will
    satisfy the knowledge component of s. 21(1)(
b
)
    or (
c
):
Briscoe
, at
    paras. 17, 21, 25. In
Almarales
, this court described in more detail
    the
mens rea
element for first degree murder, at para. 70:

The fault requirement, as in all cases of
    secondary participation by aiding, consists of two elements: an
intention
to help the principal and
knowledge
of the principals intention.
An aider must
know
that the principal intends to commit a planned and deliberate
    murder, and
intend
to help the principal to commit a planned and deliberate
    murder.
The aider may acquire his or her knowledge that the murder is
    planned and deliberate through actual participation in the planning and
    deliberation, or by some other means. The means of acquiring knowledge are as
    irrelevant to culpability as proof of knowledge is essential to it. [Italics in
    original; underlining added; citations omitted.]

See also:
R. v. Maciel
, 2007
    ONCA 196, 219 C.C.C. (3d) 516, at paras. 88-89, leave to appeal refused, [2007]
    S.C.C.A. No. 258.

[100]

In
Almarales
, this court described the trial judges duty when
    instructing a jury about an accuseds culpability for first degree murder by
    way of secondary participation: the jurors need to know the essential elements
    of murder, the basis upon which murder becomes first degree murder, the
    constituent elements of aiding and abetting and, most especially, the specific
    basis upon which the accuseds liability as a secondary participant in first
    degree murder was to be decided: at paras. 76 and 81. Drawing a clear
    distinction between the legal basis for the perpetrators liability and the
    basis of liability of the helper is important because the facts which the Crown
    must prove beyond a reasonable doubt differ depending upon whether liability
    flows as a perpetrator or as an aider:
R. v. Josipovic
, 2019 ONCA 633,
    at para. 48.

The charge on aiding or abetting

The general instructions

[101]

Immediately before the section of her charge containing the
    instructions on Homicide, the trial judge included a section on Modes of
    Participation. She reminded the jury that where the evidence would permit a
    finding that Saleh committed first degree murder in more than one way, they did
    not all have to agree that guilt has been proven in the same way to find
    Saleh guilty of that offence: As long as everyone agrees that Fadi Saleh
    committed the offence of first degree murder in one way or another, then [he]
    must be found guilty of that offence.

[102]

The trial judge outlined the general principles regarding aiding and
    abetting, noting that [a]iding relates to a specific offence. In dealing with
    the mental element for aiding, the trial judge instructed:

For intent, Crown counsel must prove that Fadi
    Saleh intended to help Shant Esrabian to commit the offence, although Crown
    counsel need not prove that Fadi Saleh desired the successful commission of the
    offence.

For knowledge, Crown counsel must prove that
    Fadi Saleh knew that Shant Esrabian intended to commit the offence, although
    Crown counsel need not prove that Fadi Saleh knew precisely how Shant Esrabian
    would commit the offence. Alternatively, Crown counsel must prove that Fadi Saleh
    was wilfully blind to Mr. Esrabians intentions.

[103]

The trial judges instructions on the elements of abetting mirrored
    that for aiding. Saleh takes no issue with the accuracy of the general
    instructions on aiding and abetting.

The charge on Homicide

[104]

The next part of the charge dealt with Homicide. The trial judge
    organized the first section on planned and deliberate first degree murder by asking
    four questions: (i) Did Saleh cause Hassans death? (ii) Did Saleh cause
    Hassans death unlawfully? (iii) Did Saleh have the state of mind required for
    murder? and (iv) Was Salehs murder of Hassan both planned and deliberate?

[105]

Causation
: In the first section concerning whether Saleh had caused Hassans
    death, the trial judge stated:

It is for Crown counsel to prove beyond a
    reasonable doubt that Fadi Saleh was involved in the events alleged, either as
    a principal, an aider, or an abettor.

Where a criminal offence is committed by two
    or more persons, each may play a different part. If they are acting together as
    part of a joint plan or agreement to commit the offence, each may be found
    guilty of it. It is not necessary for you to find that Fadi Saleh acted alone
    for you to find that he caused Hussein El-Hajjs death. You may find that he
    acted in concert with another person or persons.
It is
    sufficient if you are satisfied beyond a reasonable doubt, having considered
    all the evidence, that Fadi Saleh
actively
    participated
in the killing of Hussein El-Hajj
    Hassan. It is not sufficient that Fadi Saleh was merely present or took a minor
    role
. [Emphasis added.]

[106]

After reviewing the evidence from Yegin, the pathologist, and the
    ballistics expert, the trial judge instructed: If you are satisfied beyond a
    reasonable doubt that Fadi Saleh shot Hussein El-Hajj Hassan
or was otherwise an active participant in his killing
,
    you should find that the Crown has proven this element of the offence of murder
    (emphasis added).

[107]

Unlawfully caused
: The trial judge next gave a brief instruction on whether Saleh
    unlawfully caused Hassans death. She concluded this section by stating: If
    you have concluded beyond a reasonable doubt that Fadi Saleh directly caused
    Hussein El-Hajj Hassans death
or was otherwise an active
    participant in his killing
, then you should have no difficulty finding
    that Mr. Saleh caused Mr. Hassans death unlawfully.

[108]

State of mind
: The trial judge then turned to the question of whether Saleh had
    the state of mind required for murder. The trial judge largely instructed on
    the basis that Saleh was a principal/co-principal to a murder, telling the jury
    that the Crown was required to prove that Saleh either meant for Hassan to be
    killed or meant Hassan to be caused bodily harm that Saleh knew was likely to
    kill Hassan. The trial judges ensuing review of the evidence was shaped by
    that legal instruction. However, towards the end of this part of her
    instructions, the trial judge stated:

If you have concluded that Mr. Saleh shot
    Hussein El-Hajj Hassan and thereby caused one of the two fatal wounds, you
    should have no difficulty finding beyond a reasonable doubt that he had the
    state of mind for murder.

However, if you have concluded that Fadi Saleh
    was
an active participant, either as a principal or as a
    party
in the killing of Hussein El-Hajj Hassan, but not a direct cause
    of his death,
then you must consider whether Fadi Saleh
    knew what Shant Esrabian intended when he shot Hussein El-Hajj Hassan
.

In assessing what Fadi Saleh knew, you may
    wish to consider the same evidence that you considered with respect to the
    first question regarding whether Fadi Saleh caused Mr. El-Hajj Hassans death.
    You may also wish to consider the evidence of Mark Yegin that Mr. Saleh also
    had a loaded handgun with him, and shot Mr. El-Hajj Hassan at close range.
    [Emphasis added.]

[109]

Planned and deliberate
: The next question concerned whether Salehs murder of Hassan was
    both planned and deliberate. Again, the instructions used language that
    described Salehs liability in terms of a principal or co-principal. The
    instructions made no reference to Salehs intention with respect to Esrabians
    conduct or his knowledge regarding Esrabians conduct or intention. The
    instructions concluded by the trial judge stating: If you are satisfied beyond
    a reasonable doubt that the murder of Hussein El-Hajj Hassan was both planned
    and deliberate, you must find Fadi Saleh guilty of first degree murder.

[110]

The trial judge provided each juror with a copy of her instructions
    so that they could follow the charge and refer to it during their deliberations.

[111]

Decision Tree
: As well, the trial judge provided the jury with a decision tree,
    which is attached as Appendix B to these reasons. The trial judge did not take
    the jury to the decision tree during her charge on the constituent elements of
    the offence. Instead, following that part of the charge and her description of
    the positions of the parties, the trial judge told the jury about the use they
    could make of the decision tree.

[112]

As can be seen from Appendix B, the top half of the decision tree
    was designed to cover Salehs liability as a co-principal or party, with the
    bottom half dealing with his liability on the basis of constructive murder.
    However, on its face the top half of the decision tree did not distinguish
    liability as a co-principal from that as a party.

Analysis

[113]

Saleh submits that the trial judge fell into legal error by failing
    to instruct the jury properly on the fault element required to convict him as
    an aider or abettor for a planned and deliberate murder. He argues that a
    proper instruction required the trial judge to inform the jury that the Crown needed
    to prove that Saleh knew of Esrabians intention to commit a planned and
    deliberate murder, either with actual knowledge of the plan or wilful blindness
    to it, and that he intended to help Esrabian to commit a planned and deliberate
    murder.

[114]

Salehs submission finds support on the face of the language used in
    the charge. The trial judges instruction on the state of mind for murder was
    incomplete. She told the jury to consider whether Fadi Saleh knew what Shant
    Esrabian intended when he shot Hussein El-Hajj Hassan but omitted to instruct
    them that they also had to consider whether Saleh intended to help Esrabian to
    commit a murder.

[115]

Her instructions on whether the murder was planned and deliberate
    did not make any reference to the required elements for liability as an aider
    or abettor: Salehs knowledge that the principal, Esrabian, intended to commit
    a planned and deliberate murder and his intention to help Esrabian to commit a
    planned and deliberate murder.

[116]

The Crown submits that, notwithstanding those omissions, the
    instructions were satisfactory when read as a whole, in light of the record and
    the decision of the Supreme Court of Canada in
Pickton
.

The charge as a whole

[117]

The Crown first argues that in her section on Modes of Participation,
    the trial judge properly instructed the jury on the general principles
    regarding aiding and abetting. Those instructions, when coupled with her review
    of the essential features of the relevant evidence, could not have led the jury
    into improper reasoning.

[118]

I am not persuaded by this submission.

[119]

While the general instructions in the Modes
    of Participation section of the charge correctly set out the elements for
    aiding or abetting, the subsequent instructions in the state of mind and
    planned and deliberate sections obscured
the need to
    find proof of the elements of aiding or abetting: the act of assistance or
    encouragement, and the intention to assist or encourage a planned and
    deliberate first degree murder:

R. v. Mendez
, 2018 ONCA 354, at para. 9.

[120]

While at the end of her instructions on
    state of mind the trial judge did direct the jury to consider whether Saleh
    knew what Esrabian intended when he shot Hassan, her instructions were
    deficient in several respects:

(i)

they were confusing, in that they did not
    clearly distinguish liability as a principal from secondary participation: If
    you have concluded that Fadi Saleh was an active participant, either as a
    principal or as a party in the killing of Hussein El-Hajj Hassan;

(ii)

they were incomplete in respect of the elements
    of party liability, not referring to the additional element of intention to
    help; and

(iii)

this part of the instruction related to murder in general, not first
    degree murder. Without more, simply telling the jury that they must consider
    whether Fadi Saleh knew what Shant Esrabian intended when he shot Hussein
    El-Hajj Hassan was an inadequate instruction on Salehs liability as a party
    to a first degree murder.

[121]

The trial judges instructions on planned and deliberate did not
    provide the more, as they lacked any reference to the elements of liability
    as an aider or abettor. The observation by the Nova Scotia Court of Appeal in
R.
    v. Kelsie
, 2017 NSCA 89, 358 C.C.C. (3d) 75, at para. 88, revd 2019 SCC
    17, 433 D.L.R. (4th) 260, applies equally here:

It is not sufficient for the trial judge to
    have charged on planning and deliberation as a principal and then, without the
    jury being told, assume that they would necessarily come to the conclusion that
    aiding first degree murder required the appellant to have knowledge of planning
    and deliberation by [the principal].
[3]

The use of active participant

[122]

The Crown contended, in oral submissions, that the trial judges use
    of the phrases active participant in the killing and actively participated
    in the killing were functionally adequate to instruct the jury on the issue of
    secondary, party participation. I do not accept this submission for several
    reasons.

[123]

First, the trial judge did not use the term
    active participant in the first draft of the charge circulated to counsel.
    The term was inserted in a subsequent version after discussions with counsel at
    the pre-charge conference about the decision of the Supreme Court of Canada in
Pickton
.

[124]

In
Pickton
, the accused, a pig farmer and butcher,
    was convicted of second degree murder in the killings of six women. The Crown
    maintained that Pickton actually shot or killed the women. The defence took the
    position that the Crown failed to prove that Pickton was the sole perpetrator
    and suggested the involvement of others, to the exclusion of Pickton.

[125]

One issue on the appeal concerned whether
    the jury instructions on the alternate routes to liability were adequate. The
    trial judge had not instructed the jury on Picktons potential liability based
    on acts of aiding or abetting. However, in instructions on other suspects and
    in an answer to a jury question, the trial judge spoke in terms of whether
    Pickton shot a victim or was otherwise an active participant or actively
    participated in her killing.

[126]

The majority of the Supreme Court expressed
    the view that the trial judge probably should have instructed the jury on
    Picktons potential liability for acts of aiding and abetting: at para. 33.
    However, in the specific circumstances of the case, the majority was not
    persuaded that the failure to give an instruction on aiding and abetting
    amounted to legal error. By requiring proof that Pickton actively participated
    in the killing of the victims, by acting either on his own or in concert with
    others, there was no risk that the jury might convict him on the basis of
    conduct that did not attract criminal liability for the murders: at para. 33. As
    the majority noted, realistically the case was about whether or not Pickton had
    actually killed the victims, having a physical role in the killings of the
    women: at paras. 11, 32. That being the case, the court noted, at para. 32:

Having regard to the nature of the evidence
    about Mr. Picktons participation and to the charge as a whole, it is my view
    that the expressions acted in concert with others and active participant in
    the killing compendiously captured the alternative routes to liability that
    were realistically in issue in this trial.

[127]

In concurring reasons, LeBel J. stated that the phrase or was
    otherwise an active participant did not adequately convey the causal
    requirement between Picktons acts and the deaths of the victims for principal
    liability, but instead impermissibly opened up the possibility of Picktons
    having acted as an aider and abettor without any further instruction on that
    route of liability: at paras. 38, 79, 80. In his view, the phrases active
    participation, acting in concert, or joint venture did not, in and of
    themselves, adequately convey the law of party liability to a trier of fact,
    with the result that the trial judge erred by not providing the jury with a
    full instruction on aiding and abetting: at para. 38. The phrase or was
    otherwise an active participant in the killing did not adequately convey to
    the jury the law of parties as it arose on the evidence: para. 50. However, as
    there existed overwhelming evidence of Picktons guilt and the error did not
    occasion a miscarriage of justice, LeBel J. applied the curative proviso: at
    paras. 39, 86-87.

[128]

I do not read the majoritys decision in
Pickton
as
    adopting a general principle that the phrase active participation operates in
    all cases as an adequate substitute for an express instruction on the elements
    of aiding or abetting. The majoritys decision was inextricably tied to the
    evidence in that case, which showed that Pickton was actively involved in the
    actual killing of the victims, either by acting alone or in concert with
    others: at para. 32. That case was about whether or not Pickton had actually
    killed the victims, with active participation denoting that he had played a
    physical role in the killings of the victim: at paras. 11 and 32. Accordingly,
    I do not see the majority decision in
Pickton
as sanctioning the deficiencies in the
    charge in this case on party liability.

[129]

Second, in her charge the trial judge used
    the term active participant to cover both participation as a principal and
    participation as an aider or abettor, not as a synonym for the elements
    required to establish aiding or abetting.
[4]

[130]

Third, this was not a case in which the
    identity of a shooter was uncertain. The Crowns theory was that Esrabian had fatally
    shot Hassan in Salehs presence. If the jury was not satisfied beyond a
    reasonable doubt that Saleh also fired one of the fatal shots, then the second
    path to his liability lay as a helper to Esrabian, the known shooter on Yegins
    evidence. Accordingly, charge language that might be acceptable where the jury
    is not able to identify the shooter beyond a reasonable doubt was not available
    in the present case: see the cases cited in
Josipovic
, at para. 51.

[131]

Finally, any reliance on the term active
    participant as a substitute for express instructions on the elements of aiding
    or abetting runs up against the difficulty that in the planned and deliberate
    section of the charge, the term is not used at all. That part of the charge did
    not draw a distinction between Salehs role as a principal, or as an aider or
    abettor.

[132]

Accordingly, even reading the charge in a
    broad, functional manner, I am not persuaded that the jury would have
    understood that to convict Saleh of first degree murder on the basis of aiding
    or abetting a planned and deliberate murder, they had to be satisfied that the
    Crown had demonstrated that Saleh knew that Esrabian intended to commit a
    planned and deliberate murder.

[133]

The Crown submits that while defence
    counsel objected to leaving party liability with the jury as an available mode
    of participation, he did not object to the language of the instructions
    actually given. In my view, that does not affect the legal adequacy of the
    charge. The trial judges error on party liability goes directly to the
mens rea
requirement for an aider to a first degree murder. It was not a minor error. In
    such circumstances, trial counsels failure to object does not excuse the
    seriousness of the misdirection:
Kelsie (NSCA),
at paras. 93-94.

[134]

Some have described the line drawn in the
    case law between co-principals and aiders or abettors as somewhat malleable: Steve
    Coughlan, Gerry Ferguson & Lee Seshagiri,
Annual
    Review of Criminal Law 2010
(Toronto: Thomson Reuters, 2011), at p. 33. Nevertheless, the consistent
    direction of the jurisprudence of this court since
Almarales
has required a proper charge on the
    distinctive elements of the path to culpability as an aider or abettor: see,
    for example
R. v. Chambers
, 2016 ONCA 684, 342 C.C.C. (3d) 285, at
    paras. 34-39;
R. v. Phillips
, 2017 ONCA 752, 355 C.C.C. (3d) 141, at
    paras. 193-198;
Mendez
, at para. 89;
R. v. Zoldi
, 2018 ONCA 384, 360 C.C.C. (3d) 476, at
    paras. 27-29, 34-51. On a review of the charge in this case as a whole, when
    considered together with the closing submissions of counsel, it cannot be said
    that the jury was properly informed of the legal principles which would have
    allowed them, as triers of fact, to consider evidence of Salehs aid and
    encouragement to Esrabian, the sole shooter, as an alternative means of
    imposing liability for the first degree murder of Hassan.
[5]

[135]

I conclude that the trial judges
    instructions on party liability for first degree murder contained legal error. I
    will address the impact of this error after addressing Salehs other grounds of
    appeal concerning the charge and the adequacy of the
Vetrovec
caution.

(iii)

SECOND ISSUE: DID THE TRIAL JUDGE FAIL TO RELATE
    THE EVIDENCE TO LIABILITY AS AN AIDER OR ABETTOR?

[136]

Saleh also submits that there was no evidence before the jury of
    planning and deliberation by Esrabian or that Esrabian had revealed his plan to
    Saleh. He further argues that the trial judge completely failed to relate any
    of the evidence to the question of his liability as an aider or abettor, rather
    than as a principal. I am not persuaded by the first part of this submission; I
    am persuaded by the second.

[137]

As to the first part, the trial judge did
    refer to some evidence regarding Esrabian and his intention: (i) his presence
    at the scene of the shooting; (ii) his possession of a gun; (iii) firing shots
    towards Hassan; and (iv) the cellphone records about calls made on Esrabians
    phone the day before and on the day of the killing. In its closing the Crown
    had submitted that the timing and location of calls recorded on Esrabians cell
    phone records for the day before the killing supported the inference that
    Esrabian had dug the grave for Hassans body the day before Hassan was killed.

[138]

Moreover, it is open to the Crown to
    demonstrate that an aider
knew the murder was planned
    and deliberate either through his own actual involvement in the planning and
    deliberation or through some other means:
Almarales
, at para. 70. The
thrust of the Crowns submission at trial
    was that Saleh was the hub of the wheel, the main orchestrator of the plan to
    kill Hassan, and was in charge of Esrabian, who was subordinate to him. Both
    the trial judge in her charge and the Crown in its closing reviewed at length
    the evidence that could demonstrate that the murder was planned and deliberate.

[139]

However, regarding the second part of this
    submission, although the trial judge reviewed that evidence, she did not relate
    it to the elements required to prove Salehs culpability, as an aider or
    abettor, for a planned and deliberate murder. Indeed, as mentioned, the planned
    and deliberate section of the charge lacked any treatment of the elements of
    aiding and abetting.

(iv)

SUMMARY

[140]

By way of summary on this ground of appeal, I have identified as
    legal errors the incomplete and inaccurate treatment in the charge of the
mens
    rea
element for aiding or abetting a planned and deliberate murder, as
    well as the trial judges failure to relate the evidence to Salehs potential
    liability as an aider or abettor. I will consider the effect of those errors on
    the verdict after examining the ground of appeal concerning the
Vetrovec
caution.

D.

THIRD GROUND OF APPEAL: CRIMINAL CODE s. 231(5)(
e
) - KIDNAPPING

(i)

ISSUE STATED

[141]

After charging the jury on planned and deliberate first degree
    murder, the trial judge proceeded to instruct them on first degree murder
    pursuant to
Criminal Code
s. 231(5)(e):

Irrespective of whether a murder is planned
    and deliberate on the part of any person, murder is first degree murder in
    respect of a person when the death is caused by that person while committing or
    attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible
    confinement)[.]

The trial
    judge presented this route of liability as one available in the event the jury,
    or a juror, was not satisfied that Saleh was guilty of planned and deliberate
    murder, stating:

If you are satisfied beyond a reasonable doubt
    that Fadi Saleh
caused
the death of Hassan, did so
unlawfully
and that he had the
state of mind
required for murder,
but
you are
not
satisfied that Fadi Saleh
    committed a murder that was both planned and deliberate, then you must go on to
    consider the questions that follow. [Emphasis in written charge.]

[142]

The trial judge then instructed the jury on a possible path to
    liability for first degree murder under
Criminal Code
s. 231(5)(e) on
    the basis that: (i) Saleh kidnapped Hassan with the intent to confine Hassan
    against his will; (ii) the kidnapping and murder of Hassan were part of the same
    series of events; and (iii) Saleh was an active participant in the killing of
    Hassan.

[143]

Saleh submits that a route to liability under s. 231(5)(e) should
    not have been left with jury, arguing that there was no scenario on the
    evidence in which the jury could have a reasonable doubt about planning and
    deliberation but not also have had a reasonable doubt about constructive murder
    where the predicate offence was kidnapping. For a scenario under s. 231(5)(e)
    to have an air of reality, evidence was required to show that Hassan was
    kidnapped for a reason other than as part of a plan to kill him, yet there was
    no such evidence. The trial judges conclusion that there was an air of reality
    to the scenario of kidnapping Hassan with the intent to threaten him was no
    more than an invitation to the jury to speculate. As well, Saleh submits that
    there was no evidence that Hassan was lured to the remote location to be
    threatened and that he, Saleh, knew murder was a possible consequence of
    kidnapping.

[144]

On its part, the Crown argues that there
    was an air of reality to the scenario that Hassan was kidnapped for a reason
    other than to kill him. Although the Crown's theory was that this was a planned
    and premeditated murder, jurors are not bound by the positions and theories of
    the parties, and a trial judge has duty to instruct the jury on all routes of
    liability which arise from the evidence.

(ii)

HOW THE ISSUE AROSE

[145]

In his opening to the jury, Crown counsel identified constructive
    murder as a potential path to liability for first degree murder that the trial
    judge might leave for them in her instructions: see para. 69 above.

[146]

At the start of the pre-charge conference, the trial judge marked for
    identification two drafts of jury instructions that she had shared with
    counsel. The first draft contained a section on constructive first degree
    murder. However, that section had been removed from the second draft because,
    according to the trial judge, there was agreement that the constructive
    homicide should be removed. Evidently, in earlier written submissions Crown
    counsel had taken the position that this is a planned and deliberate first
    degree or nothing.

[147]

During the course of the pre-charge conference discussion on planned
    and deliberate murder, defence counsel stated that there would be an argument
    about Salehs state of mind as it connects to the compendium of facts of
    transporting Hassan if the jury concluded that Saleh did not shoot Hassan.
    That prompted Crown counsel to submit that constructive murder should be put
    back into the charge.

[148]

In turn, the trial
    judge, thinking out loud on the state of mind for murder,
asked Crown counsel whether Saleh could
    theoretically do everything that he did, but with only the understanding in
    his own mind that they were going to threaten and intimidate Mr. Hassan. Crown
    counsel responded: Isnt that just speculative? I mean nobody said that.

[149]

The trial judge did not think it was
    speculative, stating that the evidence of luring, the handgun, and the money
    pointed equally to a plan to intimidate or threaten as it does to a plan to
    murder.

[150]

Crown counsel ultimately took the position
    that if one option put before the jury was that Saleh was not part of a plan to
    kill Hassan and therefore should be acquitted of first degree murder but
    convicted of some lesser offence, then the jury should consider whether Saleh
    was part of a plan to lure Hassan to a remote location, knowing that a probable
    consequence would be a shooting. Crown counsel also advanced the argument that
    if there is evidence of a motive and all these other things to support a
    planned killing, there is also evidence to support a planned kidnapping to
    threaten [Hassan]. The same body of evidence could support either route.

[151]

Defence counsel argued that in the event
    the jury had a reasonable doubt about whether the murder was planned and
    deliberate, there was no other evidence available to the jury to find some
    other objective that would make Salehs conduct first degree murder: Thats
    why kidnapping cant be allowed, and constructive murder cant be allowed,
    because there is no factual context for the objectives that would found
    kidnapping that would, in turn, found a 231(5) argument.

[152]

The trial judge concluded that constructive
    murder under s. 231(5)(e) had to be left with the jury because there was

an air of reality to the idea that all of the
    events and the evidence that we have, the whole body of evidence that we have,
    could have been for the purpose of merely intimidating, threatening or
    assaulting. We dont know, and we will never know, but that possibility is not
    impossible  It has an air of reality, which means that the state of mind
    aspect has to go to the jury, but if the state of mind aspect has to go to
    jury, then by definition, we have to look at the concept of kidnapping, and
    kidnapping requires the movement of a person against his will from point A to
    point B  we clearly have that  for a specific purpose. The purpose in this
    case being forcible confinement.

[153]

In the result, the trial judge divided her
    charge on s. 231(5)(e) into three questions: (i) Did Saleh kidnap Hassan and do
    so with the intent to confine Hassan against his will? (ii) Were the kidnapping
    and murder of Hassan part of the same series of events? (iii) Was Saleh an
    active participant in the killing of Hassan?

(iii)

ANALYSIS

The governing principles

[154]

In
R v. McGregor
, 2019 ONCA 307, 145 O.R. (3d) 641, at
    para. 60, this court summarized the five essential elements for first degree
    murder under s. 231(5) as follows: (i) the accused committed or attempted to
    commit a listed underlying crime; (ii) the accused murdered the victim;
    (iii) the accused participated in the murder in such a manner that he was a substantial
    cause of the victims death; (iv) no intervening act by somebody else resulted
    in the accused no longer being substantially connected to the victims death;
    and (v) the underlying crime and the murder were part of the same transaction.

[155]

In the present case, the predicate offence left by the trial judge
    with the jury was kidnapping. While that offence is not defined in the
Criminal Code
,
    the jurisprudence treats kidnapping as an aggravated form of unlawful
    confinement:
McGregor
, at para. 65. Kidnapping is a continuing
    offence, one that is complete in law when the victim is first apprehended and
    moved, but not complete in fact until the victim is freed:
R. v. Vu
,
2012
    SCC 40
,

[2012]
    2 S.C.R. 411
, at paras.
6
, 25, 33.

[156]

As I will explain, I conclude that there was an evidentiary basis on
    which to leave first degree murder under s. 231(5)(e) with the jury. However,
    the trial judge failed to assist the jury in understanding how, having rejected
    planned and deliberate murder in which the movement of Hassan to the remote
    site was a key part of the plan, the evidence nonetheless could support a
    finding of guilt under s. 231(5)(e) using kidnapping as the predicate offence.
    Adding s. 231(5)(e) as an additional path to liability for first degree murder
    further complicated the jurys task, and the charge failed to provide the jury
    with the tools they required to deal with that increased complexity.

Air of reality

[157]

The only direct evidence concerning the movement or transportation
    of Hassan from his Ottawa apartment to the remote site of the killing came from
    Yegin, who drove Hassan from the apartment to the site. Based on a prior
    conversation with Saleh, Yegin thought that he was driving Hassan to a meeting
    with Porter to discuss drug distribution problems Hassan was encountering in
    Cornwall. Yegin understood Saleh would attend the meeting. Yegin thought the
    meeting with Porter was real. Yegin contended that he did not know that Hassan
    was going to be shot or that any harm would come to him that night.

[158]

The Crown relied on other evidence to advance a case that Hassan had
    been deceived about the purpose of getting into the car and driving away with
    Yegin: Hassan had transacted directly with Ebrekdjian, instead of through
    Saleh, to purchase cocaine, angering Saleh; cell phone tower records that
    tracked the movements of Esrabian, Yegin and Hassan (but not Saleh) on August
    20 and the morning of August 21; a course of post-offence conduct by Saleh,
    Esrabian and Yegin that, the Crown suggested, demonstrated an effort to cover up
    the killing. Using that evidence, the Crown asked the jury to conclude Saleh
    was the hub of a plan to lure Hassan to a remote location.

[159]

The Crowns primary position with the jury was that the plan Saleh
    orchestrated was designed to lure Hassan to the remote location in order to
    kill him. During the extremely brief treatment in his closing of an alternative
    path to first degree murder through kidnapping, Crown counsel did not offer the
    jury a reason for a kidnapping other than to kill Hassan.

[160]

However, given that in his direct evidence about why he drove Hassan
    away from his apartment Yegin denied any knowledge of an intent to kill or harm
    Hassan, the circumstantial evidence could support either a scenario where the
    transportation of Hassan was part of a plan to kill him or, as the trial judge
    thought, a plan to intimidate him at some remote location.

[161]

Some circumstantial evidence, if accepted by the jury, pointed
    strongly toward a plan to kill Hassan: the Crown evidence that suggested
    Hassans shallow grave had been dug the day before he was lured to the remote
    site. However, if a juror did not accept that evidence, or had a reasonable
    doubt that the evidence was satisfactory to establish a planned and deliberate
    murder, then the remaining evidence left open a basis for a juror to conclude
    that Hassan was moved to confine him for a purpose other than to kill him.
[6]
Accordingly, I am persuaded that an evidentiary basis existed for
    the trial judge to leave with the jury a scenario where the movement of Hassan
    was not part of a plan to kill him, but a scheme to kidnap him in order to
    confine him for some other purpose, such as intimidating him. To that extent, I
    am not persuaded that the trial judge erred in law in leaving with the jury a
    path to liability under s. 231(5)(e).

Absence of tools to equip the jury

[162]

That said, I am persuaded by Salehs further submissions in oral
    argument that the trial judges instructions did not equip the jury to assess
    this path to liability, which at the pre-charge conference the parties
    initially agreed should not be left with the jury.

[163]

First, the trial judge structured her charge and decision tree so
    that the jury first had to consider whether they were satisfied that Saleh had
    committed a planned and deliberate first degree murder. In the event they had a
    reasonable doubt about whether the murder was planned and deliberate, they
    could then consider whether he was guilty of first degree murder under s.
    231(5)(e). The instructions did not provide any guidance to the jury about how
    they could have a reasonable doubt that the murder for which Saleh was
    responsible at law was a planned and deliberate one  with the kidnapping
    forming a key part of the plan  but was one caused by Saleh while committing
    the predicate offence of kidnapping.

[164]

I have posited a possible way, in para. 161 above, but the trial
    judge gave the jury no assistance on this point. Specifically, she did not
    identify for them what evidence relevant to the issue of planning and deliberation
    might not be relevant to an analysis under s. 231(5)(e).

[165]

Second, I accept the submission Saleh made during oral argument that
    the trial judge neglected to deal properly with the knowledge of Saleh required
    to find him guilty of first degree murder under s. 231(5)(e).

[166]

When proceeding under s. 231(5)(e), the
    Crown must
establish that the accused committed the
    predicate offence and that he or she also committed the murder; where liability
    of the accused is based on secondary, party liability, the Crown must first
    establish that the accused was a party to both offences before s. 231(5)(e) can
    be applied:
R. v. Kirkness
, [1990] 3 S.C.R. 74, at pp. 86-87.
Regardless of
    the basis upon which an accused may be guilty of first degree murder, the trial
    judge must clearly focus on the additional elements of first degree murder as
    defined in s. 231(5) and relate the evidence to those elements:
R. v.
    Ferrari
, 2012 ONCA 399, 287
    C.C.C. (3d) 503, at para. 72.

[167]

The trial judges charge made no reference to the mode or modes of
    Salehs participation in the predicate offence of kidnapping or the murder. She
    did convey s. 231(5)(e)s requirement that Saleh be a substantial cause of the
    victims death. This instruction goes some way to offsetting the omission of a
    specific instruction on party liability for murder in this section of the
    charge. However, the evidence the jury heard about the predicate offence of
    kidnapping was that it was Yegin, not Saleh, who transported Hassan to the
    remote site. While the jury heard evidence about Saleh telling Yegin to meet
    Hassan at his apartment and making hand gestures while passing Yegins vehicle
    on Highway 417, the trial judges instruction on the predicate offence of
    kidnapping did not include any reference about how to examine Salehs liability
    for that offence as a party. That was a material omission from the charge:
Almarales
,
    at para. 84.

[168]

Saleh argues that by adding to the paths of liability for first
    degree murder one under s. 231(5)(e), the trial judge fell into reversible
    error by over-charging through leaving with the jury a speculative theory of
    liability:
R. v. Pintar
(1996), 30 O.R. (3d) 483 (C.A.), at p. 494;
R.
    v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 60. While I have
    concluded that an evidentiary basis existed for leaving that route of liability
    with the jury, this is a case where the trial judge left with the jury two
    paths of liability not requested by the parties at the start of the pre-charge
    conference  Saleh as the shooter of a fatal shot, and Saleh as liable under s.
    231(5)(e)  and that departed from the main thrust of the Crowns case. Where,
    in exercising her discretion, the trial judge leaves with the jury paths to
    liability based on her assessment of the record, she is obliged to give clear
    guidance to the jury on the elements for each route.

[169]

In respect of liability under s. 231(5)(e), the trial judge failed
    to do so. Her instructions on s. 231(5)(e) did not provide the jury with the
    legal framework to assess Salehs liability based on secondary participation in
    the kidnapping, as it was Yegin, not Saleh, who drove Hassan to the site where
    he was shot. Nor did she assist the jury in understanding how, having a
    reasonable doubt on whether the murder was planned and deliberate, where
    kidnapping was an integral part of the plan, the evidence remained available to
    find, beyond a reasonable doubt, that Salehs involvement in the movement of
    Hassan to the remote site satisfied the key elements to find his participation
    in a kidnapping for the purposes of s. 231(5)(e).

[170]

Before considering the effect of these errors, I shall deal with
    Salehs grounds of appeal concerning the
Vetrovec
caution.

III

FOURTH GROUND OF APPEAL: INADEQUATE
VETROVEC
WARNING

(i)

THE ISSUES STATED

[171]

The trial judge included in her charge special instructions about
    the evidence of Yegin and Ebrekdjian, both witnesses of unsavoury character, as
    required by
Vetrovec
. Saleh submits that the trial judges
Vetrovec
caution contained two errors: (i) she used an incorrect definition of
    materiality in the instruction; and (ii) she invited the jury to consider
    hearsay evidence as potentially confirmatory of Ebrekdjians evidence.

(ii)

MEANING OF MATERIAL CONFIRMATORY EVIDENCE

The charge and parties positions

[172]

While instructing the jury about the greatest care and caution
    with which they should approach the evidence of Yegin and Ebrekdjian, the trial
    judge stated:

To be confirmatory of the evidence of either
    Mr. Yegin or Mr. Ebrekdjian, the evidence must be both independent of these
    witnesses and material  The evidence is material when, in the context of the
    case as a whole, it is reasonably capable of strengthening your belief that the
    witness is telling the truth on an important aspect of the case or when he
    asserts that Fadi Saleh committed the offence.

In the absence of evidence that you accept
    that is independent and supports or confirms material aspects of their
    evidence, you should be reluctant to accept the evidence of Mr. Yegin or Mr.
    Ebrekdjian.

[173]

Saleh submits that the trial judges instruction on materiality was
    imprecise because it failed to make clear that confirmatory evidence must be
    material in respect of whether he committed the offence  i.e. whether he was
    involved in the killing. He contends that the trial judge erred by failing to follow
    the directions on
Vetrovec
cautions given by this court in
Saleh
    2013
. Saleh further argues that the examples given by the trial judge of
    evidence potentially confirmatory of Yegins testimony  the cellphone records
    and the cell towers that registered the use of the phones of Yegin, Esrabian,
    Hassan, and Frank Machevelli, which was used by Saleh at one time  were
    irrelevant to the question of his role in the killing and, therefore, did not
    meet the materiality requirement, a situation that he contends is analogous to
    that in
R. v. Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865.

[174]

The Crown submits that the trial judge's
    instruction on the meaning of material confirmatory evidence was proper and she
    did not err by relying on the definition used by this court in
R. v.

Archer
(2005),
    202 C.C.C. (3d) 60 (Ont. C.A.). In
Saleh 2013
, this court did not say anything that
    would undermine the continuing validity of the definition it expounded in
Archer
. As
    well, in
Saleh 2013
this court identified, as potentially material
    confirmatory evidence, that which confirmed Yegins attendance at the remote
    site contemporaneous with the killing. The cell phone and tower records fall
    into that category.

Analysis

[175]

I am not persuaded by Salehs submission on this issue.

[176]

First,
I note that
    in
R. v. Kehler
, 2004 SCC 14, [2004] 1 S.C.R. 328, at para. 15, the
    Supreme Court stated:

while confirmatory evidence should be capable
    of restoring the triers faith in relevant aspects of the witnesss account, it
    hardly follows that the confirmatory evidence must, as a matter of law,
    implicate the accused where the only disputed issue at trial is whether the
    accused was a participant in the crimes alleged.

[177]

Second
, I see no
    practical conflict between the definitions of material offered by this court
    in
Archer
and
Saleh 2013
.
As set out on the
    table below, when the definitions of material in both
Archer
and
Saleh 2013
are read in their entirety,
this court stated that confirmatory
    evidence need not implicate the accused in the commission of the offence.
Saleh 2013
did
    not purport to depart from
Archer
in that regard:

Archer
, at para. 56

Saleh 2013
, at paras. 110 and 117

Confirmatory
          evidence in the context of the
Vetrovec
instruction
          does not have to prove the guilt of the accused or even implicate the accused
          in the commission of the alleged offences. Confirmatory evidence must,
          however, be reasonably capable of strengthening the jurys belief that the
          suspect witness is telling the truth on an important aspect of his evidence.

To be
          material, confirmatory evidence need not implicate the accused in the
          commission of the offence. To be material, what the confirmatory evidence
          must do in the context of the case as a whole is to give comfort to the jury
          that the witness can be trusted in his or her assertion that the accused
          committed the offence. Where the only issue in dispute is whether the accused
          committed the offence, the trier of fact must be comforted that the
Vetrovec
witness is
          telling the truth
in that regard
before convicting on the strength of the
Vetrovec
witnesss
          evidence.

To be
          confirmatory of the testimony of a
Vetrovec
witness,
          evidence need not implicate the accused in the commission of the offence
          charged
. [Emphasis in
          original; citations omitted.]

[178]

Third, I do not read the decision in
Bradshaw
as
    undermining that aspect of the definition of material in respect of
    potentially confirmatory evidence for purposes of a
Vetrovec
caution,
    as suggested by Saleh. The issue in
Bradshaw
was quite different: when
    a trial judge could rely on corroborative evidence to conclude that the
    threshold reliability of a hearsay statement is established: at para. 3. The
    focus of the analysis in
Bradshaw
was ascertaining when corroborative
    evidence could overcome the specific hearsay dangers presented by the tendered
    statement: at para. 4. The case did not consider the range of admitted evidence
    that could be used to confirm the testimony, and assess the credibility, of a
    witness who was subjected to cross-examination at trial, as were Yegin and
    Ebrekdjian. Indeed, in
Bradshaw
the majority of the Supreme Court
    expressly distinguished the concerns at play in a
Vetrovec
caution
    from those in issue when assessing threshold reliability for admitting a
    hearsay statement: at paras. 29 and 43.

[179]

Fourth, I do not see any meaningful departure by the trial judge
    from the definitions or language used in the
Archer
and
Saleh

2013
jury instructions, in which this court found no error. In
Archer
,
    this court saw no error in that portion of the
Vetrovec
caution where
    the trial judge stated: What you should look for is evidence that agrees with
    the important parts of M.S.s evidence that makes you more confident that his
    testimony is true. In
Saleh

2013
, at para. 99, this court
    did not take issue with the following passages in the charge that explained the
    meaning of confirmatory evidence:

To be confirmatory the testimony of another
    witness or witnesses or other evidence should help restore your faith in
    relevant parts of the evidence of these witnesses.  Youre entitled to
    rely on their evidence even if it is not confirmed by another witness or by
    other evidence, but I repeat:  it would be dangerous for you to do so.

To be confirmatory evidence need not implicate
    Mr. Saleh. To be confirmatory the independent evidence must confirm relevant
    portions of the testimony of a witness so that your faith in the witnesss
    evidence can be reinforced. The evidence to which I am about to refer
    illustrates the kind of evidence that you may find confirms or supports their
    testimony. It may help you. It may not. It is for you to say.

[180]

In the present case, the trial judge used a mixture of the language
    from
Archer
and
Saleh 2013
to instruct that confirmatory
    evidence is material when it is reasonably capable of strengthening the jurys
    belief that the witness is telling the truth on an important aspect of the
    case or when he asserts that Fadi Saleh committed the offence.

[181]

Finally, I see no error by the trial judge
    in using, as an example of material confirmatory evidence in respect of Yegin,
    the cellphone records and the cell towers that registered the phones of Yegin,
    Esrabian, Hassan, and Frank Machevelli. As the Crown correctly points out, in
Saleh 2013
this court identified as potentially material
    confirmatory evidence that which confirmed his attendance at the remote site
    contemporaneous with the killing:
Saleh 2013
, at para. 117.

(iii)

THE USE OF GEAGEAS EVIDENCE AS CORROBORATIVE

The issue stated

[182]

In describing for the jury evidence potentially confirmatory of the
    testimony of Ebrekdjian, the trial judge stated in her charge:

Rafei Ebrekdjian has testified that the money
    he received from Mr. Saleh was regularly less than what had been agreed upon.
Johnny Geagea also testified that Mr. Saleh told him that their
    money was short, when they knew that it was not.
This is another example
    of evidence that you may find to be confirmatory evidence. [Emphasis added.]

[183]

Saleh submits that the trial judge erred in using this example
    because Geageas evidence was hearsay. In his testimony Geagea was clear that
    he had no independent knowledge of Saleh claiming that the money had been short;
    instead, Hassan had provided Geagea with this information. Saleh contends that
    since Geageas evidence on this point was inadmissible, the jury was not
    permitted to use it to restore confidence in Ebrekdjians testimony.

[184]

The Crown does not accept Salehs
    characterization of Geageas evidence as hearsay. While at one point Geagea
    suggested that Saleh was the source of his belief that Hassan was always short,
    elsewhere Geagea was less clear on the point. In any event, the Crown contends
    that the evidence was admissible because: (i) it was tendered for a non-hearsay
    purpose, to show what Saleh thought the situation was; (ii) Hassan was the
    source of Salehs belief, the evidence was admissible as a declaration by a
    deceased person; (iii) the evidence of what Saleh said could also be considered
    admissible as a declaration of a co-conspirator said in furtherance of a
    conspiracy (to traffic drugs); or (iv) the evidence of what Hassan told Geagea
    that Saleh had said is also admissible under the principled approach. In any
    event, if there was any error, it was harmless because a significant amount of
    other evidence confirmed Ebrekdjians evidence, including that of Sleiman and
    Yegin.

How the issue arose

[185]

The trial judge had included in the first draft of her charge the
    impugned Geagea example as evidence confirmatory of Ebrekdjians testimony. On
    the first day of the pre-charge conference, Salehs counsel asked that the
    example be removed because it did not accurately reflect the evidence of Geagea
    and his actual testimony constituted hearsay. The trial judge stated that she
    understood that both Hassan and Geagea were together when Saleh relayed the
    information that their money was short, so the evidence was not hearsay. The
    trial judge acknowledged that the evidence could not be confirmatory if it was
    hearsay. Counsel undertook to provide the trial judge with the relevant
    portions of the transcript and revisit the issue the following day.

[186]

The transcript of Geageas evidence
    recorded that he had spoken about Salehs concern regarding the shortfall in
    money provided by Hassan at two points in his examination-in-chief. First,
    Geagea was asked about any difficulties he and Hassan had encountered in
    dealing with Saleh:

Q. Was there other issues with Mr. Saleh?

A. Money was always ... short.

Q. What do you mean by that?

A. Like, if he counted it its short. But when
    we count it its perfect. I give you 100,000; all of a sudden its 98.

Q. So he was telling you guys you had not
    given him enough and your perspective was you had?

A. Yes.

[187]

Later in the examination-in-chief, Crown counsel sought to clarify
    the source of Geageas knowledge. The following exchange took place:

Q. ... The other thing I wanted to clarify was
    we discussed  you told us earlier about  Ill call them problems with the
    drug supply from Mr. Saleh.

A. Yes.

Q: We talked about the not answering his phone
    thing and you talked about the short money thing. What was your direct
    involvement in the short money thing? Like, how did you know that that was
    happening?

A: Cause we get the money together, we fix
    it, we counted it and well send it to him. Well send it to Fadi.

Q: You and Hussein?

A: Either me or Hussein or we send a driver.

Q: Okay. And then how is it you find out that
    Mr. Saleh is saying its not what you say it is?

A: He text back Hussein or he calls him.

Q: Mr. Saleh does?

A: Yes.

Q: And how did you know that? Does Hussein
    tell you? Did you....

A: Yeah, Hussein told me.

Q: Did you ever see a text or hear a
    conversation or....

A: No. No.

Q: It was from Hussein.

A: Ill take  yeah  Husseins word.

[188]

When the issue was re-visited on the second day of the pre-charge
    conference, the trial judge stated that she had read the transcript. In her
    view, the example from Geageas evidence that she had included in her
Vetrovec
caution was exactly what he said. There is a clear inference that the
    information came directly to him, not to him solely by Mr. Hassan. She
    acknowledged that elsewhere in the transcript Geagea had testified the
    information came from Hassan, but its equally clear in another portion of the
    transcript that its  the information comes to both of them. As a result, she
    left the example in the
Vetrovec
caution.

Analysis

[189]

Impermissible hearsay evidence is not capable of providing
    independent confirmation of a
Vetrovec
witness. Indeed, a trial judge
    is obliged to explain to the jury why they cannot rely on that evidence as
    confirmatory:
R. v. Magno
, 2015 ONCA 111, 321 C.C.C. (3d) 554, at
    para. 42, leave to appeal refused, [2015] S.C.C.A. No. 145. The trial judge
    recognized as much in her comments during the pre-charge conference. However,
    she did not regard as hearsay the evidence of Geagea that she included in the
    caution.

[190]

With respect, the trial judge
    misapprehended this part of Geageas evidence. Certainly, when Geagea first
    addressed the matter in his testimony, he clearly left the impression that
    Saleh had communicated his concern about the shortfall in the money directly to
    Geagea. But following a recess, Crown counsel indicated that he wanted to just
    go back and touch on a few areas that we discussed earlier. One of the matters
    that Crown counsel wanted to clarify was we discussed  you told us earlier
    about  Ill call them problems with the drug supply from Mr. Saleh. Geagea
    then clarified that he learned about Salehs concern regarding the shortfall in
    money from Hassan, not from Saleh.

[191]

Given that clarification, the trial judge
    misstated Geageas evidence when, in her
Vetrovec
caution example, she told that jury that
    Geagea testified that Mr. Saleh told them that their money was short, when
    they knew it was not. In the result, she left with the jury hearsay evidence
    as an example of independent evidence confirmatory of Ebrekdjians testimony.

[192]

The Crown asserts that Geageas evidence
    was admissible hearsay but does not provide an adequate analysis that would
    support that assertion. In any event, during the pre-charge conference the
    trial judge acknowledged that if Geagea had not received the information
    directly from Saleh, his statement would constitute hearsay and could not be
    used as confirmatory evidence.

[193]

Accordingly, I conclude that the trial
    judge misapprehended Geageas evidence on the point and, as a result,
    erroneously left impermissible hearsay with the jury as an example of
    independent confirmatory evidence.

IV

THE EFFECT OF THE ERRORS

[194]

To summarize, I have identified legal errors in the trial judges
    charge on four matters: (i) the
mens rea
elements for planned and
    deliberate murder as a party; (ii) the
mens rea
elements for liability
    under s. 231(5)(e) where kidnapping is the predicate offence; (iii) the
    confusion created in the charge by adding a route to liability for first degree
    murder under s. 231(5)(e); and (iv) leaving impermissible hearsay with the jury
    in the
Vetrovec
caution as an example of independent confirmatory
    evidence. Whether these errors call for appellate reversal depends on the
    context in which they were made: did these errors, on this evidence, in this
    trial cause a substantial wrong or miscarriage of justice? See:
R. v. Moo
,
    2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 66, leave to appeal refused, [2010]
    S.C.C.A. No. 152. That, in turn, requires an assessment of whether the error
    was so harmless or minor that it could not have had any impact on the verdict
    or, if it was a serious error that would otherwise justify a new trial, whether
    the evidence against the accused was so overwhelming that any other verdict
    would have been impossible to obtain:
R. v. Van
, 2009 SCC 22, [2009] 1
    S.C.R. 716, at para. 34;
R. v. R.V.
, 2019 SCC 41, at para. 85.

[195]

Although in his factum Crown counsel did
    not address the availability in the circumstances of the curative proviso in
Criminal Code
s. 686(1)(b)(iii), at the hearing he submitted that if there was a legal error
    in the charge, this would be an appropriate case in which to apply the curative
    proviso.

[196]

I am not persuaded that it would be.

[197]

The legal errors committed by the trial
    judge in the Homicide section of the charge were serious. The first two
    involved the instructions on
mens rea
that were fundamental to a finding of
    guilt for first degree murder:
Kelsie (NSCA)
, at para. 93;
R.
    v. Adams
(1989), 49
    C.C.C. (3d) 100 (Ont. C.A.) at p. 112.

[198]

The third, when viewed in context, also was
    serious. The trial judge left three routes of liability for first degree murder
    with the jury: (i) Saleh fired one of the fatal shots; (ii) Saleh aided and
    abetted a planned and deliberate murder; and (iii) Saleh participated in a
    kidnapping that, while not part of a planned and deliberate murder, concluded
    with the murder of Hassan. The Crowns case had rested on demonstrating Salehs
    participation in a planned and deliberate murder. During the course of the
    pre-charge conference, the trial judge added the other two routes of liability.
    In those circumstances, it was incumbent on the trial judge to equip the jury
    with the tools they needed to differentiate, on the evidence, a planned and
    deliberate murder from a first degree murder under s. 231(5)(e) where the
    movement of Hassan to the remote location was a common feature of both.

[199]

The fourth error concerning the
Vetrovec
caution was not a harmless error, as suggested by the Crown. Leaving
    impermissible hearsay for consideration as an example of independent
    confirmatory evidence that could bolster Ebrekdjians testimony that Saleh had
    a strong motive to kill Hassan could have had an important effect on the jury.

[200]

Nor do I regard the case against Saleh for
    first degree murder as so overwhelming that a jury inevitably would have
    convicted him on that count, rather than of a lesser offence. The Crown points
    to the concurring reasons of LeBel J. in
Pickton
as an example of a similar case in which
    the curative proviso was applied. However, in
Pickton
, LeBel J. applied the curative proviso to
    verdicts of second degree murder. In the present case, the verdict was first
    degree murder. Only one witness placed Saleh at the scene of Hassans killing
    Yegin. He was a discreditable witness; in
Saleh
    2013
Watt J.A. commented
    on Yegins manifest unreliability: at para. 91. Prior to the re-trial, Yegin
    had given conflicting descriptions of the events at the remote site that
    differed in critical details. While I have rejected Salehs submission that the
Vetrovec
caution in respect of Yegin was tainted by error, I
    have accepted that the caution concerning Ebrekdjian  another key witness
    did contain error. In those circumstances, I cannot say that the case against
    Saleh for first degree murder was so overwhelming as to attract the application
    of the curative proviso to the trial judges errors.

[201]

Accordingly, I would allow Salehs appeal,
    set aside the conviction, and order a new trial on the indictment for first
    degree murder.

[202]

Although that is sufficient to dispose of
    the appeal, I will address the final ground of appeal advanced by Saleh given
    the extensive submissions made by the parties on it.

V

FIFTH GROUND OF APPEAL: JAIL-CELL ADVICE

(i)

ISSUE STATED

[203]

Upon their arrest on June 27, 2005, Saleh and Ebrekdjian were placed
    in the same cell. The following exchange between them was recorded:

SALEH: Yeah but just say my lawyer and thats
    it man.

EBREKDJIAN: Uh.

SALEH: (Unintelligible) name, date of birth
    and I wanna talk to my lawyer. (Unintelligible). (Pause) Even for what you did
    that night dont answer.

EBREKDJIAN: What?

SALEH: Even what did you do that night,
    (unintelligible) dont answer that.

[204]

During the pre-charge conference, defence counsel stated that if the
    Crown intended to submit to the jury that the evidence showed an attempt by
    Saleh to suppress evidence, then the trial judge should instruct the jury that
    they could not interpret that passage that way. That is because one detainee
    telling another detainee not to talk to the police is an expression of his
    constitutional right to silence, not the suppression of evidence. Crown counsel
    disagreed, but stated he would talk to his co-counsel to ascertain what he
    intended to do with the evidence in closing submissions.

[205]

In the result, in his closing Crown counsel
    did indeed submit to the jury that the intercept of the jail cell conversation
    was particularly useful as in it you will find Mr. Saleh is coaching Mr.
    Ebrekdjian to refuse to provide information to the police about what he did
    that night.

[206]

Defence counsel did not raise the matter
    again following the Crowns closing. Instead, defence counsel dealt directly
    with the issue, at some length, in his closing. He emphasized that no one was
    obliged to speak to the police when arrested because in our system, youve got
    the right to remain silent. He characterized the exchange as nothing more than
    Saleh telling Ebrekdjian that he did not have to talk with the police: There
    is nothing wrong with that, and to suggest that there is, frankly, is
    appalling; Relying on your constitutional rights  that cant be a badge of
    guilt, can it?; I just say the simple act of saying to your cell mate, your
    friend, you dont have to talk to the police cannot be turned around and used
    as a sword.

[207]

Following his closing, defence counsel did
    not request the trial judge to provide a special instruction to the jury about
    the jail cell conversation.

[208]

On appeal, Saleh submits that the trial
    judge erred by denying his pre-charge conference request to instruct the jury
    that no adverse inference could be taken from his advice that Ebrekdjian not
    speak to the police. It was an error for the trial judge to allow the jury to
    conclude that Salehs comments amounted to an attempt to suppress evidence.

(ii)

ANALYSIS

[209]

I would not accept Salehs submission.

[210]

Saleh does not take the position that the
    jail cell intercept constituted inadmissible evidence; his submission is
    limited to its use. He provides no authority to support his assertion that s. 7
    of the
Charter
somehow cloaks a statement made by one detainee to
    another. Saleh certainly enjoyed a right to silence in his dealings with the
    police. However, for his own reasons, he decided to speak at length to
    Ebrekdjian when they were cell-mates. In those circumstances, it was open to
    the jury to assess what inferences could be drawn from that admitted evidence,
    taking into account the circumstances in which Saleh made his statements and
    the entirety of his conversation with Ebrekdjian.

[211]

Finally, the record discloses that defence
    counsel decided to tackle the evidence of the jail-cell conversation head-on in
    his closing, where he forcefully submitted that the jury should not use the
    evidence to conclude that Saleh had attempted to suppress evidence. Following
    his forceful closing, defence counsel did not renew his request for a limiting
    instruction. In those circumstances, I see no prejudice to Saleh from the trial
    judge not including one in her charge to the jury.

VI

DISPOSITION

[212]

For the reasons set out above, I would
    allow the appeal, set aside the conviction, and order a new trial on the
    indictment of first degree murder. Given that disposition, I would quash
    Salehs inmate-stream sentence appeal C61319.

Released: October 15, 2019 (D.B.)

David Brown
    J.A.

I agree.
    L.B. Roberts J.A.

I agree. B.
    Zarnett J.A.

APPENDIX A

APPENDIX B

[1]
Ebrekdjian suffered from health problems affecting his memory at
    the time of Salehs second trial. The defence and the Crown agreed to play
    Ebrekdjians testimony from Salehs first trial for the jury.

[2]
As matters transpired in the present case, the Crown ultimately
    included in its closing a mode of participation in which Saleh fired one of the
    fatal shots as a possible basis for his culpability.

[3]
Although the Supreme Court of Canada overturned the decision of the Court of
    Appeal for Nova Scotia, it agreed with that courts conclusion that the trial
    judges instructions on party liability for first degree murder were in error:
    at para. 1.

[4]
In the section on
    whether Saleh caused Hassans death, the trial judge used the term without any
    express distinction between liability as a principal and as a party: If you
    are satisfied beyond a reasonable doubt that Fadi Saleh shot Hussein El-Hajj Hassan
    or was otherwise an active participant in his killing In the section on the
    state of mind required for murder, the trial judge used the term to cover
    participation either as a principal or as a party: [I]f you have concluded
    that Fadi Saleh was an active participant, either as a principal or as a party
    in the killing of Hussein El-Hajj Hassan, but not a direct cause of his death

[5]
Although in
Esrabian
, this court found that the trial judges
    instructions on the essential elements of the crime of first degree murder were
    problematic, based as they were on a misunderstanding of the Crowns case,
    nonetheless this court concluded that the trial judge had adequately conveyed
    the essential questions the jury had to consider in rendering a verdict. However,
    the Crown theory in that case differed from that in the present: at paras.
    25-27. There, the Crown theory was that it did not matter who shot Hassan
    because it was a planned initiative on the part of Esrabian, Saleh, and Yegin,
    who decided together to murder Hassan: at para. 28. Here, the Crown theory was
    that Saleh was the hub of the scheme, while Esrabian and Yegin were
    peripheral players, and Esrabian was virtually a stranger to the whole
    plot.

[6]
The
    Crown submits that the slight lapse in time between Yegins arrival with Hassan
    at the remote site and the start of the shooting could support an inference
    that the initial intention was to bring Hassan to the location to intimidate
    him.