2014 QCCA 198, 2014 QCCA 198

Latortue c. R. 2014 QCCA 198 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004715-106 500-10-004718-100 (460-01-016485-074) (460-01-015625-068) DATE: JANUARY 31, 2014 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. JACQUES J. LEVESQUE, J.A. MANON SAVARD, J.A. MOÏSE LATORTUE MARTIN PLANTE APPELLANTS – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The appellants appeal from their convictions of first degree murder rendered by a jury on June 4, 2010. The trial, held in the District of Bedford, was presided by the Honourable Mr.

Justice Wilbrod Claude Décarie, J.S.C., Criminal and Penal Division. [ 2 ] For the reasons of Lévesque, J.A., with which Morissette and Savard, JJ.A. agree: THE COURT: [ 3 ] ALLOWS the appeal of Moïse Latortue; [ 4 ] ALLOWS the amendment sought by Moïse Latortue to his grounds of appeal; [ 5 ] ORDERS that a new trial be held on a charge of first degree murder against Moïse Latortue; [ 6 ] ALLOWS the appeal of Martin Plante; [ 7 ] ordERS that a new trial be held on a charge of first degree murder against Martin Plante. YVES-MARIE MORISSETTE, J.A. JACQUES J. LEVESQUE, J.A. MANON SAVARD, J.A.

Mtre Louis Belleau LOUIS BELLEAU, ATTORNEY Mtre Ronald Prégent SHADLEY BATTISTA For the appellant Moïse Latortue Mtre Clemente Monterosso CLÉMENT MONTEROSSO, ATTORNEY

For the appellant Martin Plante Mtre Daniel Royer CRIMINAL AND PENAL PROSECUTOR For the respondent Date of hearing: September 25, 2013 REASONS OF LÉVESQUE, J.A. [ 8 ] Following a trial by jury presided by the Honourable Mr. Justice Wilbrod Claude Décarie of the Superior Court, District of Bedford, Martin Plante and his co-accused, Moïse Latortue, were convicted of first degree murder in the death of Michel Jr. Jean- Baptiste and of offering an indignity to his dead body. The verdicts were handed down on June 4, 2010, after a twenty-four-day trial.

The appeals of both appellants concern only the convictions for first degree murder. * * * * * [ 9 ] The events leading to the death of Michel Jr. Jean-Baptiste took place in the context of a drug transaction involving Jean- Baptiste and Stéphanie Morel in the Dominican Republic and Madrid. Both were suspected of having pocketed a large portion of the profits from the transaction. [ 10 ] Martin Plante ("Plante"), one of the instigators of the transaction, wanted to restore the credibility of Stéphanie Morel, his sister-in-law, who had acted on his behalf.

This would compensate him for the losses he sustained. [ 11 ] When, on April 29, 2006, Michel Jr. Jean-Baptiste called Stéphanie Morel ("Morel"), she invited him to her home in Roxton Falls, where she ran a private home day care. She immediately informed Plante, who chose to go there with Moïse Latortue ("Latortue"), who represented the other group involved in the transaction. [ 12 ] They hid their car behind the barn where they stayed all afternoon, since there were children on the premises.

They drank beer and took speed. [ 13 ] In the late afternoon, Annick Martin ("Martin"), Morel's roommate, arrived on the premises. Around 6 p.m., two other individuals known to the accused arrived. They were Andy François and Amédée McElton. Morel knew François, since he was the one who had provided her with the plane tickets she used for the drug transaction she had taken

part in with the victim. [ 14 ] Because the victim was late, the last ones to arrive returned to Montreal during the evening. By now, the accused had been waiting a long time and were becoming impatient. [ 15 ] Around 10 p.m., Michel Jr. Jean-Baptiste informed Morel that he would be there soon. She answered that she was waiting for him. François and McElton were immediately asked to return to her home and were instructed to keep their vehicle out of the victim’s sight [ 16 ] A little while later, the victim called Morel again to get precise directions to her residence.

The four men who were present scattered and hid in anticipation of the victim's arrival. The accused went outside the residence, while François hid in the bathroom and McElton went down to the basement. Plante was armed with a submachine gun and Latortue with a handgun. [ 17 ] When the victim arrived at Morel's residence, she was waiting for him outside on the veranda, and the two entered the house together at once. Plante immediately followed, shouting angrily at the victim. He violently punched the victim in the face and the victim fell to the ground.

When the three other accomplices approached him, he was lying on the floor. He was then frogmarched to the basement. Subsequently, Morel and Martin, who remained on the ground floor, heard the sound of a taser gun going off and yelling. The verbal exchanges between the assailants and the victim were violent, and the victim was manhandled. Plante hit him, and Latortue did the same. They wanted to know the truth about the missing money. [ 18 ] The victim was able to break free and run up to the ground floor. Latortue caught up with him and the two men fought.

The victim began running toward the outside, but Plante followed, shooting at him with his submachine gun. He hit him, and the victim fell to the ground. Latortue, François, and McElton then grabbed the victim and dragged him back down to the basement, in spite of his resistance. Even Plante had to get involved to subdue him and bring him downstairs. [ 19 ] Plante then asked Morel and Martin to remove all traces of blood from the ground and to pierce a tire on one of the cars so that the noise of the submachine gun could be mistaken for the sound of a tire blowing.

The discarded shell casings also had to be found. [ 20 ] While the victim was lying on a sofa in the basement and being given some care, François and McElton left the premises. Their mission was to bring the victim's vehicle back to Montreal and abandon it there. Plante, Latortue, Martin, and Morel stayed at Morel's residence with the victim. [ 21 ] According to the various versions presented to the jury, it appears that the two accused told the victim that they would drive him to a hospital for the care he needed.

The various testimonies diverged in several respects with regard to the events that followed and that led to the victim's death. [ 22 ] Plante testified that Latortue strangled the victim with a belt while they were in the basement with François and McElton.

[ 23 ] Latortue said that he helped Plante bring the victim up from the basement and put him in Plante's truck, and that the victim was unresponsive at the time. He added that, due to his advanced state of intoxication, he was sleeping when the victim was confined and therefore had no

part in it. He stated that he did not play a role in the victim's death and that he realized that he was dead only when he saw his body in the fire. According to Latortue, it was Plante who had placed the victim in the fire. At the time, while he was in the barn, where he had blacked out due to his intoxication. [ 24 ] At trial, Nancy Morel, Plante's spouse, testified that Plante had admitted to her that he had strangled the victim himself with a belt when they were in his truck. [ 25 ] Stéphanie Morel said that Plante told her that Latortue had broken the victim's neck when he was in the truck.

Martin confirmed this in his testimony, stating that Latortue broke the victim's neck upon a signal from Plante. [ 26 ] The events that followed are the stuff of horror. [ 27 ] After the victim was placed in Plante's vehicle, he was driven behind the barn next to Morel's residence. A large fire was lit, into which his body was thrown. Plante then insisted that Morel and Martin stay near the fire. They could see the victim's body being consumed by the flames, as Latortue stirred the fire constantly to keep it going. By early morning, only the victim's bones were left.

Plante collected them that night and, the following Saturday, threw them into a stream behind the barn on the property belonging to Nancy Morel's parents. This was where the police found and seized them. [ 28 ] Given the circumstances, the cause of the victim's death has not been established. DNA evidence proves that they are the victim's bones. [ 29 ] During oral arguments at trial, the prosecution admitted that, at the beginning of the evening, neither of the accused had the intent to kill the victim.

The inference to be drawn is that when the victim arrived at Morel's residence, his murder had not yet been planned. Grounds for appeal [ 30 ] Although the grounds raised by Plante are different from those argued by Latortue, the prosecution admitted at the hearing before us that the decision in Latortue's case should also be applied in the same manner to the appeal brought by Plante. [ 31 ] Latortue raises various grounds in his appeal from the verdict of first degree murder. [ 32 ] There was a change of counsel between the inscription in appeal and the drafting of the appellant's factum.

His new counsel sought permission to make significant [ translation ] "amendments" to his grounds of appeal. As the prosecution raised no objection at the hearing, the application for amendment should be granted. Thus, the grounds raised by the appellant, as amended, are the following: [ translation ] I. The trial judge erred in law by failing to provide the jury with a sufficient explanation of the connections between the evidence and the questions of fact and of law raised by the evidence to ensure that the jury properly understood the issues to be decided and the defence presented. II.

The trial judge erred in law by giving the jury an instruction that may have caused it not to consider evidence exculpating the appellant from the murder charge. III. The trial judge erred in law in his instructions to the jury with regard to the appellant's state of intoxication and the impact of this state of intoxication on the knowledge and intent required for the murder. IV.

The trial judge erred in law in his instructions to the jury with regard to the degree of participation required for an accomplice who is not the principal in the murder to be convicted of first degree murder under subsection 231(5) of the Criminal Code . V. The trial judge erred in law by stating that mere presence on the scene could constitute encouragement. VI.

The trial judge erred in law by dismissing the motion to adduce psychiatric evidence relating to the acute stress experienced by the appellant during the events. [Reproduced in full.] [ 33 ] In my opinion, to dispose of Moïse Latortue's appeal, it is sufficient to consider grounds I and IV, conflating them into the following question for the Court to answer: Were the trial judge's instructions with regard to the application of

section 21 and subsection 231(5) of the Criminal Code appropriate, and did they permit the jury to understand the issues that needed to be decided in light of the facts revealed by the evidence as to Moïse Latortue's participation in the murder and the forcible confinement of the victim? [ 34 ] One of the primary functions of the trial judge presiding over a jury trial is to give appropriate instructions.

Instructions are appropriate when the trial judge fulfils his or her obligation to help the jurors understand the issues and to explain, as simply but also as effectively as possible, the legal principles to be applied to the facts that they choose to accept or reject. [ 35 ] David Watt, now of the Court of Appeal for Ontario, writes the following: [1] Jurors must understand the factual issues that require decision, the legal principles that apply to those issues, and the evidence introduced at trial on those issues. Some of those legal principles relate to the essential elements of the offence charged and other

offences that may be included in it. [ 36 ] He suggests the following approach: [2] The developmental approach can be applied to final instructions by taking advantage of the basic structure of any crime charged. Every criminal offence consists of at least two essential elements. Each essential element requires a factual determination by the jury about whether that essential element has been proven beyond a reasonable doubt. The jury’s decision about each essential element has implications for further decisions and, in time, the final verdict.

Applying the developmental approach in organizing and composing final jury instructions involves several steps. The first step is to divide the crime charged into its essential elements, then to reduce those essential elements into point-form statements that reflect their substance. After that, these point-form statements of the essential elements should be converted into a series of factual questions for the jurors to consider. The next step involves the composition of the relevant legal instructions that govern the jurors’ response to each question.

These instructions should include directions on what is required in law to establish the essential element to which the question relates, and explanations of any defence, justification or excuse relating to that essential element that has an air of reality to it.

After composition of the relevant legal principles that control the jurors’ response to a question, the trial judge should proceed to a fair, balanced and accurate review of the significant parts of the evidence relevant to the issues framed by the question, and relate that evidence to the issue and the positions of the parties, so that the jurors can appreciate the value and effect of the evidence.

Once the evidentiary review has been completed and the relationship of the evidence to the issue framed by the question made clear, the trial judge should move to instructions about the findings available to jurors in response to the question and the consequences of those findings for further deliberations and final verdicts. The jurors’ response to each question determines their next step in the deliberation process. The questions, along with the available responses and their verdict consequences can be incorporated into a decision tree for jurors to use during their deliberations.

A decision tree is a deliberation aid, a forensic flow chart that repeats each question posed in final instructions, shows the available responses, and displays the consequences of the available answers for further deliberations and final verdict. [ 37 ] This approach to final instructions, while not the only one capable of ensuring that the jury charge fulfils its functional role, is perfectly adequate and effective because it helps jurors properly understand all of the aspects of the situation before them and the decisions that must be made.

The model instructions prepared by the Canadian Judicial Council are also often used by judges presiding over jury trials. [ 38 ] In Hay , [3] the Supreme Court of Canada identified the principle applicable when reviewing a jury charge: [47] When reviewing a jury charge, “[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole”; R. v. Jaw, 2009 SCC 42 , [2009] 3 S.C.R. 26, at para. 32 .

Where an impugned reference in a jury charge in isolation could be understood to be an incorrect statement of the law, an appeal court will not interfere if it is evident that, considering the charge as a whole, the jury would have been properly instructed; ibid ., at paras. 3 and 24. [48] Furthermore, although appeal courts will interfere when a jury has not been adequately instructed, a trial judge must be afforded a certain degree of flexibility in instructing the jury; see R. v. Avetysan , 2000 SCC 56 , [2000] 2 S.C.R. 745, at para. 9 .

A trial judge is not required to use “any particular form of words” in instructing the jury regarding the frailties of eyewitness evidence and, rather, must be afforded considerable latitude in deciding how best to apprise the jurors about those frailties; Turnbull , at p. 552; R. v.

Candir , 2009 ONCA 915 , 257 O.A.C. 119, at para. 110 . [ 39 ] This Court has recently reviewed other principles relating to the consideration of instructions given by a judge presiding over a jury trial: [4] [ translation ] [35] It is common ground that the assessment of instructions requires a functional approach rather than a literal one. In other words, the appellate court must take "a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given".

An appellate court must approach the charge as a whole, considering the context of the trial, to determine not whether the instructions were perfect but whether they were proper in that they enabled the jury to judge the facts according to the applicable principles of law. The Supreme Court summarizes these principles in R. v. Daley . [30 ] When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind the following.

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. [31 ] In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge’s instructions are to be held to is not perfection.

The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard , at para. 2. It is the overall effect of the charge that matters. [36] Furthermore, the fact that counsel for the defence omitted to identify for the trial judge the parts of the instructions that are now alleged to be problematic must be taken into account. Without being determinative, an omission of this sort is certainly significant in that

it suggests that the alleged irregularity is not as serious as the defence would now have us believe. [Citations omitted.] The judge's instructions to the jury [ 40 ] The issues were well known. It had to be determined whether the prosecution had proved beyond a reasonable doubt that Martin Plante planned and deliberately caused the victim's death.

It also had to be decided whether the prosecution had proved beyond a reasonable doubt that Moïse Latortue had planned and deliberately caused the victim's death. [ 41 ] In my opinion, however, because I have concluded that the judge's charge and additional instructions to the jury were not adequate, a detailed analysis of all of his instructions is necessary. [ 42 ] The trial judge chose to divide his instructions into four sections: [ translation ] ... In the first section, I will outline the general principles that apply to all criminal cases before a jury.

There will perhaps be some repetition of what I said at the very beginning, but it is good to remind you. In the second section, basing myself on the indictment and certain Criminal Code provisions, I will explain all of the essential elements that the Crown must prove with regard to the indictment against the accused. I will tell you about the law in this case that you must apply to the evidence submitted to you. In the third section, I will try to highlight certain relevant elements from the evidence presented.

I will summarize the arguments of the Crown and the defence, highlighting their respective positions or theories. Finally, I will conclude in the fourth

section with your duties and obligations as jurors and the verdicts that you may render, and I will suggest a certain way of deliberating, but you are entirely free to deliberate in any manner you deem appropriate. [Reproduced in full.] [ 43 ] First, the judge provided an adequate

summary of the principle: [ translation ] So, for the prosecution to discharge its burden of proof on count number 1 of having, on or about August 29, 2006, at Roxton Falls, District of Bedford, caused the death of Michel Jr. Jean-Baptiste, thereby committing first degree murder, an indictable offence pursuant to

section 235 [5] of the Criminal Code , it must first prove that a murder took place. [Reproduced in full.] [ 44 ] He then laid out the essential elements of the offence: [ translation ] To do so, it must prove the following essential elements beyond a reasonable doubt. First, the date and location of the offence and the identity of the victim, as stated in the indictment. Second, that the death of Michel Jr. Jean-Baptiste resulted from an unlawful act. Third, the fact that one or both of the accused were parties to the unlawful act.

Fourth, that Martin Plante or Moïse Latortue or both of them had the requisite intent for murder. So, these are items one (1), two (2), three (3), four (4) that you see in the document I have given you. That is why, to help you, I will now discuss the legal rules and the evidence in respect of each of these elements. [Reproduction in full – emphasis added.] [ 45 ] The judge gave the jury a document, exhibit J-7, which constitutes a sort of decision tree, suggesting the questions the jury should ask and the steps it should follow to arrive at a verdict.

Because the judge referred to this document several times while delivering his charge to the jury, I believe it is useful to reproduce it in its entirety in a

schedule to this judgment. [ 46 ] It is possible to believe that an analysis of exhibit J-7, taken as a whole, could lead a reasonable person to believe the following: Moïse Latortue may be found guilty of unpremeditated murder only if the prosecution fails in its efforts to demonstrate beyond a reasonable doubt that all of the conditions for applying subsection 231(5) are met.

Of course, this would be an inappropriate inference, since the analysis of the conditions for applying subsection 231(5) must be done only after a verdict of second degree murder has been reached. [ 47 ] After concluding that the first two elements of the offence of first degree murder were proved, the judge proceeded to analyze the third element. This is the causal link, which the judge describes as follows in exhibit J-7: [ translation ] “Was Moïse Latortue ‘a party to’ the unlawful act causing the death of Michel Jr. Jean-Baptiste?” In this respect, he stated the following: [ translation ] ...

You must therefore consider all of the evidence and decide whether Martin Plante or Moïse Latortue or both of them were parties to the commission of the unlawful acts that led to the death of Michel Jr. Jean-Baptiste. The Crown does not have to persuade you that the unlawful acts are the sole or main causes of Michel Jr. Jean-Baptiste’s death. It is sufficient for you to be convinced beyond a reasonable doubt that the unlawful acts committed significantly contributed to the death of Michel Jr. Jean-Baptiste.

In other words, did Martin Plante or Moïse Latortue or both of them participate by inflicting one or more injuries that led to the death of Michel Jr. Jean-Baptiste. [Reproduction in full – emphasis added.]

[ 48 ] Obviously, this charge deals with the degree of participation required to be convicted of murder as the principal offender or a co-principal, but not as an accomplice. [ 49 ] The judge then decided to proceed with an analysis of the evidence, as was his duty. [6] This is what he explained to the jury: [ translation ] To answer this question, you must consider all of the evidence and use your common sense. You may find elements of your answer in the following facts. And now, I will give you a kind of

summary of the evidence. As I said, my

summary is based on my notes. I have taken excerpts from them. But what counts is not my

summary of the facts, it's not the facts that I accept, it is what you, the jurors, accept from the evidence as a whole. ... So, this

summary... because I must connect it with the essential element, and the essential element here, the one that I will not say... they are all important, they are all crucial, but I make the connection here to determine, to answer question number three (3). And when I come to the other essential elements, generally I will just simply tell you: you can find elements of your answer in the

summary that I have already given you. Because if I don’t, I will repeat the same thing three (3) or four (4) times, and then you won't be very happy with me. For good reason. All right? So, let me tell you, with this essential element, I will now begin my

summary of the evidence. This

summary of the evidence will apply to this essential element and to all of the other essential elements that we will consider afterwards. [Reproduced in full.] [ 50 ] The judge then proceeded to summarize the main testimonies delivered before the jury, which were those of Stéphanie Morel, Annick Martin, Nancy Morel, Martin Plante, and Moïse Latortue. He also provided the instructions needed to weigh these testimonies, such as the assessment of prior statements by the witnesses, criminal records, incriminating statements by the co-accused, the way the credibility of the two accused should be assessed, and the post-offence conduct of the two accused. [ 51 ] After completing his

summary of the evidence, the judge continued as follows: [ translation ] We have just seen element number three (3), essential element number three (3), which must be proved beyond a reasonable doubt. Was Martin Plante, was Moïse Latortue a party to the unlawful act that caused the death of Michel Jean-Baptiste? Of course, if you answer this question with a "no", there is an arrow that says " see other mode of participation ".

This is what we will see in the second part, once we have finished with this first table. [Reproduction in full – emphasis added.] [ 52 ] Moving on to the fourth element of the offence, that of intent, he stated: [ translation ] Now, what is the fourth element that you must consider? If you answer yes to question number three (3), you must... this gives you the key to move to level four (4), which is the fourth essential element: Did Martin Plante have the requisite intent for murder? And on the other document: Did Moïse Latortue have the requisite intent for murder?

Still as the principal offender . [Reproduction in full – emphasis added.] [ 53 ] He concluded his review of this subject as follows: [ translation ] Accordingly, if you are convinced beyond a reasonable doubt that Martin Plante or Moïse Latortue or both of them had either the intent to cause death or the intent to cause bodily injury that they knew was likely to cause death, that they were indifferent as to whether death resulted, at that point, the prosecution has proved this element. In this case, it is up to you to decide this question.

You must analyze all of the evidence and maybe you can find elements of your answer in the facts I have summarized for you. If you are not convinced beyond a reasonable doubt that Martin Plante or Moïse Latortue or both of them had the requisite state of mind when they killed Michel Jr. Jean-Baptiste by means of an unlawful act, you should acquit them of first degree murder but convict him or convict them of manslaughter . That is why, if you look at the diagram I gave you, in front of "no" for that element, it says not guilty of first degree murder but guilty of manslaughter.

This is the first level. [Reproduction in full – emphasis added.] [ 54 ] After explaining that the jury had to be convinced beyond a reasonable doubt that Plante or Latortue or both of them had participated significantly in the unlawful act causing the victim's death, the judge asked them to consider whether proof beyond a reasonable doubt had been made of the intent of either of them to commit murder as the principal offender.

He makes no reference whatsoever to the required intent of the person who aids in committing a murder, which is that the act "must also have been done with the particular intention to facilitate or encourage the principal’s commission of the offence, with knowledge that the principal intends to commit the crime". [7] [ 55 ] Discussing the fifth element of the offence of first degree murder, which is that it must be planned and deliberate, the judge stated the following: [ translation ]

Which brings us to element number five (5). And I will conclude with these remarks today. Five (5), you will see, has two (2) aspects. There will be two (2) explanations . Was the murder... of course you will go to five (5) only if you have answered yes to four (4). Everyone is clear on that? It's the stepping stone. If you answered yes to four (4) with regard to Martin Plante or Moïse Latortue or with regard to both of them, you must consider five (5): Was the murder planned and deliberate?

Or did it occur while committing the offence of forcible confinement ? [Reproduction in full – emphasis added.] [ 56 ] This particular way of asking the question, which is reproduced in exhibit J-7, suggests that the judge saw subsection 231(5) of the Criminal Code as an alternate way of committing first degree murder.

The judge's way of seeing and thinking about this provision had a determinative impact on the instructions that followed the charge and on discussions about this subject between the judge and counsel. [ 57 ] Finally, the judge stated the following regarding the fifth element of the offence: [ translation ] It is up to you to decide whether the Crown has proved beyond a reasonable doubt that Martin Plante or Moïse Latortue or both of them committed murder that was planned and deliberate.

Once again, you must consider all of the evidence and maybe you will be able to find elements to answer your question in the facts that I summarized for you earlier. If you are convinced beyond a reasonable doubt that Martin Plante or Moïse Latortue or both of them committed murder that was planned and deliberate, you must, according to what you have decided, find Martin Plante or Moïse Latortue or both of them guilty of first degree murder, and your work will end there on the first count.

However, if you are not convinced beyond a reasonable doubt that the Crown has proved that the murder was planned and deliberate, you are then obligated to consider whether the Crown has succeeded in proving beyond a reasonable doubt the other way that it could have been first degree murder , that is, while committing or trying to commit the offence of forcible confinement.

And that is where we will begin tomorrow morning. [Reproduction in full – emphasis added.] [ 58 ] It is worth noting here that the judge’s outline of planned and deliberate murder made no reference to the prosecution's admission that murder had not been planned when the victim first arrived at Morel's residence. The jurors should have been aware that, because of this admission, this element had to analyzed be in light of the evidence of the unfolding of events after the victim arrived at Morel's residence.

This approach could have had a determinative effect on the analysis of the facts adduced in relation to both Plante and Latortue. [ 59 ] At this point of the judge's charge, an observation is in order. He had not yet dealt with the application of

section 21 of the Criminal Code relating to being a party to an offence. Nor had he outlined the alternatives that could arise, depending on jury’s assessment of the evidence.

For indeed, depending on what the jury concluded from the testimonies of Martin Plante, Moïse Latortue, Stéphanie Morel, Annick Morel, and Nancy Morel, the following possibilities could have presented themselves: ▪ In light of the prosecution's admission that the murder had not been planned when the victim arrived at Stéphanie Morel's residence, the jury could have decided that Martin Plante and Moïse Latortue did not commit planned and deliberate murder but that, in the circumstances, they were both guilty of second degree murder; ▪ The jury could have decided that Martin Plante could have planned the murder after he shot and injured the victim, but that Moïse Latortue did not take

part in the planning because he did not have the requisite intent; this would have meant that he was guilty of second degree murder if he had participated in a significant manner, while Plante was guilty of first degree murder. ▪ If the jury had accepted the testimony of Moïse Latortue, it could have found that he was not guilty because he was did not participate significantly in the unlawful act and should therefore be acquitted. ▪ If the jury had accepted the testimony of Martin Plante and set aside that of Moïse Latortue and Nancy Morel, it could have found Latortue guilty of second degree murder, while Plante could have been found guilty of second degree murder only as a significant party to the offence or as an accomplice. [ 60 ] Thus, the charge implied that the jury's work would be complete if it determined that the murder was planned and deliberate, with no regard to the distinctions that could be drawn between either of the accused, depending on the evidence accepted by the jury.

The judge did not encourage the jury in any way to consider that the situations of the two accused might be different, depending on who was considered to be the principal, the co-principal, or the accomplice. [ 61 ] In fact, if the jury had found that Plante was the principal offender and that he planned the murder, he would have been convicted of first degree murder (subsection 231(2) Cr. C. ). If, on the contrary, the jury had found that proof of premeditation had not been made beyond a reasonable doubt, Plante would have been convicted of second degree murder (subsection 231(7) Cr.

C .), if it was determined that he had the requisite mens rea. [ 62 ] If Latortue acted as Plante's accomplice, the jury would have had to conclude that Latortue was aware of Plante's planning and deliberation and that he chose to help him. Latortue would then have been guilty of first degree murder.

Contrarily, if Latortue did not know about Plante's planning and deliberation, however, but was aware of Plante’s intent to kill the victim, had the intent to help him do so, and was thus an accomplice to the murder, he should have been acquitted of first degree murder but found guilty of second degree murder. [ 63 ] Similarly, if the situation was the same, but the roles reversed, the jury could have found that Latortue was the principal offender and Plante his helper.

[ 64 ] On the other hand, it would not have been unreasonable to believe that, in light of the evidence as a whole, the two accused were co-principals of the murder, that they helped each other, and that they were both parties to first degree murder or second degree murder. Plante testified, attributing the action that caused the victim's death to Latortue. [ translation ] A. ... And then, at some point, Jean-Baptiste asked me for a glass of water, if he could have a glass of water. I said yes. So I was the one who went upstairs to ask Stéphanie for a glass of water, for Stéphanie to give me a glass of water.

I went downstairs, I gave him the glass of water. Then some discussions took place. So then, that's when I said we would take him to the hospital. Then Jean-Baptiste said: "Don't worry about it, guys. I won't talk. I won't say anything. I swear". It (inaudible), so to speak. Q. What state was he in? What state did you perceive Mr. Jean-Baptiste to be in at that moment? A. Well, in the state of an injured guy, with a bullet in his leg, who was talking, and who was still conscious, and there he was. He was sitting down. Q. Who saw... did anyone see that his leg was in fact injured? A. We all saw that.

Everyone saw that. Q. Was anything done about it? Did anyone try to do something about that, at that moment? A. The belt, using the belt, making a kind of tourniquet around his thigh. That was what was agreed. Q. Was it done, to your knowledge? A. No, I didn't see it done. Because I went upstairs, brought the glass of water to the girls, and I said to the girls, "We're going to take him to the hospital. Don't worry about it. It's going to be all right. Everything will be fine". I stayed upstairs for maybe five (5) minutes talking with the girls a bit to reassure them and all that. Q. O.K. A. That's it.

And then, when I went back downstairs, Andy François, Amédée and Moïse were still there. Q. On that point, I will try not to be leading, it has been said that at a certain point, Andy François and the other one, the fourth, Mike, left before you left for the hospital. Is that how it happened, Mr. Plante? A. No, no. Everyone was there. We were all there. Q. Everyone was there. A. Everyone was there. Q. O.K. you were upstairs, talking to the girls? A. Yes. It lasted maybe five (5) minutes, I can't tell you about how long, but no more than five (5) minutes. Just to explain it to them.

Yes, there was a bit of blood on the glass, that's true, because Jean-Baptiste was bleeding a bit from his lip. There was blood on the glass. That's right. I explained that we were going to take him to the hospital and that it would be... everything would be totally fine. But when I went downstairs, we forgot the (inaudible) hospital. THE COURT: Q. Pardon me? A. We forgot the hospital. Mtre Ronnie MacDONALD : Q. All right. Speak plainly, please. Your intention when you told the girls that he would be taken to the hospital, what was your intention at that moment? A. It was sincere. We talked about it downstairs.

We said it downstairs. We told Jean-Baptiste. I said to Jean-Baptiste, "We're going to take you to the hospital." Jean-Baptiste said, "I swear to you...," because the guys were like scared that he would go, because a guy who's shot, the police usually send an investigator to the hospital. It's not a secret to anyone. That's why Jean-Baptiste said, "I swear, I won't talk about it. I won't talk about anything. Trust me and..." Q. So you went upstairs, you went back downstairs. What did you see downstairs? A. I saw that Moïse was behind Jean-Baptiste, then he removed the belt from his neck.

That's the only thing I saw. THE COURT: Q. What did you see? A. When I arrived, when I went downstairs, there was the , there was Amédée, there was Andy François. Andy was in front of Jean-Baptiste or maybe it was Amédée, facing sideways, and then Moïse was removing the belt from around Jean-Baptiste's neck. Q. How was Jean-Baptiste at that moment? What did you notice?

A. Well, the the hospital was no longer an option. Jean-Baptiste was... Jean- Baptiste was dead. We had to deal with that. I had to deal with that. We had... Q. Hmm, hmm. A. The situation had changed. It was more... this was (inaudible) than expected. Q. Were there discussions at that point, between anyone, you or... A. Well, no. The discussions at that point, we said that Amédée would take Andy's... Jean-Baptiste's vehicle, to take it away, take it to Montreal. Then Andy would follow him in his SUV. Moïse and I would stay on the scene. We would try to get rid of the body.

That was the plan. [Reproduced in full.] [ 65 ] As for Latortue, he recounted the events as follows: A. At that moment, I ... nah, what I wanted to do at that moment, when he told me to stay there, I wanted to run, take off running, but I figured the distance I had, I might have been able to, you know, escape to the other side of the car but for sure that if he had shot, he would have taken one (1) of the two (2) anyway, for sure, because Amédée hadn't had time to get into any ... into a car then Andy would have had to back up then he would have just run and he would have shot.

So at that moment, yes I was scared, I didn't really know what to do but I stayed there anyway and I said what I said to Amédée. Amédée turned around, he started to go towards Mr. Baptiste's car but I couldn't see it because of how it was parked, I turned around and then after that they left, I went towards the basement door. Q. When you spoke to Mr. Amédée and then Mr. Amédée left, you turned around, where was Mr. Plante at that moment? A. When I turned around I didn't see Mr. Plante. Q. You didn't see Mr. Plante. A. No. Q. O.K. Where did you go? A. Towards the basement door. Q. Towards the basement door.

What did you do? A. Once I got to the basement door, I saw that the Jeep was there and the back door of the Jeep, the tailgate was down. ... A. Once I had walked by the car, I arrived in front of the basement entrance and then I saw Mr. Plante with Mr. Baptiste, he was holding him like this, and his back... Q. What do you mean he was holding him "like this"? A. Like this, you know, like if you were in front of me and I put my two (2) hands under you. Q. O.K. Where was Mr. Plante in relation to Mr. Jean-Baptiste? A. Mr. Baptiste was right up against Mr. Plante. Q. O.K. Right up against? A.

Yes, because he was holding him like that. Q. O.K. When you say, "holding him like that"... A. Yes, which means the man's face... Q. His face. THE COURT: Q. Am I to understand that he was holding him between his arms? A. Yes, like that. Q. The shoulders? A. From underneath, he had his hands here. Mtre NGOC Thang NGUYEN : Q. Under the arms, under the armpits? A. Yes, exactly that. Q. Yes. A. That's how he was holding him. So, both of Plante's hands were on Mr. Baptiste's chest. Q. Both of Martin Plante's arms were on Mr. Jean-Baptiste's chest. A. Yes, both hands. Q. O.K. And what was Mr.

Plante doing at that moment? A. He was leaning against the wall downstairs because he was trying to carry Mr. Baptiste upstairs. Q. Which side of the wall was he leaning against? If we look again... A. Well, for example... Q. Photo 65 of exhibit P-2, if we look at this photo, which side was he was leaning on? Wait, here. Which side was he leaning on? A. I mean I was standing up and the door was open, that's where Mr. Plante was, with Mr. Baptiste.

Q. So, in relation to you when you look at the photo, he was on the left side of the wall. A. Yes. Q. Photo 65. A. Yes. But when I was standing up and looking at him, I was looking down at him, it's my right side. Q. O.K. And Mr. Plante was trying... he was leaning against the wall, what was he doing with him? A. Against the wall, he was trying to bring Mr. Baptiste upstairs. Q. O.K. Did Mr. Plante succeed in bringing him upstairs? A. Well, he was having trouble, O.K., and then he asked me, he said, "Come on! Come help me!" but by then... when he asked me to help him, it's just that by that point Mr.

Plante was a little higher up on the stairs, which meant that it was very narrow and there was no room to go down, if I had wanted to help him. Q. O.K. A. So he continued to carry him upstairs and he was complaining. He was moaning. So he kept carrying him up, he kept carrying him up, once at the entrance, at the entrance to, like, upstairs, then he took out the ... he told me to help him, to come take his legs, but I didn't do it... Q. What was Mr. Plante's reaction when... A. He was working hard. Q. ... when you didn't help him? A.

Well, he was working hard and he was looking at me like, like, "What are you doing? You're not helping me!", you know, and then he was like, he was looking at me with a mean look, and he was working hard at the same time, trying to grab... not to lift but trying to drag Mr. Baptiste. Q. Go on. A. O.K. At that moment, when he managed to do it, there was just Mr. Baptiste's upper body that was out and the legs were still inside, you know, the entrance, like his legs were still in the entrance. So he asked me to take the legs but I didn't do it, so then he repeated it, you know, he was like mad, he said, "Come on!

Come on!" So then, once he had managed to get Mr. Baptiste out completely, then he told me to take a leg, and I took it but I dropped it. So then he said, "What are you doing? What are you doing?" He was yelling at me. So then I took the leg again, I dropped it and then he was really mad, he said, "What the hell are you doing! Come on, grab the leg!" But I was hesitating because you know my hands were trembling a bit, so I grabbed the leg and then after I held it like this and then we put him in the back compartment of the car. Q. How was Mr. Baptiste at that moment? A.

Before I took his legs, when he was upright and Mr. Plante was still holding him, he was... well, his eyes were closed, there was no sound coming out of his mouth, and then there was ... how can I say this, it was like if you put your head like this, it's like the weight of your face... Q. Forwards, you put your head forwards... A. Yes, exactly Q. ... the weight of your face, yes. A. So that makes a kind of shape with your face, it made like a shape, his lips were like this. Q. What were his lips like? A. Drooping. Q. Drooping. He was bent forwards. A. Yes. Q. O.K. Did you manage to place Mr.

Jean-Baptiste's leg inside the car? A. Yes, I managed. There was also a sheet around ... still a sheet around Mr. Baptiste. Q. O.K. A. Because when we ... when I put his legs in the car, he was trying to put the upper body in but at the same time trying to arrange the sheet so that no blood would get on the car. Q. After putting him in the vehicle, what did you do? A. After putting him in the vehicle, Mr.

Plante closed the door, then he told me to get in the car, I got in the car, he got in too, he started the car, he started to go but just like... he just ... how do I say this, he didn't leave, he just moved it forwards and then stopped, he braked right away and then he told me to go into the barn, to go get all of the things he left there, like the beer, everything we drank, stuff like that, that was in the barn. ...

A. I went into the barn, I started to pick things up but then I started having... it's because when I am with Mr. Plante, he is always pushing me. "Do this, come on, do that, do that, do that!" So I don't know how to explain it, it's like... I was stressed out but he was pushing me, pushing me, pushing me, but when I found myself alone it was like I came back to myself a little and then I kind of blacked out, I was dizzy while I was trying to look for things. So I put my hands like this, it was like I was on all fours... Q. You put your hands, you rested your hands? A. Yes, on the ground. Q. On what?

On the ground. A. Yes, in the barn. Q. In the barn. You were on all fours, you say... A. Yes. Q. ... in the barn. O.K. A. And then I was dizzy and then at a certain point I just got up because there was the light of the moon or a light and so I ... because I didn't go out by the door I came in, I left by the door where the light was coming from. After I blacked out... ... A. When I got to the fire, I saw garbage, a lot of things were burning, but I stayed there, at the fire. So I was watching the fire like that and then at a certain point, there were things burning in the fire.

But then after that, I noticed that Mr. Baptiste was in the fire because I saw his face. And then I saw...it's like... it's like his skin was melting. It was like, you know, melting chocolate, like the skin was melting. And then I kept watching and then I started to see the skull, you know, all the places where there are holes in the face, like I mean the eyes, the ears or the mouth, I started to see that like, it was more pronounced, and then there was still the fire, which was red, and then the garbage that was burning and all that. I didn't really see Mr.

Baptiste's body, it was just his face. [Reproduced in full.] [ 66 ] On the other hand, if the jury had found that Martin Plante and Moïse Latortue were joint parties to the murder, it would have had to be convinced beyond a reasonable doubt that their facts and actions established planning and deliberation. If that was the case, they would both have been found guilty of first degree murder. Otherwise, they would both have been found guilty of second degree murder. [ 67 ] The next day, the judge continued his instructions on the application of subsection 213(5) Cr.

C. : [ translation ] So, if you remember, yesterday when we wrapped up, we had finished planned and deliberate first degree murder. If you look at the procedure sheet that I gave you, it was at element five (5), was the murder planned or deliberate? This is the first way for you to conclude that it was first degree murder. But there is a big "or". You may also, there is another way for the Crown to convince you beyond a reasonable doubt that it was first degree murder.

As I said yesterday, if you conclude that the Crown proved beyond a reasonable doubt that there was premeditated and deliberate murder for everyone, it ends there. You don't need to consider the other possibility. You need to consider the other possibility if you find that the Crown has not proved beyond a reasonable doubt that the murder was planned and deliberate. I hope that this is clear to you. Even if eleven (11) of you are of the opinion that the murder was planned and deliberate, and the other has not found that it was planned and deliberate, you must consider the third option with that twelfth person.

Because you must be unanimous on one of the options . And of course, if there is one person who does not agree on one of the options, well, then you are not unanimous on this issue. Therefore, the Crown will not have succeeded in proving it beyond a reasonable doubt. Therefore, you cannot go beyond this stage and you will stay at stage five (5), which would be not guilty of first degree murder but guilty of second degree murder.

I hope that this is clear in your minds. [Reproduction in full – emphasis added.] [ 68 ] Thus, the judge suggested to the jury that there were two ways to prove first degree murder, that there were two options. This is a determining error. [ 69 ] Subsection 231(5) Cr. C . is not an alternative mechanism for proving first degree murder. Rather, it is a method of assessment that elevates murder to first degree murder in terms of sentencing.

The jurors must therefore be aware that a person who is found guilty of murder that is not planned or deliberate may be convicted of first degree murder if the circumstances of the murder correspond to one of the predicate offences enumerated in subsection 231(5) Cr. C ., and that the conditions of such an offence – in this case, forcible confinement – are met. [ 70 ] It is useful to recall the remarks of Chamberland, J.A. in Godon : [8] [ translation ] [59] Subsection 231(5) Cr. C.

"reflects Parliament’s sentencing policy to treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment" ( Pritchard , supra at 19). [60] Therein, Parliament enumerates a series of offences – including forcible confinement, in paragraph ( e ) – which mean that, regardless

of any type of premeditation, the murder will be elevated to first degree if the offender causes the victim's death while committing orwhile attempting to commit one of these offences. [61] In such a case, the existence of this other offence in a way constitutes aggravating circumstances that "justify ineligibility for parolefor a quarter of a century" (R. v. Harbottle, (SCC), [1993] 3 S.C.R. 306 at 323; Pritchard, supra at para. 21). [62] The application of subsection 231(5) Cr.

C. carries with it heavy consequences for the offender. [63] Care must be taken not to extend its application to situations not contemplated by Parliament. [64] In Pritchard, supra, the Supreme Court notes that "to trigger s. 231(5)(e), the confinement and the murder must constitute distinctcriminal acts"; "the issue under s. 231(5)(

e) is ... whether there was unlawful confinement distinct and independent from the act ofkilling"; "[e]ven a confinement which satisfies s. 279(2) will not trigger s. 231(5)(

e) if it is consumed in the very act of killing", “if 'theact of confinement and the act of killing are one and the same' there is no basis on which the appellant could be convicted of first degreemurder under s. 231(5)(e)" (para. 27). [65] Ultimately, 'the murder [must be] committed in the course of that confinement such that the series of events may be characterized asa 'single transaction'" (paras. 27 and 35). Thus, the murder represents "an exploitation of the position of power created by the underlyingcrime and makes the entire course of conduct a 'single transaction'" (R. v.

Paré, (SCC), [1987] 2 S.C.R. 618 at 633). It isnot required that there be "'an exact coincidence" between the murder and the predicate offence, but there must be a "close temporal andcausative link" (Pritchard at para. 33). [66] In short, for paragraph 231(5)

(3) Cr. C. to apply, the offence of forcible confinement must exist independently of that of murder;the confinement must involve domination (or a restriction of freedom of movement of the victim) that is additional to and distinct fromthat inherent to the commission of murder. There must also be a temporal and causal link between the confinement and the murder, suchthat the two crimes form part of a single transaction; the murder thus constitutes an exploitation of the position of power created by theforcible confinement. [71] The approach adopted by the judge had specific effects on the rest of his instructions.

The judge gave the following directiveregarding the application of subsection 231(5): [translation] When we look at the second way in which the Crown can convince you beyond a reasonable doubt of first degree murder, you willneed... and we will go through the second page. So, I will begin my explanation of this second way that the Crown has. And I would askyou not to look at this page for the moment but to listen to me, please. Subsection (5) of

section 231 of the Criminal Code reads asfollows, and I quote: Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a personwhen the death is caused by that person while committing or attempting to commit an offence under one of the following sections: Paragraph (

e) says

section 279, kidnapping and forcible confinement. That means that, to establish proof of first degree murder undersubsection 235(5)[9] of the Criminal Code, the Crown must prove beyond a reasonable doubt, in addition to the elements of murder thatwe have seen, that is, stages one (1), two (2), three (3) and four (4) on the first page, must also prove: (

a) That one (1) of the accused or both of them committed the offence of forcible confinement. (

b) That the forcible confinement and murder of Jean Michel Jr. Jean-Baptiste were part of the same series of events. (

c) That Martin Plante or Moïse Latortue or both of them actively participated in the act causing death. I will explain the essential elements of murder. I have just explained them to you. I will now examine the additional essential elementsthat are required for there to have been first degree murder under subsection 231(5). [Reproduction in full -- Emphasis added.] [72] After explaining questions (

a) and (b), the judge focused on question (c): [translation] If you are convinced beyond a reasonable doubt that the forcible confinement and the murder were part of the same series of events, youshould then consider the other question, which is question number three (3) on the sheet of additional elements. And I will talk aboutthis. Did Martin Plante or Moïse Latortue actively participate in the act causing the death of Michel Jr. Jean-Baptiste?

The Crown mustprove beyond a reasonable doubt that the participation of Martin Plante or Moïse Latortue or both of them in the murder was a substantialand integral cause of the death of Michel Jr. Jean-Baptiste. To establish this essential element, the Crown must prove that Martin Planteor Moïse Latortue or both of them committed

an act or a series of acts of such a nature that they must be regarded as a substantial andintegral cause of the death of Michel Jr. Jean-Baptiste. To decide this question, you must consider all of the evidence, as I have done, andyou may also find elements in the

summary of the facts that I have made for you and in the

summary of facts also made for you bycounsel for both the defence and the prosecution. If you are not convinced beyond a reasonable doubt that Martin Plante or MoïseLatortue or both of them committed

an act or a series of acts of such a nature that they must be regarded as a substantial and integralcause of the death of Jr. Michel Jean-Baptiste, you must find them not guilty of first degree murder and guilty of second degree murder,if you have rejected planned and deliberate murder. However, if you are convinced beyond a reasonable doubt that Martin Plante orMoïse Latortue or both of them have committed

an act or a series of acts of such a nature that they must be regarded as a substantial andintegral cause of the death of Michel Jr. Jean-Baptiste, you must then find them guilty of first degree murder. In

summary, to find Martin

Plante or Moïse Latortue or both of them guilty on the first count under subsection 231(5) of the Criminal Code , you must be convinced beyond a reasonable doubt that the essential elements of murder, which I have explained to you, items (1) to (4), have been proved beyond a reasonable doubt and that Martin Plante or Moïse Latortue or both of them have committed the offence of forcible confinement, again beyond a reasonable doubt, that the offence of forcible confinement and the murder of Michel Jr. Jean-Baptiste were part of the same series of events, once again beyond a reasonable doubt. And that Martin Plante or Moïse Latortue or both of them have committed

an act or a series of acts of such a nature that they must be regarded as a substantial and integral cause of the death of Michel Jr. Jean- Baptiste, beyond a reasonable doubt. If you are not convinced that the Crown has proved these three (3) elements beyond a reasonable doubt, you must acquit them of first degree murder under subsection 231(5) of the Criminal Code but find them guilty of second degree murder if you have rejected the other way of proving first degree murder, which is if it is planned and deliberate .

At this stage, like at all of the stages, you must consider all of the evidence with respect to each of the accused as though they were separate trials, I remind you. That is why you have separate sheets for each of the accused. And I remind you, on these questions, deliberate, 231(5), forcible confinement, you do not need to be unanimous with regard to the way in which the Crown has proved it, but you must be unanimous that it has been proved beyond a reasonable doubt in one of the ways.

Do you understand? [Reproduction in full – emphasis added.] [ 73 ] This was a misdirection that clearly risked confusing the jurors. What the jurors needed to understand, rather, was that the steps under subsection 231(5) applied only after they unanimously found Latortue, Plante, or both of them not guilty of premeditated murder but guilty of second degree murder.

The jurors also had to understand that their decision under subsection 231(5) had to be unanimous after they were convinced beyond a reasonable doubt that each of the established conditions for the application of this Criminal Code provision was applicable. [ 74 ] It is at this point in his charge that the judge decided to instruct the jury about the implementation of subsection 21(2) of the Criminal Code . He began his

summary of this subject as follows: [ translation ] As we have already seen, Martin Plante or Moïse Latortue or both of them may be found guilty of first degree murder if they aided or abetted a person to commit the offence of first degree murder . I should point out that the aiding or abetting must concern the commission of first degree murder, not merely the commission of murder.

Consequently, even if, for the murder committed, you conclude that it was first degree murder for the principal offender, if an accused aids or abets the commission of second degree murder, this other accused would be guilty only of second degree murder, while the person who was the principal could be convicted of first degree murder. There is not an automatic equivalence between the offender ... the crime committed by the principal offender and the crime committed by the person who aids and abets.

And we will see why and in what circumstances, because the state of mind required by the person who aids and abets must be a state of mind to aid and abet in the commission of a murder in the second degree.... in the first degree. For that person to also be guilty of first degree murder.

This may seem confusing to you but you'll see with the explanations that follow, you will understand. [Reproduction in full – emphasis added.] [ 75 ] He then went on to explain, precisely: [ translation ] The person who aids or abets must be aware of the offender's intent to kill the victim, although without necessarily having that intent himself. It is sufficient if this person, aware of the offender's intent to commit the crime, acts with the intent to help the offender commit it. This is the only way it is possible to say that the person who aids or abets must have the intent to commit the main offence.

It is therefore very important that you first determine which offence the principal offender has committed before determining the criminal liability of the accomplice. If you find that the murder committed by the offender – I will let you write this down – if you find that the murder committed by the principal offender, according to the process sheet that I gave you, is first degree murder, the accused accomplice must have had the intent to aid or abet the commission of first degree murder for you to be able to convict him of first degree murder .

If this person did not have this intent but did have the intent required to aid or abet the commission of second degree murder, the accomplice may be found guilty of second degree murder, while the principal offender is guilty of first degree murder.

There is no inconsistency between these two (2) verdicts. [Reproduction in full – emphasis added.] [ 76 ] He went on to add: [ translation ] Similarly, you may decide that the principal offender committed second degree murder because you have concluded that the Crown has not proved beyond a reasonable doubt that the crime was either planned and deliberate or that it was committed under subsection 231(5) , forcible confinement. So, if the accomplice intended to help the principal offender commit second degree murder, he can also be found guilty of second degree murder.

However, if the accomplice, you conclude that he did not have the required intent to aid the principal offender in causing death but that there was a foreseeability of a risk of bodily harm, at that point the accomplice can be found guilty of manslaughter, while the principal offender is found guilty of second degree murder. [Reproduced in full.] [ 77 ] As can be seen, at this point in his instructions, the judge was particularly concerned with highlighting the intent required of the person who is a party to the offence under paragraphs (

b) and (

c) of subsection 21(1) of the Criminal Code . [ 78 ] He then posed the following question:

[ translation ] Now, the essential elements. It may be that the evidence does not allow you to determine who the principal offender is and who the accomplice is.

However, if, after analyzing the evidence as a whole, you are convinced that one of them is the principal offender, you may then consider the evidence as a whole to decide whether it demonstrates beyond a reasonable doubt that one of them aided or abetted the person that you have determined to be the principal offender. [Reproduced in full.] [ 79 ] He continued: [ translation ] The first element that the Crown must prove beyond a reasonable doubt is that a person, known or unknown committed the offence of the first degree murder of Michel Jr. Jean-Baptiste.

Consequently, the Crown must show that this other person, known or unknown, committed first degree murder before you may find that Martin Plante or Moïse Latortue aided or abetted that person. I explained the essential elements of the offence of first degree murder earlier.

These are the same elements that the Crown must prove beyond a reasonable doubt with respect to the principal offender. [Reproduced in full.] [ 80 ] Thus, the judge unequivocally told the jurors to consider that the Crown had the burden of proving, beyond a reasonable doubt, that another person, known or unknown, committed first degree murder before Plante or Latortue could be considered to be parties to the offence under subsections 21(1) (

b) and (

c) of the Criminal Code . [ 81 ] The judge then added: [ translation ] ... To refresh your memory, here are the essential elements that must be proved: (

a) The date, location and identity of the victim. As we said, this is not a problem, it is admitted by everyone. (

b) The fact that the death of Michel Jr. Jean-Baptiste resulted from an unlawful act; this is admitted by everyone, you don’t need to worry about this. (

c) That the other person committed the unlawful act. (

d) That the murder that the other person had the required intent to commit murder, that is, either he had the intent to cause the victim's death or, the other way, that he had the intent to cause him bodily harm that he knew was likely to cause death and that he was reckless as to whether death resulted or not. And: (

e) That the murder was planned and deliberate or consistent with subsection 231(5) of the Criminal Code during the commission of the offence of forcible confinement. [Reproduction in full – emphasis added.] [ 82 ] When explaining to the jury what they should understand by the term "aid", he stated the following: [ translation ] You must consider whether the actions of Martin Plante or Moïse Latortue aided the principal offender, in the sense that they facilitated the perpetration of the offence that you determine has occurred.

You may conclude that the conduct of Martin Plante or Moïse Latortue aided the principal offender even if the principal offender could have committed the offence without the aid of either of them. It is sufficient for the conduct of either of them to have facilitated the commission of the offence by the principal offender. ...

You may find them guilty of this crime only if the Crown has convinced you beyond a reasonable doubt that one of them had the intent to aid or abet the principal offender in committing the first degree murder of Michel Jr Jean-Baptiste, that is, a planned and deliberate murder or by operation of subsection 231(5) , which is forcible confinement. [Reproduced in full.] [ 83 ] He went on: [ translation ] Or, with regard to the accomplice – and it is up to you to decide about his intent to aid or abet the principal offender – to second degree murder, if he had the intent to aid in causing the death but without any planning or during the confinement; or (

b) to manslaughter, if he did not have the intent to aid the principal offender in causing the death of Michel Jr. Jean-Baptiste but that the risk of bodily harm was foreseeable. I will say again what I said at the beginning. You may come to a different conclusion for the principal offender and for the accomplice, depending on the intent you attribute to the accomplice, if you come... of course, you have completed the prior steps which

are the first two (2) essential elements, that is, evidence that he aided and abetted, and the three (3) essential elements.

When you consider the intent of the accomplice, if you conclude, of course, that he had the intent to aid in the commission of second degree murder, he may not be found guilty of first degree murder. [Reproduction in full.] [ 84 ] He then finds it important to specify the following: [ translation ] In this case, some of the evidence may be interpreted as showing that Martin Plante or Moïse Latortue personally committed the offence or that they aided or abetted the principal offender in committing this offence.

If you are convinced beyond a reasonable doubt that Martin Plante or Moïse Latortue or both of them acted in one of these ways, you may find them guilty. It is not important in law who delivered the fatal blow. The accused is equally guilty in either case. It is not necessary for the prosecution to identify one person in particular as the person who actually delivered the fatal blow. [Reproduced in full.] [ 85 ] He then added: [ translation ] ... It is important that you understand what the Crown must prove beyond a reasonable doubt. I will therefore repeat the three (3) elements that I just explained.

First, the Crown must prove that the principal offender committed the offence of first degree murder or second degree murder or manslaughter, what you will have ... depending on what you conclude. Second, the Crown must prove that Martin Plante or Moïse Latortue did something and that this action effectively aided or abetted the principal offender in committing the offence found to have occurred. Third, the Crown must prove that Martin Plante or Moïse Latortue had the intent to act in such a way that their action or omission aided or abetted the principal offender in committing the offence found to have occurred.

You must be convinced that the Crown has proved each of these elements beyond a reasonable doubt to be justified in deciding that Martin Plante or Moïse Latortue is guilty as an accomplice. If you have a reasonable doubt with regard to the evidence of either of these essential elements, you must render a verdict of not guilty of first degree murder. [Reproduction in full – emphasis added.] [ 86 ] The judge’s charge is muddled, to say the least, and ties the fate of the accused with that of a known or unknown principal offender.

The judge never referred to the standard for the aid provided depending on whether the murder was planned and deliberate or whether it was murder by forcible confinement. In cases of constructive murder, the conduct of the accomplice must represent "a substantial cause" of the victim's death. The criteria set out by Cory J. in Harbottle [10] must be met, regardless of whether the accused is an accomplice, the principal offender, or a co-principal. Therefore, an important distinction must be drawn between an accomplice to planned murder and an accomplice to constructive murder.

Nevertheless, the judge dealt with both simultaneously, without paying heed to the exception to the general rule of complicity for an accused guilty of first degree murder under subsection 231(5) Cr. C. [ 87 ] Moreover, the judge provided no further explanation that the two accused might be co-principals, with both being parties to the murder and both having the required intent, even though the evidence as to the subsequent behaviour of both of the accused might have been particularly revealing of their mental states at the time of the events. [ 88 ] Discussions took place after the jury went into deliberation.

Counsel for the appellant Moïse Latortue informed the judge of his worries concerning certain aspects of the instructions he had given. He expressed his particular concern that the characterization of the principal offender was likely to confuse the jurors.

He also submitted that the instructions regarding the application of subsection 231(5) were also likely to confuse the jurors: [ translation ] I just... in fact, I will make the same comment that I made when we spoke last week, at the very end of your instructions on the issue of uncertainty about the identity of the principal offender, when you said that it is not important in law to know who delivered the fatal blow. I made some remarks to you on this subject last week.

My concern is that it is likely to be pointlessly confusing in my view because, on the facts of this case, I think that they will conclude that it is either Martin Plante's version or Moïse Latortue's version, but they're not the same case. And I gave you the illustration of three (3) individuals who shoot at the same person. We don't have to know which one, which bullet was ultimately fatal to the victim. So I think that it's likely to confuse, especially – especially with respect to 231(5).

We know that if we analyze the facts of Duguay and Taillefer of the Supreme Court, where there was forcible confinement, one of the individuals had strangled the girl, the other had held her legs. There was one of the two (2) who was not guilty of first degree murder because it had not been ... the action of holding the legs... [Reproduced in full.] [ 89 ] The jury began its deliberations around 11:30 a.m. on June 1, 2010. The next day, June 2, the jury asked the trial judge the following: [ translation ]

Some members are confused about question number 3. If we answer no to this question, how should we proceed? And: [ translation ] Since there is some confusion concerning question number 3, if no is answered to this question, is it accurate that we have to refer to page 2 of the same document? [Reproduced in full.] [ 90 ] A discussion took place between the judge and counsel with regard to the question posed by the jury as well as the terms used in exhibit J-7 about question 3.

The judge acknowledged that this wording suggested that the question concerned only the person who was "a party" to the offence, that is, the person who aided or abetted the principal offender. [ 91 ] Recognizing that the charge given was not clear with regard to

section 21 of the Criminal Code and the application of subsection 231(5) , the judge, after accepting suggestions from counsel for both parties, gave the jury the following additional instruction: [ translation ] So I thank you for your question, which was very relevant as you can see. And it might be the result of the, the incorrect use of a term on my part. And I will ask you to maybe correct question 3 on the "principal offender" sheet. Instead of " a party to ", put " did he perform the unlawful act committing death ".

Because it's true that now my attention has been drawn to the fact that there was "a party to" and "participation" beside it. This might be what caused you some confusion. But I will not stop there. I will also remind you of the rules. So, I told you that

section 21 of the Criminal Code placed the following persons on the same footing: the person who actually commits the offence; the person who does or omits to do anything for the purpose of aiding someone to commit the offence; and third, anyone who abets anyone in committing it. These three persons are on an equal footing and incur the same criminal liability. A bank robber is as responsible... the lookout outside the bank is as responsible as the bank robber. The person who supplied the car to the robber is as responsible as the one who commits the bank robbery.

But in the case of the one who provided the car, there must be, as you know, the intent to aid in the robbing of the bank. You will remember the distinction that I made for you. The one who aids or abets must always have the intent to aid the person who commits the crime in committing the crime. So, we have our three possible actors : the person who really commits, the person who aids, and the person who abets. As for the person who really commits the offence, this is the principal offender. That is why, on the two-page road map I gave you, it says "principal offender" on top. And I made you change paragraph 3.

As for the person who aids or abets, this is the accomplice. So, the two-page road map I gave you is useful for you only in determining the crime committed by the principal offender. What crime did he commit? This lets you follow that path. I have to tell you right away that the principal offender does not need to be known. There could have been a third page that said "principal offender X ". Now I have given you two and I suggest to you that there should be a third with an X on top or a question mark.

But the Crown, even if the principal offender might be unknown, the Crown must nevertheless prove beyond a reasonable doubt that someone killed Michel Junior Jean- Baptiste. And then, that someone might be known or unknown. But it must prove beyond a reasonable doubt that someone brought Michel Junior Jean-Baptiste's life to an end. That is the principal offender. If, as you asked me earlier, you answer no to question number 3 for one of the accused, you must still continue the same process set out on the road map for the other accused to see which crime was committed.

If you answer no to question number 3 for both accused, you must still continue your analysis to determine the crime committed by the unknown principal offender . Because Mr. Michel Junior Jean-Baptiste did not die of natural causes. Once you have determined which crime the principal offender committed, whether that offender is known or not, then you must examine the evidence as a whole and the other methods of participation for the accused or for the two accused about whom you answered no to question 3. And that is what "no, see other methods of participation" means.

That means that if you answered "no" for one or the other or for both, you must ask the question: "Yes but did Moïse Latortue or Martin Plante or both of them aid or abet "X", "?" to commit the crime that we found was committed by "X" or "?" ? That's what "other methods of participation" to question number 3 means. You must then analyze the evidence as a whole to see whether, beyond a reasonable doubt, one of the accused or both of them acted as accomplices to the principal offender, either known or unknown, by either aiding or abetting him.

Following the instructions that I gave you and that we reviewed aiding and abetting, I gave you all of the essential elements of that. [Reproduction in full – emphasis added.] [ 92 ] This additional instruction was not the most lucid response to the concern expressed by the jury about the known or unknown principal offender, and obviously did not shed any clearer or more useful light on the assessment and the application of subsection 231(5). [ 93 ] After the jury withdrew to continue its deliberations, discussions between the judge and counsel continued away from the jury.

Counsel for Latortue submitted the idea that referring to an unknown offender is not applicable with regard to the application of subsection 231(5) Cr. C. While these background discussions were taking place, the jury submitted another question to the judge: [ translation ] Can you explain to us clearly that a series of acts must be considered to be a substantial and integral cause of the death? [Reproduced in full.] [ 94 ] Another discussion began between the judge, counsel for the prosecution, and counsel for the accused. It concerned in particular the application of the criteria in subsection 231(5) Cr.

C. in light of Harbottle , [11] Nette , [12] and Pritchard . [13] [ 95 ] The judge finally asked counsel to make the suggestions that he considered to be appropriate to give an adequate response to the jury. Despite the specific reservations expressed by counsel for the prosecution and counsel for

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