On Appeal from the Court of Appeal for Ontario

Publication Ban
Interdiction de
publication
SCC #34284
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for Ontario)
BETWEEN:
J.F.
(a young person)
Appellant
- andHER MAJESTY THE QUEEN
Respondent
RESPONDENT'S FACTUM
(REDACTED)
ALEXANDER ALVARO
ANDREEA BAIASU
Ministry of the Attorney General
Crown Law Office - Criminal
lOt" Floor, 720 Bay Street
Toronto, ON M7 A 2S9
Tel: (416) 326-4555
Tel: (416) 326-3236
Fax: 416-326-4656
Email: alexander.alvaro@ontario.ca
andreea. ba iasu@olltario.ca
ROBERT HOUSTON, Q.c.
Burke-Robertson
70 Gloucester Street
Ottawa, ON K2P OA2
Tel: 613-236-9665
Fax: 613-235-4430
Counsel for the Respondent
Ottawa Agent for the Respondent
IANR.MANG
SHELLEY M. KIERSTEAD
Mang & Steinberg Professional
Corporation
340 College Street, Suite 225
Toronto, ON M5T 3A9
Tel: (416) 531-4105
Fax: (416) 531-3587
Email: ian@mangsteinberg.com
skierstead@osgoode.yorku .ca
TERRI SEMANYK
Shanbaum, Semanyk
1207-150 Isabella Street
Ottawa, ON KIS IV7
Tel: (613) 238-6969
Fax: (613) 238-9916
Email: tsemanyk@sspclaw.ca
Counsel for the Appellant
Ottawa Agent for the Appellant
Publication Ban
Interdiction de
publication
SCC #: 34284
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for Ontario)
BETWEEN:
J.F.
(a young person)
Appellant
-and-
HER MAJESTY THE QUEEN
Respondent
RESPONDENT'S FACTUM
TABLE OF CONTENTS
PAGE
PART I:
STATEMENT AS TO FACTS ........ ............... .. ....................... ... ......... .... ... .. 2
PART II:
THE POINTS IN ISSUE ............ .. ............ .. .... .... .................... .. .. 12
PART III:
STATEMENT OF ARGUMENT ....................... .. ......... . ...... ........ 13
PART IV:
SUBMISSIONS CONCERNING COSTS .. .... ... . .... .... . .................... 29
PART V:
ORDER REQUESTED .. ..... . ............. ..... .. ....... ........ .. ... . .. .... .. .... 29
PART VI:
TABLE OF AUTHORITIES ..... ... .. .... .... .. ........ ....... . .. ....... .. ....... .30
PART VII:
STATUTES AND REGULATIONS ........ ..... .. ..... ..... ............... ..... .33
Publication Ban
Interdiction de
publication
2
S.c.c. # 34284
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for Ontario)
BETWEEN:
J.F.
(a young person)
Appellant
-andHER MAJESTY THE QUEEN
Respondent
RESPONDENT'S FACTUM
PART I: RESPONDENT'S STATEMENT AS TO FACTS
1.
The Respondent agrees with the factual summary at paragraphs 3 to 8 of the COUl1 of
Appeal decision, reproduced in the Appellant's factum. The Respondent also relies upon the
additional facts summarized below.
A.
Overview of the Crown's Case
2.
The Appellant was charged with conspiracy to commit murder, pursuant to section
465(1)(a) of the Crimillal Code. The charge related to the death of A.K. on January 18,
2003. Ms. K.'s two daughters, R.K. and T.K., were charged with and convicted of first
degree murder in respect of her death. R.K. testified as a witness for the Crown in these
proceedings. At the time of the trial, she was serving a sentence of 10 years, the maximum
Publication Ban
Interdiction de
publication
3
allowable under the Youth Crimillal Justice Act. The allegation against the Appellant was
that he conspired with the two daughters to commit the murder during the period of January
14 to January 18,2003, the four days immediately preceding the woman's death. The
Appellant was a young person at the time of the alleged offences, having been bom on May
2, 1987.
3.
In January, 2003, RK. and T.K. lived in a townhouse in Mississauga with their
mother, A.K., and their younger brother. R.K. was 16 years of age at the time, younger than
her sister T.K. Their father and mother were divorced and the father lived elsewhere. The
two sisters each had a hotmail account and used the computer at their home for MSN chat
communications. RK. identified herself as having paliicipated in those chats occUlTing
under her e-mail address. RK. testified that in the early fall of 2002, she and her sister
formulated a plan to murder their mother. The plan developed over time. They decided to
do it on a weekend when their brother was not around and when their mother would already
be drinking. They planned to "give her Tylenol 3s and keep making her drink", and then
draw her a bath. They wanted to make it look like an accident. After their mother drowned
in the tub, they planned to go to Jack Astor's restaurant with the Appellant and another
friend, A.S., for the purpose of establishing an alibi. Then they were to retum home and call
9-1-1. She testified that at various times they aballdoned the plan. The chats strongly
confirmed R.K.'s evidence, as did the evidence of her friends, A.S. and T.F.
R.K., v. 11, p. 22, 1. 9 to p. 22, 1.13
4.
A "couple of months" prior to A.K.'s death, R.K. told T.F. about a plan to kill her
mother. T.F. testified that R.K. was unhappy and "thought it would be a good idea". This
conversation took place at school. Over time they discussed it by phone or in chat
communications by computer. About a month prior to A.K.'s death, T.F. leamed more detail
about the plan. He understood that the sisters would offer her some fOlm of painkiller and
then drown her in a bath. Afterward, they would go to a restaurant, retum home and then tell
the police that they had discovered their mother had drowned. He also recalled speaking to
T.K. about the plan, particularly about an alibi, and about the use of gloves to ensure that no
fingerprints were left. T.F. testified that at some point during the planning, he agreed to
Publication Ban
Interdiction de
publication
4
become involved in the "alibi". He understood that the Appellant and A.S. also were going to
assist in providing an alibi. T.F. and T.K. dated briefly prior to her mother's death.
T.F., v. 9, p. 78, I. 5 to p. 80, I. 13; p. 88, I. 18 to p. 89, I. 16
R.K., v. 11, p. 16, I. 6 to I. 27
5.
The most damaging evidence against the Appellant were the chat logs of
conversations between him and the two daughters of the victim. These conversations took
place between January 4, 2003 and January 27, 2003 . They were conducted by way ofMSN
Instant Messenger (1M), a two-way instant messaging service provided by Microsoft. The
logs of these conversations were found in a computer belonging to the two girls. The
computers were seized from their residence in Mississauga on the day they were arrested.
The chats represented on-line conversations between the Appellant and both daughters, and
between the daughters and other friends who were aware of their plan to kill their mother.
Each of the participants in the conversation is identifiable by a "handle". The Appellant's
handle changed frequently.
Joseph Coltson, v. 4, p. 40, I. 25 to p. 41, I. 25; p. 61, I. 19 to I. 29; p. 72, I. 1 to p. 81,
I. 6; p. 87, I. I to p. liS, I. 13; v. 5, p. II, I. 11 to p. 36, I. 15
6.
The probative value of the chat logs in respect of the Appellant's involvement in the
conspiracy was significant when one takes into account the fact that Mrs. K. died in a manner
that so closely resembled the plan that was discussed that it was highly unlikely that it was a
product of mere coincidence. Moreover, the events that followed her death also min·ored that
plan so closely that, again, it was difficult to conclude that this was merely the product of
chance. Indeed, there seemed little controversy that there was a conspiracy between the two
sisters to murder their mother. The only question for the jury was the extent of the
Appellant's involvement.
7.
The defence advanced at trial primarily focused on the nature of the Appellant's
conversations. It was the defence position that the Appellant did not intend that these chats
be taken seriously. Counsel for the Appellant at trial stated in her closing address, "And I
submit to you, it may not have been ajoke for T.K., but it clearly was ajoke to [J.F.]" While
Publication Ban
Interdiction de
publication
5
the Appellant did not concede the question of identity, defence counsel left that position with
the jury in the following manner:
Is it - you're going to have to determine whether or not these were [J.F.]'s chat logs
and - and perhaps they were. They likely were. But we also know quite clearly, can
he even come here to this court and say to you, on this particular day, almost four
years ago, I can tell you, when I was at that computer, whether I had a friend beside
me, whether my brother jumped on the computer. Can he tell you that? Could you
tell? [Emphasis added]
There was no evidence that anyone but the Appellant participated in the relevant chats under
his e-mail address.
Closing Address by Ms. Mackay, v. 13 , p. 46, l. 13 to l. 16; p. 69, l. II to p. 70, l. 19
B.
The Chat Logs
January 2, 2003: T.K. and T.F.
8.
T.F. told T.K. he thought it was "going a little better with ur mom". T.K. asked him if
he'd still help "as an alibi" to which T.F. replied, "yaeh sure".
He asked her, "still planning
that one out?" to which T.K. replied "yep ... drowning ... tub". She also typed, "fell ... hit
head .. .drown .. . sleeping pills ... she won't be able to move". T.F. later advised that it was
"common sense to have someone drunk before u make their murder look like a suicide". T.F.
testified that he had known some of the details prior to this chat. He took the plan seriously.
Appeal Book, Court of Appeal, v. 2, Tab 2, p. 3 to p. 5
T.F., v.9, p.85, l.19top.86,l.18;p.117, l.6tol.9
January 4, 2003: Appellant and R.K.
9.
R.K. told the Appellant that T.K. was "pissed cuz u ditched her". T.K. believed that
she and the Appellant were going to meet and go downtown. The Appellant told R.K. that he
had told T.K. that he "wasn't sure" and that he did not wake up "until 5:00 p.m. today" .
Appeal Book, Court of Appeal, v. 2, Tab I, p. I
Publication Ban
Interdiction de
publication
6
January 5, 2003: Appellant and T.K.
10.
Shortly after midnight, the Appellant messaged and apologized to T.K. "about today".
T.K. advised the Appellant that she and her sister were "plannin for like next week". The
Appellant asked her not to "type things" because he was "paranoid" and that he was going to
"delete this chat log" because he did not want to "take the risk". He advised T.K. to "buy as a
40 of vodka first".
Appeal Book, Court of Appeal, v. 2, Tab 1, p. 12 to p. 13
January 12, 2003 : Appellant and T.K.
II.
T.K. advised the Appel lant that she and her sister had "set a date" of "next weekend".
(In fact, A.K. died on Saturday of the following weekend.) T.K. dismissed the possibility of
seeking assistance from a friend, J.A., because "101 i don't think there's any point in draggin
more ppl". They were planning to see J.A. on the Friday. The Appellant stated, "on Saturday
then?" T.K. replied, "[J.A.] comin or the other thing?" and then "101". The Appellant said,
"other thing" . T.K. replied "ah" then "most likely".
Appeal Book, Court of Appeal, v. 2, Tab I, p. 42 to p. 43, Appe llant's Record, Tab 18
January 13,2003: Appellant and T.K.
12.
The most incriminating exchange occurred on January 13,2003 when the Appellant:
(i) advised T.K. on the drowning process and specifically detailed how to drown the
victim,
(ii) promised to provide an alibi for the sisters on the night of the murder and
suggested a specific alibi which he described as 'irrefutable',
(iii) offered to be present with the sisters after the murder when the police arrived and
suggested ways they should behave to fool police,
(iv) advised T.K. to include Tylenol 3's "in the game plan" to ensure A.K. was
knocked "right out" prior to being drowned, and
(v) stated "I'm involved this much, I'm willing to help you out with any of it [T.K.]"
Appeal Book, Court of Appeal, v. 2, p. 51 to p. 65, Appellant's Record, Tab 18
Publication Ban
Interdiction de
publication
7
January 14, 2003: R.K. and T.F.
13.
R.K. told T.F. that "we're planning to do sumthi this saturday very hopefully" ,
clarifying later "no I mean wit my mom". R.K. testified that this was a reference to the plan
to take her mother's life. T.F. testified that he understood that "somethi this Saturday" meant
the drowning. R.K. cut and pasted a passage into the chat regarding the effects of combining
alcohol with acetaminophen-codeine. She explained that they were going to giver her mother
three Tylenol 3s. The document from which the passage was cut, "Inhalation of Water - The
Drowning Process" was filed as Exhibit 6. The conversation ended with a discussion about
what R.K. would do with the insurance money.
Appeal Book, Court of Appeal, v. 2, Tab 3, p. 29, 1. 29 to 1. 32,
T.F. , v. 9, p. 92, 1. 1. II to 1. 17; p. 93, 1. 5 to 1. 27
R.K., v. 11 , p. 16,1. 7 to p. 17, 1. II
January 16,2003: R.K. and T.F.
14.
R.K. told T.F. that on Saturday "we're 'going to jak astors"' . T.F. replied that he
hoped that "works out". T.F. asked who knew about the plans, to which R.K. replied, "me
[T.K.] [J.F.] and u". R.K. speculated that J.A. also might know because he was a friend of
the Appellant. T.F. replied, "oh ... well as long as they don't say anything ... cuz I really don't
know [them] at all ". R.K. said, "well if they say stff theyre going down too". R.K. testified
that she was trying to reassure herself that she was not going to get arrested and that people
would not go to the police because they too were involved. There was a further discussion
about the insurance money.
Appeal Book, Court of Appeal, v. 2, Tab 3, p. 34
R.K., v. II , p. 18, 1. 30 to p. 20, 1. 8
January 16, 2003: Appellant and T.K.
15.
The Appellant advised T.K. that "Saturday's plan is still a go" . The Appellant in his
interview with police, explained the genesis of the handle, "Narcissus Narcosis" and agreed
that he had used that handle "before".
Appeal Book, Court of Appeal, v. 2, Tab I, p. 66
Publication Ban
Interdiction de
publication
8
Januarv 18, 2003: Appellant and T.K.
16.
At I :00 am on the day of the murder the Appellant messaged T.K. telling her he
needed to "\mow what's goin on" and informed her he could "drop the shit off at like ... 9:30
am tomorrow,"
Appeal Book, COUli of Appeal, v. 2, Tab I, p. 67
January 18, 2003: R.K. and A.S.
17.
On January 18 at approximately 2:59 p.m. , RK. asked A.S. if she was coming to "jak
astors". A.S. replied "omigod" then "are u saying whawt i think ur saying?" R.K. replied "101
no nuthin yet" . A.S. wondered "is she trashed?" to which R.K. replied "getting there" . A.S.
asked ifR.K. had thought about "time of death" . R.K. said "yep .. . we haev [J . 's] aliby plus
we' re leaving right after for the mall". AS. told R.K. , "alright... because yeah u cant be hom
at th e estimated time of death .. .so u shouldlleave within an horu of doing it". They discussed
R.K.'s "reaction" when she returned home and called police. AS. told RK., "um ... plz don't
get me in court tho alright?? .. .because i really don't wanan hafta lie in court". R.K. replied,
"thats only if thy don't keep it as an open/shut case of drunken drowning" . RK. told AS.
that she got the Tylenol3 s "from [J.]". They discussed the insurance implications if the death
was deemed to be a suicide.
R.K. told A.S. that they had given her mother four of the pills
"plus a bottle of vodka .. and wine" and that she was "passing out".
Appeal Book, Court of Appeal, v. 2, Tab 2, p. I to p. 5
R.K. , v. II , p. 24, I. 24 to p. 25 , I. 22; p. 26, I. 21 to p. 29, I. 14
C.
The Dinner at Jack Astor's
18.
A.S. testified that she first learned of the sisters' plan to kill their mother
approximately a week before the murder occun·ed. She agreed that she bad participated in
tbe cbat witb R.K. on tbe afternoon AK. died. On the evening of January 18, 2003, sbe met
the sisters at the bus stop where one of the sisters advised her that "it' s done". The Appellant
joined them at some point during the bus ride. They went to Jack Astor's Restaurant in
Square One Mall in Mississauga. At the restaurant they discussed "bow [the Appellant] got
tbe Tylenol3's and how they were used in the murder". RK. had no recollection of what was
said during the dinner.
Publication Ban
Interdiction de
publication
9
A.S., v. 7, p. 29, I. 12 to I. 24; p. 30, I. 28 to p. 31, I. 19; p. 36, I. 10 to p. 37, I. 18
R.K. , v. II , p. 40, I. 10 to I. 13
D.
The Sisters Call the Police
19.
On January 18,2003 at approximately 10:33 p.m., T.K. made a 911 call. She told the
operator that she thought her mother was dead in the tub. Her head was underwater. She
told the operator she did not know CPR and did not want to touch her mother. P.C. Blair
Horner responded to the call and an'ived at the home at about 10:36 p.m. He went up to the
bathroom and observed a female face down in the bathtub in "somewhat of a feta l position",
with very pale skin. Her skin was grey, sl ightly discoloured from the regular skin tone. She
appeared to be dead. She was pronounced dead at II :55 p.m. The girls told officers they'd
left the home at about 6:00 p.m. At that time, her mother was intoxicated. The girls took a
bus to Jack Astor's, returned home at about 10:30 p.m. and found their mother face down in
the bathtub. The officer could not locate any medication with A.K.'s name on it.
Blair Horner, v. 5, p. 55, I. 5 to p. 57, I. 24; p. 59, I. 23 to p. 60, I. I
Michael Shane Farley, v. 5, p. 68, I. 26 to p. 71, I. 29
E.
The Appellant's Statement to the Police
20.
The Appellant was arrested on the morning of August 13,2004. He was read his
rights and transpOlied to the police station in Mississauga, where he was placed in an
interview room. The Appellant was interviewed by Sergeant Mark Armstrong oflhe Peel
Regional Police Force. The interview was videotaped and a transcript of that videotape was
produced for tt·ial. Sgt. Armstrong refelTed him to the chats in which he had participated
with the K. sisters prior to their mother's murder. The Appellant did not deny participating in
the chats. In fact, he acknowledged having a recollection of lengthy portions and he
explained portions of the chats to the officer. He clearly attempted to pOliray the chats as
being anything but serious. The Appellant did not testify and there was no evidence to
suggest that someone other than the Appellant had been participating in the chat
conversations with the K. sisters.
Appeal Book, Court of Appeal , Exhibit 14B, Tab 26
Mark Armstrong, v. 7, p. 10, I. 31 to p. 19, I. 5
Publication Ban
10
Interdiction de
publication
F.
The Autopsy
21.
At death, A.K. had a blood-alcohol level of 415 milligrams of alcohol per 100
millilitres of blood. Her urine contained 510 milligrams of alcohol per 100 millilitres of
urine. She had likely consumed alcohol within a half-hour prior to death. The forensic
toxicologist, Robert Langille, subsequently tested for the presence of drugs. He found
codeine at a rate of 0.07 milligrams per 100 millilitres of blood, acetaminophen at a rate of
three milligrams per 100 millilitres of blood, and diphenhydramine (Benedryl) in trace
amounts. Tylenol 3s contain acetaminophen and codein. Alcohol and codein taken together
greatly decrease mental functioning. Depending on the amounts consumed and the body's
tolerance to these depressants, the net effect of the combination could lead to
unconsciousness, coma or death.
Robert Morley Langille, v. 10, p. 86, 1. 29 to p. 87, 1. 2; p. 88, 1. 12 to 1. 13 ; p. 89, 1. 29
to p. 90, 1. 5; p. 91 , 1. 10 to p. 96, 1. 11
22.
Tylenol 3s can only be obtained by prescription. Dr. Janina Dugkiewicz testified that
she had been prescribing Tylenol 3s to the Appellant's mother, S.K., to treat chronic,
intermittent pain she had been suffering in her jaw. She last prescribed Tylenol 3s to S.K. on
December 20, 2001. She prescribed 100 tablets at that time, which would last S.K. normally
between 10 months and one year. S.K. became pregnant in February, 2002. Dr. Dugkiewicz
advised S.K. not to take Tylenol 3s during her pregnancy, except in the event of excruciating
pall1.
Janina Dugkiewicz, v. 10, p. 70, 1. 17 to p. 72, 1. 30
G.
R.K.'s Evidence of the Appellant's Involvement
23.
R.K. testified and admitted to the plan to murder her mother, as well as to the murder
itself. She testified that she'd known for two weeks that the Appellant would assist with the
alibi. She learned this from her sister, who also informed her that J.F. would provide the
Tylenol 3s. She believed they gave her mother five or six of the pills. There was a strong
inference available to the jury that tbe Appellant bad provided the sisters with tbe Tylenol 3s.
It was the Appellant who originally suggested to T.K. tbat tbey include Tylenol 3s "in the
game plan" because "tbey knock you right out" . The Appellant's motber bad been prescribed
Tylenol 3s which she could not use once sbe became pregnant. On the night prior to the
Publication Ban
11
Interdiction de
publication
murder, the Appellant told T.K. that he could "drop the shit off at like ... 9:30 am tomorrow."
R.K. also acknowledged, in her testimony, that T.K. told her that the Appellant had extra
Tylenol 3s and that they settled that he would provide them:
Q.
Okay. And how does it go from your getting information that J.F. has extra
Tylenol 3, to then going about obtaining them?
A.
Well, I guess we settled that - well, I mean, because I - I wanted to not have
him involved, but it really was just easier, I guess, so ...
Q.
Okay. You didn't want him involved, but it was easier. What was easier?
A.
Well, getting them from him, because they were readily available.
Q.
Okay. How many days before your mother's death do you obtain Tylenol 3?
A.
It - it was within the last week. I don't remember how many days though.
Q.
Okay. Well, the week leading up to your mother's death, where do you get
the Tylenol 3 from?
A.
I get them from my sister.
Q.
T.K.?
A.
Yes.
Q.
And where - do you ask your sister, T.K., where they came from?
A.
Well, I mean, no, because I knew she was going to go get them on a certain
day from J.
Q.
J. who?
A.
J.F.
R.K., v. 11, p. 37, I. 15 to p. 38, I. 21
Publication Ban
12
Interdiction de
publication
PART II: THE POINTS IN ISSUE
1.
Did the Court of Appeal for Ontario err in concluding that the appellant could
be convicted as a party to the conspiracy to commit murder pursuant to the combined
effect of ss. 21(1) and 465(1) of the Crimillal Code?
The Respondent's position is that the COUli of Appeal for Ontario correctly held that
s. 21 (1) of the Criminal Code applies to conspiracy to commit a substantive offence, such as
murder, and that accordingly, one can be found liable for conspiracy as a party.
2.
If party liability to a conspiracy is an offence known to law, does it include
aiding or abetting the furtherance of the object of the conspiracy or is it limited to
aiding or abetting the formation of the conspiracy?
The Respondent's position is that the Court of Appeal for Ontario correctly held that
party liability to a conspiracy includes aiding or abetting the furtherance of the object of the
conspIracy.
3.
Does the co-conspirators' exception to the hearsay rule apply to parties to a
conspiracy in addition to members of a conspiracy?
The Respondent 's position is that this issue was not raised at trial and that it does not
arise in the context of this case. The trial judge's instructions on the co-conspirators'
exception referred to the use of that evidence only to prove membership in the conspiracy.
There was no reference to the use of that evidence to prove that the appellant was a party to
the conspiracy.
4.
If the appeal as to conviction is dismissed, should the appeal as to sentence be
allowed and the sentence varied to a non-custodial sentence?
The Respondent's position is that leave was not sought with regard to the sentence
appeal and that accordingly, the sentence appeal should not be considered by thi s Honourable
Court.
Publication Ban
13
Interdiction de
publication
PART III: STATEMENT OF ARGUMENT
1.
Party Liability to a Conspiracy Is an Offence Known to Law
24.
The Respondent's position is that the Court of Appeal for Ontario properly followed
Canadian appellate jurisprudence establishing that party liability under s. 21(1) of the Code
app lies to conspiracy to commit a substantive offence, such as murder. While differing on
the precise scope of party liability in thi s context, appellate courts have consistently
recognized that one may be a party to the offence of conspiracy. There is no statutory or
conceptual barrier to finding a person guilty as a party to a conspiracy to commit murder.
While old authority for the proposition is indeed sparse, it is not entirely absent. In Regilla v.
De Kramme, an English case dating back to IS92, the court held that a person who offered a
bribe to a servant to conspire to cheat and defraud his master could properly be convicted of
"inciting to conspire".
Regilla v. McNamara (No.1) (19SI), 56 C.C.C. (3d) 193 (Ont. C.A.)
Regilla v. Vucetic (199S), 129 C.C.C. (3d) 178 (Ont. C.A.)
Regilla v. Berube et al (J 999), 139 C.C.C. (3d) 304 at 312 (Que. C.A.)
Regilla v. Trieu, [200S] A.J. No. 410 (C.A.) at paras. 33-34
Regilla v. De Kramme (IS92), 17 Cox C.C. 492 (CCR)
25.
It is respectfully submitted tbat this Honourable Court's judgment in Regilla v. DelY
has no application in respect of the present issue. The principled bases upon which tbe Court
rejected the notion of an attempted conspiracy do not apply equally to the idea of a pal1y to a
conspiracy. As the Court of Appeal for Ontario explained in the present decision:
Party liability for conspiracy does not suffer from the problem of remoteness
identified in Dby with respect to attempt to conspire. A person can be liable as a s.
21(1) party to conspiracy on ly iftbe Crown proves an agreement by at least two other
people to commit a substantive offence. If no agreement materialized, the alleged
party's conduct would be at most an attempt to conspire and would fail on the holding
in De,y. 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 oftbe criminal
offence has sufficiently materialized to warrant criminal sanction.
Regilla v. J.F. , Appellant's Record, Tab 4, at para. 20
Publication Ban
14
Interdiction de
publication
26.
This Honourable Court in Dery rejected the notion of an attempt to conspire because
it was too far-reaching and because other offences were sufficient to cover the idea of a
unilateral conspiracy. The aspects of an attempt to conspire will be caught under the rubric
of other offences, particularly "counselling to commit a crime". Kent Roach has also noted
that the presence of party liabili ty to conspiracy renders unnecessary the offence of attempt to
conspire.
Regilla v. Dery, [2006] 2 S.C.R. 669
Kent Roach, Criminal Law, 4th ed. (Toronto: Irwin Law Inc. , 2009) at 129
Marc Rosenberg, Conspiracy: Federation ofLaw Societies National Criminal Law
Program (Universite de Montreal, July, 1993) at 18-19
27.
Unlike s. 24 of the Crimillal Code which defines liability for attempts, the
codification of party liability in s. 2 I does not impose a remoteness threshold for criminal
responsibility. As the Court explained in Dery, s. 24(2) requires courts to determine wbether
or not the impugned conduct is too remote to constitute an attempt to commit the offence.
There is no such remoteness question that arises in the context of party liability under s. 21 of
the Code. Accordingly, there is no statutory basis for rejecting party liability to conspiracy,
as there was in tbe case of the offence of attempting to conspire. By contrast to the wording
ofs. 24 oftbe Code, party liability under s. 21 does not give rise to the concern about
remoteness flagged by the Court in Dery.
Regilla v. Dery, supra at paras. 42-43
Ss. 21, 24, Crimillal Code, R.S.C. 1985, c. C-46
28.
FUlthernlore, the notion of party liability in a conspiracy is not akin to an attempt to
attempt to commit an offence. While an attempt to conspire can be characterized as such, a
patty to a conspiracy is more akin to being a party to an attempt. Party liability to an attempt
is recognized in law. Party liability presumes the existence of the principal offence that bas
been or is being committed. Indeed, one can envision two criminal transactions directed at
killing a person that are identical in all respects except that in one case tbe victim dies, and in
the other case the victim does not die. One could conceivably be a party to murder or a patty
to attempted murder, depending upon the extent to which the mission is "successful". If one
can be a party to an attempt murder, it ought to follow that one can be a party to a conspiracy
to commit murder.
Publication Ban
15
Interdiction de
publication
Regilla v. Hardy, [2005] OJ. No. 5478 at para. 13 to 15 (C.A.)
Gordon Rose, Parties to all Offence (Carswell: Toronto, 1982)
Regilla v. Alicia, [1984]1 S.C.R. 225
Regilla v. Logall, [1990]2 S.C.R. 731
2.
The Scope of Party Liability to a Conspiracy
(a)
29.
Party Liability to a Conspiracy Includes Aiding or Abetting the
Furtherance of the Object of the Conspiracy
The Respondent's position is that the Court of Appeal for Ontario properly followed
its own jurisprudence in holding tbat party liability to conspiracy includes aiding or abetting
in the development or furtherance of the plan to commit the principal offence. The scope of
party liabil ity to a conspiracy should not be limited to those circumstances where tbe aiding or
assisting relates only to the act of agreeing, as held by the Alberta Court of Appeal in Regilla
v. Trieu. Holding someone liable for aiding or encouraging an ongoing conspiracy, beyond
its formation , is especially critical where the object of the conspiracy is not achieved, where
its pursuit is abandoned, or where abandonment is contemplated.
30.
As the Court of Appeal explained in the present decision:
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 alld Ribujfi
(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 ofa common goal."
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 (I) to pursue their
Publication Ban
16
Interdiction de
publication
unlawful object, even if they ultimately did not carry out the plan or the deceased had
survived the attempt on her life.
Regilla v. J.F., Appellant's Record, Tab 4, at paras. 26-27
31.
This view of the scope of party liability to conspiracy is consistent with the historical
development of the offence of conspiracy itself. As defined in Regina v. 0 'Briell and
elaborated on in subsequent jurisprudence, a conspiracy is an agreement by two or more
persons to commit a criminal offence (or to do a lawful act by unlawful means). The mens
rea of conspiracy is an intention to agree and an intention to put the common design into
effect. No overt act in furtherance of the conspiracy is necessary to prove the offence. While
the gist of conspiracy is the agreement, additional persons may join an ongoing conspiracy if
they are privy to the common agreement. So long as there is a continuing overall dominant
plan, there may be changes in methods of operation, personnel, or victims without bringing
the conspiracy to an end.
Regilla v. Papalia alld Cotrolli, [1979]2 S.C.R. 256
Regina v. O'Brien, [1954] S.C.R. 666
United States ofAmerica v. Dynar, [1997]2 S.C.R. 462
32.
Contrary to the contention at paragraphs 48 and 49 of the Appellant 's factum, the
Ontario Court of Appeal's approach to party liability to conspiracy does not generate
ambiguity between the conspiracy and the substantive offence in that they remain two
separate and distinct offences. A conspiracy and the substantive offence do not merge upon
the successful achievement of the unlawful object. The conviction of the Appellant as a coconspirator was not contingent upon the achievement of the common object. Therefore,
everything could have happened as it did without a murder actually occurring, and the
Appellant could sti ll have been convicted of conspiracy. It ought not to be a defence to
conspiracy to commit murder to say that the victim was killed (as planned), and that therefore
the evidence against the Appellant relates to a murder rather than to a conspiracy to commit
murder. This would overlook the viability of any claim that there was overlap in evidence
relating to the two offences. The offence of conspiracy is not extinguished, though the
Crown might not choose to pursue that charge. Even if the Appellant could have been
convicted of murder and even if the evidence could have applied to that offence, the Crown
was not foreclosed from pursuing the offence of conspiracy in the circumstances of this case.
Publication Ban
17
Interdiction de
publication
That was the only offence before the jury and there was no confusion about that. The fact
that the Appellant's actions may have made him equally culpable in respect of the murder
itself and that the Crown elected not to pursue a murder charge did not absolve the Appellant
in respect of his participation in the conspiracy to commit murder.
Regilla v. Sheppe, [1980] 2 S.C.R. 22
33.
An approach to party liability to conspiracy that includes aid or encouragement to
existing members to pursue the object of the conspiracy is consistent with the broader
rationale for the criminal offence of conspiracy, which is rooted in notions of group harm.
The act of combining and the joining of wills in the name of a criminal enterprise is itself
inherently evi l and worthy of punishment; group enterprises aimed at crime pose a particular
danger to the community which justifies prosecution and punishment. The encouragement
and moral support of the group strengthens each group member, facilitates a division of
labour, and makes possible the attainment of more elaborate goals. By the same token, this
rationale justifies extending criminal liab ility as a party beyond the one who faci litates the
initial agreement to those who provide assistance and encouragement in furtherance of the
.
.
ongoll1g conspiracy.
Mr. Justice David Doherty, "Conspiracies and Attempts ", paper presented for the
Federation of Law Societies (Edmonton: July, 1990) at 3
Peter Gillies, The Law of Criminal Conspiracy (Toronto: Carswell , 1981) at 3-4
"Developments in the Law - Criminal Conspiracy" (1959) 72 Harv. L. Rev. 920 at
924
David Ormerod, Smith & Hogan's Criminal Law, 13 th Ed. (Oxford: Oxford
University Press, 20 II) at 402, 459
Andrew Ashworth, Principles of Criminal Law, 6th Ed. (Oxford: Oxford University
Press, 2009) at 449, 451-52
Morris Manning and Peter Sankoff, Criminal Law, 4th Ed. (Markham: LexisNexis,
2009) at 307
Wayne R LaFave, Criminal Law, 4th Ed. (St Paul: West Publishing, 2003) at 620
34.
While a conspiracy is complete at the point of agreement, it is not a "one shot deal".
To the extent that a person may aid or encourage someone to enter into a conspiracy, that
would engage the provisions of sections 21(1)(b) or (c). However, a conspiracy (and
particularly conspiracy to commit murder) will usually be a continuing offence and it may
continue for some time. Party liability may apply to other continuing offences where the
Publication Ban
18
Interdiction de
publication
circumstances of the aiding or abetting follow the moment at which the offence was
technically "completed" (e.g. sexual assault). A conspiracy is an "ongoing agreement"
insofar as a person could join a conspiracy after it has already been set into motion. Proof
that one aided or encouraged someone in the pursuit of the common object to which they
have already conspired ought also to be sufficient to constitute party liability. It is not
implausible that someone could aid or encourage a conspiracy that has already been
established. For example, someone who demonstrated to a conspirator or potential
conspirator that the plan to achieve the common object was faulty, but that certain
adjustments to the plan might render it achievable, would (or should) at a minimum be
regarded as a party to the conspiracy. It should not matter that a conspiracy might already
have been established. Aiding someone in the continuation of the conspiracy therefore
would legitimately represent pru1y liability under (b). In the present case, there was evidence
from R.K. that she abandoned the plan at times but repeatedly returned to it. Encouraging
someone to pursue a plan that they had abandoned might likewise represent party liability
under (c).
Regilla v. Bell, [1983]2 S.C.R. 471
Regilla v. S.M.J. , [2006] M.J. 154 (Q.B.)
J.C. Smith, "Secondary participation and inchoate offences" in Crime, Proof and
Punishment: Essays ill Memory ofSir Rupert Cross (London: Butterworths, 198 1) at
28-9
35.
It would be unusual that one could encourage or assist in the creation of a conspiracy,
but could escape criminal liability for the same actions simply because of the technical, legal
extent to which the conspiracy had already progressed. Indeed, the minimalist view of party
liability for conspiracy - that encouraging or assisting only in tbe creation of a conspiracy
attracts potential liability as a party - presumes that the accused believes that there is no
existing conspiracy. Assuming the same level of mens rea, should it matter that the
conspiracy has already been "completed"?
36.
Furthermore, the two Canadian decisions espousing the minimalist view of party
liability unduly restrict the scope of the offence of criminal conspiracy itself. Based on the
decisions in Taylor and Trieu , one who provides assistance to an ongoing conspiracy to
conmlit a substantive offence cannot be held liab le as a paI1y to the conspiracy, and cou ld
Publication Ban
19
Interdiction de
publication
only be liable for the substantive offence, provided that the offence is actually committed and
the accused is charged accordingly. This approach has been criticized for unjustifiably
restricting liability for the conspiracy to those who agree to personally participate in carrying
out the substantive offence, as opposed to assisting in acts preparatory to its commission.
Whether liability is imposed as a party to or as a member of the conspiracy, there is no legal
or policy reason why a person who knowingly contributes her efforts in furtherance of the
objectives of a criminal design should not be dealt with on the same footing as those whom
she has agreed to advise and assist.
Regina v. Taylor, [1984] B.C.J. No. 945 (S.C.)
Regina v. Trieu, supra
Mr. Justice David Doherty, supra, at 32-3.
S. David Frankel, "R. v. Taylor: Annotation", 40 C.R. (3d) 222 at 223
Regina v. Papalia and Cotroni, supra
Baylea v. R.; Weinraub v. R., [1932] S.C.R. 279 at 295
Regina v. Kravenia, [1955] S.C.R. 615 at 621
Regina v. Styles, [1979] B.C.J. No. 253 (C.A.) at para. 46
George Fletcher, Rethinking Criminal Law (Toronto: Little Brown, 1978) at 660
(b)
International Jurisprudence and Commentary
(i) United States
37.
The concept of aiding or abetting a conspiracy is firmly entrenched in the American
jurisprudence, even though it may be rare that acts which ground party li ability do not also
amount to liability as a principal. In United States v. Zajiro, the United States Court of
Appeals for the Seventh Circuit briefly discussed the challenge of articulating a theory of
liability for a party to a conspiracy that does not make the party a co-conspirator:
At first glance it might seem odd that there could be (as the cases hold there can be,
United States v. GalifJa, 734 F.2d 306 (7th Cir. 1984)) separate crimes of conspiracy
and of aiding and abetting a conspiracy--for would not the act of aiding and abetting
make the aider and abettor a member of the conspiracy? Not necessarily. Suppose
someone who admired criminals and hated the police learned that the police were
planning a raid on a drug ring, and, hoping to foil the raid and assure the success of
the ring, warned its members--with whom he had had no previous, or for that matter
subsequent, dealings--of the impending raid. He would be an aider and abettor of the
drug conspiracy, but not a member of it. United States v. Lane, 514 F .2d 22 (9th Cir.
1975). For the essence of conspiracy is agreement, and there is none in our
hypothetical case.
Publication Ban
20
Interdiction de
publication
United States v. Zajiro, 945 F.2d 881 (7th Cir. 1991)
See also: Ullited States v. Falcolle, 311 U.S. 205 (U.S.S.C. 1940)
Direct Sales Co. v. Ullited States, 319 U.S. 703 (U.S.S.C. 1943)
Patlis v. Ullited States, 17 F.2d 562 (9 th Cir. 1927)
38.
Aiding or abetting is not a separate crime which needs to be separately charged.
Conspiracy is considered a substantive offence which is complemented by the party
liability provisions. The availability of this route to conspiratorial liability is based on
policy which recognizes that conspirators often employ assistants in carrying out their
plans and that criminal liability should extend to those who knowingly furthered the aims
of the conspiracy but who were not members of it. Criminal intent still must be proven;
the aider or abettor must knowingly act to make the venture succeed.
Ullited States v. Loscalzo, 18 F.3d. 374 (7'h Cir. 1994)
Ullited States v. Galif/a, 734 F.2d. 306 (7 th Cir. 1984)
Duke v. Ullited States, 233 F.2d 897 (5 th Cir. 1956)
Simpson v. Ullited States, II F.2d 591 (4 th Cir. 1926)
39.
In addition to assisting in forming the agreement, complicity in conspiracy can be
proven if the prosecution proves a direct conspiracy between at least two parties not
including the defendant, and then proving aiding or abetting of the object of that existing
conspiracy. Complicity involves the resolve and determination ofthe aider and abettor and
can exist regardless of any considerations involving the offending principal who benefits
from the assistance. Since complicity and conspiracy are conceptually different, and there
are possible scenarios where one could be guilty as a party and not as a principal,
criminalization of complicity in conspiracy can be based on the following policy grounds:
•
Such conduct should be criminal because the complicitous party has the
requisite evil intent to facilitate a criminal undertaking, whether or not the
ultimate offence is committed to establish liability as an accomplice.
•
To punish the complicitous party for the substantive offences of the aided
conspiracy, but to refuse punishment for complicity in a conspiracy where the
conspiracy does not go beyond agreement is to make the criminal liability of
the aider and abettor hinge on whether or not the conspiracy succeeds in its
goal. The conspirators are punished regardless of whether or not they
succeed. The aider and abettor of the same conspiracy should be treated no
differently.
Publication Ban
21
Interdiction de
publication
•
While the ultimate intent of the aider and abettor may be the commission of
the substantive object of the conspiracy, the focus of his immediate intent is
the conspiracy he knows to exist and which he intends to aid.
•
The complicitous party is not only increasing the chances that the substantive
offence will be committed, but he is also facilitating the realization of the
greater potential harm inherent in conspiracy.
•
Where one aids and abets an individual to commit a crime, there is no
criminal liability unless the offence actually takes place (or is attempted); the
same standard should apply to the object of the conspiracy.
Cameron R. Williams, "Comments: Complicity in a Conspiracy as an Approach to
Conspiratorial Liability", 16 UCLA L. Rev. 155 (1968-1969)
(ii) United Kingdom
40.
While there is a dearth of jurisprudence in the United Kingdom on this issue, the
House of Lords decision in Regilla v. Alldersoll has been interpreted as providing a basis for
liability as a party for aiding or abetting a conspiracy. The accused was charged with
conspiracy under s.I(1) of the Criminal Law Act, 1977, with three other persons to break an
inmate out of prison. His alleged role in the conspiracy was to provide diamond cutting wire
to the conspirators in exchange for a fee. However, he argued that he never intended to play
any part in the prison escape; he just wanted to be paid the money and he would flee to
Spain. Lord Bridge, writing for a unanimous House, held that it was sufficient that an
alleged conspirator had agreed that the criminal course of conduct be pursued and that he
would play his role, but that it was not necessary to prove in addition that he intended the
crime to be committed.
Regilla v. Alldersoll, [1985]2 All ER 961 (H.L.)
41.
Acknowledging that this decision has been criticized for diluting the mens rea
requirement of conspiracy, it can be alternatively seen to contemplate a form of party liability
to conspiracy. In the course of the decision, Lord Bridge described a situation where an
owner of a car agrees with a gang to hire the car from him to use in a robbery. One
Publication Ban
Interdiction de
publication
22
commentator suggests that in that situation the gang members would be guilty of conspiracy
because they intend to carry out the robbery, while the accused would be guilty of abetting
the conspiracy by giving encouragement to its continuance. Since it was clear in Alldersoll
that two or more members intended to carry out the agreement, the accused's conviction
could have been upheld on the ground that he aided and abetted the conspiracy by
encouraging the making or continuance of it by his offer of help.
Otmerod, Smith & Hogan's, supra, at 439-440
See also: Richard Card. Card, Cross & Jones: Criminal Law (Oxford: Oxford
University Press, 2010) at 597-598.
J.C. Smith, "R. v. Anderson: Case Comment", [1984] Crim. L.R. 550
Matthew Goode, "Case Comment: Lanteri", [1986]10 Crim. L.J. 330 at 332-33
(c) The Applicability of the Proviso to this Ground
42.
The Respondent's position is tbat tbis is a proper case to apply the curative proviso in
s. 686( 1)(b )(iii) of the Criminal Code with regard to any potential error in the jury
instructions concerning party liability to the conspiracy. In tbe circumstances of this case,
the jury verdict would have been the same even ifparty liability had not been left with the
JUry.
The Court of Appeal found tbat tbe trial judge erred in giving merely generic
instructions on party liability and in failing to clearly define the findings offact required to
find tbat tbe appellant was a party to the conspiracy. Nonetheless, the Court of Appeal
concluded that it was proper to apply the curative proviso.
In my view, this is a proper case to apply the proviso in s. 686(1 )(b)(iii) of the
Criminal Code.
The appellant's 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 appellant's chats, especially
the chat of January J3 with T, are direct evidence, in his own words, of the appellant's
role in the conspiracy. His liability as a party or a member of the conspiracy was
overwhelming.
Regilla v. J.F., Appellant's Record, Tab 4, at paras. 73-74
Publication Ban
23
Interdiction de
publication
43.
The Crown adduced a strong case against the Appellant. The direct evidence ofR.K.
established that there was a conspiracy to commit murder. The plan had been carried out as
discussed. Much of the evidence upon which the jury would have found that the Appellant
was either a member of that conspiracy or a party to the conspiracy emanated from his own
words and conduct. He had prior knowledge of the plan to murder A.K. He had knowledge
of the manner by which the plan would be carried out. He expressed a willingness to assist
the sisters in their enterprise. He contributed considerable advice to the sisters with respect
to how to carry out the plan. It was no mere coincidence that A.K. died in a manner that very
closely mirrored the plan that was discussed.
44.
The one significant piece of ev idence that did not emanate directly from the
Appellant, and that connected him to the conspiracy, was the hearsay evidence that he had
provided Tylenol 3s to the sisters for use in their plan. For the jury to have used that
evidence against the Appellant, the jury would have had to rely upon the Carter instruction
and first conclude that the Appellant was a member of the conspiracy. It is respectfully
submitted, nevertheless, that even if one removed that evidence from the jury's purview, the
basis upon which the Appellant would have been found a party to the offence of conspiracy
was essentially the same basis upon which he would have been found a co-conspirator. That
act really only spoke to the extent of his involvement in the conspiracy. The essential
elements of the offence had already been overwhelmingly established by his own words and
conduct. The fact that party liability was left with the jury was, in this case, superfluous.
45.
It is respectfully submitted tbat, on this evidence, it is not reasonably conceivable that
the jury bad a reasonable doubt witb respect to the Appellant's membership in the conspiracy,
but was satisfied with respect to his participation as a party. Even if one removed from the
jury tbe evidence that the Appellant had provided to the sisters the Tylenol 3s, it could not
have been lost upon the jury that it was the Appellant who advised the sisters to use Tylenol
3s and that the sisters actually used Tylenol 3s to render their mother incapacitated.
46.
In other words, the remaining evidence that made the Appellant a "party" to the
conspiracy -- his knowledge ofthe plan and his willingness to assist the sisters in the
Publication Ban
24
Interdiction de
publication
furtherance of the plan to kill their mother - also defined him as a co-conspirator. A finding
of guilt on either theory would have required that the jury accept that the Appellant, in his
chat with T.K. dated January 13,2003 , understood the seriousness of the plan hatched by the
K. sisters and was a willing participant. The Appellant's statement to T.K. secured his status
as a co-conspirator:
'nil illvolved this lillICh, nil willillg to help you out with any of it
IT.K. J " Had the jUly been left with a reasonable doubt that he was a co-conspirator, it is
highly likely that they would also have had a reasonable doubt that he was a party to the
conspiracy. The defence advanced - that this was not intended to be a serious discussion would have impacted equally on either branch of liability. On that basis, it is respectfully
submitted that even ifparty liability had not been left with the jury, the verdict would have
been the same. It is noteworthy that, following the charge, the jmy returned a verdict in
approximately three hours, without questions.
3.
The Co-Conspirators' Exception to the Hearsay Rule
47.
The trial judge's instructions on the co-conspirators' exception closely followed the
judgment of thi s Honourable Court in Regina v. Carter and there was, properly, no objection
at trial to this aspect of the jury charge. There is no basis to suggest that the instructions on
the hearsay exception applied to the Appellant's possible liability as a party to the
conspiracy. The Court of Appeal summarily dismissed the Appellant's submission on this
heading as follows:
(vii)
Co-Collspirators' exception as it applies to party liability
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.
Regina v. J.F. , Appellant's Record, Tab 4, at para. 56
48.
Contrary to the submi ssion at paragraphs 65 and 66 of the Appellant's factum, the
Court of Appeal did not find that the jury charge on the hearsay exception was deficient in
Publication Ban
25
Interdiction de
publication
any regard. Nor did the Court of Appeal find it necessary to consider the application of the
curative proviso to this issue. Sbould this Honourable Court find any legal en-or on this
heading, the Respondent relies on the submissions relating to the proviso at paragraphs 42 to
46 immediately above.
49.
Under the guise of a cOlmection to the main issue on this further appeal, namely the
existence and scope of party liability to conspiracy, the Appellant repeats the arguments
before the Court of Appeal challenging the application of the co-conspirators' exception to
the facts of this case. The Respondent's position is that these fact-specific arguments do not
rai se any issue of broader significance and tbat they were exhaustively canvassed and
properly dismissed by the Court of Appeal. The Respondent will nonetheless address them
briefly below for clarification.
50.
First, it is essential to clarify that, contrary to the submission at paragraph 70 of the
Appellant's factum, the chats between the Appellant and T.K. did not constitute hearsay
dependent for its admission upon the co-conspirators' exception. These chats recorded the
Appellant's own words and there was no objection to their admission at trial on hearsay
grounds. Accordingly, the Court of Appeal concluded that while the Appellant raised several
general complaints on appeal about the jury charge on the hearsay exception 1, the only real
prejudice concerned the admissibility of evidence of various witnesses that he supplied the
Tylenol 3 for use in the murder.
Regilla v. J.F., Appellant's Record, Tab 4, at para. 32
51.
The evidence about supplying the Tylenol 3 came from a number of sources: the
January 13 chat between the Appellant and T.K.; a chat between A.S . and R.K.; and the
testimonies of A.S. and R.K. . As explained above, the January 13 chat recording the
lOne such general complaint about the Carter charge was that the trial judge failed to
specify what statements by co-conspirators were in furtherance ofthe conspiracy, and thus admissible
against the appellant. This claim is re-asserted at paragraph 67 of the Appellant's factum. The
Respondent's position is that had the trial judge done so in this case, it would have operated to the
detriment of the Appellant. By engaging in a detailed review of the statements in furtherance of the
conspiracy, the trial judge would only have succeeded in highlighting the strength of the Crown's
case against the Appellant.
Publication Ban
26
Interdiction de
publication
Appellant's own words is not at issue. With regard to the other evidence, the impact of any
hearsay from A.S. 's testimony was negligible. Contrary to the submission at paragraph 62
of the Appellant 's factum , R.K. herself did testify that T.K. had told her that she had obtained
tbe pills fi·om the Appellant - precisely what A.S. testified that R.K. told her. R.K. was
available to be cross-examined. The passage set out at paragraph 23 above makes that clear
and sets out other evidence permitting the inference that tbe Appellant had provided the
Tylenol 3s to T.K.. Even assuming that A.S. was giving inadmissible evidence, it was
largely superfluous in ligbt ofR.K.'s evidence. Finally, it should be noted that there was no
objection to the admission of this evidence at triaf.
52.
With regard to R.K. ' s testimony that T.K. had told her that she had obtained the pills
from the Appellant, the Appellant's final argument on the bearsay ground is that the trial
judge did not conduct a voir dire to determine whether it met the criteria of necessity and
reliability. However, there is no question that this evidence fell squarely within the Carter
co-conspirators' exception to the hearsay rule. As this Honourable Court emphasized in
Regina v. Mapara, it is only in a most exceptional case that evidence falling under the Carter
rule would lack the indicia of reliability and necessity required for tbe admission of hearsay
evidence on the principled approach.
Regina v. Mapara, [2005] I S.C.R. 358, at paras. 34-37
53.
Accordingly, the Respondent's position is that the Court of Appeal properly
dismissed this ground of appeal as follows:
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
appellant's own words, especially in tbe January 13 chat with T. There was abundant
other evidence such as the results of the autopsy and the subsequent meeting at Jack
Astor's that confirmed the reliability ofT's 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
2 The Court of Appeal decision exhaustively deals with the admissibility of other aspects of
A.S. 's evidence, including her chat with R.K .. See Appellant' s Record, Tab 4, at paragraphs 38 to 47.
Publication Ban
27
Interdiction de
publication
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.
Since no objection was taken to the admissibi lity ofT's 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 tbe first time on
appeal.
Regilla v. J.F., Appellant's Record, Tab 4, at paras. SO-51
4.
The Sentence Appeal
54.
The Respondent's position is that the Appellant did not seek leave to appeal against
sentence, which precludes this issue from being considered before this Honourable Court.
Further, the Appellant's argument on the sentence appeal does not raise a question of law of
broader significance beyond the facts of this case. In essence, the Appellant urges tbis
Honourable Court to re-consider the quantum of sentence in the particular circumstances of
tbis case.
55.
It is respectfully submitted that both the Court of Appeal and the trial judge properly
characterized the offence committed by the Appellant as a "violent offence" within the
meaning of section 39(1)(a) of the Youth Crimillal Justice Act. The Appellant's assistance
and/or involvement in the conspiracy contributed significantly to the end result - tbe planned
and deliberate killing of a human being. There is no question that the Appellant caused or at
the very least attempted to cause bodily harm to the deceased by encouraging the sisters to
commit the murder and supplying the Tylenol 3.
Regilla v. J.F., Appellant's Record, Tab 4, paras. 77-82
Regilla v. CD. , [2005] 3 S.C.R. 668
56.
In any event, the facts of the Appellant's offence would meet the "exceptional"
criteria set out in section 39(1)(d), thereby entitling the trial judge to impose a sentence of
custody. A non-custodial sentence would be wholly inappropriate in the circumstances. As
Publication Ban
28
Interdiction de
publication
the trial judge correctly stated, "No other disposition would be reasonable." Finally, in the
event that the Appellant is successful in re-opening the issue of the quantum of sentence, the
Respondent will request that this Honorable Court restore the original custodial disposition of
18 months. The Respondent's position is that the sentence imposed at trial was appropriate
for the reasons set out by the trial judge.
Reasons for Sentence, Appellant's Record, Tab 2
Regina v. R.E. W., [2006] 0.1. No. 265 (C.A.)
Regina v. c.K. (2006),211 C.C.C. (3d) 426 (Ont. C.l.)
Regina v. Hill, [1977]1 S.C.R. 827
Publication Ban
Interdiction de
publication
29
PART IV: SUBMISSIONS CONCERNING COSTS
57.
The Respondent is not seeking any costs.
PART V: ORDER REOUESTED
58.
It is respectfully submitted that the appeal be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED,
Alexander Alvaro
Andreea Baiasu
Of Counsel for the Respondent
46..- day of JUVl-L
w\.:,L (pJ4C\rJ Ve¥~;(,)" ~,V'd
DATED at Toronto, this
[~~k
O>t
, 2012
J
Publication Ban
Interdiction de
publication
30
PART VI: TABLE OF AUTHORITIES
Para. #(s)
Andrew Ashworth, Principles of Criminal Law,
6 th Ed (Oxford: Oxford University Press, 2009)
33
Baylea v. R.; Weinraub v. R. , [1 932] S.C.R. 279
36
Richard Card. Card, Cross & Jones: Criminal Law
(Oxford: Oxford University Press, 2010)
41
"Developments in the Law - Criminal Conspiracy" (1959) 72 Harv. L. Rev. 920
33
Direct Sales Co. v. United States, 319 U.S. 703 (U.S.S.C. 1943)
37
Mr. Justice David Doherty, "Conspiracies and Attempts ",
Federation of Law Societies (Edmonton: July, 1990)
33,36
Duke v. United States, 233 F.2d 897 (5 1h Cir. 1956)
38
George Fletcher, Rethinking Criminal Law (Toronto: Little Brown, 1978)
36
Peter Gillies, The Law of Criminal Conspiracy (Toronto: Carswell, 1981)
33
Matthew Goode, "Case Comment: Lanteri", [1986]10 Crim. L.J. 330
41
Wayne R LaFave, Criminal Law, 41h Ed. (St Paul: West Publishing, 2003)
33
MOtTis Manning and Peter Sankoff, Criminal Law,
41h Ed (Markham: LexisNexis, 2009)
33
David Onnerod, Smith & Hogan 's Criminal Law,
13 1h Ed (Oxford: Oxford University Press, 2011)
33,41
Patlis v. United States, 17 F.2d 562 (9 1h Cir. 1927)
37
Regina v. Ancio, [1984]1 S.C.R. 225
28
Regina v. Anderson, [1985]2 All ER 961 (H.L.)
40
Regina v. Bell, [1983]2 S.C.R. 471
34
Regina v. Berube et al (1999), 139 C.c.c. (3d) 304 (Que. C.A .)
24
Regina v. CD., [2005] 3 S.C.R. 668
55
Publication Ban
Interdiction de
publication
31
Regina v. C.K. (2006),211 c.C.C. (3d) 426 (Ont. C.1.)
56
Regina v. De Kromme ( 1892), 17 Cox C.c. 492 (CCR)
24
Regina v. De/y, [2006] 2 S.C.R. 669
26,27
Regina v. Hardy, [2005] 0.1. No. 5478 (C.A.)
28
Regina v. Hill, [1977]1 S.C.R. 827
56
Regina v. Kravenia, [1955] S.C.R. 615
36
Regina v. Logan, [1990]2 S.C.R. 731
28
Regina v. Mapara, [2005] 1 S.C.R. 358
52
Regina v. McNamara (No.1) (1981), 56 C.C.C. (3d) 193 (Ont. c.A.)
24
Regina v. O'Brien, [1954] S.C.R. 666
31
Regina v. Papalia and Cotroni, [1979] 2 S.C.R. 256
31,36
Regina v. R.E. w., [2006] 0.1. No. 265 (C.A.)
56
Regina v. Sheppe, [1980]2 S.C.R. 22
32
Regina v. S.MJ., [2006] M.J. 154 (Q.B.)
34
Regina v. Styles, [1979] B.C.1. No. 253 (C.A.)
36
Regina v. Taylor, [1 984] B.C.J. No. 945 (S.C.)
36
Regina v. Trieu, [2008] A.J. No. 410 (C.A.)
24,36
Regina v. Vucetic (1998), 129 C.C.C. (3d) 178 (Ont. C.A.)
24
Kent Roach, Criminal Law, 4th ed. (Toronto: Irwin Law Inc., 2009)
26
Gordon Rose, Parties to an Offence (Carswell: Toronto, 1982)
28
Marc Rosenberg, Conspiracy: Federation ofLaw Societies National
Criminal Law Program (Universite de Montreal, July, 1993)
26
Simpson v. United States, II F.2d 591 (4th Cir. 1926)
38
Publication Ban
Interdiction de
publication
32
J.C. Smith, "Secondary participation and inchoate offences" in Crime, Proof and
Punishment: Essays in Memory of Sir Rupert Cross (London: ButterwOlihs, 198 1)
34
J.C. Smith, "R. v. Anderson: Case Comment", [1984] Crim. L.R. 550
41
United States ofAmerica v. Dynar, [1997]2 S.C.R. 462
31
United States v. Falcone, 311 U.S. 205 (U.S.S.c. 1940)
37
United States v. GalifJa, 734 F.2d. 306 (7th Cir. 1984)
38
United States v. Loscalzo, 18 F.3d. 374 (7 th Cir. 1994)
38
United States v. 2ajiro, 945 F.2d 88 1 (7th Cir. 199 1)
37
Cameron R. Williams, "Comments: Complicity in a Conspiracy as an Approach to
Conspiratorial Liability", 16 UCLA L. Rev. 155 (1968-1969)
39
Publication Ban
Interdiction de
publication
33
PART VII: STATUTES AND REGULATIONS
Criminal Code
R.S.C. 1985, c. C-46
Parties to offence
21. (I) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to
commit it; or
(c) abets any person in committing it.
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful
purpose and to assist each other therein and anyone of them, in can-ying out the common
purpose, commits an offence, each of them who knew or ought to have known that the
commission of the offence would be a probable consequence of carrying out the common
purpose is a party to that offence.
Attempts
24. (1) Everyone who, having an intent to commit an offence, does or omits to do anything
for the purpose of can-ying out the intention is guilty of an attempt to commit the offence
whether or not it was possible under the circumstances to commit the offence.
Question of law
(2) The question whether an act or omission by a person who has an intent to commit an
offence is or is not mere preparation to commit the offence, and too remote to constitute an
attempt to commit the offence, is a question oflaw.
Publication Ban
Interdiction de
publication
34
Conspiracy
465. (I) Except where otherwise expressly provided by law, the following provisions apply
in respect of conspiracy:
(a) every one who conspires with anyone to commit murder or to cause
another person to be murdered, whether in Canada or not, is guilty of an
indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with anyone to prosecute a person for an
alleged offence, knowing that he did not commit that offence, is guilty of
an indictable offence and liable
(i) to imprisonment for a term not exceeding ten years, if the alleged
offence is one for which, on conviction, that person would be liable
to be sentenced to imprisonment for life or for a teml not exceeding
fourteen years, or
(ii) to imprisonment for a term not exceeding five years, if the
alleged offence is one for which, on conviction, that person would
be liable to imprisonment for less than fourteen years;
(c) every one who conspires with anyone to commit an indictable offence
not provided for in paragraph (a) or (b) is guilty of an indictable offence
and liable to the same punishment as that to which an accused who is
guilty of that offence would, on conviction, be liable; and
(d) everyone who conspires with anyone to commit an offence
punishable on summary conviction is guilty of an offence punishable on
summary conviction.