R. v. Fry, 2017 NLCA 62

Evan James Fry (appellant) v. Her Majesty the Queen (respondent) (16/106) Indexed As: R. v. Fry 2017 NLCA 62 2 C.A.N.L.R. 270 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Welsh and White JJ.A. October 31, 2017

Summary: The appellant was convicted of break and enter into a dwelling-house, armed robbery, and breach of a recognizance. He was the principal for the offence of break and enter but a party to the offence of armed robbery which was committed principally by his co- accused Joshua Burton. Both men entered the house of the elderly victim. Mr. Fry stole items, while Mr. Burton robbed the victim in her bedroom. Mr. Fry appealed his convictions and sentences for armed robbery and the sentence imposed for the break and enter.

He argued that the judge erred in finding that he entered the house on the basis of statements by his co-accused which were improperly admitted into evidence, and that he therefore could not be considered a party to robbery. He also argued that the six year sentence for the offence of break and enter fell outside the normal range of sentence for that type of offence Held: Appeals dismissed. Welsh J.A. (Green C.J.N.L. and White J.A. concurring): Because Mr. Fry and Mr. Burton both participated in the criminal venture, section 21(2) of the Criminal Code regarding parties to an offence is relevant.

To convict an accused of being a party to an offence under section 21(2) of the Criminal Code , the Crown must prove beyond a reasonable doubt that:

(1) The accused intended in common with another to carry out an unlawful purpose and to assist in that venture, in this case, a break and enter;

(2) Another person participating in the unlawful purpose committed a different offence in carrying out the original agreement, in this case, armed robbery committed by Mr. Burton and to which he pleaded guilty; and

(3) A reasonable person in the circumstances would know or ought to have known that the commission of the offence would be a probable consequence of carrying out the original common purpose, in this case, that a reasonable person in Mr. Fry’s position would know or ought to have known that the commission of armed robbery by Mr. Burton would be a probable consequence of carrying out the break and enter. In the circumstances, it is unnecessary to determine whether Mr. Burton’s statements were inadmissible. This is because the elements of section 21(2) of the Criminal Code are satisfied even if Mr.

Fry was convicted of break and enter on the basis that he stood watch and did not enter the house. Evidence as to a knife that Mr. Burton had in his possession is important in establishing that an armed robbery would be a probable consequence of a break and enter in the circumstances. The conclusion follows that Mr. Fry, being a party to the offence, was properly convicted of armed robbery. Since the conviction for armed robbery is confirmed and the six-year sentence for that offence was not appealed, six years is the minimum sentence that Mr. Fry must serve.

Because the six year sentence for the break and enter offence was ordered to be served concurrently, a successful appeal would not alter Mr. Fry’s total sentence for the two convictions. In the circumstances, the Court declined to address the sentence appeal, although as conceded by the Crown, the sentence seemed to be clearly outside an appropriate range. The trial judge ordered the six-month sentence for breach of recognizance to be served concurrently. The Crown submitted that the sentence for that offence should have been ordered to be served consecutively.

While the general principle is correctly stated by the Crown, in the circumstances of this case, the Court did not interfere with the trial judge’s discretion. A six-month sentence appeared to be outside the range of one to three months that would normally apply in these circumstances.

Accordingly, the appeals against conviction for armed robbery were dismissed and the sentences imposed by the trial judge wereconfirmed. Cases cited: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96 R. v. Simon, 2010 ONCA 754, leave to appeal refused, [2010] S.C.C.A. No. 459 R. v. Simpson, (SCC), [1988] 1 S.C.R. 3 R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211 R. v. Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R. 266 Counsel: Derek Hogan, for the appellant; Sheldon Steeves, for the respondent.

This appeal was heard on October 13, 2017 before Green C.J.N.L., Welsh and White JJ.A. The following judgment was delivered on October 31, 2017 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Evan Fry was convicted of break and enter into a dwelling-house, armed robbery, and breach of a recognizance. All the offencesrelate to one criminal venture committed in concert with Joshua Burton who pleaded guilty to the break and enter and armed robbery. Mr.

Fry was sentenced to six years imprisonment for the break and enter, six years concurrentfor the armed robbery and six months concurrent for the breach of recognizance. Mr. Fry appeals his conviction for armed robbery andthe sentence imposed for the break and enter. He does not appeal the sentence imposed for armed robbery or the conviction for breakand enter. Because the robbery was committed by Mr. Burton as the principal, the provision of the Criminal Code dealing with parties toan offence is relevant in considering Mr. Fry’s conviction. BACKGROUND [2] In the early morning hours of May 10, 2015, Mr.

Fry and Mr. Burton decided to go “car hopping” which involves stealingmoney or property from parked vehicles. At some point, they decided to break into a dwelling-house. [3] The victim, Mrs. Hillyard, awoke in her main floor bedroom to see a person rifling through a bureau in her room. Mrs. Hillyard,an elderly lady, was alone in the house. Based on Mrs. Hillyard’s evidence, the trial judge found that, when Mrs. Hillyard awoke, Mr.Burton “asked her to accompany him to a bank machine so that he could withdraw money from her bank account” (decision of the trialjudge, 2016 NLPC 0515A00118).

The judge continued: [3] ... [Mr. Burton] had a shiny object in his hand and the hood of the hoodie he was wearing was pulled up over his chin and downover his face. His hands were covered. Mrs. Hillyard pleaded with him to take what he wanted and to leave but she refused to leave herhome with him. She thought, but was not certain, that she had locked her doors before going to bed. She only saw Burton in her homebut he led her to believe that another person was there in the kitchen/living room area. Her television was on. [4] When Mr. Burton realized that Mrs.

Hillyard was an elderly lady, he left after disconnecting the telephone on the main floor. Mrs. Hillyard waited a short time before going upstairs to locate a telephone to call the police. Soon the police arrived with a trackingdog. The tracking dog led the police to Mr. Fry’s apartment where they found Mr. Fry, Mr. Burton and a third man, Mr. Crane, who wasnot involved in the criminal venture. Several items taken from Mrs. Hillyard’s residence were found in the apartment. [5] Both Mr. Fry and Mr. Burton gave more than one statement to the police.

After considering the statements, which she hadadmitted into evidence, and other circumstantial evidence set out in her decision and summarized at paragraph 42, the trial judgeconcluded:

[43] When considered in its totality and in conjunction with the direct evidence that I accept, only one rational inference can be drawnfrom the circumstantial evidence; Evan Fry was a principal to the offence of break and enter committed at June Hillyard’s home on May10, 2015. I am convicting Mr. Fry of breaching

section [348(1)(b)] of the Criminal Code. [6] The trial judge convicted Mr. Fry of armed robbery on the basis that he was a party to the offence committed by Mr. Burton: [48] … While it has not been established that Mr. Fry knew that Mr. Burton would commit the different offence of armed robberywhile carrying out the break and enter offence, I am satisfied that the commission of such an offence by Mr. Burton was reasonablyforeseeable. The offence occurred in the middle of the night. There was a car in the driveway and a television set was left on.

Whenyou enter a home that is likely occupied to commit theft, it is reasonably foreseeable that that person may confront you and that robberywould ensue. … [7] Mr. Fry submits that his conviction for armed robbery must be set aside on the basis that Mr. Burton’s statements wereimproperly admitted into evidence and were fundamental to the judge’s determination to enter convictions. [8] While Mr. Fry does not appeal his conviction for break and enter, he submits that the sentence imposed for that offence felloutside the normal range of sentence for that type of offence, being one to three years.

ISSUES [9] At issue is whether the trial judge erred in convicting Mr. Fry for the offence of armed robbery and in imposing a six-yearsentence for the offence of break and enter. ANALYSIS The Law [10] The offence of break and enter, as charged in this case, is set out in section 348(1)(

b) of the Criminal Code: Every one who ... (

b) breaks and enters a place and commits an indictable offence therein, … is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, … [11] The offence of robbery, relevant in these circumstances, is defined in

section 343 of the Criminal Code: Every one commits robbery who … (

d) steals from any person while armed with an offensive weapon or imitation thereof. A person who commits a robbery is guilty of an indictable offence and liable to imprisonment for life (section 344(1) of the CriminalCode). [12] Because Mr. Fry and Mr.

Burton both participated in the criminal venture, section 21(2) of the Criminal Code regarding partiesto an offence is relevant: Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one ofthem, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission ofthe offence would be a probable consequence of carrying out the common purpose is a party to that offence. [13] The effect of this provision, in the context of section 21(1), aiding and abetting as a party to an offence, is explained by LeBel J.,in concurring reasons, in R. v.

Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198: [51] Generally speaking, there are two forms of liability for Criminal Code offences, primary or principal liability (actually orpersonally committing the offence), and secondary liability (also known as party liability), both codified in s. 21 of the Criminal Code. Whether an accused is found guilty either as a principal offender or as a party to the offence, the result is the same in law: the accusedwill be convicted of the substantive offence.

It is for this reason that it is sometimes said that it is “a matter of indifference” at lawwhether an accused personally committed a crime, or alternatively, aided and/or abetted another to commit the offence: R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652, at p. 694; Chow Bew v. The Queen, (SCC), [1956] S.C.R. 124, at p. 127. This is also why the Crown need not specify in an indictment the nature of an accused’s participation in an offence: R. v.

Harder, (SCC), [1956] S.C.R. 489; Thatcher, at p. 694. (Emphasis added.) [14] Similarly, when the specified elements of section 21(2) are satisfied, it is “a matter of indifference” at law that the accused wasnot the principal who committed the offence. That is, “Whether an accused is found guilty either as a principal offender or as a party tothe offence, the result is the same in law: the accused will be convicted of the substantive offence”.

[15] The elements of section 21(2) are discussed and summarized in R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96. Referringto the decision in R. v. Simon, 2010 ONCA 754, leave to appeal refused, [2010] S.C.C.A. No. 459, Strathy J.A., for the Court, explained: [52] This passage makes the important point that the scope of s. 21(2) is broader than s. 21(1).

It extends liability to those who wouldnot be found responsible as aiders and abettors and it extends responsibility for offences other than the offence in which theyparticipated, if they had the requisite degree of foresight in respect of the commission of the offence charged [citations omitted]. [16] Further in Cadeddu, referring to R. v. Simpson, (SCC), [1988] 1 S.C.R. 3, at page 11: [56] The foundational element of s. 21(2) is an agreement between a principal and a party (or parties) to carry out an unlawful purpose.

An unlawful purpose is one that is contrary to the Code. … [57] A party to an offence under s. 21(2) does not need to share the same motives or desires as the principal. As Lamer C.J. stated in R.v. Hibbert, (SCC), [1995] 2 S.C.R. 973 (S.C.C.), at para. 42, the parties only need to have in mind the same unlawfulgoal, because to require “a mutuality of motives and desires between the party and the principal” would unduly restrict Parliament’sintention in enacting the offence.

Moreover, the agreement or common intention does not need to be formed in advance; it can arise atthe time the offence is being committed [citations omitted]. … [59] One party to the common unlawful purpose must commit an offence that was not the offence intended by the parties, but isnonetheless related to the original unlawful purpose. … That is, “the offence committed is one that the members of the original agreement did not set out to commit, but one that took place inthe course of carrying out their original agreement or plan” (Cadeddu, at paragraph 59). [17] Turning to the final element of section 21(2) in Cadeddu, Strathy J.A. explained: [61] Generally, a person will be liable under s. 21(2) if he or she knew or ought to have known that the offence committed by theprincipal was a probable consequence of their unlawful agreement. … When assessing foreseeability, the standard is that of areasonable person in the same circumstances. [62] The trial judge must instruct the jury that the requisite knowledge can be established either by showing that the accused actuallyknew that the offence would probably be committed in carrying out the original agreement or that a reasonable person in thecircumstances would know that one of the participants in the original agreement would probably commit the offence in carrying out theoriginal agreement. [18] In

summary, to convict an accused of being a party to an offence under section 21(2) of the Criminal Code, the Crown mustprove beyond a reasonable doubt that:

(1) The accused intended in common with another to carry out an unlawful purpose and to assist in that venture, in this case, a break andenter;

(2) Another person participating in the unlawful purpose committed a different offence in carrying out the original agreement, in thiscase, armed robbery committed by Mr. Burden and to which he pleaded guilty; and

(3) A reasonable person in the circumstances would know or ought to have known that the commission of the offence would be aprobable consequence of carrying out the original common purpose, in this case, that a reasonable person in Mr. Fry’s position wouldknow or ought to have known that the commission of armed robbery by Mr. Burton would be a probable consequence of carrying out thebreak and enter. Conviction for Robbery [19] Mr. Fry has not appealed his conviction for the offence of break and enter pursuant to section 348(1)(

b) of the Criminal Code. However, he submits that, absent consideration of Mr. Burton’s statements to the police, he could not have been convicted of that offenceon the basis that he had entered the house. Rather, he had merely stood watch outside. He concedes that the act of standing watchoutside, coupled with the other circumstances of the case, would be sufficient to support his conviction as a party to the break and enteroffence.

The reason he wishes nevertheless to challenge the finding that he entered the house is that without it, he submits, there is nobasis for a conviction on the robbery charge. [20] In particular, Mr. Fry submits that Mr. Burton’s statements that Mr. Fry participated in the break and enter by entering the housewere admitted into evidence in error because the statements did not satisfy the test for reliability. He submits that the judge erred byfinding that, in giving the statement to police, Mr.

Burton would receive no legal benefit because the judge overlooked the possiblemitigation in sentence that may flow from implicating an accomplice. Further, Mr. Fry submits that the judge erred by failing torecognize the self-serving nature of the statements, again insofar as they may be related to his hope for a more lenient sentence. Inaddition, Mr. Fry submits that the judge erred by failing to address the voluntariness of Mr. Burton’s statements which the judge isrequired to do regardless of whether counsel raises the issue. [21] In the circumstances, it is unnecessary to determine whether Mr.

Fry is correct in submitting that the statements wereinadmissible. This is because the elements of section 21(2) of the Criminal Code are satisfied even if Mr. Fry was convicted of breakand enter on the basis that he stood watch and did not enter the house. That action would be sufficient to satisfy the first element ofsection 21(2). That is, he formed an intention in common to carry out a break and enter with Mr. Burton and he intended to assist in thatpurpose.

As set out in Picton, paragraph 13, above, whether an accused “is found guilty either as a principal offender or as a party to theoffence, the result is the same in law: the accused will be convicted of the substantive offence”. Mr. Fry did not appeal his conviction

for that offence. [ 22 ] The second element of section 21(2) is satisfied by the commission of armed robbery by Mr. Burton. That constitutes an offence different from the originally intended offence of break and enter. [ 23 ] The third element of section 21(2) is also satisfied. On the evidence, the Crown established beyond a reasonable doubt that a reasonable person in Mr. Fry’s situation ought to have known that armed robbery would be a probable consequence of carrying out the break and enter in the particular circumstances. [ 24 ] Evidence as to a knife that Mr.

Burton had in his possession is important in establishing that an armed robbery would be a probable consequence of a break and enter in the circumstances. Mr. Crane, who did not participate in the venture, but who was in Mr. Fry’s apartment both before and after Mr. Fry and Mr. Burton went “car hopping”, testified regarding the knife: Q. Was there anything different about [Mr. Burton] or what he was – anything on his person that he was wearing that was different than before? A. He had a big knife on his side. … Q. How was it on his side? Was it attached in some way to something? A.

No, I think he had it just shoved down his pants. Q. So did you actually see the knife? A. Oh yeah. Q. Can you describe it? … A. It was longer than my hand. Q. Longer than your hand up and down or cross ways? A. Yeah up and down. … Q. And had you seen this knife before you went up to go to bed at 4:00 a.m.? A. I did see it earlier but that was like before supper like when he first came by cause he was like boys look what I got and he showed the knife and stuff. … Q. Okay and that was Mr. Burton you’re talking about? A.

Yeah, Josh. (Emphasis added.) [ 25 ] It follows that, before leaving his apartment to go “car hopping”, Mr. Fry knew that Mr. Burton was carrying a knife. While Mrs. Hillyard did not testify that she actually saw a knife, she did state that Mr. Burton “had a shiny object in his hand” (trial judge’s decision, at paragraph 3). [ 26 ] Further, the offence occurred in the early morning hours when it could reasonably be expected that residents of the house would be asleep in bed. There was a car in Mrs. Hillyard’s driveway and a television was on.

These facts would lead a reasonable person to expect that the house was occupied. As the trial judge concluded, when an intruder enters a home that is likely occupied, it is reasonably foreseeable that an occupant may discover and confront the intruder. [ 27 ] In

summary, without relying on Mr. Burton’s statements, the remaining evidence leads to the conclusion that a reasonable person in the circumstances would know or ought to have known that the commission of the armed robbery would be a probable consequence of carrying out the break and enter. [ 28 ] The conclusion follows that the elements of section 21(2) have been satisfied and that Mr. Fry, being a party to the offence, was properly convicted of armed robbery.

Sentence for Break and Enter and Breach of Recognizance [ 29 ] Since the conviction for armed robbery is confirmed and the six-year sentence for that offence was not appealed, six years is the minimum sentence that Mr. Fry must serve. The trial judge also imposed a six-year sentence for the break and enter offence. Because that sentence was ordered to be served concurrently, a successful appeal would not alter Mr. Fry’s total sentence for the two convictions. In the circumstances, I would decline to address the sentence appeal.

[ 30 ] However, I would emphasize that the decision not to address the sentence for the break and enter offence may not be taken as setting a precedent or providing a basis on which to determine an appropriate range of sentence. I would only comment that, as conceded by the Crown, the sentence seems to be clearly outside an appropriate range. [ 31 ] Finally, the trial judge ordered the six-month sentence for breach of recognizance to be served concurrently. The Crown submits that the sentence for that offence should have been ordered to be served consecutively, consistent with the decisions of this Court ( R. v.

Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211 ; R. v. Murphy , 2011 NLCA 16 , 304 Nfld. & P.E.I.R. 266 ). While the general principle is correctly stated by the Crown, in the circumstances of this case, I would decline to interfere with the trial judge’s discretion to order a concurrent sentence. I note in passing that a six-month sentence appears to be outside the range of one to three months that would normally apply in these circumstances.

SUMMARY AND DISPOSITION [ 32 ] In

summary, it is unnecessary to determine whether the trial judge erred by admitting into evidence the statements made by Mr. Burton. There was sufficient other evidence to establish beyond a reasonable doubt that the elements of section 21(2) of the Criminal Code were satisfied such that Mr.

Fry was a party to and properly convicted of armed robbery. [ 33 ] Given that the conviction for armed robbery was confirmed, the six-year sentence for that offence was not appealed, and the six- year sentence for break and enter was ordered to be served concurrently, I would decline to address the appeal against the sentence for break and enter.

I would emphasize that this does not amount to an affirmation of the sentence to be used as a precedent, particularly since, as the Crown concedes, the sentence appears to be outside the appropriate range. [ 34 ] Finally, I would decline to interfere with the trial judge’s decision to order a six-month sentence for breach of recognizance, to be served concurrently.

However, I would note, first, that, as a general principle, a sentence for that offence would be ordered to be served consecutively; and second, the six-month sentence appears to be outside the appropriate range. [ 35 ] Accordingly, I would dismiss the appeals against conviction for armed robbery and against the sentence for break and enter, and would confirm the sentences imposed by the trial judge. Appeals dismissed .