2011 QCCA 1203, 2011 QCCA 1203

Unofficial English Translation Lévesque c. R. 2011 QCCA 1203 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002313-083 (200-01-079902-031) DATE: JUNE 7, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) PIERRE LÉVESQUE APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from the guilty verdicts rendered October 30, 2008, by a jury, presided by the Honourable Mr.

Justice Richard Grenier (Superior Court, District of Quebec), convicting him of two counts of first degree murder: [ translation ] On or about April 8, 1994, in Quebec City, District of Quebec, did cause the death of Maurille Lepage, thereby committing first degree murder, the criminal act provided in

section 235 of the Criminal Code . On or about April 8, 1994, in Quebec City, District of Quebec, did cause the death of Béatrice Lavoie, thereby committing first degree murder, the criminal act provided in

section 235 of the Criminal Code . [ 2 ] For the reasons of Viens J.A. (ad hoc), with which Thibault and Rochette JJ.A. agree; THE COURT: [ 3 ] DISMISSES the appeal. FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Sophie Dubé Labrecque, Asselin For the appellant Mtre René Verret Criminal and Penal Prosecuting Attorney For the respondent Date of hearing: November 22, 2010

REASONS OF VIENS, J.A. (AD HOC) [ 4 ] The appellant appeals from a judgment rendered October 30, 2008, by the Superior Court, Criminal division, District of Quebec (the Honourable Mr. Justice Richard Grenier) that affirmed two convictions of first degree murder rendered by a jury in respect of the following charges: [ translation ] On or about April 8, 1994, in Quebec City, District of Quebec, did cause the death of Maurille Lepage, thereby committing first degree murder, the criminal act provided in

section 235 of the Criminal Code . On or about April 8, 1994, in Quebec City, District of Quebec, did cause the death of Béatrice Lavoie, thereby committing first degree murder, the criminal act provided in

section 235 of the Criminal Code . [ 5 ] It was the second trial that the appellant underwent concerning the two charges. The first, which took place in 2004 jointly with an accomplice, Shawn Denver-Lambert, had also led to two convictions.

The Court ordered a new trial because of an error of law committed by the trial judge in his instructions to the jury on the concept of complicity. [1] The facts [ 6 ] On the morning of April 9, 1994, a police officer discovered in a house in Val-Bélair the body of Béatrice Lavoie, aged 75, her feet and hands bound with adhesive tape and lying in a pool of blood, as well as Maurille Lepage, aged 82, lying on the floor and tied up in the same way as his spouse, with in addition adhesive tape over his eyes. [ 7 ] As soon as they arrived on the premises, the ambulance attendants Gaétan Bourque and Louis Marcoux pronounced Ms.

Lavoie dead. While providing care for Mr. Lepage, they removed the tape binding his hands and feet as well as the adhesive tape covering his eyes. [ 8 ] Mr. Lepage was in a state of shock. In the ambulance as well as at the hospital he said: [ translation ] “There were two of them, they were big,” “ There were two of them … it was rough… it was awful” . [ 9 ] Maurille Lepage died in the hospital on April 21, 1994. The autopsies revealed that the deaths of Ms. Lavoie and Mr.

Lepage were due to head injuries caused by a blunt object. [ 10 ] Two weeks before the events, Shawn Denver-Lambert learned from Louis Dubé that some elderly persons apparently kept a large sum of money at their home. After locating the house with Louis Dubé, Denver-Lambert asked the appellant, his neighbour, to take

part in stealing the money. [ 11 ] The appellant and his accomplice met several times to plan the robbery, often in the presence of Denver-Lambert’s spouse, Mélanie Diedrich. The plan was to go to the house, subdue the residents and find the money. They planned to take with them a roll of adhesive tape as well as two weapons: a 12-calibre sawed-off shotgun and a majorette’s baton. However, they did not intend to attack the victims; the weapons were to be used only to ensure their co-operation and to facilitate the robbery. [ 12 ] On April 8, 1994, the appellant met Denver-Lambert at his home at about 8:00 p.m.

Mélanie Diedrich saw them leave. The two men went to the victims’ house and parked their vehicle in the driveway. Denver-Lambert being armed with the shotgun and the appellant with the majorette’s baton, they proceeded to the main entrance at the back of the house. [ 13 ] As planned, Denver-Lambert broke down the door and entered the house first. Mr. Lepage was in the kitchen, very close to the entrance. Denver-Lambert struck him on the head with his weapon and laid him out on the floor before tying him up with adhesive tape.

The appellant followed him into the house. [ 14 ] The appellant’s version of what took place next in the victims’ house differs from that of his accomplice Denver-Lambert. The appellant [ 15 ] The appellant testified that he was to search the house for the money while his accomplice Denver-Lambert was to subdue the residents and tie them up on his own. Upon entering the house, he saw Mr. Lepage lying on the floor at Denver-Lambert’s feet. He heard Ms. Lavoie screaming incessantly. Denver-Lambert told him to [ translation ] “ go get the woman ”, who was near the living room.

The appellant dropped his baton, grabbed Ms. Lavoie by the arms and pulled her toward his accomplice. [ 16 ] Once the woman was within reach, Denver-Lambert bound her wrists with duct tape and then asked the appellant to go and get the booty. The appellant went into the bedroom, leaving his baton where it had fallen. [ 17 ] In the bedroom, the appellant found some envelopes containing money in a chest of drawers.

While he was searching a second chest of drawers, Denver-Lambert joined him, asked him what he had found, took the envelopes and immediately went back to the victims. [ 18 ] As he was walking toward the bedroom closet to continue his search, the appellant saw Denver-Lambert raise his weapon and strike a blow to the head of Ms. Lavoie, who was lying on the floor with her feet and wrists bound and with duct tape over her eyes. He left the bedroom, went over to his accomplice and said to him [ translation ] “Stop that…you’re gonna kill her” . Instead of obeying him,

Denver-Lambert struck Ms. Lavoie on the head again with his shotgun. [ 19 ] As he was about to pick up his baton, the appellant saw Denver-Lambert raise his arm to strike Ms. Lavoie a third time. He grabbed the baton and brought it down in the direction of his accomplice’s left hand to disarm him. Ms. Lavoie was lying in a pool of blood. Mr. Lepage lay motionless beside her, also with his ankles and wrists bound, and with his eyes covered with adhesive tape. [ 20 ] Seeing that the appellant still had not found the large sum of money, Denver-Lambert decided to look for it himself.

He went into the bedroom and turned it upside down. Meanwhile, the appellant went over to Ms. Lavoie and removed the adhesive tape from her eyes. Realizing that she was dead and convinced that Mr. Lepage had met the same fate, he decided to leave the premises. He picked up his baton and went into the bedroom to urge Denver-Lambert to follow him. [ 21 ] Once they were in the vehicle, the appellant saw that he had injured one of Denver-Lambert’s fingers when he disarmed him with a blow from the baton. Shaken by the turn of events, he said to him: [ translation ] “ The woman’s dead, Shawn.

Why did you do that? ”, to which his accomplice replied: [ translation ] “ What do you want me to say? She wouldn’t stop screaming. ” The appellant continued: [ translation ] “ What about the man? ” That time, he received no answer. [ 22 ] Back at Denver-Lambert’s place, the two men left the car, each carrying his own weapon. According to the appellant, Denver- Lambert’s sawed-off shotgun was still intact, contrary to what Denver-Lambert and Mélanie Diedrich stated. They proceeded to count the money and share it equally. The appellant went home. A television newscast confirmed Ms.

Lavoie’s death and a little later he learned about that of Mr. Lepage. Mélanie Diedrich told him that Denver-Lambert had fled to the United States. Shawn Denver-Lambert [ 23 ] Denver-Lambert’s version is significantly different. After entering the house, he struck Mr. Lepage on the head with his shotgun, which broke in two. After laying him out on the floor, he tied him up with adhesive tape. The appellant, who followed him, immediately made for Ms. Lavoie, who was in the living room, and struck her twice on the head with his baton. The appellant also tied up Ms.

Lavoie with the adhesive tape, after Denver-Lambert had done the same to Mr. Lepage. Duct tape was also used to cover the victims’ eyes. Mr. Lepage asked them to leave several times while Ms. Lavoie screamed incessantly. [ 24 ] Denver-Lambert then went into the master bedroom looking for the stash, but without success. He emerged from the room only to see the appellant strike Ms. Lavoie on the head with the baton once again. [ 25 ] Denver-Lambert went over to Mr. Lepage, grabbed him by the shoulders and, shaking him, asked several times: [ translation ] “ Where is it?

Where is it? ” At that point the appellant, who brought his baton down to strike Mr. Lepage, missed his target and struck Denver-Lambert on the left hand. Apart from this unsuccessful attempt, Denver-Lambert stated that he did not see the appellant strike Mr. Lepage. [ 26 ] Denver-Lambert then went back into the bedroom and this time found a suitcase containing envelopes. On returning, he saw the appellant holding his baton over his shoulder and Ms. Lavoie lying in a pool of blood at his feet. He shouted “ Pierre! Pierre! ” several times.

He picked up the pieces of his weapon, which he put in a plastic bag, before he heading for the door, followed by the appellant. Mélanie Diedrich [ 27 ] She was present at the home of Denver-Lambert on the evening of April 8, 1994, when the appellant arrived to meet Denver- Lambert and they left to commit the robbery. She was also present when they returned and noticed that they were very agitated and that her spouse, Denver-Lambert, was bleeding profusely from an injury to a finger on his left hand.

Denver-Lambert brought back the sawed-off shotgun, broken into two pieces, and the appellant returned with the majorette’s baton. She estimated the amount shared by the two men was $10,000. The appellant then went home. [ 28 ] After cleaning up the blood in the car, Ms. Diedrich went with Denver-Lambert to dispose of the bloodstained clothing, the weapons and the other compromising items in a nearby waste container. [ 29 ] The next day, on learning about Ms. Lavoie’s death, Denver-Lambert decided to leave the country to go to New York City and then to Los Angeles, where Ms. Diedrich joined him.

They married shortly thereafter but divorced in 1997. [ 30 ] They spent time in Quebec in 1996, when Denver-Lambert’s father died. During that period they met the appellant several times and Ms. Diedrich recalled that he confided to her that [ translation ] “ the woman just wouldn’t stop screaming ”. [ 31 ] After the breakup, Ms. Diedrich moved to Florida, where she met Eric Pardee, whom she married in 1999. When they divorced, Eric Pardee provided information that enabled the police to resume the investigation. Ms.

Diedrich agreed to collaborate with the investigation and the legal proceedings in exchange for a guarantee that no charges would be brought against her. The questions at issue [ 32 ] The appellant, who abandoned some of the grounds stated in his notice of appeal, argues that the trial judge erred: 1) in his treatment of the hearsay evidence; 2) in his instructions to the jurors concerning their assessment of the credibility of the witnesses in general and of the appellant in particular; and 3) in his additional instructions on the provisions of

section 21 of the Criminal Code . [ 33 ] I propose to deal with the questions at issue in the order in which they were submitted, subdividing as necessary those involving several facets.

1) Hearsay [ 34 ] The appellant argues that the trial judge erred in his treatment of the hearsay evidence: (

a) by refusing to hold a voir dire on the admissibility as evidence of the statements made by Mr. Lepage to the ambulance attendants who took him to hospital; (

b) by admitting, after a voir dire , the statements attributed to Mr. Lepage and related by the police officers guarding him at the hospital; and (

c) by giving inappropriate instructions to the jury on the assessment of such evidence.

a) The statements by Mr. Lepage related by the ambulance attendants [ 35 ] The appellant faulted the trial judge for having failed to hold a voir dire before deciding that the statements that Mr. Lepage made to the ambulance attendants Gaétan Bourque and Louis Marcoux were admissible.

He added that the decision rendered [ translation ] “lacks coherence”, the judge having cited in a jumble the traditional exception of res gestae, the rule set out in Subramaniam and the exception based on the necessity and reliability tests. [ 36 ] According to the appellant, to the extent that it was a matter of proving the veracity of the words spoken by Mr. Lepage, the principles developed in Subramaniam [2] could not apply. Similarly, his words could not constitute res gestae, because at that time Mr.

Lepage was no longer forcibly confined nor was he in the immediate state of shock that the events may have caused him. As for the analysis based on the reliability and necessity tests, the appellant faulted the judge for having reversed the burden of proof, thereby disregarding the rule whereby hearsay is presumed inadmissible, while emphasizing in support of his decision the absence of evidence denoting Mr. Lepage’s confused state. The appellant argues that admitting these statements into evidence was prejudicial to him because the jury was able to deduce from them that the acts of violence committed against Ms.

Lavoie and Mr. Lepage were attributable to the two individuals who broke into the house. [ 37 ] Counsel for the appellant’s objection was made during testimony by the ambulance attendant Gaétan Bourque, more specifically when he recounted that Mr. Lepage kept saying [ translation ] “ Don’t touch me! Don’t hurt me! Stop that! ” when he and his colleague Louis Marcoux were attending to him. The judge then asked the jurors to leave the room before asking counsel how Mr. Lepage’s statements could be prejudicial to the appellant, since the words showed only that the victim was afraid his attackers were still present.

The discussion was then extended to all the statements made by Mr. Lepage, which the respondent was planning to adduce as evidence through the testimony of the two ambulance attendants. [ 38 ] Although counsel for the appellant did not explicitly ask that a voir dire be held, even when the judge was open to such a possibility; it cannot necessarily be considered a waiver.

In the slightly different context of determining the free and voluntary nature of an incriminating statement, the Supreme Court has stated: While I might be ready to accept in a proper case that counsel for an accused may well waive the holding of a voir dire, I see a considerable difference between an expressed waiver surrounded by all the precautions indicating that the question has been examined in depth and mere silence on counsel’s part. The heavy onus resting on the Crown certainly cannot be displaced in such an informal fashion. [3] [ 39 ] If, conversely, the decision to declare Mr.

Lepage’s statements admissible was well founded, the fact that the judge did not hold a voir dire cannot be considered an overriding error. That is why it is appropriate instead to analyze the various grounds for appeal that the appellant raised against the decision itself. [ 40 ] First, the appellant is correct to point out that Subramaniam cannot justify the admission of the statements.

The respondent wanted to present the statements to the jury so that they would demonstrate their content by providing information on the sequence of the attack carried out. [ 41 ] The principles set forth by the Privy Council in Subramaniam and repeated by Lamer C.J. in R. v. Smith [4] are generally invoked to characterize cases not requiring special precautions when comments are not related to establish the truth of a statement: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay.

It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

The fact that the statement was made, quite apart of its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made . [5] [Emphasis added.] [ 42 ] Moreover, the trial judge properly pointed out that the traditional exception to the prohibition on hearsay based on res gestae could justify the admission as evidence of the statements attributed to Mr. Lepage. In this case, the contemporaneity test would not be an obstacle to receiving such evidence.

The Court of Appeal for Ontario had the following to say on this matter in Clark : ... But I would prefer to rest my judgment on a broader base, as it is now apparent from the foregoing that the narrow test of exact contemporaneity should no longer be followed . The circumstances, as outlined by Miss Pitcher, under which the words were said to have been spoken by the deceased were such as to exclude the possibility of concoction or distortion and, if Miss Pitcher’s evidence were accepted by the jury, the words spoken, “Help! I’ve been murdered!

I’ve been stabbed!” were evidence of the belief of the deceased as to what had occurred and evidence as to the truth of the facts stated by her as a true exception to the hearsay rule.... [6] [Emphasis added.] [ 43 ] The appellant does not contend that Mr. Lepage may have concocted a false version of the facts. Without contesting the sincerity or the spontaneity of Mr. Lepage’s comments, he argued that his perception of reality and his ability to communicate it could

have been altered, notably because of his confused state. These considerations are not relevant, however, when the analysis is done strictly on the basis of res gestae . [ 44 ] David Watt teaches us that: A statement immediately connected with

an act or transaction in issue is admissible to prove the truth of the matters asserted. It must be made, however, contemporaneously with the act to which it relates to avoid the possibility of concoction or reflection. The test of contemporaneity is an uncertain one.

It is functional in nature, designed to serve as a means or method whereby reflection, concoction and distortion may be excluded or diminished. [7] [ 45 ] Concerning spontaneous statements, he adds: A spontaneous exclamation is a statement made before or after an event or transaction in issue in circumstances of such spontaneity that the possibility of concoction may be discounted, if not avoided. The contemporaneity requirement ensures that there is little time for calculated insincerity. Faulty memory should not be a problem because the event is unfolding at the time the statement is made....

It may fairly be said that the degree of proximity that is required between the event and the statement is problematic. What is required is a realistic, not a metaphysical approach to the transaction. The principal issue is whether the circumstances are such that the possibility of concoction or distortion may be disregarded. The circumstances of the statement should be so unusual, startling or dramatic that they dominate the declarant’s thoughts, hence reduce the risk of concoction or distortion .

In general, the possibility of error in the facts narrated relates to the weight of the evidence, not its admissibility . The occurrence of the event may be proven by the statement of other evidence. [8] [Emphasis added.] [ 46 ] The legitimate concerns about Mr. Lepage’s state of health and degree of awareness at the time of the statements must instead be analyzed according to the principled approach to hearsay advocated by the Supreme Court.

In Mapara , McLachlin C.J. states that: The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. (

c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire . [9] [ 47 ] The statements made by Mr. Lepage to the ambulance attendants qualified as a traditional exception to the prohibition on hearsay.

The judge could therefore allow the evidence, failing clear indications casting doubt on its reliability; the final assessment of the weight of the evidence was a matter for the jury, as he pointed out. [ 48 ] In this sense, the appellant’s argument faulting the judge for having reversed the burden of proof by concluding there was an absence of evidence concerning Mr. Lepage’s lack of mental capacity is unfounded.

b) The statements by Mr. Lepage related by the police officers [ 49 ] The appellant alleges that the trial judge erred by admitting as evidence, following a voir dire , the statements made by Mr. Lepage to police officers who were at his bedside in the hospital from April 12 to 15, 1994. He faults the judge for having improperly weighed the various criteria that made it possible to assess their reliability. According to the appellant, too much importance was placed on the evidence corroborating the statements, whereas the circumstances that pointed up their weaknesses were not considered. He cited both Mr.

Lepage’s precarious health and the absence of measures enabling him to understand the importance of telling the truth. The methods used by the officers to note Mr. Lepage’s statements were also contested. [ 50 ] Relying on the principles of necessity and reliability, the trial judge admitted as evidence some of the statements made by Mr. Lepage to the police officers after April 10, 1994. His statement of the applicable principles is irreproachable; it is based on Khelawon , in which the Supreme Court writes: As stated earlier, the trial judge only decides whether hearsay evidence is admissible.

Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence. It is important that the trier of fact’s domain not be encroached upon at the admissibility stage. If the trial is before a judge and jury, it is crucial that questions of ultimate reliability be left for the jury — in a criminal trial, it is constitutionally imperative.

If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between “ultimate reliability” and “threshold reliability”. Only the latter is inquired into on the admissibility voir dire . [10]

[ 51 ] Necessity being acquired because of the death of Mr. Lepage, the trial judge said that [ translation ] “ essentially, what leads me to admit this evidence is that it has been corroborated and confirmed by various elements that are important ”. He thus situated his decision concerning threshold reliability, and hence admissibility, on the foundation of corroboration, an indicium whose validity has not been in doubt since Khelawon . [11] [ 52 ] In a context where sincerity is questioned, it was appropriate to rely on corroborating evidence to gauge the reliability of the statements and to ensure that Mr.

Lepage was not delirious and that he made statements supported by the evidence in many respects. [ 53 ] Considering that it was possible to validate many aspects of Mr. Lepage’s comments by independent evidence, the judge deemed that the threshold reliability required for admissibility was reached and he stressed that [ translation ] “... [it will be for] them [the jurors] to assess whether they believe Mr. Lepage was in a state in which he could say things”. These words also show that the judge had in mind the precarious state of Mr. Lepage’s health when the statements were made.

This approach is consistent with the principles set forth in Khelawon : ...When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement.

That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement . [12] [ 54 ] During the voir dire , the respondent did not have to prove beyond a reasonable doubt the necessity and reliability of the statements made by Mr. Lepage to justify their admissibility. The burden of proof that lay on it to reverse the presumption of the inadmissibility of this hearsay evidence was one of preponderance and, at the stage of the voir dire , the appellant could have adduced evidence on the state of Mr.

Lepage’s health. [ 55 ] Moreover, even if the appellant pointed out certain weaknesses in the testimony of the police officers who related Mr. Lepage’s comments, the weaknesses were of a nature to affect the credibility of the police officers rather than that of the victim. The judge did not err in deciding to disregard such arguments when he made his decision on the voir dire .

c) Instructions to the jury [ 56 ] The appellant argues that the trial judge’s instructions concerning hearsay were inadequate. According to him, the judge’s explanations of the weaknesses inherent in this type of evidence were generalities that did not include the crucial warning that jurors should proceed cautiously and did not set out the different ways that Mr. Lepage’s comments could be interpreted. [ 57 ] The judge reminded the jury of the basic rule concerning the inadmissibility of hearsay, which he described as follows: [ translation ] Hearsay.

As I explained to you during the trial, the basic rule is that hearsay is excluded. This rule is justified by the fact that it is dangerous to convict someone on evidence that has not been given under oath and that cannot be subject to cross-examination.

It is far easier to assess the credibility of a witness when he or she is testifying under oath and the testimony is subject to cross- examination, than … it is therefore easier to assess the credibility of testimony that is given under oath and subject to cross-examination than to assess information conveyed by a third party. [ 58 ] He then explained to the jury the conditions for admissibility of hearsay evidence, namely necessity and reliability, stressing that necessity was acquired, given Mr. Lepage’s death.

As for the reliability of the statements, which are ultimately a matter for the trier of facts, he asked the jurors to consider Mr. Lepage’s state as well as all the evidence to detect confirmation or contradiction of the comments attributed to him: [ translation ] If you think the statements by Mr. Lepage were made in circumstances that significantly rule out the possibility that Mr. Lepage lied or made a mistake, you may conclude that this evidence is reliable because there is a circumstantial guarantee of reliability.

You may also consider whether some of his statements are confirmed or contradicted by various parts of the evidence that you may accept or reject from the evidence as a whole. ... You may also conclude that Mr. Lepage’s utterances are not reliable because of the state of shock he was in, as well as the state of his health. You may conclude that it would be dangerous to consider the monologue of a man who had gone through such an ordeal to be credible. [ 59 ] He also stressed that the jurors might, as with any other testimony, [ translation ] “ accept one or another of Mr.

Lepage’s statements or utterances in whole, in part or not at all, … because you are masters of the facts ”. [ 60 ] Moreover, the jurors had already received a specific warning during the trial from the judge concerning hearsay: [ translation ] So, it is quite clear that the state Mr. Lepage was in, at that time, you will have to assess it and decide whether to accept the statements he was able to make, from his hospital bed or when the police officers went to meet him. That will be your role, because you are the masters of the facts.

So, at this stage, I am allowing the evidence; but I am giving you a warning, which I will repeat later.

As a general rule, hearsay evidence is not allowed precisely because the person in question cannot be cross-examined, although sometimes it is allowed; there are exceptions when it’s necessary and when it’s reliable. Necessity in the case of someone who has died, I don’t need to discuss it at length to tell you that it’s necessary because the person cannot come and testify before you.

As for reliability, the judge is a sort of guardian in the sense that from the time there is minimum reliability, since the judge isn’t the master of the facts, well, he does that verification and submits everything to the members of the jury who will ultimately decide what value to place on it. ... ...

So, all I want to say to you is that you should examine this with caution, and later, once you have the big picture, well, you will be able to assess the evidence and draw conclusions from it, after you have…you have consulted one another. [ 61 ] This intervention by the judge, although optional, [13] was especially timely. He issued the warning after the appellant’s objection during testimony by the ambulance attendant Gaétan Bourque. Therefore, the jurors certainly still had the warning in mind when they heard the testimony of the three police officers responsible for guarding Mr.

Lepage and taking down his statements. [ 62 ] The appellant bases his complaint on the words of the Court of Appeal for Ontario in R. v. A.(S.) . [14] Not only does the judgment involve a specific case of statements made by a child who was a victim of sexual assault and deemed too young to testify under oath, but also it is worded so as not to set a precedent suitable for blanket application: We were, however, invited by Crown counsel to provide some guidance as to how juries should be instructed where a child’s out of court statement is admitted pursuant to the principles enunciated in Khan.

It may be that as a result of the decision in Khan , it will become more common that out of court statements made by alleged child victims will be admitted in cases where the child does not testify. We, therefore, consider it advisable to take up the Crown’s invitation. In doing so, we caution against regarding our comments as a form of pattern jury instruction to be slavishly followed in every case. Our system, unlike that in some American jurisdictions, recognizes that trial judges are uniquely placed to, and, indeed are obligated to, tailor their instructions to the particular case.

The comments which follow are intended to assist trial judges in that difficult task, and references to what the jury should be told must be understood as guidance and not taken as dogma. [15] [ 63 ] David Watt, in Watt’s Manual of Criminal Jury Instructions , does not repeat verbatim the instructions suggested in R. v.

A.(S.) ; rather, he emphasizes that, depending on the circumstances, the judge may give additional instructions to point out that the lack of cross- examination limits the jurors’ opportunity to assess the reliability of statements: The remaining paragraphs, [of the template], deal with the jurors’ assessment of anything they find the declarant said. The instruction directs a cautious approach because of the absence of: i. an oath of its equivalent; ii. the declarant as a witness; and iii. contemporaneous cross-examination.

The instruction could be expanded somewhat, depending on the circumstances, to point out that the lack of cross-examination limits the ability to test the declarant’s perception, memory, sincerity, and communication . [16] [Emphasis added.] [ 64 ] The trial judge cautioned the jurors about the danger of convicting the appellant on the strength of Mr. Lepage’s statements: [ translation ] Hearsay. As I explained during the trial, the basic rule is that hearsay is excluded.

This rule is justified by the fact that it is dangerous to convict someone on the strength of evidence that is not given under oath and cannot be subject to cross-examination. [ 65 ] Moreover, the appellant did not point out why the judge would have been obliged to tell the jury that Mr. Lepage’s words were subject to more than one

interpretation. That was a matter for the jurors as triers of fact. [ 66 ] In short, I believe that the judge’s specific instructions concerning the assessment of Mr. Lepage’s statements as related by the ambulance attendants and the police officers were adequate and involved no overriding error. [ 67 ] This ground for appeal must therefore fail. It is not necessary to conclude that the judge’s instructions to the jury were irreproachable to come to this conclusion, as Lamer C.J. stated in Jacquard : ...

Moreover, I cannot emphasize enough that the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury. An accused is entitled to a jury that understands how the evidence relates to the legal issues.

This demands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given.... [17] [ 68 ] Also, the fact that counsel for the defence expressed no objection to the instructions when the judge invited them to do so, although not fatal, may play a certain role in the analysis of the adequacy of the instructions to the jury, especially concerning the determinative nature of the alleged errors. [ 69 ] In L’appel en droit criminel et pénal , the author Tristan Desjardins comments on this matter as follows: [ translation ]

The fact that the appellant’s attorney did not object to the instructions to the jury does not prevent the convicted person from arguing on appeal that they were affected by errors of law justifying reversal of the verdict. It may, however, be a factor to consider, especially when the appellant alleges that the instructions were inadequate . [18] [ References omitted.

Emphasis added.] [ 70 ] Recently, the Supreme Court, per Fish J., made similar observations in Khela : While the obligation to ensure that juries are properly instructed clearly falls to the trial judge, counsel should not abdicate their duty of assisting the court. As Bastarache J. recently explained in R. v. Daley , 2007 SCC 53 , [2007] 3 S.C.R. 523: ... it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review.

The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. [para. 58] In this light, I note without more that counsel did not object to the judge’s charge in this case. [19] 2) Instructions concerning the assessment of the credibility of the witnesses in general and the appellant in particular [ 71 ] According to the appellant, three aspects of the judge’s instructions concerning the assessment of the credibility of the witnesses involved errors:

a) the Vetrovec instruction was incomplete and worded in such a way as to imply that it applied equally to the appellant’s testimony and to that of the prosecution witness Shawn Denver-Lambert;

b) the judge invited the jurors to consider whether the appellant had a motive for lying; and

c) a comment made by the judge on criminal records was likely to cause the jury to overestimate the impact of a criminal record on the appellant’s credibility.

a) The Vetrovec instruction [ 72 ] Did the instructions given by the judge adequately caution the jury about the testimony of the accomplice Shawn Denver- Lambert?

Could the jurors have understood from the judge’s words that the warning also applied to the appellant’s testimony, and not only to the testimony of the accomplice Shawn Denver-Lambert? [ 73 ] It is appropriate to point out that when the trial judge gave his instructions to the jury, he did not have the benefit of the framework developed by the Supreme Court in this regard in Khela : [37] In Sauv— , at para. 82, the Ontario Court of Appeal set out a principled framework that will assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case.

That proposed framework, which I adopt and amplify here, is composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused ( R. v.

Kehler , 2004 SCC 11 , [2004] 1 S.C.R. 328, at paras. 17-19 ). [38] While this

summary should not be applied in a rigid and formulaic fashion , it accurately captures the elements that should guide trial judges in crafting their instructions on potentially untrustworthy witnesses. The fourth component, of particular interest on this appeal, provides guidance on the kind of evidence that is capable of confirming the suspect testimony of an impugned witness. ... [44] I agree with the Ontario Court of Appeal in Sauv— that a Vetrovec warning should address, in terms appropriate to the circumstances of each case, the four elements outlined above.

Where the caution has these characteristics, an appellate court, in the absence of some other flaw in the instructions, will generally be expected to find the caution adequate.

I emphasize, however, that failure to include any of the components in the terms outlined above may not prove fatal where, as in this case, the judge’s charge read as a whole otherwise serves the purposes of a Vetrovec warning . [20] [References omitted.] [Emphasis added.] [ 74 ] Addressing the matter of assessing the evidence, in particular assessing the credibility of the witnesses, the trial judge stated: [ translation ] We all understand that this case turns essentially on the credibility or lack of credibility that you will ascribe to the two actors involved in the drama that took place on April eighth (8 th ), nineteen ninety-four at the residence of Mr.

Lepage and Ms. Lavoie. [ 75 ] He emphasized to the jury that the analysis that they were to carry out to determine which witnesses were to be believed and to what extent their words would be accepted involved two aspects, namely credibility and reliability. Whereas credibility seeks to determine whether testimony will be admitted in its entirety, partially or not at all, reliability concerns the persuasive force they give to testimony or a portion thereof. In addition to their common sense, the judge invited the jurors to use certain indicia, while stressing that the list was neither binding nor exhaustive.

The first of these indicia lies in what he qualified as [ translation ] the “moral value of the witness” or in the propensity of the witness to respect his oath. He expressed himself as follows: [ translation ] You would be right to be cautious about a person for whom crime and lying are habitual; we call that a tainted witness. However, there

are also… it also happens that a person who is honest, usually honest, lies about a specific point for one reason or another, to protect himself or to protect others, to accommodate someone or to harm someone. [ 76 ] The judge then discussed a witness’s possible motive for lying. More specifically, concerning the accomplice Shawn Denver- Lambert, he added: [ translation ] The ability to lie is one thing, as we have just seen. The motive for doing so is something else. It is my next criterion.

Is there something in the evidence, in the testimony of a person that would make you think the witness could have a motive for lying or skewing his testimony, or could take advantage of it to protect himself, to protect other people, as a challenge, to harm other people? For example,…Shawn Denver Lambert is an accomplice; he has told you that he was convicted of these crimes. You can consider whether he has a motive to … to accuse his accomplice given the fact that, as you know, a person will … a person may be convicted but may appeal the decision.

So, it’s quite clear that an accomplice is always someone who has a motive. In this case, the testimony of these two men, and it will be for you to assess it, is similar concerning the aspects that are not harmful to them, but when it comes to the aspects that could harm them, it’s different. So, you are entitled to – and I am warning you obviously about the testimony by Denver, who could have a motive for not telling the truth or could want revenge against his co-accused, but it will be up to you to determine that.

Again, I am not making a statement; I am merely offering a warning. [ 77 ] Among the criteria to be considered to assess the credibility of the witnesses, the judge asked the jury to consider whether the testimony had an air of reality: [ translation ] You must also consider whether a person’s testimony meets the air of reality test. Does the story hold up? Not only does it hold up on its own but does it jibe with the rest of the evidence?

In brief, is his account of such and such an aspect confirmed by other evidence, by other witnesses or is it instead contradicted by other evidence? [ 78 ] I find that the Vetrovec instructions given by the trial judge, analyzed in their entirety, meet the objectives advanced by the Supreme Court in Khela . The judge drew the jury’s attention to Shawn Denver-Lambert’s testimony before explaining why the testimony required especially rigorous scrutiny.

He stressed that Shawn Denver-Lambert was an accomplice, that he had been convicted of the crimes, that he may have had a motive for shifting blame to the appellant or to want revenge and that he had previously been convicted of several other offences. [ 79 ] The judge emphasized to the jurors several times the need for them to study all the evidence together.

After having talked about the importance of the respective testimony of the appellant and of Shawn Denver-Lambert, which was similar concerning that which was not especially harmful to them but different concerning that which was prejudicial, he cautioned the jurors about the testimony of the accomplice Denver-Lambert, who could have a motive for lying, and asked them to check whether his testimony held up with the rest of the evidence and whether his account was confirmed or contradicted by other witnesses or other evidence. [ 80 ] The appellant was correct to point out that the Vetrovec instruction must apply only to witnesses who are adverse to the appellant, [21] because such an instruction concerning witnesses who are favourable to him would impose a burden of proof that is not incumbent on him.

Even so, his contention that the trial judge expressed himself in such a way as to give the jurors the impression that the instruction applied not only to Denver-Lambert’s testimony but also to the assessment of his own testimony is unfounded. [ 81 ] First, when the judge cautioned the jury about assessing the credibility of a witness, he was referring only to Shawn Denver- Lambert’s testimony, and not to the appellant’s. [ 82 ] And, almost immediately after this Vetrovec warning , the judge set out for the jurors the rules to follow to resolve, as necessary, the discrepancy between the versions given by the prosecution witnesses, on the one hand, and by the appellant, on the other.

He said the following: [ translation ] I am now going to talk to you about contradictory testimony. Proof beyond a reasonable doubt requires that when the problem of resolving the conflict between contradictory versions given by witnesses for the prosecution and those for the defence arises, jurors must analyze the evidence in the following way. First, if after considering all the evidence, you believe the testimony of the accused, you must acquit him of murder and find him guilty of manslaughter.

Second, if after considering all the evidence, you do not believe the testimony of the accused but you have a reasonable doubt, you must give the accused the benefit of the doubt and acquit him of… acquit him of murder and find him guilty of manslaughter.

Finally, if you have no doubts following the testimony of the accused, you must consider whether, on the evidence that you accept, because it’s you who determines what you accept from the evidence, therefore, as a function of the evidence that you accept, you must consider whether on … you are convinced beyond a reasonable doubt that the accused’s guilt has been established. In that case, you must find the appellant guilty on the charges as laid. [ 83 ] A little later the judge repeated this instruction, which is essentially consistent with the three-pronged analysis established by the Supreme Court in R. v.

W.(D.) . [22] Clearly, the appellant’s contention that the judge’s instructions concerning credibility suggested

that the jurors choose between the appellant’s version of the facts and that of his accomplice Denver-Lambert, to the detriment of the presumption of innocence, cannot be accepted. [ 84 ] I would therefore dismiss this ground of appeal.

b) The appellant’s interest in the outcome of the trial [ 85 ] While acknowledging that a judge may tell the jurors that an accused has an interest in the outcome of the trial and may suggest that they consider this fact in assessing his credibility, the appellant argues that the trial judge erred by inviting the jurors several times to whether he had motive to lie. He refers to the following excerpts from the judge’s main instructions: [ translation ] Pierre Lévesque was behind Denver when they burst into the house and has told you that he did not see Denver strike Mr. Lepage with the shotgun.

You may consider whether he is credible on this point or whether he has a motive for lying about this specific point. ... You are therefore in the presence of one or perhaps two persons who have lied to you about what they did,... ... You could then ask yourselves whether Denver, like the accused, was trying to minimize his involvement and accuse his accomplice of having killed both victims. [ 86 ] The judge added the following in his additional instructions in response to a question from the jurors: [ translation ] ...

What does not jibe is when we come to the most serious aspect; each is minimizing his involvement. You are entitled to ask yourselves: is it not human nature to always minimize your own wrongdoings while always accentuating those of others? [ 87 ] The appellant contends that the judge could not state that his testimony was coloured by his interest and that he had a motive for lying. The judge did not state that the appellant’s testimony was coloured by his personal interest in the outcome of the case and that accordingly he had a motive for lying.

He merely invited the jurors to ask themselves the question, taking care to add that it was up to them, as masters of the facts, to answer it. [ 88 ] Lastly, the judge did not state that the appellant necessarily minimized his involvement in the facts he stood accused of; he merely suggested that the jurors examine whether Denver-Lambert and the appellant alike were both trying to minimize their involvement in the deaths of Ms. Lavoie and Mr.

Lepage, taking care to add the following: [ translation ] You may believe the one rather than the other, as you may simply set aside most of their respective testimony and rely on circumstantial evidence. All that is a matter for your sound judgment and these questions that I am asking you are not restrictive but are merely avenues that I am suggesting. [ 89 ] This ground is also without merit.

c) Criminal record [ 90 ] The appellant faults the trial judge for having said in his instructions concerning the witnesses’ criminal records that convictions involving dishonesty could have a greater weight in the assessment of their credibility, whereas the appellant had no record of that kind.

According to him, there was therefore no need to talk about this matter and, at the very least, it would have been appropriate for the judge to point out that the appellant did not have such a record. [ 91 ] The judge addressed this aspect of his instructions by stressing that he would talk about the criminal records of the witnesses and the appellant. He stressed that the nature and number of the convictions could be used only to gauge the credibility of a witness, not to determine the actual course of events.

He added that some convictions might have greater significance than others, such as those involving dishonesty; a conviction for perjury generally representing a more significant factor in assessing credibility than a conviction for impaired driving. [ 92 ] He pointed out the many offences that Shawn Denver-Lambert had been convicted of. As for Mélanie Diedrich, he said that, although she had no convictions, she admitted that she had acted as an accomplice after the fact in respect of the events of April 8, 1994. Moreover, she received immunity in return for collaborating with the investigators.

The judge stated that that could affect her credibility. [ 93 ] In concluding his instructions concerning the criminal records of the adverse witnesses, the judge insisted on the fact that this was only one of the factors that the jurors might take into account in assessing their credibility. He concluded in the following way: [ translation ] Examine this testimony like any other testimony, by considering whether it seems credible to you or untrustworthy.

If you think you have to be more cautious about any of the testimony, you can examine all the evidence and consider whether the evidence confirms or contradicts the testimony. [ 94 ] Then, concerning the appellant’s criminal record, the judge pointed out to the jurors that it could be used only to determine the weight to be given to his testimony. As with the other witnesses, the jury was asked to check whether the nature of the appellant’s criminal record made it possible to detect dishonest behaviour.

He clearly stated that it was contrary to the principle of presumption of innocence to infer from the fact that the appellant had already been convicted of certain offences that he was more likely to have committed those he was charged with: [ translation ] You have learned during cross-examination of the accused that he has been convicted of various criminal offences. You may use this fact only to determine what you accept or reject from his testimony.

You may not consider them to decide whether he is guilty of the offence with which he is charged today or is more likely to be guilty because he has already been convicted. You will understand that it would be unfair to use the fact that someone was convicted in the past to decide whether he is guilty today. To infer that an accused has a greater chance of being guilty because he has already been convicted would violate the principle of presumption of innocence, the basis of our criminal law system.

Some convictions, such as those involving dishonesty, may have greater weight in the credibility that a jury chooses to attribute to an accused, than a conviction that involves driving a vehicle. An accused who denies having been convicted when it has been proven would surely be less credible in the eyes of the jury. I repeat, it is very important that you understand that it is not because an accused has already been convicted that he is more likely be guilty of what he is accused of. [ 95 ] The appellant’s criticism is surprising.

Indeed, given the appellant’s lack of a criminal record involving dishonesty, the judge’s words were instead likely to mitigate the negative impact that his track record could have produced in the minds of the jurors. Given the explanations and examples provided by the judge, he did not need to add that the appellant did not have a record of this type in order to ensure a proper understanding. [ 96 ] There is no reason for this ground to succeed. 3) The additional instructions concerning

section 21 of the Criminal Code [ 97 ] The appellant argued that the additional instructions provided by the trial judge in response to the jurors’ question on the concept of complicity were not only inadequate but also likely to confuse them. [ 98 ] Here is the question asked by the jury: [ translation ] Could we have additional explanations on complicity,

section 21 , complicity and the concepts of agreement, commission of the offence and knowledge? [ 99 ] The judge first said that he would repeat the explanations already provided by changing the terminology as necessary. The appellant faults him for having essentially repeated what he had said in his main instructions, whereas, according to him, the jurors wanted additional instructions. Referring to the Supreme Court’s decision in R. v.

Layton , [23] the appellant argued that it was not appropriate to repeat the original charge. [ 100 ] In Layton , the jurors already had in hand a complete text (71 pages) of the trial judge’s instructions, deemed to be irreproachable, and asked for clarification concerning that portion of the charge concerning “reasonable doubt ... [P]articularly [the] difference between absolute certainty and b alance of probabilities”.

After repeating her instructions concerning the concept of “reasonable doubt”, the trial judge told the jurors that there was very little she could add to clarify the concept of “reasonable doubt”. The majority of the Supreme Court concluded that the judge had not only failed to provide a responsive answer to the jury’s question but no doubt had also discouraged further questions with her comments. This raised a concern that the verdict was not based on a proper understanding of the standard of proof and that there was therefore a miscarriage of justice.

But the Court added: A verbatim reiteration of the initial charge would not have been fatal had the judge made it absolutely clear to the jury that it was welcome to return with further questions if jury members were still confused. But the jury was discouraged from doing so by the words the trial judge used. [24] [ 101 ] In this case, the jury members did not have on hand, as in Layton , the text of the trial judge’s instructions, and in a sense their question concerned all the instructions on the concept of complicity.

Was it because they simply wanted to hear for a second time certain portions of the instructions that could have escaped them or because they truly needed additional explanations? The judge had no way of knowing. [ 102 ] In such circumstances, the judge begins by repeating his instructions to avoid confusing the jurors, while inviting them to ask him further questions if they feel the need. Jurors must listen to and understand several legal concepts while the judge gives his main instructions.

It is not surprising that some of them will want to hear certain parts a second time to ensure they have a good understanding, especially when they do not have a copy of the instructions.

[ 103 ] In this case, in concluding his additional instructions the judge invited the jurors to ask further questions, if they so wished: [ translation ] If I have not been clear enough, don’t hesitate. I told you the other day that I’m here to answer your questions. You are the masters of the facts; the judge is the master of the law, that’s how it works. You have to assess the facts and I have given you starting points concerning the facts, questions that I have asked you.

I do not want you to take my questions as answers; they are simply questions that I’m suggesting to enable you to resolve what seems to be your dilemma.

And on that I thank you for your attention and once again I am at your disposal if you would like additional clarification about anything. [ 104 ] The appellant also faults the judge for having failed on several occasions during his additional instructions to name specifically the offence involved (robbery or murder) when he spoke of [ translation ] “ the offence under the agreement” or [ translation ] “ the offence committed”, which could have confused the jurors.

Among other passages, he referred to the following excerpt: [ translation ] So, the prosecution must therefore prove to you that, either as the main actor or as the accomplice, the accused committed those actions as a result of the illegal acts that he has already admitted to. In other words, he acknowledges that they conspired to commit a burglary, that they broke into the house. It was an armed robbery and the people were attacked, they were gagged.

Then … So, the first element that you have to consider is: did he take part by aiding or by committing the offence? [ 105 ] Yet this excerpt shows that when the judge talked about the offence planned under the agreement, he was referring to the armed robbery that the appellant and Shawn Denver-Lambert admitted having planned and carried out.

Considering both what precedes and what follows this excerpt, as well as the instructions as a whole, it appears that in using the expressions [ translation ] “those actions” and [ translation ] “that offence”, the judge was referring to the two murders of which the appellant is accused.

The explanations provided by the judge enabled the jurors to understand what he meant when he spoke of [ translation ] “the offence under the agreement”, namely the robbery and the forcible confinement, and the [ translation ] “offence committed”, namely the offence resulting in the murder charge. [ 106 ] This ground for appeal is devoid of merit. [ 107 ] The appellant also alleges that when the trial judge gave additional explanations concerning the [ translation ] “ unlawful common purpose” by returning to the provisions of subsection 21(2) Cr C, he did not discuss the [translation] “knowledge” element, and more specifically, he did not repeat, as he had done in his main instructions, that, for a murder conviction under this subsection, the prosecution had to establish that the appellant knew that in carrying out the common purpose (robbery with forcible confinement), Shawn Denver-Lambert would probably commit another offence (a murder). [ 108 ] In his main instructions, the trial judge provided complete explanations of subsection 21(2) Cr C and linked them to the evidence.

He listed the crucial elements that the respondent had to establish and provided the following instructions on each of them, specifically on the [translation] “knowledge” element: [ translation ] To establish someone’s guilt, the three following elements must be established: agreement, commission of the offence and knowledge. Each of these elements must be proved beyond a reasonable doubt.

The prosecution must first establish beyond a reasonable doubt that Shawn Denver and Pierre Lévesque agreed to commit an armed robbery and to help each other for that purpose. … The second element to be proved is that Lévesque was a party to the agreement to attack and forcibly confine Mr. Lepage and Ms. Lavoie in order to commit an armed robbery and that subsequently this agreement led them to commit the murders. … As for the third element, knowledge, it can be proved in two ways. Counsel for the prosecution must prove that Pierre Lévesque knew that Shawn Denver would probably kill Mr. Lepage or Ms.

Lavoie in carrying out the agreement between them or that he did not care that the blows struck might cause their death. Probably means in all likelihood, not merely possibly. Knowledge is a state of mind, Pierre Lévesque’s state of mind. To know something is to be informed of it; did Pierre Lévesque know that Shawn Denver would probably attack Mr. Lepage and Ms.

Lavoie, would forcibly confine them and in all likelihood would kill them in carrying out their plan? [ 109 ] In his additional instructions, in announcing the subject of the [ translation ] “ unlawful common purpose”, the judge stressed that he would provide [ translation ] “ a few additional explanations” and, after rereading subsection 21(2) Cr C , he gave the following example: [ translation ] So, once again, here, what is unusual is that you have not been told… For example, the classic example of the accomplice but presented in a different context.

Two (2) individuals are going to carry out an armed robbery, with the one driving the car and the other going into the convenience store to carry out the armed robbery. The one who drives the vehicle is just as guilty as the other one, because he knows that he’s going to commit an armed robbery. Therefore, you see that a person can be an accomplice in different ways.

[ 110 ] The appellant was correct to make the point that the example given by the judge was incomplete because it was missing an essential element to be truly relevant, namely that an offence other than the one planned in the agreement was committed when the common purpose was carried out.

It could not confuse the jurors, however, because the judge was careful to specify that it involved a different situation, namely the [ translation ] “classic example of the accomplice but presented in a different context”. [ 111 ] The judge then continued his [ translation ] “ additional explanations” of the unlawful common purpose within the meaning of subsection 21(2) Cr C by discussing the first essential element, namely the agreement to carry out an unlawful purpose, a robbery in this case.

He continued with the second essential element, namely the other offence that one of the parties to the initial agreement allegedly committed in carrying out the common purpose: here, a first-degree murder. He did not continue, however, with the third essential element, namely that the appellant knew that carrying out the unlawful common purpose (robbery) would have the commission of another offence (murder) as a probable consequence. [ 112 ] Were the judge’s additional instructions, which were incomplete as regards the “knowledge” element within the meaning of subsection 21(2) Cr C, likely to confuse the jurors?

Could the jurors have concluded that the commission, by a party to the agreement, of another offence in carrying out an unlawful common purpose would give rise to the conviction of the other party to the agreement, without the prosecution’s having to establish that the person knew that carrying out the unlawful common purpose would probably lead to the commission of the other offence? [ 113 ] It definitely would have been preferable that the judge also cover the [translation] “knowledge” element in his additional instructions, when he repeated his explanations concerning complicity under subsection 21(2) Cr C.

I believe, however, that the omission was not serious enough to affect the jury’s deliberations or the verdict. [ 114 ] The additional instructions did not contradict the explanations that the judge had previously given in his main instructions concerning the provisions of subsection 21(2) Cr C when he identified and explained the three essential elements (agreement, commission of the offence and knowledge).

They were not likely to prompt the jurors to disregard the main instructions concerning [translation] “knowledge” as the third essential element of complicity under subsection 21(2) Cr C, nor were they likely to confuse them. [ 115 ] The trial judge revisited some aspects of his main instructions concerning complicity without being as complete, but without making any mistakes in the wording he used. He invited the jurors to ask further questions if they wanted additional clarification. They did not ask any. I believe that this ground for appeal is devoid of merit. [ 116 ] I would therefore dismiss the appeal.

JACQUES VIENS, J.A. (AD HOC)