2014 QCCA 1129, 2014 QCCA 1129

Unofficial English Translation César-Nelson c. R. 2014 QCCA 1129 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC Nos.: 200-10-002855-125 200-10-002856-123 (200-01-143844-102) (200-01-143845-109) DATE: June 3, 2014 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. JULIE DUTIL, J.A. LORNE GIROUX, J.A. No.: 200-10-002855-125 SACHA CÉSAR-NELSON APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix No.: 200-10-002856-123 MARC-ÉLIE FONTAINE APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellants appeal from a judgment of the Court of Quebec, Criminal Division, District of Quebec (the Honourable Judge Alain Morand), rendered on July 16, 2012, that convicted them on eleven counts: conspiracy to commit robbery, robbery using a prohibited weapon [2 counts], assault causing bodily harm [2 counts], forcible confinement [2 counts], armed kidnapping [2 counts], disguise and possession of a loaded prohibited weapon. [ 2 ] For the reasons of Rochon J.A., with which Dutil and Giroux JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] ACQUITS the appellants on the counts of conspiracy, assault causing bodily harm, robbery and disguise; [ 5 ] ORDERS a new trial on the following counts: - Count 6 : having confined, imprisoned or forcibly seized Drolet (279(2)(

a) Cr. C. ) - Count 7 : having confined, imprisoned or forcibly seized Gauthier (279(2)(

a) Cr. C. ) - Count 8 : having kidnapped Drolet with the intent to cause him to be confined or imprisoned against his will while using a firearm (279(1)( a )(1.1)(

a) Cr. C .) - Count 9 : having kidnapped Gauthier with the intent to cause him to be confined or imprisoned against his will while using a firearm (279(1)( a )(1.1)(

a) Cr. C. ) - Count 11 : having been in unauthorized possession of a pistol or revolver (section 92 Cr. C. )

ANDRÉ ROCHON, J.A. JULIE DUTIL, J.A. LORNE GIROUX, J.A. Mtre Ludovic Dufour Dufour & Assoc. For the appellant Sacha César-Nelson Mtre Jean-Sébastien Comeau Dufour & Assoc.

For the appellant Marc-Élie Fontaine Mtre Régis Boisvert Mter Daniel Bélanger Criminal and penal prosecuting attorneys For the respondent Date of hearing: March 13, 2014 REASONS OF ROCHON, J.A. [ 6 ] On July 16, 2012, the appellants were convicted on eleven counts: conspiracy to commit robbery, robbery using a prohibited weapon [2 counts], assault causing bodily harm [2 counts], forcible confinement [2 counts], armed kidnapping [2 counts], disguise, and possession of a loaded prohibited firearm. They appeal.

FACTS [ 7 ] On February 24, 2010, two drug traffickers, Richard Gauthier ("Gauthier") and Jean-Marie Drolet (Drolet) ("the traffickers"), arrived at the apartment of Patrick Lemieux-Marchand ("Marchand") in St-Romuald. The traffickers had gone there to sell cocaine. They had a 15-gram sample in their possession. [ 8 ] Gauthier, Drolet and Marchand are white. This detail is crucial given the importance of visual identification in this case. The appellants are both black. [ 9 ] Marchand greeted the traffickers at his apartment door.

The traffickers were immediately assaulted by Marchand and three black individuals wearing balaclavas and armed with two hunting rifles, one of which was a sawed-off 12-gauge. Gauthier and Drolet were struck. Their heads were covered with a piece of fabric. The assault continued until the traffickers offered to bring their aggressors to their cocaine supplier.

The traffickers, victims of a “drug burn”, [1] proposed carrying out a burn themselves with their assailants on their supplier’s drug stash in Lac-Beauport. [ 10 ] That same day, an anonymous source informed the police that an offender known to them, Clément Karera ("Karera"), described as a black individual, was about to take

part in an armed drug burn. Triangulation was used to track Karera's cell phone to Marchand's apartment building. [ 11 ] A surveillance team was set up outside the building. Its orders were to spot Karera.

At that point, the forcible confinement of the traffickers was well underway. [ 12 ] A surveillance officer observed the appellants leaving the apartment building and entering a black Inifiniti automobile. [ 13 ] When Karera left the building, he and the traffickers climbed into a minivan belonging to Gauthier, one of the traffickers. [ 14 ] Marchand got into his Saturn automobile by himself. [ 15 ] The surveillance team followed the convoy, which headed toward Lac-Beauport. [ 16 ] The three cars stopped at a gas station in Lac-Beauport.

At that point, a tactical intervention group intercepted two of the three vehicles, namely, the minivan and the Saturn. The traffickers Gauthier and Drolet were arrested, along with two of their assailants, Karera and Marchand. [ 17 ] The appellants, riding in the Infiniti, left the scene. Since Karera's cell phone was in the vehicle, the police officers were again able to use triangulation to locate and arrest the appellants in Saint-Louis-de-Blandford a few hours later.

[ 18 ] A pistol was found in Gauthier's minivan. [ 19 ] A dozen or so knives and a 12-gauge cartridge were found on Marchand's person. In the Saturn, the police found a sawed-off 12-gauge rifle, another 12-gauge rifle, this one loaded and cocked, an aluminium baseball bat, and two latex gloves. [ 20 ] After his arrest, Drolet told the police that there were six or seven armed individuals in the apartment and that the drugs were still there.

Because of this information, a new surveillance of the entrance of Marchand's apartment building was set up about two hours after the surveillance team had left the scene. [ 21 ] The police officers entered the premises seven hours later. No one was there. Among the objects the police officers found were a pellet gun and a compressed air gun. According to the admission by the crime scene technician, the air gun resembles a sawed-off 12- gauge rifle. [ 22 ] No physical evidence relating to the forcible confinement was found in the appellants' possession.

Their fingerprints were not found anywhere. * * * [ 23 ] The events of the night before, February 23, 2010, are also worth reporting. The narrative is based on evidence that is for the most part uncontradicted. [ 24 ] On February 23, 2010, the appellant César-Nelson left his home in Saint-Léonard. He drove to the home of the appellant Fontaine, who lives in the Côte-des-Neiges neighbourhood. They then began driving toward Quebec City. [ 25 ] They planned to attend a hip-hop night at a bar in Quebec City (Star Bar). [ 26 ] Both were big cannabis consumers. They tried to buy some in Quebec City.

To do so, they called the appellant César-Nelson's cousin, Nerva Lovinski (Lovinski), who invited them to meet him at an address in Limoilou. [ 27 ] After the appellants arrived, Karera joined the group. He was known to the appellant César-Nelson, who had seen him twice before. The appellant Fontaine did not know him. [ 28 ] Lovinski asked the appellant César-Nelson whether he would agree to drive someone back to Montreal that night or the next day. The appellant Fontaine did not take

part in this discussion. The person concerned would be transporting some [ translation ] "packages" for Lovinski. The appellant César-Nelson deduced that they contained drugs.

He reportedly answered that he did not know when he was going back to Montreal, but that he could surely do his cousin a favour. [ 29 ] The group left Limoilou later on to go to a strip club in the Beauce and then back to the Star Bar in Quebec City at the end of the night. * * * [ 30 ] A little earlier in the day of February 23, Karera, Marchand, a white individual by the name of Alexandre Beaupré-Asselin and an unidentified black man met at the home of Karel Grondin-Foucault, Marchand's friend. The host reports that the group was armed with a pistol and a sawed-off 12-calibre shotgun.

They were planning a drug burn later in the day, but for reasons that remain unknown, it was put off until the next day. [ 31 ] Karel Grondin-Foucault states that he has never seen the appellants in his life. The appellants were not at his home during this meeting. * * * [ 32 ] I will now return to the events of February 24, the day of the assaults. [ 33 ] For the appellants, the day began as follows. The appellant César-Nelson received a text message from Lovinski.

Lovinski asked him to go to Marchand's address in Saint-Romuald to pick up the passenger who needed a ride to Montreal. [ 34 ] When he arrived, César-Nelson went into Marchand's apartment while the appellant Fontaine waited in the car. César-Nelson learned that Karera was the one who needed a ride to Montreal, but that he had to wait for [ translation ] "something" beforehand. [ 35 ] César-Nelson returned to his car and waited for about 20 minutes. He and Fontaine became impatient and decided to return to Marchand's apartment. [ 36 ] According to them, there were several people in the apartment at that point.

They noticed that two older white individuals (the traffickers) were bleeding. A drop of blood in fact ended up on one of Fontaine's shoes. There appeared to have been a violent drug transaction. The appellants were asked to follow the group that was going elsewhere to take delivery of the drugs, so that Karera could get into their car to return to Montreal afterwards. THE JUDGMENT A QUO [ 37 ] The judge began his judgment with a long

summary of the testimonies. First, the witnesses for the prosecution: the traffickers Drolet and Gauthier, one of the assailants (Marchand), surveillance officer F-19, the crime scene technician, the main investigator, and the police officers who interrogated the accused. [ 38 ] The judge then summarized the testimonies for the defence: the appellants themselves and Grondin-Foucault.

[ 39 ] The judge stated that he did not believe the appellants. Their version raised no doubt in his mind. He listed eleven reasons for not believing César-Nelson and eight for not accepting Fontaine's version. [ 40 ] Despite certain weaknesses with regard to the secondary facts, the judge accepted that the central thrust of the narratives given by the witnesses for the prosecution was coherent and consistent with the physical evidence.

He stated his view that a significant portion of the three testimonies given for the prosecution (by Drolet, Gauthier and Marchand) was confirmed by the surveillance evidence, the discovery of the weapons, and the other physical evidence. [ 41 ] While the judge accepted the testimonies of Drolet and Gauthier without hesitation, his assessment of Marchand's testimony was much more nuanced. He noted that Marchand contradicted himself and was reticent, minimizing his involvement and protecting his friends.

He nevertheless found that the central thrust of his narrative was confirmed by the other witnesses. [ 42 ] Since Marchand and Gauthier referred to the presence of three black assailants wearing balaclavas, the judge accepted this evidence and rejected Drolet's testimony stating that there were at least six people in the apartment besides himself and Gauthier. [ 43 ] The judge finally concluded that if none of the witnesses were able to identify the accused, it was because their faces were camouflaged. [ 44 ] On the basis of this analysis, the judge found that the prosecution had established beyond any reasonable doubt that the accused were guilty on all counts. [ 45 ] He modified the first count of conspiracy, however, to render it consistent with the evidence by adding the date of February 23, 2010, to the charge. [ 46 ] He convicted the appellants on counts 2 to 9 inclusively, and on count 11 under subsections 21(1) and (2) Cr.

C. by being a party to or complicit in the offence. [ 47 ] The judge amended count 10, disguise, by striking out the word "balaclava". He found that the evidence established beyond any reasonable doubt that the accused had their faces covered, but not specifically by balaclavas.

GROUNDS OF APPEAL [ 48 ] The appellants put forward seven grounds of appeal, which benefit from being rephrased into four broad issues: - Did the trial judge err in finding the statements of the accused collected by the investigators to be incriminating? - Did the trial judge make important errors in his assessment of the evidence? - Did the trial judge err in law with respect to the count of conspiracy? - Is the verdict unreasonable on some of the counts?

ANALYSIS Preliminary remarks [ 49 ] The trial judge aptly summarized the situation before him: [ translation ] The two (2) accused stand trial simultaneously on charges of conspiracy, robbery, using a prohibited firearm, assault causing bodily harm, forcible confinement, kidnapping, disguise and possession of a prohibited weapon without authorization, in relation to events that occurred during a drug transaction.

In their defence, the accused deny the existence of some of the facts alleged as well as any participation in the alleged offences, even though, according to their version of events, they were present at the scene at different times.

The dispute concerns primarily the identification and participation of the accused, as well as the assessment of the credibility of the witnesses and of the evidence as a whole. [ 50 ] The core of the issue is the following: Does the circumstantial evidence justify the trial judge's finding that the only logical conclusion to be drawn is that the appellants directly committed the eleven offences with which they were charged? If not, does it establish beyond any reasonable doubt that the appellants are guilty, at least as parties to the offences?

I) The statements of the appellants [ 51 ] In his assessment of the appellants' truthfulness, the trial judge gave preponderant weight to the notes taken by the police officers during their interrogation of the appellants. He clearly found that the statements reported were made and that they were reliable, probative and incriminating. [ 52 ] Although the appellants have never claimed that their statements were not free and voluntary, they have consistently challenged their probative nature, the

interpretation given to them by the police officers, and the accuracy of the notes ostensibly recording them. [ 53 ] At the beginning of his analysis of the credibility of the appellants, the judge noted that their version was contradicted by the evidence as a whole and particularly by [ translation ] "their own inculpatory statement".

[ 54 ] The judge then pointed out the inconsistencies and implausibilities in the appellants' testimony. [ 55 ] He provided examples. In the case of César-Nelson, the first four examples concerned the [ translation ] "incriminating" statements made to the police officers.

The judge affirmed that, when confronted with [ translation ] "this type of admission", César- Nelson provided nebulous and implausible answers. [ 56 ] On the basis of the following excerpt from the police officers' notes, the judge concluded that César-Nelson had admitted his guilt on the counts of robbery and conspiracy: [ translation ] 11:55 p.m.

Lachance => Are we going to find your fingerprints anywhere. ________________________________________________ ____________________________________________________ Ans. => No, not on anything at all. ____________________________ As I see it, what'll be left is robbery and conspiracy. ____________________________________________________ 12:09 a.m. Exit from Room 215. Sacha brought back to his cell. ________ [ 57 ] According to these notes, the interrogation of César-Nelson took place in

part in the police officers' car between 3:10 p.m. and 4:19 p.m. and in

part in an interrogation room at the police station between 10:50 p.m. and 12:39 a.m. The comments were noted down on seven and a half pages of a notebook. [ 58 ] The interrogations at the police station were not recorded. Barring a few exceptions, the police officers did not note the questions asked. The police officer who took the notes states that she did not write everything down and recorded only what she thought was relevant. [ 59 ] There is no evidence of the context of the statements. For example, the excerpt quoted above contains the only notes taken by the police officer during a fourteen-minute period.

According to the notes, only three sentences were spoken during that time. [ translation ] "Are we going to find your fingerprints anywhere", "No, not on anything at all" and "As I see it, what'll be left is robbery and conspiracy". [ 60 ] It is obvious that remarks were omitted. There is no logical thread between the second and third sentence. The subject of the conversation, the point of the sentence, and the intent of the accused when he said it were not adduced in any way whatsoever.

Officer Lachance, who interrogated César-Nelson, remembers the meeting but not the remarks exchanged. [ 61 ] Without any context, recordings, or notes with any semblance of structure, the statement, [ translation ] "As I see it, what'll be left is robbery and conspiracy" is open to multiple

interpretations. Was the appellant referring to the weight of the evidence that the police officers were describing? What was being said to him precisely? It would be easy to get lost in speculation. [ 62 ] The same can be said about the statements reported as having come from the appellant Fontaine: [ translation ] 8:26 a.m. States understands well 8:33 a.m. Presentation and explanation I want to know my charges Ok. You’ve made a mistake I am going to go to court. I better not say anything to you at all. 8:40 a.m. Photo taken by Claude Vigneault. 8:41 a.m.

End I explain the evidence. 8:42 a.m. he says "Now I know what you have against me you got me I'm in the corner you got me". I want to go back to my cell. 8:45 a.m. Return to cell [ 63 ] What was said to Fontaine? What evidence was explained in one minute? We know that the police officers wrote down what they thought was relevant. There is no evidence of the context or the words and conversations between the officers and the appellants. [ 64 ] Let us imagine for a moment that Fontaine never knew that there had been a robbery with firearms in Marchand's apartment.

When Fontaine was of the opinion that the police officers were mistaken when they accused him of crimes that he did not know had taken place, he told the police officers that they had made a mistake and that he would defend himself in court. He was then shown some evidence. We do not know what it was. It is possible that the police officers told him about the high-calibre firearms found in the trunk

of Marchand's car. Fontaine then realized that his arrest was not a mere error and that he would have to fight to prove his point of view.Given his criminal record, he knew very well that he would be released only once he was acquitted of these charges after a trial. He wasno longer concerned about spending one night at the police station; now he feared going back to prison indefinitely.

It is undeniable thata person learning that there is evidence against him for offences that he never knew had taken place might feel [translation] "cornered".Did Fontaine feel cornered because he was guilty or because he was innocent? [65] In this case, the trial judge never questioned the probative value of the statements.

Once it was admitted that the statementswere made freely and voluntarily, he took it for granted that they were probative and could be accepted as an incriminating elementagainst the appellants. [66] In so doing, the judge committed an error of law. [67] The free and voluntary admission of the statements does not ground an inference that they are probative: The trial judge has a discretion to accept the waiver and dispense with the holding of a voir dire. If the trial judge accepts the waiver, thestatement is admissible without a voir dire.

In these circumstances, the waiver is not a acknowledgment of its evidential value, but ismerely an acknowledgment of its voluntariness.[2] [Citation omitted; emphasis added.] [68] The voluntary nature of the statement and the good faith of the police officers do not make the statement of an accused, asreported here, admissible, relevant and probative: [29] McClung, J.A. suggests that because there was no deliberate editing or bad faith, it should be admissible if it is voluntary. Idisagree. It is not the good faith of the police that is in issue but the meaning of the words.

He further suggests that the accused couldhave clarified the meaning of the words by testifying or by calling his father to testify. This is not the accused's onus. It is the onus of theCrown to adduce words capable of meaning before the defence has anything to meet. An inference cannot be used to make words anadmission when the evidence clearly indicates the words were an incomplete statement and therefore meaning could not be ascertained.The Crown must make a prima facie case for admission.

An inference cannot be used to fill in holes in the evidence. … [3] [Emphasis added.] [69] The fact that a statement is unrecorded, truncated and reported out of context can influence a court's decision as to whether thestatement was free and voluntary, but also as to whether it is reliable and probative. [70] A survey of the case law quickly reveals that, depending on their significance, such gaps in the evidence can lower the probativevalue of the statement or lead to its exclusion if the probative value is outweighed by its prejudicial effect. [71] Several gaps that have been identified in the case law are present in this case: (

i) lack of a recording (ii) partial notes and (iii)lack of context. Lack of a recording [72] In this case, there is no explanation or evidence to justify the failure to record the appellants in the interrogation rooms.[4] Theevidence proffered by the prosecution does not fill this gap and cannot justify the judge's blind reliance on the notes as a reliabletranscript of the accused's comments.[5] The notes contain certain obvious errors. For example, César-Nelson's daughter's first name isnot Mélina, as Officer Pascale Jacques wrote.

Partial notes [73] Officer Jacques admitted that she is not a [translation] "stenographer" and stated that she was trying [translation] "to write downas much as possible of what was in the answer" given by César-Nelson. It was therefore admitted that the statements were not reportedverbatim. Nevertheless, the judge took into consideration the specific choice of words in the police officer's notes to find that theaccused César-Nelson did not tell the truth.

It is dangerous to draw this type of conclusion based on the choice of words when thecomments are the accused have not been reported verbatim. [74] At the very least, the judge should have warned himself that the words in the notes were not those of the appellants but ratherthe result of the personal

interpretation of the police officer. [75] Moreover, in this case, the notes do not report every conversation. They contain only what the police officer chose to writedown. We have no information about the questions and answers that the officer deemed were not relevant. As this Court has had theopportunity to point out, it falls to the courts and not the police officers to decide whether an accused's statements are relevant: [translation] In R. v.

Rosik, (1971) (ON CA), 13 C.R.N.S. 129, the Honourable Judge MacKay of the Court of Appeal for Ontario,discussing the obligation of the Crown to file into evidence the accused's entire statement, stated the following at page 137: There is authority that if a statement is partly inculpatory and partly exculpatory and the Crown elects to adduce evidence of thestatement, the whole of the statement must be put in and, in such case, it is received as evidence of its truth as to the exculpatory part aswell as the inculpatory part.

My colleague, Justice Kaufman, in his book The Admissibility of Confessions, 3d ed., 1979 at 139, referring to statements that are bothinculpatory and exculpatory, writes the following:

When questions are asked, it is of the utmost importance to keep a complete record of all questions and answers, and to resist thetemptation to reduce to writing only that part which inculpates the accused. Indeed, failure to recollect the complete conversation mayjeopardize an otherwise acceptable confession, but once again this is a matter of appreciation for the judge. In Regina v. Smith, (1981) (QC CS), 60 C.C.C. (2d) 327, Barrette Joncas J. of the Superior Court, refused to accept astatement that did not contain everything that the accused had said.

It is up to the trial judge and not the police officers to determine the relevance of the questions and answers. In this case, the policeofficers should have written down everything that touched on the subject of their investigation.

With respect, I am of the opinion that the judge committed a serious error by admitting the appellant's statement which, in my view, isinadmissible for the reasons stated above.[6] [Emphasis added.] Lack of context [76] The Courts have also considered the importance of context, particularly in cases where the reported statement does not includethe words that were uttered before and after it. In R. v.

Ferris, for example, the Supreme Court stated: In our opinion, with respect to the evidence that the respondent was overheard to say "I killed David", if it had any relevance, by reasonof the circumstances fully outlined by Conrad J.A., its meaning was so speculative and its probative value so tenuous that the trial judgeought to have excluded it on the ground its prejudicial effect overbore its probative value.[7] [Emphasis added.] [77] In that short judgment, the Supreme Court upheld the decision of the Alberta Court of Appeal to exclude the accused's statementand order a new trial.

Although there was no dispute that the statement "I killed David" was free, voluntary and reliable, the AlbertaCourt of Appeal determined that the meaning of these words was too equivocal to constitute an admissible admission: [26] In this case, however, it is not a question of whether the utterance was given. Here words were spoken. What is in issue here iswhether or not the words were capable of meaning, for without meaning they have no relevance. The officer cannot testify as to the gistof Ferris' utterance, in this particular case it cannot be determined if "...

I killed David ..." was in fact an admission he killed David. Theonus rests on the Crown to prove the words have relevance.[8] [Emphasis added.] [78] As the Ontario Court of Appeal explained in R. v. Hunter, when there is room for speculation about the meaning of an allegedadmission, such admission cannot be probative.[9] Therefore, if the declaration is devoid of probative value, its admission is necessarilyprejudicial to the accused. [79] Ferris clearly outlines the danger of admitting such a statement: [27] … If it was an admission, I agree with McClung, J.A. that it is highly probative.

However, because the Crown case makes itclear words were spoken before and after, and the utterance was incomplete, it is impossible to ascertain the meaning of the words. Thusno weight can be given to it and the prejudice of its introduction is easy to contemplate. There is a real prejudice of forbidden reasoninghere. There would be an enormous temptation for any trier of fact to look at the outside evidence that tends to implicate the accused inthe murder, use those facts to conclude that the accused probably committed the murder, and that therefore he admitted that he did.

Thatfinding would then be used to raise the probability of guilt to a conclusion of guilt. The danger implicit in that type of circuitousreasoning is obvious.[10] [Emphasis added.] [80] In light of the facts of this case, the trial judge could not use the appellants' truncated statements as the primary basis fordetermining their credibility.

Ultimately, these statements should have been excluded from the evidence under the trial judge's residualdiscretion.[11] [81] In this case, the judge did not find that the statements of the accused were inadmissible because he did not consider either theirreliability or their probative value even though he had a duty to do so, in view of the facts of the case. [82] The failure to record even though the accused were questioned in the interrogation room, the unreliability of the transcribedcomments, and the incompleteness of the notes that deprived the court of the context of the statements are all important elements thatmerited the court's attention. [83] The police officers were not able to enlighten the court by filling the gaps in the evidence.

This resulted in isolated andunreliable statements, the meaning of which can only be speculative. These facts cannot justify the judge's finding that the accused'sremarks written down by the police officers were incriminating. [84] Consequently, it was not open to him to reject the exculpatory version of the facts presented by the accused at trial because itwas contrary to prior incriminating statements. Because of the importance of these considerations in the judge's guilty verdict, this firstground alone justifies an order for a new trial.

II) Miscarriage of justice [85] The trial judge found that there were four persons in Marchand's apartment when the trafficker's arrived: one white individual

(Marchand) and three black individuals.

He inferred from this fact that the three black individuals were Karera and the two appellants.They were the ones, he determined, who assaulted Drolet and Gauthier. [86] Given the colour of the appellants' skin, the finding regarding the number of individuals in the apartment when the traffickerswere assaulted is central to the judge's reasoning leading to the guilty verdicts. [87] The judge took it as a fact that there were four individuals in the apartment, that surveillance officer F19 observed fourindividuals exiting the apartment building, and that these four individuals were arrested, and he inferred therefrom that no one but theappellants, Karera and Marchand had the opportunity to commit the offences with which they were charged. [88] The finding of fact that there were only four individuals in the apartment is based solely on the testimony of Marchand, despitethe fact that this witness had little credibility, even in the eyes of the trial judge.

Moreover, this conclusion is also contrary touncontradicted evidence that the judge did not address. [89] At the time of his arrest, on the very day of the events, Drolet told Officer Levasseur that he had been the victim of a burncommitted by six or seven individuals with weapons. A few hours later, he spoke of only three individuals. During the preliminaryinquiry, he again stated that there were six individuals: five black people and one white person. At trial, he maintained that there were atleast five black individuals and one white person.

He explained that he had made a mistake when he said there were three people. Heknew that three black individuals had been arrested, but he had seen five in the apartment. [90] The night of his arrest, Gauthier stated that there were six or seven individuals in the apartment. At trial, however, during theexamination-in-chief, he believed that there were four individuals there. In cross-examination, he stated that, at the time of his arrest,there were only four.

He admitted however, that there were perhaps six or seven individuals in the apartment besides himself and Drolet,evidence that the judge failed to consider. [91] At the time of the events, the two traffickers told the police officers that there were still people in Marchand's apartment. This isin fact why a surveillance team was set up one hour and forty-five minutes after these statements were made. [92] Other evidence was not considered by the trial judge. [93] The day before the events, Karera, Marchand and two other individuals – one white, the other black – went to Grondin-Foucault's apartment.

Grondin-Foucault did not know the black individual, who was not one of the appellants. Grondin-Foucault saw theweapons and learned that the planned burn had been postponed until the next day.

In other words, the burn was initially supposed to takeplace without the accused and with two other individuals, one of whom was also black. [94] Because it was not continuous, the police surveillance (of one part of the apartment building only) does not challenge thisevidence. [95] What is surprising is the Crown prosecutor’s acknowledgment on more than two occasions that it was possible that there wereother individuals in the apartment, some of whom might have removed the blood stains with water and bleach after the group left. [96] This hypothesis is also supported by the fact that Gauthier's cell phone and the 15-gram cocaine sample were never found. [97] Failing to take relevant evidence into consideration is an error in the

interpretation of the evidence. [13] In R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), Doherty J.A. explained thatmisapprehensions of the evidence include not only a mistake as to the substance of the evidence, but also “a failure to consider evidencerelevant to a material issue” and “a failure to give proper effect to evidence” (p. 218). …[12] [98] Contrary to what the trial judge affirmed, Marchand, the only witness who said that there were four individuals in the apartmentwhen the traffickers arrived, is not corroborated.

With respect, in arriving at such a conclusion, which moreover is essential to hisreasoning, the judge misapprehended Gauthier's testimony while justifying Drolet's testimony by the fact he had been struck on the head.Furthermore, he erroneously states that the witness Grondin-Foucault corroborated Marchand's statement about the meeting on February23, when the evidence reveals that Marchand has always denied that there was a meeting, agreement, or even premeditation.

His versionis that he learned that there was supposed to be a drug burn at his home on the morning of February 24 and that black individuals whowere strangers to him, armed and wearing balaclavas, entered his home to carry it out. [99] What is more, the judge misapprehended the testimony of surveillance officer F19, attributing Drolet's testimony about theappellants leaving the apartment building to him.

The versions of these two witnesses for the prosecution therefore appear consistentbecause they resemble each other, although that is not actually the case. [100] In short, several of the judge's conclusions are clearly contradicted by the testimony on which they are based.

If not for theseerrors, among other things, the judge would not have been able to find that the central thrust of the respective narratives presented by thewitnesses for the prosecution were consistent, much less that of Marchand. [101] Where a judge errs in the assessment of the evidence, the appellate court must first verify whether the verdict is reasonable(subparagraph 686(1)(a)(

i) Cr. C.). Even if the verdict is reasonable, such an error may still result in a miscarriage of justice(subparagraph 686(1)(a)(iii) Cr. C.): In my opinion, on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this court shouldfirst consider the reasonableness of the verdict (s. 686(1)(a)(i)). If the appellant succeeds on this ground an acquittal will be entered. Ifthe verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage ofjustice (s. 686(1)(a)(iii)).

If the appellant is able to show that the error resulted in a miscarriage of justice, then the conviction must bequashed and, in most cases, a new trial ordered. Finally, if the appellant cannot show that the verdict was unreasonable or that the error

produced a miscarriage of justice, the court must consider the vexing question of whether the misapprehension of evidence amounted toan error in law (s. 686(1)(a)(ii)). If the error is one of law, the onus will shift to the Crown to demonstrate that it did not result in amiscarriage of justice (s. 686(1)(b)(iii)). In considering the reasonableness of the verdict pursuant to s. 686(1)(a)(i), this court must conduct its own, albeit limited, review of theevidence adduced at trial: R. v. Burns, supra, at pp. 662-63 S.C.R., pp. 198-99 C.C.C.

This court's authority to declare a convictionunreasonable or unsupported by the evidence does not depend upon the demonstration of any errors in the proceedings below. Theverdict is the error where s. 686(1)(a)(

i) is properly invoked. A misapprehension of the evidence does not render a verdict unreasonable.Nor is a finding that the judge misapprehended the evidence a condition precedent to a finding that a verdict is unreasonable. In casestried without juries, a finding that the trial judge did misapprehend the evidence can, however, figure prominently in an argument that theresulting verdict was unreasonable. An appellant will be in a much better position to demonstrate the unreasonableness of a verdict if theappellant can demonstrate that the trial judge misapprehended significant evidence: R. v.

Burns, supra, at p. 665 S.C.R., p. 200C.C.C.[13] [Emphasis added.] [102] The approach outlined in R. v. Morrissey, a judgment of the Court of Appeal for Ontario, was approved by the Supreme Court inR. v. Lohrer[14] and recently upheld in R. v. Sinclair.[15] [103] From Lohrer and Morrissey, I conclude that the errors on the substance of the evidence justify finding that there has been amiscarriage of justice (subsection 686(1)(a)(iii) Cr.

C.) calling for a new trial, but they do not ground a conclusion that the verdict wasunreasonable outside situations where the principles well established in this area of law are applicable (subparagraph 686(1)(a)(

i) Cr. C.).The errors on the evidence can nevertheless constitute indications that the verdict was unreasonable. This two-stage approach isparticularly well explained by the Court of Appeal for Ontario in the following excerpt: [81] Where misapprehension of evidence is alleged, it becomes necessary to determine at the outset whether the claim ofmisapprehension has been made out. The next step involves consideration of the reasonableness of the verdict, an argument which, if itsucceeds, warrants an acquittal, independently of any misapprehension of evidence.

Where the verdict is not unreasonable, then itremains to consider whether the misapprehension caused the miscarriage of justice: Morrissey at p. 540. … [82] The reasons of the trial judge impede informed consideration of this ground of appeal. Suffice it to say that, ceding to theappellant the validity of his claims of misapprehension of evidence, I would not conclude that the finding of guilt was unreasonable. Afinding of guilt is reasonable if it is a verdict that a properly instructed trier of fact, acting judicially, could reasonably have rendered.

Ontheir own, the misapprehensions of evidence advanced here, considered individually and cumulatively, are unlikely to have caused amiscarriage of justice. That said, the misapprehensions provide further evidence of the trial judge’s failure to come to grips with thesubstance of the critical issue in the case: the appellant’s responsibility for the victim’s injuries.[16] [Emphasis added.] [104] According to the Supreme Court, two types of unreasonable verdicts are possible: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v.

Yebes, (SCC), [1987]2 R.C.S. 168, and R. v. Biniaris, 2000 SCC 15 , 2000 SCC15, [2000] 1 R.C.S. 381, at para. 36, determine whether the verdict isone that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable ifthe trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidencerelied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwisebeen contradicted or rejected by the trial judge (R. v.

Sinclair 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190).[17] [105] The first type of unreasonable verdict is one that a properly instructed jury would not have rendered. It is the traditionalunreasonable verdict, one that is not supported by the evidence. It applies to verdicts rendered by a jury or a judge alone and results in anacquittal (R. v. Yebes and R. v. Biniaris[18]). [106] The second type of unreasonable verdict was enshrined in 2011 in R. v. Sinclair[19] by a majority of the Supreme Court.

Itapproved the reasoning of Fish J. in his dissent in R. v. Beaudry,[20] where he explained that a verdict may be unreasonable even if itcould have been rendered by a properly instructed jury: [97] In Justice Charron’s view, a verdict based on unreasonable reasons is not unreasonable if there is evidence upon which another trierof fact could have reached the same conclusion by a different and proper route. With respect, I do not share that view.

No one shouldstand convicted on the strength of manifestly bad reasons — reasons that are illogical on their face, or contrary to the evidence — on theground that another judge (who never did and never will try the case) could but might not necessarily have reached the same conclusionfor other reasons. A verdict that was reached illogically or irrationally is hardly made reasonable by the fact that another judge couldreasonably have convicted or acquitted the accused.

I think it preferable by far, where there is evidence capable of supporting aconviction, to order a new trial so that a fresh and proper determination can be made by a real and not hypothetical “other judge". I hasten to add that appellate courts, in determining whether a trial judge’s verdict is unreasonable, cannot substitute their own view ofthe facts for that of the judge or intervene on the ground that the judge’s reasons ought to have been more fully or more clearlyexpressed. That is beyond the purview of an appellate court: R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122; Burke; Biniaris;H.L. v.

Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25; R. v. Kerr (2004), 48 M.V.R. (4th) 201, 2004 MBCA 30. Butwhere reasons do exist, a verdict cannot be reasonable within the meaning of s. 686(1)(a)(

i) if it is made to rest on findings of fact thatare demonstrably incompatible, as in this case, with evidence that is neither contradicted by other evidence nor rejected by the judge.[21]

[Emphasis added.] [ 107 ] Since then, it has been clear that a verdict before a judge alone may be unreasonable because of the judge's illogical reasoning, even if the verdict could still be supported by the evidence. [22] In such a case, it is appropriate to order a new trial instead of entering an acquittal. [ 108 ] The reasoning is illogical if the trial judge draws an inference or makes a finding of fact essential to a verdict (1) that is clearly contradicted by the evidence invoked in support of the inference or (2) that is demonstrated to be inconsistent with evidence that is neither contradicted by other evidence nor rejected by the judge. [ 109 ] This case does not involve an unreasonable verdict due to illogical or irrational inferences.

Rather, the judge misapprehended the substance of the evidence within the meaning of Lohrer . These two situations should not be confused. [3] While a verdict that rests on a mistake as to the substance of the evidence may well be “unreasonable” in the broad sense of that term, Beaudry has no application to errors of this sort. Rather, they are governed by R. v. Lohrer , 2004 SCC 80 , [2004] 3 S.C.R. 732. Nor does Beaudry govern trial court decisions that are rendered inscrutable by an absence of sufficient reasons, as in R. v.

Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869. … [14] While a misapprehension of the evidence may help to establish that a verdict is unreasonable within the meaning of Yebes and Biniaris , Beaudry does not govern an error of this sort . [15] Rather, the Beaudry test addresses the reasonableness of the judge’s verdict, notably by scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial.

A trial judge who is mistaken as to the evidence admitted at trial misapprehends the evidence, inviting appellate scrutiny under Lohrer , not Beaudry ; a trial judge who is not mistaken as to the evidence but reaches a verdict by an illogical or irrational reasoning process commits an error under Beaudry , not Lohrer . These are conceptually distinct errors . To conflate them is to disregard the rationale of Beaudry and the jurisprudential gap it has filled. [23] [Emphasis added.] [ 110 ] This excerpt from Sinclair is important.

The error on the substance of the evidence at issue in Lohrer may make it possible to demonstrate that a verdict is unreasonable, but only when the verdict is also not supported by the evidence within the meaning of Yebes and Biniaris or when it is the outcome of illogical reasoning within the meaning of Beaudry . Alone, an erroneous

interpretation of the evidence does not render a verdict unreasonable. [ 111 ] In this case, several of the guilty verdicts could have been based on the evidence adduced at trial. For example, a guilty verdict on some of the counts could have been justified by the evidence that the appellants were in a car following the minivan carrying Karera so that they could later drive him to Montreal or, as the trial judge found, the evidence of the appellants' foray to the front of Marchand's apartment building to see whether the police were there. [ 112 ] I am in no way prejudging the outcome of any new trial.

The fact remains, however, that a properly instructed jury that accepted all of the evidence and the inferences proposed by the prosecution and entirely rejected the defence raised by the accused would have had sufficient evidence to justify guilty verdicts that this Court could not have characterized as unreasonable. [ 113 ] Because the evidence in this case would allow a properly instructed jury to find the accused guilty, and because the judge did not arrive at the verdicts illogically, the effect of the errors in assessing the evidence must be considered from the perspective of miscarriage of justice rather than that of an unreasonable verdict. [ 114 ] The erroneously interpreted evidence must play a preponderant role in arriving at a verdict for an appellate court to find that there has been a miscarriage of justice: When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice ?

The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict . Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction . [24] [Emphasis added.] [ 115 ] In Lohrer , Binnie J. reiterated the remarks of Doherty J.A. of the Court of Appeal of Ontario as follows: [2] Morrissey , it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [25] [ 116 ] I am of the view that, in this case, the errors committed by the judge play an important

part in his reasoning and that they played an essential

part in the conviction of the accused. If the judge's conclusion about the number of persons in the apartment and his finding that the testimonies of all of the witnesses for the prosecution corroborated each other were struck from the judgment, the judge's

reasoning on which the convictions are based would be left on unsteady ground, within the meaning described by LeBel J. in Sinclair : [56] ... For a misapprehension of evidence to be material within the meaning of the Lohrer test, it must go to a central element of the trial judge’s reasoning on which the conviction is based ( Lohrer , at para. 2 , per Binnie J.). As Binnie J. correctly stated in Lohrer , the standard described by Doherty J.A. in Morrissey is a stringent one (para. 2 ).

In other words, an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground . [26] [Emphasis added.] [ 117 ] The syllogism establishing that the four persons arrested were the only four in the apartment that could have attacked the traffickers is essential to the guilty verdicts.

In this case, the trial judge's failure to consider all of the relevant evidence on an essential aspect of the case – the number of individuals in the apartment – is fundamental because the evidence against the accused is entirely circumstantial.

The judge also committed significant errors by attributing remarks to witnesses who never made them and concluding therefrom that the evidence of the prosecution was corroborated and consistent. [ 118 ] The only possible conclusion is that the verdicts are not based exclusively on the evidence adduced at trial and are at the very least likely to lead to a miscarriage of justice. In these circumstances, the Court cannot uphold such verdicts. [27] A new trial must be ordered on the counts on which the evidence adduced at trial would otherwise justify guilty verdicts. I will now consider each of these counts.

III) The conspiracy count [ 119 ] At trial, on the basis of uncontradicted evidence, all of the parties agreed that the appellants were not parties to the initial agreement. The conspiracy had been fomented and planned even before the appellants arrived in Quebec City and met some of the conspirators. It was in fact supposed to have taken place before they arrived. [ 120 ] Basing himself on the principles in R. v. McNamara , [28] the trial judge found the appellants guilty on the first count as parties to the offence. [ 121 ] Following McNamara , a person who has not taken

part in the initial agreement may commit the offence of conspiracy by being a party to the offence (21(1)(

b) Cr. C. ) by being aware of the conspiracy and by accomplishing (or failing to accomplish) an action to further the unlawful object of the conspiracy. The trial judge concluded that the appellants could not be unaware of the existence of the conspiracy and that they committed actions to further its unlawful purpose. Here the judge gave the example of the appellants going to the front of the apartment building to see whether the police were there.

Considering the appellants’ knowledge of and participation in the furthering of the unlawful object, the judge found them guilty of conspiracy. [ 122 ] At the time of the trial judgment, the Supreme Court had not yet rendered R. v. J.F ., [29] which set aside the teachings in McNamara . Therefore, the trial judge had legitimate reason to believe that he was justified in convicting the appellants in accordance with the principles in McNamara . The law has changed since the judgment under appeal, however. [ 123 ] According to R. v.

J.F ., the criminal liability of a party to a conspiracy cannot be incurred solely if that party has knowledge of the conspiracy and does (or omits to do) something to further its unlawful object: [42] That brings me to the broader approach endorsed in McNamara and the central issue in this appeal — namely, whether party liability can attach to someone who knows of a conspiracy and who does (or omits to do) something for the purpose of furthering its unlawful object. [43] With respect to those who hold a different view, I have concluded that it should not.

Party liability should be restricted to conduct that aids or abets the formation of the agreement that comprises the essence of the crime of conspiracy. In all other cases, a conviction for conspiracy will not lie absent proof of membership in the conspiracy . [30] [Emphasis added.] [ 124 ] No one argues that the appellants aided or abetted the formation of the agreement. To be found guilty of conspiracy, the appellants must be full parties to the offence (paragraph 21(1)(

a) Cr. C. ). The evidence must justify a conclusion that, on February 23 and 24, the appellants signed on to the conspiracy to commit robbery that had already been fomented by other individuals. [ 125 ] The trial judge inferred that the appellants were guilty of the February 23 conspiracy based solely on their testimony. On this subject, the trial judge wrote: [ translation ] In the context, it is altogether implausible that they had been told nothing of the events of the next day, when they had spent part of the day and evening with Nerva Lovinsky and Clément Karera himself . Fifth.

What is also entirely implausible is that he did not ask who he would be bringing back to Montreal and that no one told him , when it was Clément Karera, who was with them, especially since, as Marc-Élie Fontaine says, Clément Karera is someone who speaks a lot, even too much. [Emphasis added.] [ 126 ] These remarks of the judge were made in the context of the analysis of the appellants' credibility. Even though the judge rejected the appellants' version and found that they knew of the existence of the conspiracy, this conclusion alone does not justify finding

that they were parties to the pre-existing conspiracy: [translation] An agreement signifies a meeting of minds that may be tacit or explicit. Such agreement is meaningful insofar as the parties intend to aideach other or to act together to accomplish their common unlawful object. Therefore, if the parties, in their dealings or meetings, merelyconsider a plan to accomplish an unlawful purpose or the possibility of doing so, they have not necessarily expressed through theiractions the intent to aid each other pursue the unlawful object: the conspiracy has not been formed.

Similarly, a person who is deemed to"join" an existing conspiracy must display more than knowledge, interest, or even acquiescence. A person truly adheres to a conspiracywhen his or her intent to join with others and participate with them in the accomplishment of the unlawful purpose may be inferred fromhis or her conduct ("adopt the conspiracy as his own... and agree to work toward its end").

In principle, therefore, it is not essential forthe parties to a conspiracy to have actually committed any acts in the furtherance of the purpose of the conspiracy: it is being party to theagreement, and not the carrying out of the agreement, that is required.

Unlike attempt, conspiracy does not require that the action beexecuted.[31] [Citation omitted; emphasis added.] [127] The evidence of the events on February 23, 2010 – which emanates entirely from the appellants – does not justify attributing tothem the intent to join a conspiracy as of that date. [128] With regard to the February 24 conspiracy, the prosecution attempted to demonstrate that the appellants committed acts to aid inthe commission of the robbery, which is the object of the conspiracy that they knew existed. Since the recent judgment of the SupremeCourt in R. v. J.F., paragraph 21(1)(

b) Cr. C. no longer allows the conviction of the appellants of conspiracy on the basis of these twopieces of evidence. Again, the evidence must demonstrate the intent to join a conspiracy to commit robbery: [translation] [70] As for the intent to enter into the agreement, the case law specifies that knowledge of the object of the conspiracy is no moresufficient than being a party to the offence that is the object of such conspiracy; what is needed is for the accused to have had the intentto knowingly join the conspiracy in a spirit of cooperation.

Mere lack of concern is not sufficient.[32] [Citation omitted; emphasis added.] [129] In this case, there is no evidence of such intent. At most, the evidence grounds a finding of lack of concern or even wilfulblindness on the part of the appellants with respect to the robbery. This is not sufficient for the offence of conspiracy. [translation] … As this Court has recently noted, however, to prove the intent to join an existing conspiracy, it is not sufficient to prove that theaccused was aware of an unlawful plan.

It must be demonstrated that he made the plan his own and agreed to participate in itscompletion (United States of America v. Tavormina (19 November 1996) Montreal, 500-10-00483-964, Proulx J.A. at 7, J.E. 96-2276; (QC CA), 112 C.C.C. (3d) 563): [translation] Becoming a member of an existing conspiracy is much more than being aware of it, talking about it, having an interest in its beingcarried out, or even approving of it; a conspiracy is not simply an agreement, it must be made clear through "consent ... and theagreement to co-operate in the attaining of the evil end" (upheld in Regina v.

McNamara et al (No. 1) (1981), (ONCA), 56 C.C.C. (2d) 193 (Ont. C.A.). This Court, in Regina v. Lessard (1982), (QC CA), 10 C.C.C. (3d) 61, perBisson J., approved this definition whereby the agreement "... must be to participate together in the co-operative pursuit of a commonobject" (at 87).

In the same vein, Doherty J., sitting then at the High Court in review of a committal for trial, wrote: Before the applicant could be required to stand trial on the conspiracy alleged, there had to be evidence from which a jury couldreasonably find that the applicant not only was aware of this general scheme but had made its object her own and agreed to work with theco-accused in achieving that object. (Re Cebulak and The Queen (1986), (ON SC), 46 C.C.C. (3d) 437, p. 441 (Ont.H.C.J.); A reading of this excerpt reveals that the offence of conspiracy cannot be committed through mere lack of concern as to the object of theagreement (3d) 61 at 86.

As a result, the trial judge could not base himself solely on his conclusion that the appellant committed theoffence of possession of stolen goods to infer that he had conspired with Mario Demers and Guy Laroche to possess these goods. It wasnot sufficient for the Crown to demonstrate wilful blindness on the part of the appellant with regard to the unlawful provenance of hiscargo to prove that he was a voluntary party to a conspiracy.

Rather, the Crown had to prove beyond any reasonable doubt that theappellant had agreed with the other conspirators to commit the offence of possession of stolen property and participate in its completion.In my view, this was not proved. I would therefore overturn the verdict of guilt rendered against the appellant on the charge ofconspiracy.[33] [Original emphasis omitted and emphasis added.] [130] In view of the changes in the law since the trial judgment, the appellants cannot be convicted of conspiracy as perpetrators of theoffence or as parties to it on the basis of the evidence adduced at trial.

Consequently, the appellants must be acquitted on this count. [131] The appellants' guilt on the count of conspiracy was determinative in more than one way, since the trial judge wrote at the end

of his reasons that [translation] "subsections 1 and 2 of

section 21 also apply in determining the guilt of the accused by way ofcomplicity". Without evidence of a common plan to pursue an unlawful object, there can be no criminal liability under subsection 21(2)Cr. C. Therefore, we must consider the impact of the acquittal on this count, since the evidence must now support the verdicts of guilt asthe one who actually commits or as one who aids in the commission of other offences (subsection 21(1) Cr. C.).

IV) Unreasonable verdicts [132] Since the evidence adduced at trial does not support findings as to the number of individuals in the apartment at the time of theassaults, the period during which the accused were at the scene of the assault, or their role when they were present, it can only beconcluded that the evidence does not establish that the offences of assault causing bodily harm, robbery, disguise, and possession of aloaded prohibited weapon were committed by the appellants as perpetrators or as persons aiding in the commission of the offences(subsection 21(1) Cr. C.).

The judge apparently relied on subsection 21(2) Cr. C. to justify at least some of these guilty verdicts. [133] Without evidence as to the participation of the appellants as perpetrators or as persons aiding in the commission of the offences(subsection 21(1) Cr. C.), no properly instructed jury acting judicially could reasonably have found the appellants guilty on these countswithin the meaning of R. v.

Biniaris: [36] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot besupported by the evidence has been unequivocally expressed in Yebes: [C]urial review is invited whenever a jury goes beyond a reasonable standard. . . . The test to be applied is “whether the verdict is onethat a properly instructed jury acting judicially, could reasonably have rendered”. (Yebes, supra, at p. 185 (quoting Corbett v.

The Queen, (SCC), [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).) …[34] [134] With regard to the counts of assault causing bodily harm (counts 4 and 5), none of the evidence adduced at trial suggests that theappellants committed them personally or aided the perpetrator in their commission. [135] The fact that the judge rejected the appellants' explanation regarding the drop of blood does not constitute incriminatingevidence against them.[35] The only rational conclusion that may be drawn from the evidence is not that the appellants assaulted oraided in assaulting the traffickers. [136] The appellants must be acquitted on the charges of assault. [137] The same is true with respect to the counts of robbery (counts 2 and 3).

There is no evidence supporting a reasonable conclusionthat the appellants aided in the robbery or actually robbed the traffickers themselves by depriving them of their personal effects duringthe assault. [138] The appellants must be acquitted on the charges of robbery. [139] Because of the inapplicability of subsection 21(2) Cr. C., the guilt of the appellants on count 11 – possession of the sawed-off12-gauge found in the trunk of Marchand's car – is unreasonable. There is no evidence establishing that the accused aided or abetted theuse of or themselves used real or artificial weapons in the apartment.

The only weapon that could render the accused guilty of possessionunder subsection 21(1) Cr. C. is Karera's pistol, during the drive to Lac-Beauport. The true nature of this weapon is not contested. [140] There is no direct or circumstantial evidence, however, from which it may be inferred that the appellants knew that the weaponwas loaded, which is an essential element of the offence. At most, the evidence justifies a verdict on the lesser and included offence ofpossession of a weapon under

section 92 Cr. C. Considering the error of law relating to the statements and the miscarriage of justiceexplained above, a new trial should be ordered on this count. [141] With regard to the verdict of disguise with intent (count 10), the traffickers state that the three individuals who assaulted themwere masked. One of these individuals was Karera. The circumstantial evidence does not ground the conclusion that the appellants werethe other two.

We do not know whether all of the individuals in the apartment were wearing balaclavas. [142] Surveillance officer F19 is the only one who testified about the appellants specifically: [translation] They had the ... their lower faces, you know, either their coat was hiding it or they were wearing a scarf, but it wasn't a balaclava, I wantto be clear, it was really, you know, like a hoodie, with a hood pulled over his head. [143] This was in February.

Without specific evidence, which does not exist in this case, it would be surprising, to say the least, to beable to find beyond any reasonable doubt that an individual wearing a coat and scarf at that time of year is guilty. The evidence does notsupport the conviction of the accused on this count. [144] The appellants must be acquitted on the counts for which the evidence does not support their guilt under subsection 21(1) Cr. C.,that is, the offences of assault causing bodily harm, robbery, and disguise. Moreover, the evidence supports only the lesser and includedoffence of possession of a weapon under

section 92 Cr. C. CONCLUSION [145] For these reasons, I would allow the appeal, acquit the appellants on the counts of conspiracy, assault causing bodily harm,robbery and disguise, and order a new trial on the following counts:

- Count 6 : having confined, imprisoned or forcibly seized Drolet (279(2)(

a) C.cr. ); - Count 7 : having confined, imprisoned or forcibly seized Gauthier (279(2)(

a) Cr.C. ) - Count 8 : having kidnapped Drolet with the intent to cause him to be confined or imprisoned against his will while using a firearm (279(1)( a )(1.1)(

a) Cr. C .) - Count 9 : having kidnapped Gauthier with the intent to cause him to be confined or imprisoned against his will while using a firearm (279(1)( a )(1.1)(

a) Cr. C. ) - Count 11: having had unauthorized possession of a pistol or revolver (section 92 Cr. C .) ANDRÉ ROCHON, J.A.