WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

111. (1)
Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138. (1)
Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985,

(a)       is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)       is guilty of an
    offence punishable on summary conviction.

CITATION:
R. v. J.F., 2011
          ONCA 220

DATE: 20110406

DOCKET: C46571

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau
          and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

And

J. F. (a young person)

Appellant
In Writing

Keith E. Wright, for the appellant

Alexander Alvaro, for the respondent

On appeal from conviction entered by Justice Francine Van Melle
          of the Superior Court of Justice, sitting with a jury, dated December 7,
          2006.

Rosenberg J.A
.:

[1]

The appellant appeals in writing from his conviction
    and sentence for conspiracy to commit murder.  The appellant was tried as a youth by a court composed of Van
    Melle J. and a jury.  He was
    sentenced to an 18 month custody and supervision order.  The appellant raises numerous grounds of
    appeal from conviction concerning, among other things, the admissibility of
    evidence, the liability of a party to conspiracy, and the charge to the jury on
    conspiracy.  The appellant also submits
    that the sentence is illegal because conspiracy to commit murder is not a
    violent offence and that the trial judge made errors in principle in imposing
    the sentence.

[2]

For the following reasons, I would dismiss the appeal
    from conviction but grant leave to appeal sentence and reduce the sentence to 8
    months custody and 4 months conditional supervision.

THE FACTS

[3]

At this point, I intend to merely give a brief overview
    of the facts.  I will further develop the
    facts as I deal with certain grounds of appeal.  In the fall of 2002, two sisters agreed to kill their mother.  While the older sister, R, first came up with
    the idea, the younger sister, T, joined in the agreement.  At different times, the sisters may have
    abandoned the plan, but it was clear that by January 2003, they had a settled
    intention to kill their mother.  The two
    sisters were ultimately convicted of first degree murder.  The motive for the murder was the deceaseds
    behaviour as a result of her alcoholism.  At the time the sisters were 16 and 15 years of age.  The appellant, then 15 years of age, was a
    close friend of T and they were dating prior to their arrests.

[4]

R testified as a Crown witness.  Although, T was brought to the courthouse
    during the trial, neither the Crown nor defence called her as a witness. The
    appellant did not testify, but the Crown did introduce a statement he gave to
    the police following his arrest.

[5]

The deceased died on January 18, 2003 as a result of
    drowning while affected by acute alcohol intoxication.  The deceased also had codeine in her blood at
    3.5 times the upper therapeutic level, a level consistent with the consumption
    of four to six Tylenol 3 tablets.  The
    evidence established that the sisters had plied the deceased with alcohol and
    Tylenol 3 until she was unconscious, placed her in the bathtub and then R held
    her head underwater until she drowned.  Afterwards,
    the sisters met up with the appellant and another friend, AS, at a local
    restaurant, Jack Astors, to attempt to establish an alibi.  The sisters then returned home to discover
    that their mother had drowned and to call 911.  The authorities originally believed that the deceased had drowned accidentally.  As a result of further investigation, the
    sisters were charged with first degree murder and the appellant with conspiracy
    to commit murder.

[6]

It was the theory of the Crown that the appellant
    joined in the sisters conspiracy and among other things, suggested the use of
    Tylenol 3 and provided the pills that were ultimately used to drug the
    deceased.  He also agreed to assist in
    the fabrication of the alibi by meeting the sisters at the restaurant after the
    murder.

[7]

While R testified for the Crown and gave some evidence
    implicating the appellant in the conspiracy, much of the evidence against the
    appellant was in the form of his own words, recorded in MSN chats between the
    appellant and the sisters, especially with T.  A binder containing the relevant chats was made an exhibit at the
    trial.  It would be open to the jury to
    find that those chats demonstrated that the appellant was aware of the plot to
    kill the deceased; that he supplied ideas to the sisters as to how the murder
    could be carried out and how they might cover up the killing; and first
    suggested the use of Tylenol 3.  His chat
    with T on January 13, 2003, less than a week before the killing, is
    particularly instructive:

Appellant: your mom gets Tylenol 3's, right?

T: probably

Appellant: seriously, you should include them in
    the game plan

T: why though? if theyre not necessary

T: u cant possibly make drowning into a suicide

T: but if she like ods in the process

T: lol

Appellant: I'm not talking 20 here

Appellant: I mean like 5

Appellant: they knock you right out

Appellant: well, what happens if she, say, wakes up
    to see you and [R] holding her underwater ... ?

T: were not just gonna be like .... hmm ... she
    looks drunk ... into the tub!

T: were gonna make sure she cant walk and cant
    possibly drink anymore

T: and doesnt react to water on her face

T: at ALL

T: and besides, head first, easier to hold down

T: and then just turn her over or sumthin

Appellant: not reacting to water on face and not
    reacting to lungs filling with water is very different

Appellant: drowning is the single most painful way
    to die after burning to death slowly ...

T: lol yea .... it would suck to drown

Appellant: you get water, instead of oxygen pumped
    through your body

T: either way shell be so shitfaced she wont be
    able to get up

Appellant: then the oxygen dissociates from the
    hydrogen, into the capillaries

T: so holding her down wont be a problem

T: so she moves a bit

T: she still dies

Appellant: at which point the hydrogen turns to
    acid, and the cappilaries burst

T: beautiful

T: (wipes tear away)

Appellant: that's just the beginning ...

Appellant: lol

Appellant: it is not pretty

T: and then soaking for a while

Appellant: my advice:

Appellant: if she wakes up part way through

Appellant: drag her out of the tub, and pretend
    that you were helping her

Appellant: even an inch of water in the bottom of
    your lungs and you'll die withing a few days

T: ahahahha its great how u think we didntthink
    this through

T: that was discussed:P

Appellant: I'm telling you things that I'm not sure
    if you KNOW them

T: it depends on how much she like fights back

Appellant: ie. an inch of water in the lungs will
    kill you in a few days

[8]

AS was a Crown witness and a close friend of R. She testified
    that she first found out about the plan to murder the deceased about a week
    before it happened.  A chat between AS
    and R on the day of the murder was particularly graphic in its description of
    the plan to murder the deceased.  The
    evidence of a conspiracy to commit murder involving at least R and T was
    overwhelming.  The only issue at trial
    was the appellants involvement in the conspiracy.  The theory of the defence, as revealed in the
    appellants statement to the police and cross-examination of the various Crown
    witnesses, was that the appellant was not serious in his chats with T and did
    not intend to join a conspiracy with her and R.

THE GROUNDS OF APPEAL

[9]

The appellant raises the following grounds of appeal
    against his conviction:

(1)       The trial judge erred in instructing the
    jury that the appellant could be liable as a party to conspiracy under s. 21(1)
    of the
Criminal Code
.

(2)       The trial judge erred in admitting
    certain hearsay evidence under the co-conspirators exception to the hearsay
    rule and misdirected the jury on the application of that exception.

(3)       The trial judge erred in admitting
    evidence of the appellants bad character.

(4)       The trial judge erred in admitting the
    appellants interview with the police or in failing to edit the interview.

(5)       The trial judge erred in failing to
    properly direct the jury as to the use of the appellants denials of guilt in
    the interview.

(6)       The trial judge erred in failing to
    adequately set out the position of the defence.

(7)       The trial judge erred in failing to give
    a
Vetrovec
warning with respect to R
    and AS.

[10]

The grounds of appeal against sentence are:

(1)       The
    trial judge erred in finding that the appellant committed a violent offence
    within the meaning of s. 39(1)(a) of the
Youth
    Criminal Justice Act.

(2)       The
    trial judge erred in principle in identifying lack remorse as an aggravating
    factor.

ANALYSIS

The Conviction Appeal

1.         Party to
    Conspiracy

[11]

Although the Crowns main position was that the
    appellant was a principal in the conspiracy to commit murder, Crown counsel asked
    the trial judge to leave liability on the basis that the appellant was a party
    to the conspiracy under s. 21(1) of the
Criminal
    Code
.  The trial judge agreed to do
    so, feeling that she was bound by decisions of this court.  The trial judge directed the jury as follows:

A person also commits an offence if he does
    anything for the purpose of helping another person to commit the offence.

Anyone who actively assists or encourages somebody
    else to commit an offence is as guilty of the offence as the person who
    actually commits it.  I remind you though
    that mere knowledge of, discussion, or passive acquiescence in a plan of
    criminal conduct is not of itself sufficient.

[12]

Later in the charge, the trial judge reviewed the
    position of the Crown, which set out the basis for its theory of party
    liability:

It is the position of the Crown that [the
    appellant] can be convicted of conspiracy as either a full partner like [T] and
    [R] or if he was a party to the conspiracy.  He is a party to the conspiracy by aiding, which means assisting, or
    abetting, which means encouraging [T] and [R] in their plan to murderin the
    plan to murder [the deceased].

Some of you might think that [the appellant] was a
    main partner of the plan that he agreed to murder [the deceased].  Others might agree at the end of the day that
    he was only a party to the conspiracy in that he assisted or encouraged the
    girls in their murder plot.  The Crowns
    position is that [the appellant] was involved in this conspiracy because he provided
    at least one of the following:

·

Advice about the drowning process and how to act
    when interacting with the police.

·

Help with details of the plan including
    combining alcohol and Tylenol 3s and what to do if she woke up part way
    through.

·

An agreement to assist with the alibi and
    attended at Jack Astors the night of the murder.

·

Or Tylenol 3s to facilitate her death.

[13]

The appellant raises a number of grounds of appeal
    concerning these directions:

(i)       There is no offence known to law of party
    to conspiracy.

(ii)      Alternatively, while a person may be a s.
    21(1) party to conspiracy under subpara. (c) by encouraging the conspiracy, one
    cannot be a party under subpara. (b) by aiding the conspiracy.

(iii)     The trial judge did not adequately direct
    the jury on s. 21(1) party liability to conspiracy.

(i)
Offence known to law

[14]

Appellate courts in this and other provinces have held
    that s. 21(1) of the
Criminal Code
applies to conspiracy to commit a substantive offence, such as murder.  In Ontario, the seminal case is
R. v. McNamara (No. 1)
(1981), 56 C.C.C.
    (2d) 193 (Ont. C.A.), a decision of a five-member court.
McNamara
involved a complex conspiracy to defraud the Government of Canada by rigging
    bids for dredging contracts in eastern Canada.  The question of parties to a conspiracy arose in relation to a company,
    Sceptre Dredging, and two of its principals, Hamata and Gill.  Sceptre, although based in western Canada,
    was considering bidding on a dredging contract in eastern Canada known as
    Beauport Banks, because it had a dredge that was not being used.  When the leaders of the conspiracy learned of
    Sceptres intention, they caused one their companies, McNamara Corp., to enter
    into an agreement for the purchase of Sceptres unused dredger.  Gill negotiated the agreement on behalf of
    Sceptre.  The agreement provided for a
    $200,000 penalty, later reduced to $150,000, if the option to purchase was not
    taken up.  In the result, Sceptres
    dredge was no longer available and Sceptre did not tender on the contract.  One of the main conspirators, M.I.L., did
    obtain the Beauport Banks contract.  The
    option to purchase the dredger was never taken up and at a subsequent meeting
    attended by Hamata, Gill and the main conspirators, the vice-president of
    McNamara Corp. presented Hamata with a $100,000 cheque.  Sometime later McNamara Corp. paid the
    balance of the option penalty of $50,000.  While there was a great deal of other evidence, this outline will
    suffice to put the conspiracy argument into context.

[15]

The theory of the Crown in
McNamara
was that the option agreement was a sham and simply a
    vehicle to pay Sceptre for not tendering on the Beauport Banks contract.  Crown counsel argued that Hamata and Gill
    were aware of the conspiracy to rig the Beauport Banks contract and entered into
    the conspiracy from the moment that Gill negotiated the option agreement.  Alternatively, even if they entered into the
    option agreement innocently, they could be guilty of conspiracy if they adhered
    to the object of the conspiracy at some later time, even after the bids for
    Beauport Banks had closed, but prior to the object of the conspiracy being
    attained, i.e. the awarding of the contract and payment by the government to
    M.I.L..  This court disagreed with this
    latter submission because the only part Sceptre was to play in the conspiracy
    was to refrain from bidding on Beauport Banks.  As the court said at p. 453:

If Sceptre's intended part in the conspiracy was
    innocently played, the mere receipt of the penalty of the option with knowledge
    of the existence of the conspiracy (if that was the case) was not, by itself,
    an adherence to the conspiracy, for the penalty had been honestly earned and
    its payment and receipt did not further the object of the conspiracy.

[16]

The court held, on the same page, that a person could,
    however, be convicted as a s. 21 party to a conspiracy:  That is not to say that a person may not
    become a party to the criminal offence of conspiracy (as opposed to a
    participant in the conspiracy) by virtue of s. 21 of the
Criminal Code
.  The court
    went on to consider whether Sceptre, Hamata and Gill might be convicted as
    parties to the conspiracy, and held, at p. 454, that in theory they could:

On the other hand, if, at any time before the
    object of the conspiracy had been attained, that is, the receipt of the
    contract money from the Crown,
they
    abetted or encouraged any of the conspirators to pursue its object
, they
    would become parties to the criminal offence of conspiracy by virtue of s. 21
    of the
Code
. There was evidence from which the jury might have inferred
    that Hamata (and Gill as well) learned of the conspiracy before the contract
    money was paid, and that they encouraged the conspirators. [Emphasis added.]

[17]

The court did not further consider s. 21(1) because it
    was never put to the jury.  The court
    allowed the appeal by Sceptre, Hamata and Gill because,
inter alia
, the trial judge had put the Crowns alternative but
    erroneous theory to the jury and for other reasons relating to evidence capable
    of corroborating the testimony of certain Crown witnesses.

[18]

In
R. v. Vucetic
(1998), 129 C.C.C. (3d) 178 (Ont. C.A.), this court again considered party
    liability for a conspiracy.  In that
    case, it was argued, as here, that a person could not be a s. 21(1) party to a
    conspiracy.  The court disagreed, holding
    as follows at para. 6:

Despite the able argument presented by counsel for
    the appellant, we are not persuaded that we should, or could, ignore the clear
    statement of the law in
R. v. McNamara
,
    albeit as
obiter
, that a person may
    become a party to the criminal offence of conspiracy (as opposed to a
    participant in the conspiracy) by virtue of s. 21 of the Code;
R. v. McNamara, supra
, at 453.

[19]

The appellant seeks to avoid the binding effect of
McNamara
and
Vucetic
by reference to the subsequent decision of the Supreme
    Court of Canada in
R. v. Déry
, [2006]
    2 S.C.R. 669, where the court held that there was no offence known to law of
    attempted conspiracy.  In
Déry
, the Supreme Court of Canada agreed
    with this courts decision in
R. v.
    Dungey
(1979), 51 C.C.C. (2d) 86 (Ont. C.A.), which had held to the same
    effect; that one cannot be convicted of attempt to conspire to commit a
    substantive offence.
Déry
and
Dungey
turn on the issue of remoteness.  The crime of conspiracy is more preliminary
    than the crime of attempt and acts that precede a conspiracy are not
    sufficiently proximate to a substantive offence to warrant criminal
    sanction.  At paras. 49 and 50 of
Déry
, Fish J. speaking for the court,
    explained the rationale for the crimes of conspiracy and attempt and why that
    rationale did not justify a crime of attempt to conspire:

49

By
    its very nature, moreover, an agreement to commit a crime in concert with
    others enhances the risk of its commission. Early intervention through the
    criminalization of conspiracy is therefore both principled and practical.

50

Likewise,
    the criminalization of attempt is warranted because its purpose is to prevent
    harm by punishing behaviour that demonstrates a substantial risk of harm.
When applied to conspiracy, the
    justification for criminalizing attempt is lost, since an attempt to conspire
    amounts, at best, to a risk that a risk will materialize
.  [Emphasis added.]

[20]

In my view, the holding in
Déry
does not warrant reconsideration of this courts decisions in
McNamara
and
Vucetic
.  Party liability for
    conspiracy does not suffer from the problem of remoteness identified in
Déry
with respect to attempt to conspire
.
A person can be liable as a s. 21(1) party to conspiracy only if the
    Crown proves an agreement by at least two other people to commit a substantive
    offence.  If no agreement materialized,
    the alleged partys conduct would be at most an attempt to conspire and would fail
    on the holding in
Déry.
If, however, the accused is a party to the
    conspiracy, for example, by either  encouraging someone to join the conspiracy or aiding or abetting the
    furtherance of its object (a matter I will explore below), the risk of
    commission of the criminal offence has sufficiently materialized to warrant
    criminal sanction.

(ii)
Party
    liability based on aiding

[21]

The more difficult question, in my view, is the reach
    of party liability under s. 21.  This
    question involves two issues: (1) is party liability limited to s. 21(1)(c)
    abetting, and (2) is liability limited to aiding or abetting a person to become
    a member of the conspiracy or can it include aiding or abetting the furtherance
    of the object of the conspiracy.  In
McNamara,
the court expressed party liability
    only in terms of abetting.  The holding
    in
Vucetic
, however, was not so
    limited. The court referred, at para. 7, to aiding and abetting as a basis for
    liability:

However, in order to find him guilty as an aider
    and abettor, the jury would have to be instructed that the appellant knew the
    object of the conspiracy and that his assistance was intended to assist the
    conspirators in attaining their unlawful criminal object.

[22]

In the end, the court in
Vucetic
allowed the accuseds appeal not because liability was not
    available for aiding or abetting a conspiracy but because of deficiencies in
    the instructions to the jury.

[23]

I can see no principled basis for limiting party
    liability to abetting to the exclusion of aiding.  Aiding a conspiracy within the meaning of s.
    21(b) is no less harmful than abetting. Liability for aiding a conspiracy would
    require proof that the accused did or omitted to do something for the specific
    purpose of aiding another to commit the offence of conspiracy.  That degree of
mens rea
imports a sufficient level of fault to warrant criminal
    liability.  As pointed out in
McNamara
, it would not be enough that
    the accuseds acts had the effect of aiding the conspiracy, the accused must
    also have the requisite
mens rea
.

[24]

The appellant submits, however, that even if a person
    can be liable as a party to conspiracy either for aiding or abetting, liability
    is limited to aiding or abetting the formation of the conspiracy or to aid or
    abet someone to join the conspiracy.  This
    is the position taken by the Alberta Court of Appeal in
R. v. Trieu
(2008), 429 A.R. 200 (C.A.).  In that case, the court noted that the
    essence of the conspiracy is the agreement and that the crime is carried out
    whether or not the unlawful object is achieved.  The court would therefore limit liability to acts for the purpose of
    aiding or abetting the actual formation of the agreement.  As it said at paras. 32 - 34:

32

To
    be a party to an offence, a person must aid the principal in the commission of
    that offence and must perform acts or omissions for the purpose of aiding the
    commission of that offence:
R. v. Hibbert
(L)
[1995] 2 S.C.R. 973
,...
99 C.C.C. (3d) 193
at paras. 26, 39. To be a party, a person must "have some knowledge of the
    essential nature of the offence to be committed":
R. v. Adams
(1989), 33 O.A.C. 148
at para. 31,
49 C.C.C. (3d) 100
(Ont. C.A.) at 110.

33

It
    follows from these principles that for Trieu to be a party to the offence of
    conspiracy to traffic in cocaine, the Crown had to prove that Trieu performed
    acts for the purpose of aiding the formation of an agreement to traffic in
    cocaine.
Acts performed after the
    agreement was formed did not aid in the commission of the offence of conspiracy
    on the facts of this case. Therefore, Trieu could not be a party to the offence
    of conspiracy for facilitating the conspirators in attaining their object of
    trafficking in cocaine
. Although acts performed after the agreement was
    reached could have aided in the commission of the offence of trafficking, Trieu
    was not charged with the offence of trafficking.

34
This conclusion
    does not ignore the possibility that conspiracy may be an ongoing crime.
    Members may leave the conspiracy and new members may join:
Cotroni
at 276 (S.C.R.). In an ongoing conspiracy of
    that nature, party liability can arise after the initial agreement is formed
    if, for example, a person aids another to join the agreement. However, no such
    allegation was advanced against Trieu. [Emphasis added.]

[25]

The Quebec Court of Appeal has similarly limited party
    liability for a conspiracy in
R. v.
    Bérubé

(1999), 139 C.C.C.
    (3d) 304
(Que. C.A.) at p. 312, leave to appeal to S.C.C. refused,
    [2000] 1 S.C.R. vii.  However, as the
    Alberta Court of Appeal noted in
Trieu
,
    this court has not so limited party liability.  In particular, liability in
McNamara
was not limited to abetting formation of the conspiracy or encouraging someone
    to join the conspiracy.  The conspiracy
    was fully formed when Sceptre Dredging became involved and potential liability
    did not centre on encouraging anyone else to join the conspiracy. Rather, the
    question was whether the acts of Hamata or Gill encouraged existing members to
    pursue the object of the conspiracy.
Vucetic
is to a similar effect; as is a
    decision of the British Columbia Court of Appeal, albeit in the extradition
    context, in
United States of America v.
    Cheema
(2007), 222 C.C.C (3d) 16 (B.C.C.A.) at paras. 44 and 47, leave to
    appeal to S.C.C. refused,
267 B.C.A.C. 322

(S.C.C.
    Jan 17, 2008).

[26]

Again, I can see no basis in principle for refusing to
    follow
McNamara
and
Vucetic
on this issue.  I appreciate the point made in
Trieu
that the essence of a conspiracy
    is an agreement, but it is not an agreement in the abstract; it is an agreement
    to attain a common goal, a particular unlawful object.  In
R.
    v. Cotroni,
[1979] 2 S.C.R. 256 at p. 277, Dickson J. speaking for the majority
    adopted the following from
R. v. Meyrick
    and Ribuffi
(1929), 21 Cr. App. R. 94 (C.C.A.), at p. 102:

It is not enough that two or more persons pursued
    the same unlawful object at the same time or in the same place; it is necessary
    to show a meeting of minds, a consensus to effect an unlawful purpose.

Dickson J. continued on the same
    page:  There must be evidence beyond
    reasonable doubt that the alleged conspirators acted in concert in pursuit of a
    common goal.

[27]

Admittedly, including party liability for aiding or
    abetting pursuit of the unlawful object blurs the line between the conspiracy
    and the substantive offence.  The
    distinction, however, is that party liability for conspiracy requires proof of
    an agreement, there is no requirement of proof that the unlawful object was
    attained.  Liability as a party to the
    substantive offence requires proof that the substantive offence was
    committed.  Thus, in this case, the
    appellant could be guilty of conspiracy if he aided or abetted the sisters within
    the meaning of s. 21(1) to pursue their unlawful object, even if they
    ultimately did not carry out the plan or the deceased had survived the attempt on
    her life.

(iii)
The
    Charge to the Jury

[28]

The appellant submits that the charge to the jury on
    party liability was inadequate in two respects.  First, the directions may have led the jury to believe that the
    appellant was liable as a party to the conspiracy if he aided or abetted
    commission of the murder, as opposed to the conspiracy.  Second, the charge did not make clear the
    requirement that the appellants acts were for the purpose of assisting the
    sisters to pursue their unlawful object.  I agree with the appellant that the directions were not clear and failed
    to specify the findings the jury would have to make to find the appellant
    guilty on the basis of party liability.

[29]

The directions that the trial judge gave with respect
    to the law of party liability were generic, divorced from the facts of the
    case, and failed to make clear that the jury had to find that the appellant
    knew the object of the conspiracy and that his assistance was intended to
    assist the sisters in pursuing the unlawful object of murdering their mother:  see
Vucetic
at para. 7.  While the later reference to
    the Crowns theory was somewhat helpful, recitation of a partys theory will
    often not be a sufficient substitute for instructions from the trial judge.  I will return to the impact of this
    non-direction after considering the other grounds of appeal.

2.         The
    Co-Conspirators Exception to the Hearsay Rule

[30]

The co-conspirators exception to the hearsay rule provides that the acts
    and declarations of a member of a criminal conspiracy, made in furtherance of
    that conspiracy, are admissible against all members of the conspiracy.
The
    leading decision on the application of the co-conspirators exception to the
    hearsay rule was found in
R. v. Carter
,
    [1982] 1 S.C.R. 938.  Because
Carter
was a jury case, the exception is
    explained in terms of the directions to the jury and consists of three stages,
    at p. 947:

In charging the jury on this question, the trial
    judge should instruct them [1] to consider whether on all the evidence they are
    satisfied beyond a reasonable doubt that the conspiracy charged in the
    indictment existed. If they are not satisfied, then the accused charged with
    participation in the conspiracy must be acquitted. [2] If, however, they
    conclude that a conspiracy as alleged did exist, they must then review the
    evidence and decide whether, on the basis of the evidence directly receivable
    against the accused, a probability is raised that he was a member of the
    conspiracy. [3] If this conclusion is reached, they then become entitled to
    apply the hearsay exception and consider evidence of the acts and declarations
    performed and made by the co-conspirators in furtherance of the objects of the
    conspiracy as evidence against the accused on the issue of his guilt. This
    evidence, taken with the other evidence, may be sufficient to satisfy the jury
    beyond a reasonable doubt that the accused was a member of the conspiracy and
    that he is accordingly guilty.

[Numbering added.]

[31]

In her charge, the trial judge instructed the
    jury to first consider: Was there a conspiracy between two or more persons?
    and then
Was [the appellant]
    a member of the conspiracy?  In
    describing the second inquiry, the trial judge divided it into two steps:

To decide this question involves two steps.  The first requires you to consider what [the
    appellant] said and did.  The second,
    which you only consider if you have been satisfied from [the appellants] own
    words and conduct that he was probably a member of the conspiracy, requires you
    to consider what the other members of the conspiracy said and did in
    furtherance of their agreement.

[32]

The appellant submits that the charge to the jury on
    the application of the co-conspirators exception to the hearsay rule was
    inadequate.   While the appellant raises
    a number of general complaints about the charge, the only real prejudice
    concerns the admissibility of the evidence of various witnesses who testified
    that (1) the appellant supplied Tylenol 3 to T for use in the murder and (2) that
    he agreed to help with the alibi by meeting the sisters after the murder at
    Jack Astors.

(i)
Evidence with respect to
    Tylenol 3

[33]

Evidence that the appellant supplied Tylenol 3 to T,
    knowing it was to be used to drug the deceased as part of the murder plan, was
    important evidence showing that he had joined the conspiracy or was a party to
    it by aiding or abetting the sisters to pursue the murder plot.  Indeed, the autopsy established that the
    deceased had ingested a quantity of Tylenol 3 before her death.   The evidence about supplying the Tylenol 3
    came from a number of sources: a chat on January 13 between the appellant and
    T; a chat on January 18 between R and AS; and the testimonies of R and AS.

[34]

It was the appellant who first raised the idea of using
    Tylenol 3 in his chat with T on January 13, less than a week before the
    murder.   In a chat between R and AS on
    January 18, the day of the murder, R identified the appellant as the source of
    the Tylenol 3.   At the trial, R testified that her sister had
    told her that the appellant had some Tylenol 3.   R testified that she did not
    remember when she obtained the Tylenol 3 pills, but that she received them from
    her sister within the last week leading up to the murder.  She testified that she knew T would be getting
    them on a certain day from the appellant, and that T gave her a clear sandwich
    bag containing five or six pills.   R also testified that on the day of the
    murder, she gave the deceased Tylenol 3 pills, two at a time, every half hour
    while the deceased was drinking alcohol.  According to AS, in a conversation involving AS, R, T and the appellant
    at Jack Astors following the murder, while they were waiting for the table,
    someone mentioned that the appellant had supplied the Tylenol 3.  AS could not recall who mentioned the Tylenol
    3.  She believed that if T or R had said
    it and if it was not true, the appellant would have spoken up and denied it.

(ii)
Evidence concerning Jack
    Astors

[35]

Similarly, evidence that the appellant attended at Jack
    Astors for the purpose of assisting the sisters with an alibi was
    circumstantial evidence of his membership in the conspiracy to murder the
    deceased.  The idea of going to Jack
    Astors after the murder in an attempt to establish an alibi for the sisters
    appears to have originated in a chat between the appellant and T on January
    13.  The appellant first suggested that
    he could purchase movie tickets for an hour before it happens to create a
    paper trail.  T says that would be a
    waste of money and, if asked, she could simply say that she was walking by Jack
    Astors at 8:13pm.  The appellant then
    says:  wanna go to Jacks afterwards?
    thatd be a nice celebration dinner.  Later during this same chat there is extensive discussion about the
    murder plot; that the killing will take place that weekend, and how the sisters
    will drown the deceased after she gets drunk.  In the course of this chat the appellant says:  like I said, Im involved this much, Im
    willing to help you with any of it [T].  Immediately after this part of the chat, the appellant raises the idea
    of using Tylenol 3 as set out in the chat at para. 6 above.

[36]

Three days later, on January 16 in another chat with T,
    the appellant says:  saturday's plan is
    still a go.  In the chat with AS on
    January 18 immediately before the murder, R asks AS if she is coming to Jack
    Astors.  In the chat, after AS asks
    about the time of death, R says: we have [the appellants] alibi plus were
    leaving right after for the mall and coming home late.

[37]

R testified that she and T had agreed to go to Jack
    Astors at Square One mall after the killing to establish an alibi.  The plan was to meet AS at a nearby bus stop,
    and travel to the restaurant where the appellant would join them.  They would remain at the restaurant for some
    time and then return home and call 911.  R testified that a few days before the killing, T told her that the
    appellant would accompany them to the restaurant.  The alibi unfolded as planned. R and AS both
    testified that the appellant did in fact come to Jack Astors.

(iii)
Admissibility of January 18
    Chat between AS and R

[38]

The appellant submits that the trial judge erred in
    failing to distinguish between the evidence of so-called ordinary witnesses
    and the co-conspirators, T and R, for the purpose of the co-conspirators
    exception to the hearsay rule.  This
    submission focuses on the chat of January 18 between AS and R where R told AS
    that the appellant had supplied the Tylenol 3 and was part of the alibi.  The appellant submits that this chat was
    inadmissible because AS was not alleged to be a co-conspirator and the chat
    could not have been in furtherance of the conspiracy.  The appellant submits that there was no
    admissible evidence that the appellant supplied the Tylenol 3 that was used by
    R to kill her mother. For the following reasons, I reject these submissions.

[39]

The January 18 chat between R and AS was
    admissible for proving that the appellant was a member of the conspiracy in two
    ways. First, it was admissible under stage one of
Carter
, to prove, based on all the evidence, that there was a
    conspiracy between R, T, and the appellant.  It was not open to the jury to consider the January 18 chat as proof of
    the appellants probable membership in the conspiracy under stage two. However,
    once the jury decided that based on the direct evidence, the appellant was a
    probable member of the conspiracy, then the January 18 chat would be admissible
    under stage three of
Carter
to prove
    that he was a member of the conspiracy beyond a reasonable doubt, so long as
    the chat was made in furtherance of the conspiracy.

[40]

Taken in isolation, parts of the January 18 chat logs
    appear to be narrative or recounting of past events, which ordinarily would not
    be considered to be made in furtherance of the conspiracy. However, given the
    context in which this conversation took place, it is my view that this chat had
    the purpose of advancing the objectives of the conspiracy and is therefore
    distinct from mere narrative.

[41]

In
R. v. White
(1997), 114 C.C.C. (3d) 225 (Ont. C.A.), White, an engineer and businessman was
    convicted of fraud for making false claims for Scientific Research Tax Credits.
    This was alleged to have taken place in the context of a conspiracy involving
    White and four others. On appeal, White argued, among other issues, that the
    trial judge erred in his directions on the co-conspirators exception to the
    hearsay rule by failing to define the term in furtherance in the jury charge.
    White submitted that wiretap transcripts of a conversation between Richmond, an
    alleged co-conspirator, and an individual named Langdon, who was not charged as
    a co-conspirator, were not made in furtherance of the conspiracy. In
    particular, White argued that a statement made by Richmond to Langdon, that
    White believed he had one of the auditors in his pocket, was not admissible.
    The court disagreed on this point at p. 275:

We disagree with the appellants view of this
    evidence. We are of the view that this statement, as well as the other taped
    conversations between Richmond and Langdon, when taken in context, was made in
    furtherance of the conspiracy and was not merely narrative in nature....
Richmond was filling in Langdon on recent
    events involving White and one auditor. Richmond conveyed this information in
    furtherance of the conspiracy since Langdon had to deal with the auditor in
    question
. This becomes evident when the evidence is considered in the
    context of Richmonds testimony and of later calls. [Emphasis added.]

[42]

This is similar to the January 18 chat between R and AS.
    Although AS, like Langdon, was not charged or alleged to be a co-conspirator,
    the context of the conversation was such that R was filling in AS on the
    details of the murder because these were necessary discussions in planning the
    concealment of the murder, of which the alibi was integral.

[43]

AS was part of the alibi and was in the process of
    giving advice to R on how to cover up the crime in order to collect insurance
    money, in furtherance of the objectives of the conspiracy. AS gave advice to R
    including, among other things, to use gloves and to ensure that the killing
    does not look like a suicide. Further, there was discussion about planning the
    alibi: R confirmed that AS would be at Jack Astors.  AS asked R several questions in this
    conversation, including where she obtained the pills. R responded to that
    question, as she responded to all ASs questions, in the context of this
    conversation, not in isolation. It can be inferred that AS wanted to know where
    R obtained the pills in order to give her advice about hiding the source.
    Presumably, AS felt that the appellant was a safe source, since she responded
    thats cool.

[44]

The concealment of the murder and its planning, part of
    which included the alibi, were integral parts of the conspiracy and therefore
    this chat was made in furtherance of the conspiracy. Accordingly, in my view,
    the January 18 chat was properly admitted against the appellant at stage three
    of
Carter
.

(iv)
Admissibility of ASs
    testimony

[45]

The appellant submits that the trial judge erred in
    failing to conduct a
voir dire
to
    determine the admissibility of ASs testimony that someone said at Jack
    Astors, in the appellants presence, that he had provided the Tylenol 3.  The appellant also submits that the trial
    judge erred in failing to direct the jury that the statement was only
    admissible against the appellant if he adopted the statement.  Counsel for the appellant at trial did not
    object to the admissibility of the statement.  Moreover, she established during cross-examination of AS that the four
    of them were all standing within inches of each other and were all involved
    in a conversation together.  AS also
    testified as follows in cross-examination:

I dont remember who said what about the Tylenol
    3s, but he was certainly there participating in the conversation and if it was
    coming out of [Ts] mouth or [Rs] mouth, the exact words about the fact that
    he provided Tylenol 3s, Im pretty sure he would have objected to that fact if
    it wasnt true.

[46]

There was sufficient evidence from which it can be
    inferred that the appellant adopted the statement about his supplying the
    Tylenol 3.  Silence alone is evidence
    that the person adopted the statement, if the circumstances are such that the
    person could reasonably have been expected to have replied to them:
R. v.
    Baron and Wertman
(1976), 14 O.R. (2d) 173 (C.A.) at pp. 187-188.  Given ASs evidence set out above, there was
    a foundation for finding that the appellant adopted the statement on the basis
    of silence.  But, there was more; it was
    ASs evidence that they were all involved in the conversation about the Tylenol
    3.  Given this record and the absence of
    objection, there was no reason for the trial judge to conduct a
voir dire
.  Evidence establishing on a balance of
    probabilities that he adopted the statement was sufficient to render it
    admissible against the appellant:
R. v. Evans,
[1993] 3 S.C.R. 653 at p.
    667  668.

[47]

It would have been preferable for the trial judge to
    direct the jury that it was for them to find whether the appellant adopted the
    statement as true:
R. v. Warner
(1994), 21 O.R. (3d) 136 (C.A.) at p. 145.  However, in my view, the failure to direct
    the jury as to the test for adoptive admissions did not prejudice the
    appellant.  The only evidence on the
    issue was from AS and that uncontradicted evidence established that the appellant
    probably adopted the statement.

(v)
Admissibility of Rs testimony

[48]

The appellant submits that the trial judge erred in
    admitting evidence from R as to what T told her about her own acts and
    declarations and those of the appellant.  The appellant submits that even though those statements, for example
    that the appellant had access to a supply of Tylenol 3, were in furtherance of
    the conspiracy and thus presumptively admissible under the co-conspirators
    exception, they were not admissible at the appellants trial because they were
    not shown to be necessary and reliable in accordance with the principled
    approach to the reception of hearsay evidence.  The appellant relies upon this courts decision in
R. v. Simpson
(2007), 230 C.C.C. (3d) 542 (Ont. C.A.), leave to
    appeal to S.C.C. refused, 255 O.A.C. 394 (S.C.C. Jun 19, 2008).

[49]

The appellant submits that
Simpson
stands for the proposition that in rare cases where
    necessity and/or reliability are lacking a trial judge may exclude hearsay
    statements that would otherwise fall within the co-conspirators
    exception:
Simpson
at para. 24.  The
    appellant submits that necessity was not made out since T was a compellable
    witness and she was available; indeed she was brought to the courthouse daily
    while Crown counsel decided whether to call her as a witness.  The appellant also submits that Ts statements
    to R were not reliable because they depended upon the reliability of R.

[50]

I would not give effect to this ground of appeal.  Counsel for the appellant at trial took no
    objection to the admissibility of any of this evidence and never asked for a
voir dire
to test the necessity and
    reliability of the evidence.  In any
    event, the reliability of the statements was apparent from the
    circumstances.  T had no motive to lie to
    her sister and her information about what the appellant said was mostly
    confirmed by the appellants own words, especially in the January 13 chat with T.
    There was abundant other evidence such as the results of the autopsy and the
    subsequent meeting at Jack Astors that confirmed the reliability of Ts
    statements to R.  Such evidence was
    available to test the reliability of the statements:
R. v.
    Khelawon
, [2006] 2 S.C.R. 787 at paras. 93-100.  Finally, R was available and did
    testify.  The appellant had ample
    opportunity to cross-examine R who, as an admitted conspirator and sister to
    the declarant, was ideally situated to provide evidence as to the reliability
    of the statements.

[51]

Since no objection was taken to the admissibility of
    Ts declarations on the basis of necessity, the record on that issue was not
    fully developed.  What is known, however,
    is that T had not testified at her own trial and had refused to speak to Crown
    counsel.  In these circumstances,
    particularly in the absence of an objection at trial, in my view, it is not
    open to the appellant to raise the issue of necessity for the first time on
    appeal.

(vi)

Trial judges directions
    regarding the significance of the appellants         presence
    at Jack Astors

[52]

The appellant submits that the trial judge erred in
    instructing the jury that the appellants attendance at Jack Astors was
    directly admissible against him to prove he was probably a member of the
    conspiracy for the purpose of the co-conspirators exception, for two reasons.
    First, the appellant submits that attendance at Jack Astors, after the object
    of the conspiracy had been accomplished, was not capable of showing that the
    appellant was a member of the conspiracy. Second, the appellant submits that
    the trial judge erred in instructing the jury that the appellants presence was
    direct evidence of his probable membership in the conspiracy.

[53]

In my view
Baron
    and Wertman
, also a case of conspiracy to commit murder, is a complete
    answer to the first submission.  In that
    case, the court acknowledged that a conspiracy to avoid detection should not,
    as a matter of law, be engrafted on to every conspiracy.  To do so, could make acts and declarations by
    co-conspirators well after the object of the conspiracy had been accomplished,
    admissible under the hearsay exception.  However, the court made clear, at pp. 196 and 198, that the accuseds
    own acts and declarations after the conspiracy could be proof of membership in
    the conspiracy:

Unquestionably the acts and declarations of an
    accused after the deceased was killed (if relevant) are admissible against that
    accused; similarly, the joint declarations or acts of two or more accused are
    admissible against them.

While I consider that the direction by the learned
    trial Judge that the jury was entitled to find that the conspiracy was one to
    successfully murder Isaac Wertman and to escape detection and punishment, is
    questionable on the evidence in the case, I am of the view that, in all the
    circumstances of this case, it did not result in a substantial wrong or
    miscarriage of justice to either accused. The disposal of the body was
    certainly within the objectives of the conspiracy charged.
The
other
acts of concealment
    and the falsehoods told by
each
of
    the accused (if the jury found them to be such) were admissible against
that
accused and, in addition, they were closely
    connected in time with the objective of the conspiracy alleged
.  [Emphasis added.]

[54]

Like the disposal of the body in
Baron and Wertman
, the attendance at Jack Astors was within the
    object of the conspiracy and closely connected in time with it.  The meeting at Jack Astors was an integral
    part of the plan; the sisters wanted to be able to show that they had been away
    from the house when the deceased accidentally drowned and to explain how they
    discovered the body.  The appellants
    attendance at Jack Astors after the killing for the purpose of assisting the
    sisters in successfully carrying out the murder plan was evidence of his
    probable membership in the conspiracy.  In fact, when linked with his earlier chat with T about the alibi, it
    was very compelling evidence of his membership in the conspiracy.

[55]

With respect to the appellants second submission, in
    considering whether the appellant was a probable member of the conspiracy at
    stage two of
Carter
, the jury was
    entitled to consider all of the direct evidence of the appellants  own words and acts. This included, as the
    trial judge correctly identified, the MSN chats between the appellant and AS,
    the MSN chats between the appellant and the sisters, as well as his presence at
    Jack Astors.  There was no suggestion by
    the trial judge that the appellants presence at Jack Astors would alone be
    sufficient to find him a probable member of the conspiracy.  Attendance at the dinner was a piece of
    circumstantial evidence which, together with other evidence, could prove he was
    a probable member of the conspiracy. The trial judge did not err in this
    respect.

(vii)
Co-Conspirators exception as
    it applies to party liability

[56]

Lastly, the appellant submits that the trial judge
    erred in failing to direct the jury that the co-conspirators exception did not
    apply to prove that the appellant was a s. 21(1) party to the conspiracy.  There is no merit to this submission.  The instructions on the co-conspirators
    exception referred to use of that evidence only to prove membership in the
    conspiracy.  There was no reference to
    use of that evidence to prove that the appellant was a party to the conspiracy.

3.         Bad
    Character Evidence

[57]

The appellant submits that the trial judge erred in
    failing to exclude portions of the chats that showed the appellant to be of bad
    character.  This complaint relates to the
    binder of MSN chats that were entered as an exhibit.  Witnesses referred to only very few portions
    of the chats that related to the conspiracy.  The jury members did, however, have access to the entire binder which
    contained statements by the appellant about being violently angry, using
    drugs, drinking, quoting lyrics referring to murder and violence, and stealing
    a stop sign.  The binder of chats was
    entered into evidence and was allowed to go to the jury during their
    deliberations, without objection.  Counsel
    for the appellant did not seek a limiting instruction with respect to the
    alleged bad character evidence.

[58]

In my view, the failure to object or to seek a limiting
    instruction were tactical decisions.  The
    thrust of the defence was that the appellants discussions about killing the
    deceased were not intended to be serious.  This defence depended upon the jury seeing the chats upon which the
    Crown relied in context.  As counsel for
    the respondent points out, without that context, the appellants chats with the
    sisters would have appeared even more sinister.  The defence position is nicely captured in these excerpts from defence
    counsels closing address:

Now, youve heard in these chats,
certainly that these young people are talking
    about a lot of stuff that some teenagers talk about, maybe some wild teenagers
    to some extent. Theyre talking about drugs, theyre talking about alcohol and
    theyre talking about sex sometimes, theyre talking about gossip, and theyre
    talking about their dreams, about jokes and theres a lot of black humour
.

And even in those chats where the girls are  are
    talking about what theyre going to do,
you
    can see that the bulk of those conversations relate to completely different
    things
. [R], while she is supposedly planning this murder and talking about
    the plan, her focus is on this pregnancy hoax throughout and you  you can see
    that theme, and not only that, you can see her concern is also, for the most
    part, about getting stoned or high.

You have  my friend read to you the chat for [the
    appellant] and [T]. And I  I suppose if any of you have any experience with
    drama,
youre going to know that when you
    have a script, theres two ways you can read it, right? You can read it in a
    very sinister way or you can read it as if its a joke. And I submit to you, it
    may not have been a joke for [T], but it clearly was a joke to [the appellant]
.
    And if you read it carefully, I submit to you, youre going to come to that
    conclusion.

And then my friend referred you and I believe he
    read this passage to you, he said
right
    after all this talk about the drinking and what theyre going to do, he says,
    I have this all planned out. Very sinister.  But look at what hes talking about, the plan.
    That plan is not about the murder, if you read it. That plan is about bringing
    booze to school
and when you read that, youre going to see that. We get
    drunk in the cafeteria. We get stoned tomorrow. We drink on -- on Tuesday.
    All silly talk.

And then
    talking maybe about  about meth and you saw [the appellants] response when he
    was on  being interviewed. Meth? Ive never taken meth, you. So this was all
    talk, all bravado, trying to impress this wild girl
.

And then in quotations theyre talking about the
    vial. Look at [Ts] quotations again, Aha, thats the worse thing that could
    happen. In quotations she says, [Late] night, a body was found in the ditch.
Is she serious? Is she serious that
    someones body is going to be found in the ditch
, that one of their bodies
    is going to be found in the ditch? No. Shes joking. And then theres some talk
    about, You mean that  Alcohol, which could kill your friend. Are they
    serious that alcohol is going to kill their friend? More laughing, talking
    about drugs, talking about buying drugs. The same conversation. And then [T]
    throws in after all this talk about nonsense and drinking and all this stuff,
    throws another one in, throws a line in, Well ... ill probably be able to
    mooch off at least a bit after she dies. He hasnt been talking about it, but
    shes thrown it in. And then in quotations, another very serious line, very
    serious, you can picture her saying this to friends, ...my mom just died...[so]
    what [kind of drug] would you recommend [that I take]? Thats in quotations.
    That is not serious. Nobody could take that as being serious, not a 15-year-old
    boy who  who has no idea whats going on in that house.

Then theres the conversation on the 16
th
,
    two days before the murder. And theres talk that [JA] is not coming and
    apparently  [the appellant] says, so ... now the plan has to be totally
    re-formulated. Well, which plan, cause they got plans to go out. Thats a
    sinister plan, theyve got plans to go out or  and the talk  is it Friday, is
    it Saturday? Do you still want to get stoned and steal a stop sign? Steal a
    stop sign and get stoned. That is a joke. Its not serious. [The appellant]
    apparently says  ... I dont know whats happening now, so I dunno  I dunno
    whats going on. Does he know about a plan? Is he talking about he knows
    whats going on? Hes saying he doesnt know whats going on. Ill see you
    tomorrow at school. She says I dont know whats going on either. There is no
    two days before the murder, thats what [the appellant] is saying, theres no
    plan. He doesnt even know whether theyre getting drunk or stoned or whos
    coming.

But again he
    says, as far as I was concerned they were  I was talking shit with friends
.
    And he says, if you were to go talk to any of my friends, if you were to get
    the chat logs, you would see how many ridiculous conversations we have and the
     and the black humour hes referring to, cause theres a lot of black humour
    and we see that in a lot of there TV shows unfortunately. [Emphasis added.]

[59]

In effect, the defence made a perfectly reasonable
    tactical decision to rely upon the bad character evidence to give context to
    the highly incriminating chats:
R. v. Szanyi
, (2010), 254 C.C.C. (3d) 528
    (Ont. C.A.) at para. 29.  I would not
    give effect to this ground of appeal.

4.         The Police
    Interview

[60]

The Crown introduced a lengthy interview of the
    appellant by a police officer.  The
    interview was edited to remove references to an earlier police interview that
    had been ruled inadmissible.  There was
    no other objection to the admissibility of the statement.  For the first time on appeal, the appellant
    argues that the trial judge should nevertheless have excluded the
    statement.  The appellant argues that the
    interview was not really a statement by the appellant, but a recitation by the
    interviewing officer of the MSN chats accompanied by the officers editorial
    comments.

[61]

In my view, the interview was a statement of the
    appellant, not merely a soliloquy by the police officer, as suggested by
    counsel for the appellant.  The appellant
    participates in the interview and identifies the parties to some of the chats.
    The identification of the participants in the chats was a live issue at the
    trial. Moreover, in the interview the appellant offered his own interpretation
    of some of the most inculpatory parts of the chats and puts forward his
    defence.  For example, when he was
    directed to the portion on the chats concerning Tylenol 3, he denied that he
    had access to Tylenol 3.  He explained to
    the police officer that he was just talking shit with friends, it was just
    all hot air, they were joking around and it was never anything more than
    something stupid.  These were all themes
    that were picked up by his trial counsel in her closing address.  Since the appellant did not testify, the
    police interview was a way for the appellant to put his defence to the
    jury.  The failure to object to the admission
    of the statement, in my view, was an obvious and reasonable tactical decision
    and it is not open to the appellant to raise this issue for the first time on
    appeal.  There is no suggestion that the
    appellants trial lawyer provided ineffective assistance.

[62]

Alternatively, the appellant submits that the trial
    judge should have edited out some prejudicial parts of the interview.  Again this is an objection that is raised for
    the first time on appeal.  The only
    editing that was requested at trial concerned reference to the earlier
    inadmissible statement.  The appellants
    objection is with respect to certain statements by the police officer, in
    particular, his comments on the appellant's credibility, his comment that  the appellant  is not being truthful in his answers, and his
    reference to some of the bad character evidence.

[63]

There is no merit to these complaints.  Leaving aside the fact that there was no
    objection at trial, the passages complained of did not unfairly prejudice the
    appellant.  I have already dealt with the
    bad character issue.  As to the officers
    comments about the appellants credibility, in my view, they are harmless.  The comments were nothing more than the
    officers personal opinion about the appellants use of figures of speech such
    as:  Well to be honest with you and
    Im trying to tell the truth.  The
    appellant responded to those comments and explained why he used those phrases.  In his response, he reiterated his position,
    which became the theory of the defence at trial:

What I have been sitting here saying the whole
    time.  I mean.  I, I dont, I cant attach to the validity
    of, or anything that happened or whether or not that is actually the plan that
    was implemented but I mean all I can say is my position that, I have never
    taken it seriously I mean.  As far as I
    was concerned I was just talking shit with friends.

[64]

It is not surprising that defence counsel did not
    object to the admissibility of the statement or that she did not seek further
    editing.  Finally, the appellants
    submissions with respect to the statement are totally inconsistent with the
    position taken in respect of other grounds of appeal dealt with below, concerning
    the theory of the defence where counsel submits that the statement was the
    foundation of the defence.  I would not
    give effect to this ground of appeal.

5.         The
    Appellants Denial of Guilt

[65]

As mentioned, somewhat incongruously, counsel for the
    appellant, having argued that the trial judge erred in not excluding the
    appellants statement, also submits that the trial judge erred in failing to
    direct the jury about the importance of that statement to the defence.  On appeal, the appellant submits that the
    trial judge was required to instruct the jury that the appellants denials of
    guilt in the statement were capable of raising a reasonable doubt.  As counsel for the respondent points out,
    there were in fact no outright denials of guilt in the statement.  Rather, the statement was the occasion that
    allowed the appellant to put forward what became the theory of the defence;
    that the statements in the chats were not to be taken seriously and that the
    appellant was just talking hot air and engaging in stupid adolescent
    conversation with friends.  That position
    was repeatedly, skilfully and forcefully put before the jury during trial
    counsels lengthy jury address and picked up in the charge to the jury in the
    passages set out below under the next heading.

6.         The Theory
    of the Defence

[66]

In a related submission, the appellant submits that the
    trial judge failed to adequately present the theory of the defence in two
    respects.  He submits that the trial
    judge failed to refer to the appellants denials of guilt in his statement,
    which according to the appellant was the foundation of the defence and could
    alone have led to an acquittal.  Second,
    the trial judge erred in failing to direct the jury that it was the defence
    position that the appellant did not supply the Tylenol 3.  I have already dealt with the first issue;
    the appellants comments during the police interview were a foundation for the
    defence position that his statements in the chats were not to be taken
    seriously. That issue was plainly put to the jury in the following portions of
    the charge:

It is the position of the defence that [the
    appellant] is not guilty of conspiracy to commit murder. He was not a member of
    the conspiracy to commit the murder of [the deceased].

The MSN chat logs entered into evidence by the
    Crown reveal immature and childish conversations. [The appellant] did not
    believe that [T] was serious about killing her mother. He was never privy to
    any of [R] or [Ts] chats with [AS] or [TF (another Crown witness)]. He took
    absolutely no steps to assist in the murder of [the deceased].

His attendance at Jack Astors did not assist with
    the murder. The murder was complete by the time the girls arrived at the
    restaurant. There is no evidence that [the appellant] ever presented himself as
    an alibi witness to police.

This was [Rs] plan, those privy to this plan were
    her sister and her closest friends. It is submitted that even [Rs] own friends
    did not believe she would follow through with the murder. There was never any
    discussion between [R] and [the appellant] about the murder.

There is no evidence from any witnesses in this
    trial that [the appellant] had discussed the plans for the murder either before
    or after.

[67]

The trial judge did not expressly tell the jury that it
    was the theory of the defence that the appellant did not supply the Tylenol 3
    that were used to drug the deceased.  However,
    as set out above, she did remind the jury that it was the theory of the defence
    that the appellant took absolutely no steps to assist in the murder.  Given the prominence of the Tylenol 3 issue
    in the case, the jury could not have been in much doubt about what the appellants
    position was on that issue.

7.         The
Vetrovec
Warning

[68]

The appellant submits that the trial judge erred in
    failing to give a
Vetrovec
warning
    about the danger of convicting on the unconfirmed evidence of R and AS:
R. v. Vetrovec,
[1982] 1 S.C.R. 811.  Again this is an issue raised for the first
    time on appeal; defence counsel did not seek a
Vetrovec
warning in respect of either witness.  The appellant submits that this was probably
    an oversight on the part of defence counsel, the trial judge and Crown counsel,
    and was not a tactical decision.

[69]

It is not apparent to me that the failure to request a
Vetrovec
warning in respect of either
    witness was an oversight, since defence counsel may have wanted to avoid a
    recitation of the substantial confirmatory evidence.  In any event, I am satisfied that a
Vetrovec
warning was not required in
    respect of either witness.

[70]

A
Vetrovec
warning
    is normally required where the evidence of an unsavoury witness plays a central
    role in the proof of guilt so that the witnesss story must be approached with
    caution:
R. v. Khela
, [2009] 1 S.C.R. 104 at paras. 35 and 36 and
R. v. Brooks
, [2000] 1 S.C.R. 237.
    Beginning with R, she did not play a central role in the proof of guilt.  Her evidence established beyond any doubt
    that there was a conspiracy between her and her sister to kill their
    mother.  But, the fact of the conspiracy
    between the sisters was not in any real doubt and was not the issue in the
    case.  The issue in the appellants trial
    was whether he was a member of, or party to, that conspiracy.  On this issue, R offered no evidence, other
    than the hearsay evidence that her sister had told her that the appellant had a
    supply of Tylenol 3 and was coming to Jack Astors after the killing.  The latter fact was not a contested issue in
    the case and was never in doubt.  The
    former fact was established through other circumstantial evidence.  In fact, Rs testimony was helpful to the
    defence because it established that her reference in the January 18 chat with AS
    to the appellant supplying the Tylenol 3 was based on hearsay from T and not
    her own knowledge.

[71]

As to AS, it was only her evidence about the
    conversation at Jack Astors that implicated the appellant as the source of the
    Tylenol 3.  Since the appellants role in
    respect of the Tylenol 3 was confirmed by other evidence, especially the
    appellants chat with T on January 13, ASs evidence did not play a central
    role in the proof of guilt.  Otherwise,
    AS had no evidence to give against the appellant.  In fact, much of her evidence was helpful to
    the appellant since her position, like that of the appellant, was that she did
    not take the murder plot seriously. AS explained that she did not take it
    seriously because R had a habit of making up stories.

[72]

The fact of the matter is that the evidence of AS and R
    simply confirmed what had already been established through the appellants own
    words, especially the chat with T on January 13.  To summarize: there was no need for
Vetrovec
warnings with respect to R and
    AS; their evidence was confirmed in material respects by other evidence; and
    there is good reason to believe that trial counsels failure to seek the
    warnings was a tactical decision.  This
    ground of appeal fails.

8.         Conclusion
    of the Conviction Appeal

[73]

I have found one error of non-direction in the charge
    to the jury; the trial judges failure to clearly define the findings of fact
    that would be required to find that the appellant was a party to the
    conspiracy.  In my view, this is a proper
    case to apply the proviso in s. 686(1)(b)(iii) of the
Criminal Code
.

[74]

The appellants defence was the same to both bases of
    liability, namely, that his comments in the chats were not to be taken
    seriously.  If the jury accepted this
    position or had a reasonable doubt then the appellant would be acquitted; the
    viability of that defence did not depend on whether the appellant was a
    principal in, or a party to the conspiracy.  Conversely, if the jury rejected that position beyond a reasonable
    doubt, a finding of guilt was inevitable.  In any event, the appellants chats, especially the chat of January 13
    with T, are direct evidence, in his own words, of the appellants role in the
    conspiracy. His liability as a party or a member of the conspiracy was overwhelming.

[75]

For these reasons, I would dismiss the appeal from
    conviction.

The Sentence Appeal

[76]

The appellant raises two grounds of appeal against the
    sentence.  He submits that conspiracy to
    commit murder is not a violent offence within the meaning of s. 39(1)(a) of the
Youth Criminal Justice Act
.  The appellant submits that accordingly the
    trial judge imposed an illegal sentence.  Alternatively, the appellant submits that the trial judge erred in
    principle in taking into account the appellants lack of remorse as an
    aggravating circumstance.

1.         Whether
    the appellant committed a violent offence

[77]

Section 39(1) provides that a judge shall not commit a
    young offender to custody unless:

(
a
)  the young person has committed a
    violent offence;

(
b
) the young person has failed to comply
    with non-custodial sentences;

(
c
) the young person has committed an indictable
    offence for which an adult would be liable to imprisonment for a term of more
    than two years and has a history that indicates a pattern of findings of guilt
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985; or

(
d
) in exceptional cases where the young
    person has committed an indictable offence, the aggravating circumstances of
    the offence are such that the imposition of a non-custodial sentence would be
    inconsistent with the purpose and principles set out in section 38.

[78]

At trial, Crown counsel argued that a custodial
    sentence could be imposed either under s. 39(1)(a), that the appellant had
    committed a violent offence, or s. 39(1)(d), that this was an exceptional
    case.  In imposing a sentence of 18
    months (12 months custody and 6 months conditional supervision), the trial
    judge relied only on s. 39(1)(a), that the offence committed by the appellant
    was a violent offence.  The appellant
    submits that conspiracy to commit murder is not a violent offence.  The respondent submits that the trial judge
    properly held that the appellant committed a violent offence.  Alternatively, Crown counsel submits that this
    was an exceptional case and the trial judge could have imposed a custodial
    sentence under s. 39(1)(d). Since, in my view, the trial judge properly found
    that the appellant committed a violent offence, I need not consider the Crowns
    alternative submission.

[79]

The leading decision on the meaning of violent
    offence is the decision of the Supreme Court of Canada in
R. v. C.D.
, [2005] 3 S.C.R. 668.  The principal issue in
C.D.
was whether the definition should have a harm-based touchstone rather than a
    force-based one.  Bastarache J., speaking
    for the majority of the court, adopted the former theory and at paras. 17 and
    70, defined a violent offence as an offence in the commission of which a young
    person causes, attempts to cause or threatens to cause bodily harm.  One of the most important rationales for
    adopting the harm-based approach was that certain offences that clearly ought
    to fall within the definition of violent offence might not be captured by the
    forced-based approach.  Bastarache J. at
    paras. 59 and 61 particularly identified murder, attempted murder and
    manslaughter as offences that ought to be identified as violent offences and
    offences deserving of a custodial sentence, even when committed by a young
    person:

The second fatal flaw associated with a force-based
    definition of "violent offence" is that such a definition will not
    capture all murders, attempted murders and manslaughters, because the
    commission of these offences will not always require the actual, attempted or
    threatened application of force. We know this because none of the provisions of
    the
Criminal Code
that set out the elements of murder, attempted murder
    and manslaughter - namely, ss. 222, 229, 234 and 239 - requires that an
    offender actually apply, attempt to apply or threaten to apply force to the
    victim before the offence is made out. Instead, the focus is on the harm (i.e.
    death) caused or attempted regardless of the means.

The fact that a force-based definition of
    "violent offence" will fail to capture all murders, attempted murders
    and manslaughters is a problem because these three offences are commonly
    understood to be violent offences, as that term is generally understood, and,
    as such, are typically thought to be deserving of a custodial sentence - even
    when committed by a young person. This view of murder, attempted murder and
    manslaughter as offences typically deserving of custody, even when committed by
    young persons, is also reflected in certain provisions of the
YCJA
.

[80]

Later at para. 67, Bastarche J. identified another
    reason for the harm-based approach: such definition better accords with the
    usual definition of violence which tends to focus on its effects (i.e. harm)
    rather than on the means employed to produce the effects (i.e. force).  On the other hand, the fact that violence was
    merely reasonably foreseeable would not come within the harm-based definition;
    a distinction was to be drawn between a dangerous offence and a violent
    offence: paras. 77  80.

[81]

In concluding that the appellant committed a violent
    offence, the trial judge made the following findings of fact:  the appellant gave T the Tylenol 3 that was
    used to drug the deceased to make it easier to drown her; he offered to assist
    T with an alibi and to that end met with her at Jack Astors; and he encouraged
    T to commit the murder.  Given those
    factual findings, it was open to the trial judge to find that the appellant
    committed a violent offence.  Conspiracy
    to commit murder, like attempted murder, falls within what would ordinarily be
    considered a violent offence.  More
    importantly, in this case, the facts support a finding based on the harm-based
    approach.  The appellant committed
    several overt acts in pursuit of the agreement that caused harm to the victim,
    in particular, supplying the Tylenol 3 to drug the victim so that she could be
    drowned and encouraging T to assist in the drowning of the victim.

[82]

I recognize that not all cases of conspiracy to commit
    murder may necessarily fall within the harm-based approach, a matter I need not
    resolve in this case; but in my view the facts of this case fall within the
    definition in that the appellant caused or at the very least attempted to cause
    bodily harm to the deceased by supplying the Tylenol 3 and encouraging T to
    commit the murder.

2.         Whether
    the trial judge erred in principle

[83]

The appellant submits that the trial judge erred in
    principle in taking into account the appellants lack of remorse as an
    aggravating factor.  The trial judge
    began her list of aggravating factors with the following:

(1)       The
    lack of remorse and lack of understanding of his involvement in the
    offence.  [The appellant] shows little
    insight into the harm to which he contributed and the fact that his actions
    assisted in a murder.

[84]

It is well-established that the accuseds conduct of
    the defence cannot be considered an aggravating circumstance.  An accused has the right to make full answer
    and defence and cannot be punished for having done so by imposition of a
    harsher sentence:
R. v. Kozy
(1990), 74 O.R. (2d) 545 (C.A.) at p. 550.  Similarly, it may be unwise to treat lack of
    remorse as an aggravating factor where the effect is to punish the accused for
    not having pleaded guilty or for having mounted a defence.  This court, however, has never held that lack
    of remorse cannot be a relevant factor in sentencing.  For example, in
R. v. Valentini
(1999), 43 O.R. (3d) 178 (C.A.) at  p. 205 :

Lack of remorse is not, ordinarily, an aggravating
    circumstance. It should only be considered aggravating in very unusual
    circumstances such as where the accused's attitude toward the crime
    demonstrates a substantial likelihood of future dangerousness. Even then the
    trial judge must be careful not to increase the sentence beyond what is
    proportionate having regard to the circumstances of the particular offence.

[85]

And the decision of this court in
R. v. B.P.
(2004), 190 O.A.C. 354 at para. 2, implies that lack of
    remorse can be taken into account in some circumstances:

The appellant argues that the trial judge erred in
    his consideration of the appellant's lack of remorse for the offences in
    question. We agree.
This is not a case
    where the trial judge treated the appellant's lack of remorse as relevant to
    rehabilitation and specific deterrence on the basis that it indicated a failure
    by the appellant to accept responsibility for his actions
; nor is this a
    case where the trial judge regarded the appellant's lack of remorse as
    disentitling him to mitigation consideration on sentencing. To the contrary,
    the reasons of the trial judge indicate that he accepted Crown counsel's
    submission at trial that the appellant's lack of remorse was an aggravating
    factor relevant to fashioning an appropriate sentence. This was an error in
    principle. [Emphasis added.]

[86]

I agree with the appellant that the trial judge erred
    in listing lack of remorse as an aggravating factor.  That said, there was permissible use of lack
    of remorse in this case in demonstrating, together with his lack of
    understanding of his involvement in the offence, that the appellant had not
    accepted responsibility for his actions.  Under s. 38(2)(e)(iii) of the
Youth
    Criminal Justice Act
, a sentence imposed on a young person must  promote
    a sense of responsibility in the young person, and an acknowledgment of the
    harm done to victims and the community.  There was a basis in the record from the observations of the probation
    officer who prepared the pre-sentence report that the sentence to be imposed on
    the appellant needed to recognize that he had not taken responsibility for the
    offence or understood the harm he had done:

He said, I wish it had not happened.  There is not much I can do now to make it
    right.  We also talked about how the
    charges have affected his life.  He said
    that his life was put on hold for two years since he has been charged.  As well, he had to live with restrictive bail
    conditions.

The Youth feels that he was in the wrong place at
    the wrong time.  He thinks he is a victim
    of misunderstanding.  As a result, he
    feels that his life is on hold awaiting the sentence.  He stated that he would like to deal with the
    consequences of the offence before he starts working on his plans for the
    future.  He stated that he is willing to
    do his best to comply with the order of the court.

[87]

Thus, while the trial judge erred in principle in
    considering lack of remorse as an aggravating factor, this error was of little
    consequence.  I am more concerned about
    the two other aggravating factors listed by the trial judge:

(2)       [The
    appellant] is by all accounts a very intelligent young man and as such should
    have been aware of the harm that his actions could bring about.

(3)       [The
    appellant] comes from a very supportive background.  There is nothing in his background to explain
    his involvement in this crime.

[88]

In my view, the appellants apparent intelligence and
    supportive family background are not properly considered aggravating
    factors.  Further, it is unclear to me
    how those factors would assist in imposing an appropriate youth sentence in
    accordance with the principles set out in s. 38, except possibly as part of the
    context for ensuring that the sentence represented meaningful
    consequences.  It would be a strange
    result that a 15 year old intelligent first-offender from a supportive
    background would receive a harsher sentence than someone else.  It seems to me that those factors or
    characteristics would suggest that the appellant was a prime candidate for a
    sentence promoting his rehabilitation and reintegration into society, which,
    pursuant to s. 38(1), is the purpose of a youth sentence.

[89]

Given these errors in principle, it falls to this court
    to impose an appropriate youth sentence.  This case in some respects resembles
R.
    v. R.E.W.
(2006), 79 O.R. (3d) 1 (C.A.), where this court dismissed the
    young persons appeal from a sentence of six months secure custody (four months
    custody and two months community supervision) and 12 months probation on two
    counts of being an accessory after the fact to murder.  The facts of those offences, like the facts
    of this offence, were horrendous: the youth had committed the theft for which
    the principal offender blamed the two victims, he knew the principal offender
    intended to deal harshly with the victims, he then watched the principal
    offender cut up the bodies of the victims and he helped to dispose of the
    remains.  However, there were important
    mitigating factors, including that the youth was only 13 years of age at the
    time, was extremely vulnerable and had come under the influence of the
    principal offender, who he saw as a father-figure, but who was a child molester
    with a prior record for homicide.

[90]

I agree with the trial judge that a custodial sentence
    was required in this case primarily for the purposes identified in s.
    38(2)(e)(iii):  to promote a sense of
    responsibility and acknowledgment of harm done to the victim and the
    community.  In my view, given the
    appellant's excellent prospects for rehabilitation and reintegration, the long
    time that he has been subject to very strict bail conditions, his age, and lack
    of record, a youth sentence closer to the sentence imposed in
R.E.W.
would be appropriate.

[91]

Accordingly, I would reduce the sentence to 12 months (8
    months custody and 4 months conditional supervision).  Given the lengthy time that the appellant has
    been on bail, which included strict terms such as a curfew and restrictions on
    computer use, I see no need for a period of probation.

DISPOSITION

[92]

Accordingly, I would dismiss the appeal from
    conviction.  I would grant leave to
    appeal the sentence and reduce the sentence to 8 months custody and 4 months
    conditional supervision.

Signed:           M. Rosenberg J.A.

I
    agree Paul Rouleau J.A.

I
    agree Gloria Epstein J.A.

RELEASED:  MR APRIL
    6, 2011


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE
    ACT

AND IS
    SUBJECT TO:

110. (1)
Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111. (1)
Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138. (1)
Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(
a
)       is guilty of an indictable offence and
    liable to imprisonment for a term not exceeding two years; or

(
b
)       is guilty of an offence punishable on
    summary conviction.

CITATION:
R. v. J.S., 2011
          ONCA
304

DATE: 20110419

DOCKET: C52577

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.

Appellant

Dale E. Ives, for the appellant

Christopher Webb, for the respondent

Heard: April 8, 2011

On appeal from the findings of guilt
          entered on June 2, 2010 and the dispositions imposed on June 30, 2010 by
          Justice Gregory A. Pockele of the Ontario Court of Justice.

By the Court:

[1]

This appeal was argued before us on Friday, April
    8.  At the conclusion of oral argument we
    gave our decision with reasons to follow.  We allowed the appeal, set aside
the
appellants convictions and ordered a new trial.  These are the brief reasons for our
    decision.

A.

Background

[2]

On
    a December evening in 2009, four masked men carrying knives broke into a townhouse
    where the complainant lived, and robbed him and his roommate.  The appellant was charged with the robbery
    and three related offences.  The Crown
    alleged that he was the third of the four men who had entered the townhouse.

[3]

The
    sole issue at trial was identification.  The third male, like all of the intruders, wore a black ski mask.  Only his eyes and mouth were visible.  The entire incident lasted about 5 to 10
    minutes.  The only evidence connecting
    the appellant to the robbery was the complainants eye witness
    identification.  The appellant did not
    testify.

[4]

The
    complainants identification evidence evolved over time.  About an hour after the robbery he gave a
    statement to the police in which he said that, though he did not get a good
    look at the third male, he kind of recognized his eyes as those of the
    appellant.  He said that the appellant
    had been to his townhouse a few times and he had seen him around the townhouse
    complex.

[5]

But
    other than the eyes, the complainant gave no basis for identifying the
    appellant as the third male.  Moreover,
    at trial the complainant acknowledged that when he gave the statement to the
    police he wasnt even 50 per cent sure that the appellant was one of the
    robbers.

[6]

A
    day and a half after the robbery, the complainant picked the appellant out of a
    photographic lineup.  By then, the
    complainant was 80 to 90 per cent sure that the appellant was the third
    male.  He based his identification on the
    persons eyes, stance, height and wide build.

[7]

By
    the time the complainant testified at trial he was confident and 100 per
    cent sure that the appellant was the third male who robbed him.  He said that he recognized the third male as
    the appellant from his eyes, the way he carried himself, his height, his medium
    build, the contours of his face, and the overall shape of his face and
    shoulders.

[8]

The
    trial judge accepted the complainants testimony and convicted the appellant on
    all charges.  On sentence, the trial
    judge rejected a joint submission for six months deferred custody.  Instead, the trial judge sentenced the
    appellant to eight months secure custody, four months supervision, and nine
    months probation, in addition to the 105 days of pre-sentence custody the
    appellant had already served.  By the
    time the appellant was released on bail pending his appeal, he had served six
    of his eight months secure custody disposition.

B.

Analysis

[9]

The
    trial judge gave lengthy oral reasons for convicting the appellant.  He appropriately cautioned himself about the
    concerns surrounding the reliability of eye witness identification.  Nonetheless, he concluded that the
    complainant was an exceptional witness who took a limited opportunity for
    observation in a limited field of view and focused upon several distinctive
    features to correctly identify the appellant as one of the robbers.

[10]

Before
    us, one of the appellants main submissions was that the trial judge failed to
    address the evolving details and level of confidence in the complainants
    identification evidence.  What underlies
    this submission is the concern that the complainant was not identifying the
    person he saw
commit
the robbery, but rather the
    person he knew from seeing him in his townhouse and in the area.

[11]

We
    agree with the appellants submission.  Right after the robbery, the complainant was less than 50 per cent
    certain the appellant was the third masked male, and could identify him only
    from his eyes.  By the time of the trial,
    the complainants confidence level had increased to absolute certainty and he
    had added numerous generic features to bolster his identification.  These evolving differences in the
    complainants evidence were crucial to evaluating the reliability of his
    evidence.  Because the trial judge failed
    to address them, the convictions cannot stand.

[12]

Although
    the Crowns case was thin at best, we cannot go as far as to say the verdict
    was unreasonable.  However, the trial
    judges failure to deal with material evidence affecting the reliability of the
    convictions entitles the appellant to a new trial.  We assume that in deciding whether to retry
    the appellant, the Crown will take into account the portion of the sentence the
    appellant has already served.

[13]

The
    appeal is allowed, the convictions are set aside and a new trial is ordered.

RELEASED:  Apr. 19,
    2011

JL                                                                                John
    Laskin J.A.

Robert
    J. Sharpe J.A.

E.A.
    Cronk J.A.


CITATION:
R. v. Jackson, 2011
          ONCA 279

DATE: 20110407

DOCKET: C50950

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marilyn Jackson

Appellant

Vincenzo

Rondinelli
,
          for the appellant

Jennifer Woollcombe, for the respondent

Heard:
April 7, 2011

On appeal from the decision of the
          Summary Conviction Appeal Court dated May 7, 2009 by Justice John R. McIsaac
          of the Superior Court of Justice, dismissing the appeal from conviction
          entered on September 29, 2008 by Justice Robert P. Main of the Ontario Court
          of Justice.

APPEAL BOOK ENDORSEMENT

[1]

On the trial judges finding that the applicant
    understood her rights, we agree that her s. 10(b) rights were not
    breached.

[2]

Even if there was a breach, we agree with the summary
    conviction appeal court judge that the results of the breathalyser tests would
    be admissible under s. 24(2) of the
Charter
.

[3]

The appeal is dismissed.