2012 QCCA 1482, 2012 QCCA 1482

St-Jacques c. R. 2012 QCCA 1482 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-004290-084 (750-01-026839-074) DATE : 20 août 2012 CORAM : LES HONORABLES ALLAN R. HILTON, J.C.A. GUY GAGNON, J.C.A. RICHARD WAGNER, J.C.A. EUGÈNE- RENÉ ST-JACQUES APPELANT – Accusé c. SA MAJESTÉ LA REINE INTIMÉE – Poursuivante ARRÊT [ 1 ] L'appelant se pourvoit contre des verdicts de culpabilité de meurtre au premier degré (

article 235 C.cr . ) et d'avoir conseillé une infraction qui n'est pas commise (

article 464a) C.cr. ) prononcés le 27 novembre 2008 par un jury de la Cour supérieure, district de Saint- Hyacinthe présidé par l'honorable Carol Cohen. [ 2 ] Pour les motifs du juge Hilton, auxquels souscrivent les juges Gagnon et Wagner; LA COUR : [ 3 ] ACCUEILLE l'appel; [ 4 ] CASSE les verdicts de culpabilité; [ 5 ] ORDONNE la tenue d'un nouveau procès pour le chef d'accusation de meurtre au premier degré; [ 6 ] SUBSTITUE au verdict de culpabilité prononcé à l'égard du chef d'avoir conseillé une infraction qui n'est pas commise un verdict d'acquittement. ALLAN R. HILTON, J.C.A. GUY GAGNON, J.C.A.

RICHARD WAGNER, J.C.A. Me Martin Latour LABELLE BOUDRAULT CÔTÉ ET ASSOCIÉS Pour l'appelant Me Sylvie Villeneuve AVOCATE AUX POURSUITES CRIMINELLES ET PÉNALES Pour l'intimée Date d’audience : le 16 mars 2012

REASONS OF HILTON, J.A. I INTRODUCTION [ 7 ] Jacques Cléroux was last seen alive on the afternoon of July 12, 2007. Since then, his deceased remains have never been recovered. As the result of statements the appellant, Eugène-René St-Jacques, made in the early hours of July 13 to C. B., a friend and workplace acquaintance, he was arrested and charged with three indictable offences: (1) first degree murder of Jacques Cléroux contrary to

section 235 Cr.C .; (2) obstruction of justice contrary to subsection 139(2) Cr.C .; and, (3) counselling the commission of an offence that was not committed contrary to paragraph 464 (

a) Cr.C . [ 8 ] A Superior Court jury convicted Mr. St-Jacques of the first and third counts and acquitted him of the second. He appeals both guilty verdicts and solicits an order for a new trial. The Crown essentially concedes certain errors of the trial judge in the delivery of her instructions, but invokes the curative proviso of subparagraph 686(1)(b)(iii) Cr. C ., and invites the Court to dismiss the appeal.

Alternatively, with respect to the murder count, if the Court is of the view that it cannot properly apply the curative proviso, it asks the Court to substitute a verdict of guilty of second degree murder rather than order a new trial. [ 9 ] The appeal also presents another particularity that is not often seen. [ 10 ] On the first degree murder count, the trial judge also opened verdicts of second degree murder and manslaughter. At trial, Mr. St-Jacques argued that the Crown had failed to satisfy its evidentiary burden that he was the author of the homicide, and for that reason, sought an acquittal.

At the hearing in this Court, however, his appellate counsel conceded that Mr. St-Jacques did unlawfully cause the death of Mr. Cléroux. II THE FACTS [ 11 ] Both Mr. Cléroux and Mr. St-Jacques knew each other from their employment at the warehouse of Philtex, a company with premises in Saint-Hyacinthe. It was in the business of recovering used apparel and shoes that were then shipped to underdeveloped countries. [ 12 ] Although he lived in Montreal with his spouse in fact, Clarissa Robinson, Mr.

Cléroux often slept at the warehouse in a room with kitchen facilities that served as an employee cafeteria, and which included a couch with a foldout bed. He did so since he did not have a car to make the daily trip from Montreal to Saint-Hyacinthe. As for Mr. St-Jacques, he had left the employ of Philtex a few months prior to the occurrence of the events in issue, and had secured employed elsewhere. He had a car but not a residence. The company owner, Philippe Paquin, allowed him to stay temporarily in an adjacent warehouse. [ 13 ] Mr.

Cléroux had been the subject of a variety of complaints from fellow employees during 2007 relating to his personal habits and work-related issues. Many of these complaints came from Mr. St-Jacques during his employment at Philtex. Mr. Cléroux was accused of being unhygienic and drinking on the job, which was a source of danger when he was driving heavy equipment in the warehouse. He was also criticized for his authoritarian demeanour that led him to act as if he was the boss, when of course he was not.

His lack of hygiene was also quite problematic since the resulting malodors affected the employees' use of their cafeteria, where he slept. [ 14 ] For his part, Mr. St-Jacques was notably aggressive towards Mr. Cléroux. In that respect, he was not unlike many other employees of Philtex who testified, who were also critical of Mr. Cléroux for many of the same reasons. Mr. St-Jacques would often shout at Mr.

Cléroux, call him various insulting names, and was even heard to say that it would be better for him to leave Philtex because he would otherwise look after getting rid of him. [ 15 ] The tension had risen to such a point that Mr. Paquin finally transferred Mr. Cléroux from working inside to outside the warehouse, but the truck driver with whom he had been assigned to work was also unable to put up with him. This led to Mr. Cléroux being transferred back to working within the warehouse beginning on Monday, July 9, 2007. It was in the context of this workplace environment that Mr.

Cléroux' life was taken later that week. [ 16 ] When Mr. Cléroux did not appear at work on July 13, Mr. Paquin telephoned Clarissa Robinson, who was in Montreal. She was concerned that she could not contact him, and told Mr. Paquin that she had reported Mr. Cléroux missing. Nothing significant transpired, however, until the morning of Wednesday, July 18. At that time, Ms. B. informed Mr. Paquin of the substance of a conversation she had with Mr. St-Jacques on the evening of Thursday, July 12, the day Mr. Cléroux was last seen alive, as well as what happened the following day, July 13. Mr.

St-Jacques had not been at his place of employment, away from Philtex, on those two days. [ 17 ] According to Ms. B., Mr. St-Jacques showed up at her residence on the evening of July 12 at around 6:30pm in an advanced state of intoxication, woozy, and carrying three cans of beer, two of which he drank before leaving at around 9:00pm. He was incoherent, and told her he was preoccupied by the return of Mr. Cléroux to work in the warehouse.

[ 18 ] Mr. St-Jacques had previously visited Ms. B. on many occasions. During these visits, he told her he had already dug a six-foot grave for Mr. Cléroux, and that it was only a matter of time before he would stuff him in it. [ 19 ] Ms. B. arrived at work as usual at 5:25am on the morning of July 13 to open the warehouse for 6:00am. She observed almost immediately that Mr. Cléroux was not there, and that the premises in which he slept were spotless compared to their usual state when he was sleeping there. Mr. St-Jacques saw her shortly after her arrival. He told her that he had killed Mr.

Cléroux with several blows of a hammer, placed his body in a blanket and put it in the trunk of his car, and intended to bring it to Laval. He told her he had been drunk when he did so. She also testified that he told her that he and Mr. Cléroux had argued about something before he took his life. Ms. B. described herself as upset and traumatized, fearing Mr. St-Jacques would kill her, although she worked that day at Philtex and was not observed to be in any distress. [ 20 ] When he saw Ms. B. in the early hours of July 13, Mr.

St-Jacques asked her to bring another Philtex employee, Léo Doray, to where he was staying in the adjacent warehouse, at 6:00am. She was to do so under the false premise of having him pick up some shoes. Mr. St-Jacques told her he would then kill Mr. Doray upon his arrival. [ 21 ] Instead of doing what Mr. St-Jacques had asked, Ms. B. went to the intended destination at 6:02am, but unaccompanied by Mr. Doray. She had known Mr. Doray for several years, and had determined she would not do as Mr. St-Jacques had requested. Upon her arrival, she found Mr.

St-Jacques wearing gloves and brandishing a sledgehammer in the air, with a blanket at the ready in which to place the corpse of Mr. Doray. She made up an excuse to explain why she had not brought Mr. Doray, the substance of which seemed to satisfy Mr. St-Jacques, although he was angered that he could not then kill him as he had planned. He told her that it was not over, that he would have to restart his plan to kill Mr. Doray. [ 22 ] Despite what Mr. St-Jacques told Ms. B. about having killed Mr. Cléroux and having solicited her assistance to kill Mr.

Doray, she accepted a lift from him to drive her home on the afternoon of July 13. Mr. St-Jacques returned to her residence around 6:30pm. He asked Ms. B. to provide him with an alibi by saying that he had slept over at her place on Thursday and Friday. She declined, saying that she would not be believed. He then told her a friend of his would come by and get rid of her if she did not cover for him, and added that he would kill the remaining employees and the owner of Philtex if necessary. Mr. St-Jacques returned to make the same threats on the weekend as well as on the following Monday and Tuesday. Despite Mr.

St-Jacques' threats on her life, her knowledge of what he had told her about killing Mr. Cléroux and his threat to kill Mr. Doray, Ms. B. did not call the police, nor inform Mr. Paquin, until Wednesday, July 18. [ 23 ] Mr. St-Jacques was arrested on the evening of July 20 while driving his car. A search of the vehicle ultimately revealed that the carpeting in the trunk had been removed. Three reddish stains were also identified in the trunk, one of which was still humid. DNA analysis later disclosed it to be the blood of Mr. Cléroux. [ 24 ] At the same time, the cell phones and pager belonging to Mr.

St-Jacques were seized. [ 25 ] A search of the warehouse premises was effected on Saturday, July 21. In addition to taking numerous photographs, several samples were taken from various objects. The only positive result of their evaluation was that the blood of Mr. Cléroux was found on two plastic bags in the adjacent warehouse where Mr. St-Jacques had been temporarily residing. In addition, Mr. Cléroux' DNA was identified on cleaning material that Mr. St-Jacques had purchased from a Dollarama outlet on the morning of July 13.

III OTHER DISTINCT LEGAL ISSUES AT TRIAL [ 26 ] Apart from the substance of the evidence and the grounds of appeal that relate to them, two distinct legal issues arose during the trial that warrant mention. [ 27 ] The first of these relates to the third count, that of counselling the commission of an offence that did not occur ( paragraph 464 (

a) Cr.C .). [ 28 ] After Mr. St-Jacques had been committed to trial following a preliminary inquiry, he presented a motion for the issuance of a writ of certiorari to quash the third count. The basis of the motion was that the preliminary inquiry judge exceeded his jurisdiction by committing him to trial on that count since the facts alleged did not constitute an offence under paragraph 464 (

a) Cr. C . [1] Brunton, J. dismissed the motion, [2] and his judgment was not appealed. [ 29 ] A written motion, apparently much to the same effect, was then presented to the trial judge once the trial began. She dismissed it, essentially for the reasons given by Brunton, J. She considered herself bound by his judgment, but added that apart from its binding effect on her, she shared his analysis. It should be noted that the trial judge disposed of Mr.

St-Jacques' motion before having heard any of the evidence relating to this count, whether on a voir dire or otherwise. [ 30 ] The second issue is an evidentiary one that arose during the cross-examination of Ms. B.. Contrary to her testimony that she did not remember having communicated with Mr. St-Jacques on his cell phone or on his pager between July 12 and July 18, records relating to the use of those devices revealed that she had done so on numerous occasions. These records had been made available to Mr. St- Jacques as part of the Crown's pre-trial disclosure. His counsel sought to cross-examine Ms.

B. using them, with the obvious purpose of undermining her credibility, since her testimony relating to what Mr. St-Jacques had told her on July 12 and 13 was critical to all three counts in the indictment. [ 31 ] The Crown, however, would not consent to their introduction, and required that the defence call appropriate witnesses to produce the records. Mr.

St-Jacques then sought to have the Court call such witnesses as its own, rather than forcing him to do so, which would eliminate the tactical advantage the defence would otherwise enjoy of addressing the jury last during closing argument to the jury. [ 32 ] The trial judge rejected the request. Mr. St-Jacques' counsel thus was forced to call two witnesses, one from a service provider

to formally produce the pager statement for the relevant period, and a police officer who had obtained the cell phone statements. The Crown's cross-examination of these witnesses that it had refused to call, despite having disclosed the documents in question and acknowledging their accuracy, was perfunctory at best. IV ISSUES IN APPEAL [ 33 ] The various issues raised by the appeal may be stated as follows:

(1) Do the facts alleged and proven justify Mr. St-Jacques' conviction of having counselled the commission of an offence that was not committed, contrary to paragraph 464 (

a) Cr.C . ?

(2) Did the trial judge err by failing to instruct the jury not to take account of the evidence relating to the alleged offence of counselling the commission of an offence that was not committed in its assessment of the evidence on the first degree murder count?

(3) Are the verdicts of acquittal on the obstruction of justice count and conviction on the counselling count incompatible?

(4) Did the trial judge err in not calling as the Court's witness those witnesses whose testimony was rendered necessary to produce Mr. St-Jacques' pager and cell phone records instead of forcing him to do so?

(5) Did the trial judge err in the delivery of her instructions to the jury?

(6) To the extent any errors are identified, does the curative proviso of subparagraph 686(1)(b)(iii) Cr.C . apply nevertheless to dismiss the appeal?

(7) If the curative proviso cannot be properly applied to the first degree murder count, should the Court order a new trial or substitute a verdict of second degree murder? V ANALYSIS AND DISCUSSION [ 34 ] The first two issues being intimately related, I will deal with them together.

(1) Do the facts alleged and proven justify Mr. St-Jacques' conviction of having counselled the commission of an offence that was not committed, contrary to paragraph 464 (

a) Cr.C .?

(2) Did the trial judge err by failing to instruct the jury not to take account of the evidence relating to the alleged offence of counselling the commission of an offence that was not committed in its assessment of the evidence on the first degree murder count? [ 35 ] As I have mentioned, the trial judge considered herself bound by the judgment of Brunton, J. dismissing Mr. St-Jacques' certiorari application, but nevertheless agreed with his disposition of the application. [ 36 ] Mr. St-Jacques' position before Brunton, J. was that the offence mentioned in the count was unknown to the law. From his perspective, the offence in paragraph 464 (

a) Cr. C. applies only when the person who is counselled (i.e. Ms. B.) is the one who is meant to commit the offence, and does not apply to the person who so counsels (i.e. Mr. St-Jacques). Since Mr. St-Jacques never intended that Ms. B. actually murder Mr. Doray, but only facilitate his doing so by having Mr. Doray attend at the adjacent warehouse at 6:00am under a false pretense, Mr. St-Jacques' conduct does not fall within the ambit of paragraph 464(

a) Cr.C ., whatever other offence it might have generated. [ 37 ] Brunton, J. noted that Mr. St-Jacques' argument was based on differences in the text of subsection 22(1) Cr.C . and paragraph 464 (

a) Cr.C ., which respectively provide as follows: 22.

(1) Lorsqu’une personne conseille à une autre personne de participer à une infraction et que cette dernière y participe subséquemment , la personne qui a conseillé participe à cette infraction, même si l’infraction a été commise d’une manière différente de celle qui avait été conseillée. 22.

(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence , the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

464. Sauf disposition expressément contraire de la loi, les dispositions suivantes s’appliquent à l’égard des personnes qui conseillent à d’autres personnes de commettre des infractions :

a) quiconque conseille à une autre personne de commettre un acte criminel est, si l’infraction n’est pas commise , coupable d’un acte criminel et passible de la même peine que celui qui tente de commettre cette infraction; [Soulignage ajouté.] 464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely, (

a) every one who counsels another person to commit an indictable offence is , if the offence is not committed , guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; [Emphasis added.] [ 38 ] Despite the textual differences, Brunton, J. was of the view that the words "to commit an indictable offence" ("de commettre un acte criminal" in French) in paragraph (

a) of

section 464 Cr.C . should not be restrictively interpreted, as Mr. St-Jacques had argued. Moreover, nothing in the wording of the offence required that the person who was counselled be intended as the person to commit the offence that was not committed. The ratio of his conclusion is best reflected in the following extract: [17] Cette Cour considère qu'il est aussi moralement blâmable de conseiller à une personne de commettre une infraction elle-même que de conseiller à cette personne d'aider ou encourager une tierce personne à le commettre. [18] Si le requérant avait raison, la présence de la phrase "... conseille à une autre personne de participer à une infraction..." à l'

article 22 C.cr . couvrirait toutes les façons d'engendrer sa responsabilité criminelle prévue à l'

article 21 C.cr . Donc, si le crime conseillé est commis, celui ou celle qui a conseillé à quelqu'un d'aider ou d'encourager la commission sera tenu criminellement responsable. Avec égards, aucun argument logique ne pourrait expliquer pourquoi le législateur voudrait envisager une responsabilité criminelle plus restreinte si le crime conseillé n'était pas commis. [ 39 ] The trial judge considered Mr. St-Jacques' re-submission of the same arguments as those presented to Brunton, J. as taking the form of a disguised appeal. In my view, however, it was perfectly proper for Mr.

St-Jacques to apply for relief from the trial judge in order to keep the issue alive for appellate review in the event his arguments were rejected and the jury convicted him of the offence, as it eventually did. Mr. St-Jacques, after all, is appealing his conviction on this count, [3] and not the judgment of Brunton, J. or that of the trial judge dismissing his motion to quash the count and remove it from the jury's consideration. [ 40 ] The first aspect of this submission is whether the trial judge was bound by the judgment of Brunton, J. dismissing Mr. St- Jacques' certiorari application.

As I have noted earlier, Mr. St-Jacques' certiorari application and any other materials that may have been before Brunton, J., such as the decision of the preliminary inquiry judge and the transcript of the evidence that judge heard, do not form any part of the record in this Court.

It would therefore be presumptuous, to say the least, for me to comment on the correctness of the conclusion at which Brunton, J. arrived. [ 41 ] That being said, in my opinion, the trial judge is responsible for the conduct of the trial, whatever judgments may have preceded the beginning of the trial, and he or she enjoys an inherent jurisdiction to reconsider the correctness of other judgments that have preceded the beginning of the trial. [4] This is no less true of a judgment on a certiorari application rendered by a different trial judge that is dismissed. [ 42 ] What can be viewed as an impermissible collateral attack on a previous judgment rendered in the same case [5] can now be seen in a different light.

The judgment of the Supreme Court in R. v. Litchfield [6] made the point. One of the issues considered was whether a trial judge had jurisdiction to review a pre-trial severance order rendered by a different judge once a trial on multiple sexual assault counts began. Writing on behalf of the Court, Iacobucci, J. said this: A pre-trial division and severance order does not govern the conduct of the parties but rather regulates the judicial process itself. Such an order is purely related to the procedure of an accused's trial.

Another way of stating the matter is that a pre-trial division and severance order is only concerned with a court's controlling its own process within the confines of the same litigation. Therefore, to allow a collateral attack at trial before a superior court on a pre-trial division and severance order made by a superior court would not jeopardize the rule of law or damage the repute of the administration of justice. Further, if the order had been made by a trial judge, it would have been subject to review by appellate courts along with the verdict.

To permit an order to stand which is so erroneous that it results in a trial process that is fundamentally flawed would result in procedure governing substance; a result that cannot be accepted. Accordingly, in the narrow circumstances of this case, I would recognize some flexibility in the rule against collateral attack and hold that the pre-trial division and severance order was liable to be reviewed and, if made erroneously, set aside by the trial judge.

The failure of the trial judge to refuse to follow the pre-trial division and severance order, if erroneous, would constitute an error of law reviewable on appeal to this Court. [7] [ 43 ] Although the analogy is not entirely perfect, what Mr. St-Jacques sought by way of certiorari bears some resemblance to a pre- trial severance order. The former seeks to quash a count from being tried; the latter removes it from consideration in a particular trial, to be tried at a different trial.

Another difference, of course, is that a judgment on a certiorari application can be appealed immediately pursuant to subsection 784(1) Cr. C. , while a pre-trial severance order can only be put in issue on appeal from a verdict. [ 44 ] Nevertheless, the jurisdiction of a trial judge called upon by way of certiorari to consider the legality of a decision of a preliminary inquiry judge to commit an accused to trial on a particular count is a limited one. Although recourse to certiorari in such

circumstances has been recognized, [8] the noted authors Pierre Béliveau and Martin Vauclair [9] state clearly that a judge's role "se limite à la vérification de la compétence du juge de paix" [10] and "ne permet pas d'annuler la décision du juge de paix au motif que ce dernier aurait commis une erreur de droit, sauf le cas où elle serait déraisonnable." [11] They go on to say this: 1881. Cette interdiction d'attaquer la décision du juge de paix en invoquant des erreurs de droit découle de considérations de politique judiciaire élaborées par la Cour suprême.

L'enquête préliminaire n'est pas un procès et ne doit pas en devenir un. Il faut aussi éviter de retarder les procédures par les longs délais inhérents au contrôle judiciaire. Enfin, si l'accusé a fait l'objet d'une citation à procès entachée d'une erreur de droit, la Cour suprême a indiqué qu'il n'est pas condamné pour autant, car il doit de toute manière subir son procès. [ 45 ] In addition to renewing his arguments in appeal, Mr. St-Jacques also addresses the comment of Brunton, J. that it is "aussi moralement blâmable" to counsel the commission of an offence ( paragraph 464 (

a) Cr.C .) as it is to counsel someone to be a party to a offence ( subsection 22(1) Cr.C .). He argues that even if there is a moral equivalency between the two, that is but one factor to take into account, and that the criminalization of anti-social behaviour does not depend on such considerations alone. In this respect, he invokes the theory of risk that was examined in R. v.

Déry , [12] in which the Supreme Court declined to criminalize conduct said to amount to an attempted conspiracy. [ 46 ] In reasons on behalf of the Court in Déry , Fish, J. said the following to distinguish conspiracy and attempt to commit offences from the notion of an attempted conspiracy: 49 By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission .

Early intervention through the criminalization of conspiracy is therefore both principled and practical. 50 Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm . When applied to conspiracy , the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize . [Emphasis added.] [ 47 ] Mr. St-Jacques contends that extending the offence contemplated by paragraph 464 (

a) Cr.C . has the effect, in a roundabout way, of resurrecting the offence of attempted conspiracy that the Supreme Court put to rest in Déry . He says that counselling someone to participate in an offence meant to be committed by the person doing the counselling, when the offence is not committed, is the equivalent of an attempt to conspire, since the person offering the counsel is actually attempting to convince someone to become part of a conspiracy. [ 48 ] As for the Crown, it says that the law does not distinguish between those who actually commit an offence and those who participate in it as parties.

In both instances, the charge brought against the author of the crime and a party to it is the same substantive one. There are thus different means of committing the same offence when more than one person is involved. It says there is no valid comparison between the circumstances of this case and the rejected concept of attempted conspiracy. [ 49 ] As might well be expected, there is precious little case law or scholarly writing on the substance of paragraph 464 (

a) Cr.C . [ 50 ] In Canadian law, depending on whether the counselled offence is committed or not, the act of counselling can either become a means of committing an offence under subsection 22(1) Cr.C . , or an offence in and of itself under paragraph 464 (

a) Cr.C. [13] Subsection 22(3) Cr.C. defines "counsel" ("conseiller" and "conseil" in French) for the purposes of the Criminal Code as follows: 22.

(3) Pour l’application de la présente loi, « conseiller » s’entend d’amener et d’inciter, et « conseil » s’entend de l’encouragement visant à amener ou à inciter. 22.

(3) For the purposes of this Act, “counsel” includes procure, solicit or incite. [ 51 ] The Supreme Court had occasion to examine the constitutive elements of the offence under paragraph 464 (

b) Cr.C . in R. v. Hamilton , [14] in which Fish, J. wrote the majority reasons. The underlying offences that were counselled, but not committed by most of those who were counselled, were making explosive substances with intent, doing anything with intent to cause an explosion, break and enter with intent, and fraud. The counselling occurred through advertisements (referred to as "teasers") the accused sent to some 300 people.

It was found that at least 20 sales of advertised material were documented on a web site the accused created for the purpose. [ 52 ] The trial judge in Hamilton concluded that the mens rea of the offence had not been established and accordingly acquitted the accused, a judgment that the Alberta Court of Appeal confirmed. The majority of the Supreme Court reversed in reasons that dealt in the main with the concept of the mens rea , with the division in the Court being based on whether the mens rea of the offence had been established.

Fish, J. described the actus reus in the following brief passage: 15 The actus reus for counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate — and do not merely describe — the commission of an offence: R. v. Sharpe , [2001] 1 S.C.R. 45, 2001 SCC 2 , at para. 57 , per McLachlin C.J. [Emphasis in the original.] [ 53 ] Elsewhere in his reasons he added this: 21 Our concern here is with the imposition of criminal liability on those who counsel others to commit crimes.

In this context, “counsel” includes “procure, solicit or incite”: see s. 22(3) of the Criminal Code . 22 In their relevant senses, the Canadian Oxford Dictionary (2nd ed. 2004) defines “counsel” as “advise” or “recommend (a course of action)”; “procure” as “bring about”; “solicit” as “ask repeatedly or earnestly for or seek or invite”, or “make a request or petition to (a

person)”; and “incite” as “urge”. “Procure” has been held judicially to include “instigate” and “persuade”: R. v. Gonzague (1983), (ON CA), 4 C.C.C. (3d) 505 (Ont.

C.A.). 23 Those who encourage the commission of crimes in any of these ways are criminally responsible for their conduct by way of“secondary liability”. 24 The rationale underlying secondary liability was described by the Law Reform Commission of Canada as “straightforward, obviousand justifiable” — in principle, though not always in practice: Working Paper 45, Secondary Liability: Participation in Crime andInchoate Offences (1985), at p. 5. 25 According to the Commission (at pp. 5-6): . . . the rationale for secondary liability is the same as that for primary liability.

Primary liability attaches to the commission of actswhich are outlawed as being harmful, as infringing important human interests and as violating basic social values. Secondary liabilityattaches on the same ground to their attempted commission, to counselling their commission and to assisting their commission. This is clear with participation. If the primary act (for example, killing) is harmful, then doing it becomes objectionable. But if doing itis objectionable, it is also objectionable to get another person to do it, or help him do it.

For while killing is objectionable because itcauses actual harm (namely, death), so too inducing and assisting killing are objectionable because of the potential harm: they increasethe likelihood of death occurring. The same arguments hold for inchoate crimes. Again, if the primary act (for example, killing), is harmful, society will want people notto do it. Equally, it will not want them even to try to do it, or to counsel or incite others to do it.

For while the act itself causes actualharm, attempting to do it, or counselling, inciting or procuring someone else to do it, are sources of potential harm — they increase thelikelihood of that particular harm’s occurrence.

Accordingly, society is justified in taking certain measures in respect of them: outlawingthem with sanctions, and authorizing intervention to prevent the harm from materializing. [Emphasis added.] 26 These passages, in my view, aptly explain why Parliament has imposed criminal responsibility on those who counsel, procure, solicitor incite others to commit crimes, whether or not the crimes are in fact committed. 27 And it seems to me that the plain meaning of the terms used by Parliament to achieve this purpose point to a fault element thatcombines advertent conduct with a “conscious disregard of unjustified (and substantial) risk” that it entails: L.

Alexander and K. D.Kessler, “Mens Rea and Inchoate Crimes” (1997), 87 J. Crim. L. & Criminology 1138, at p. 1175 (emphasis in original). 28 The “substantial and unjustified risk” standard of recklessness has venerable roots in Canada and in other common law jurisdictionsas well: see, for example, Leary v. The Queen, (SCC), [1978] 1 S.C.R. 29, at p. 35 (Dickson J., as he then was, dissentingon other grounds); and, generally, M. L. Friedland and K.

Roach, Criminal Law and Procedure: Cases and Materials (8th ed. 1997), at pp.508 ff., where Herbert Wechsler explains, at pp. 510-11, why the American Law Institute required in its Model Penal Code that the riskconsciously disregarded be both “substantial” and “unjustifiable”. 29 In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminaloffence.

And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustifiedrisk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, orknowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely tobe committed as a result of the accused’s conduct. [Emphasis added.] [54] In her dissenting reasons, Charron, J. said the following about the actus reus of the offence: 72 […] In order for the actus reus to be proven, the words communicated by the accused, viewed objectively, must be seen as activelyinducing, procuring or encouraging the commission of an offence.

This restricted

interpretation of the meaning of counselling is not onlyconsonant with the definition of “counsel” under s. 22(3), it ensures that the scope of the offence remains within the justifiable limits ofthe criminal law.

It is this concern of potential overbreadth that informed this Court’s adoption in Sharpe of a more restricted meaning ofcounselling. [Emphasis in the original.] [55] Although Charron, J. dissented in Hamilton, Fish, J. noted in the subsequent case of Déry that the extract I have just quotedfrom her reasons was not dissenting on the point she examined there.[15] [56] The case most closely resembling that of Mr. St-Jacques in terms of its factual sequence is Re Meikle and The Queen,[16]which was also a prosecution under what is now paragraph 464(

a) Cr.C. The evidence at the preliminary inquiry revealed that theaccused requested a co-worker to assist him in the perpetration of a fraud on his insurer, but (like Ms. B.) not to actually commit thefraud. The accused brought an application for certiorari in which he argued that "[…] a person cannot be guilty of counselling an offencethe person counselled cannot commit as principal."[17] In brief reasons, Callaghan, J. dismissed the application, and said this: This section[18] codifies the common law rule which made it an offence to solicit or incite another person to commit a felony.

It createsa substantive offence not dependent upon the commission of the offence incited. I see no inconsistency in applying

section 21 to thisinchoate offence. The offence of counselling may be committed when the recommendation or advice to the person counselled is such, iffollowed, as to bring that person within the ambit of

section 21 of the Code as a party in the commission of an indictable offence. Oneneed not counsel the commission of a substantive offence to fall within s. 422 of the Code. The wording of that

section does not precludethe inciting of another to be a "party" to an offence. While in the cases cited on behalf of the applicant it was legally impossible tocommit the offences counselled, in the instant case, it was both legally and physically possible to commit the offence counselled by both

Madill, as a party, and the applicant as principal. […]. [19] [ 57 ] In their treatise on criminal law, Côté-Harper, Rainville and Turgeon are critical of the analysis undertaken in Meikle : L' article 22(1) C.cr . proscrit de conseiller à autrui «de participer à une infraction». L'

article 464 C.cr. défend de conseiller à autrui «de commettre une infraction». Faut-il conclure que le fait de conseiller à un tiers de jouer les complices échappe à l'emprise de l'article 464 C.cr.? Possiblement. Ainsi le veut la common law et pareille interprétation possède deux assises supplémentaires en droit canadien : le libellé différent des articles 22 et 464 C.cr. et la portée même de l'expression «commettre une infraction» : la Cour suprême a déjà exclut jugé par deux fois que la même expression à l'article 17 du Code exclut le complice [20] .

Que l'incitation à la complicité soit soustraite de l'article 464 C.cr. paraît donc une thèse plausible. Elle se bute, il est vrai, à une décision ontarienne contraire [21] . Cela dit l'attention de ce tribunal ne semble avoir été attirée ni sur la formulation différente des articles 22 et 464, ni sur la jurisprudence précitée de la Cour suprême.

L'impunité de l'incitation à la complicité semble vraisemblable; il n'incombe pas aux tribunaux de parfaire la loi pénale et remédier à ses présumées carences. [Underlining added, italic in the original.] [ 58 ] The authors go further and suggest a justification for what they describe as the "impunité de l'incitation à la complicité": De reste, le choix des mots «commettre une infraction» à l'

article 464 C.cr . possède peut-être sa raison d'être. Chercher en vain à s'adjoindre un complice relève tout au plus d'un acte préparatoire. Or l'on connaît la répugnance du droit criminel à sévir à un stade si précoce. Le droit entend permettre au justiciable de se raviser et renoncer à son propos illicite, tant que sa détermination et le risque de préjudice ne seront pas suffisamment avérés. Il ne convient pas de l'oublier lors de l'interprétation de l'article 464 C.cr. A projette de commettre une fraude et sollicite l'aide de B. Ce dernier refuse et A décidera d'abandonner son dessein.

A ne peut être traduit ni pour tentative de fraude [22] , ni pour complot [23] , ni pour tentative de complot [24] . Son comportement est jugé trop embryonnaire pour entraîner une condamnation.

Convient-il dès lors d'aller au-delà de la lettre de l'article 464 C.cr. pour le sanctionner? [25] [ 59 ] As Fish, J. mentioned for a unanimous court in Déry , in speaking of the fact that the accused in that case discussed a crime that he hoped to commit but which never materialized: 51 […]The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them. [ 60 ] The theory of risk, which animated the majority reasons in Déry , was also relied on by the Court in Hamilton in the context of mens rea , as the extract from paragraph 29 of the reasons of Fish, J. that I have reproduced at paragraph [53] show.

It is therefore appropriate to examine the theory of risk in assessing Mr. St-Jacques' argument concerning paragraph 464 (

a) Cr.C . [ 61 ] Counselling someone to be an accomplice, especially when the person who counsels is the one who intends to commit the offence, does not in and of itself create a risk, whether for the intended victim or society, at least in the absence of other preparatory gestures on the part of the person counselling that might amount to an attempt to commit the offence. [ 62 ] That is, in effect, what happened here. [ 63 ] It may well be that Mr. St-Jacques could have been charged with the attempted murder of Mr. Doray, especially since he had taken several preparatory steps to do so had Ms.

B. been inclined to act on his request. [ 64 ] There was, however, no evidence at all of a risk that Ms. B. would actually act on Mr. St-Jacques' request after he spoke to her shortly after her arrival at the warehouse in the early hours of July 13. She may have been someone in whom he confided about what he had done to Mr. Cléroux, and what he proposed to do to Mr. Doray. But her own conduct on the morning of July 13, in presenting herself without Mr. Doray at the premises where Mr.

St-Jacques intended to murder him, is incompatible with the existence of a real risk that he could then carry out any offence relative to Mr. Doray. There is no evidence that Ms. B. ever intended to act on his request, or would have been able to do so even if she had been inclined to respond in the manner Mr. St-Jacques requested. Moreover, there was nothing in their prior relationship that could have reasonably led Mr. St-Jacques to believe there was any basis that Ms. B. would act on such an extraordinary request. Further evidence can be seen by the fact that Mr.

St-Jacques did not even press the matter with Ms. B. when she explained the reason she had not brought Mr. Doray to him. Ms. B.'s fabricated excuse easily assuaged Mr. St-Jacques to disengage her, although he did affirm his intention to kill Mr. Doray later without her assistance. There was therefore a total absence of evidence of any risk that a crime would be committed because of Mr. St-Jacques' request to Ms.

B.. [ 65 ] I do not see, to use the words of Fish, J. in Hamilton , that "the accused … knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.

" [Emphasis added.] [26] [ 66 ] In this respect, it must be remembered that in Hamilton , the accused's conduct in sending "teasers" to 300 recipients generated 20 responses, which illustrated the real risk which his counselling created, even with respect to the recipients who did not act on the invitation to commit criminal offences. [ 67 ] I therefore consider this ground of appeal to be well founded, albeit for reasons different than those argued on behalf of Mr. St- Jacques. I note here that the trial judge only had before her Mr. St-Jacques' motion when she dismissed it.

There was no testimony on voir dire as to the subject matter of the motion, and indeed, her judgment was rendered on November 3, 2008, a full 10 days before Ms. B. began her testimony on November 13. [ 68 ] Where the heart of the problem lies is in the judge's instructions to the jury on this count. At no point in those instructions did the trial judge discuss the theory of risk, as elaborated by Fish, J. in Hamilton . For that reason they were deficient. [ 69 ] Accordingly, I would set aside the verdict of conviction the jury returned. Since I have concluded that the evidence discloses no

risk that Ms. B. would have actually collaborated in the commission of Mr. Doray's murder, that St-Jacques had no reason to believe thatshe would, and that there was no risk that a crime would be committed as a result of his words being uttered, I would substitute a verdictof acquittal on this count in the indictment. [70] The second ground of appeal reproaches the trial judge for having failed to instruct the jury not to take account of the evidenceon the counselling offence in its deliberations on the first degree murder count. Ms. B. was the only witness to testify directly to bothcounts.

It will be recalled that Mr. St-Jacques' admission that he killed Mr. Cléroux and his request that she bring him Mr. Doray to killhim both occurred in the space of a few minutes during the same conversation on July 13. [71] Counsel for Mr. St-Jacques argues that his client suffered irreparable prejudice as the result of the trial judge's failure to tell thejury that the evidence on the counselling count could not be used to show a propensity to murder Mr. Cléroux.

This prejudice wasaggravated by the trial judge not having explained that the evidence relating to one count could not be considered with respect to othercounts. [72] Reliance is placed on the judgment of the Supreme Court of Canada in R. v. Rarru,[27] in which the Court, in a brief judgmentdelivered by Sopinka, J., stated its agreement with the dissenting reasons of Rowles, J.A. of the British Columbia Court of Appeal. Theaccused in Rarru had been convicted of five of twelve counts of sexual assault involving two of six complainants.

In her dissentingreasons, Rowles, J.A. said this: 98 Where more than one count is joined in an indictment, the jury must receive instructions that are adequate to ensure that the juryconsiders the counts separately, unless the similar facts rule applies as between counts: see Rex v. Dawley (1946), (BCCA), 89 C.C.C. 134 at p. 135-36 (B.C.C.A.); Rex v. Morgan, Dempsey and Dempsey, (1947), (ON CA), 90 C.C.C. 1 atp. 6 (Ont. C.A.); R. v. Baillie, [1989] B.C.J. No. 1064 (31 May 1989) Vancouver CA009218 (B.C.C.A.) and R. v. Mitchell (1989), (ON CA), 70 C.R. (3d) 71 (Ont.

C.A.). [73] This Court has also applied the same rule in Charbonneau v. R.,[28] a case in which the accused was convicted of one count offirst degree murder and another count of second degree murder.

While rejecting a submission that the trial judge had erred in failing toseparate the two counts, Chamberland, J.A. subscribed to the appellant's view that the trial judge's failure to instruct the jury specificallynot to use the evidence in one count to assess the other count was reversible error.[29] He noted the uncontested contemporaneity of thetwo offences, and recognized that the trial judge had instructed the jury to examine each count separately as if there were two trials.

Henevertheless concluded that the instructions were insufficient since the judge had not specified that the evidence relating to one countcould not be used in consideration of the other count. He then added this: 75 L'appelant faisait face à deux chefs d'accusation de meurtre à l'intérieur du même acte d'accusation. Il avait droit à une directiveimpeccable pour contrer la possibilité que les jurés soient tentés, à tort, d'utiliser la preuve présentée relativement à un chef d'accusationdans l'autre. Le danger était réel et il ne pouvait être écarté que par une directive précise, claire et impeccable (R. c.

Rarru, (1995) 62B.C.A.C. 81, au paragr. 98). [74] In my view, this reasoning applies with the necessary adaptations to the circumstances of the trial judge's instructions in thiscase. The Crown concedes that the trial judge did not instruct the jury in accordance with Rarru and Charbonneau, but argues that therewas no harm possible because of the distinct nature of the alleged offences and the facts underlying them. [75] The Crown having recognized the virtual inseparability of the evidence of Ms.

B. on the murder count and the counsellingcount, I believe it was all the more important for the trial judge to provide the kind of impeccable instruction to which Chamberland, J.A.referred in Charbonneau. [76] My opinion in that respect is reinforced by the judgment of the Supreme Court in R. v. Last,[30] a case in which it was held thata trial judge had erred by failing to order a severance of two counts of sexual assault involving two different victims. In countering theCrown's argument that the trial judge had been correct in holding that a limiting instruction (of the kind Mr.

St-Jacques says the trialjudge should have made in this case) would be adequate to avoid prejudice to the accused, Deschamps, J. said this: [45] While the Crown argued that it was open to the trial judge to decide that a proper jury instruction can overcome any potentialprejudice to Mr. Last, I agree with the dissenting judge below that this should be done only where there are sufficient countervailingfactors providing a rationale for a joint trial: Here, the countervailing factors in favour of trying these two sets of charges together were negligible and the reasons to sever werecompelling.

As a result, this was not a case to attempt to address the risk of prejudice by a jury instruction. [para. 155] [46] Indeed, if a proper jury instruction were all that was needed to deal with potential prejudice to the accused, then prejudice would ina sense cease to be a relevant factor in the analysis. While a limiting instruction can limit the risk of inappropriate cross-pollination orpropensity reasoning, courts should not resort to a limiting instruction unless there is a valid reason to do so.

As with the accused’sintention to testify, the limiting instruction is but one factor in the balancing exercise. [Emphasis added.] [77] I appreciate, of course, that Mr. St-Jacques did not seek to sever the first and second counts, but what Deschamps, J. describesas "the risk of cross-pollination" emphasizes the necessity of a limiting instruction in a case such as this one and that it be impeccable. [78] I therefore consider this ground of appeal to be well founded.

(3) Are the verdicts of acquittal on the obstruction of justice count and conviction on the counselling count incompatible? [79] In light of the conclusion at which I have arrived that a verdict of acquittal should be substituted with respect to the counsellingcount, it is not necessary to consider this ground of appeal.

(4) Did the trial judge err in not calling as the Court's witness those witnesses whose testimony was rendered necessary to produce Mr. St-Jacques' pager and cell phone records instead of forcing him to do so? [ 80 ] As I mentioned earlier, the trial judge refused a defence request to call as the Court's witnesses two persons to produce Mr. St- Jacques cell phone and pager records between July 12 and 18. The Crown had refused to consent to their production as part of an admission as it considered them inadmissible because they dealt with collateral facts.

The trial judge conducted a voir dire to determine their admissibility and concluded that although their probative value was perhaps weak, they were nevertheless relevant and thus admissible. She declined, however, to characterize the Crown's decision not to produce the records as abusive, since it was within its discretion not to do so under R. v. Cook , [31] and did not consider that they should have been produced by the Crown. Furthermore, she determined that the limited discretion the Court enjoyed under the judgment of the Supreme Court in R. v.

Finta [32] was insufficient to allow her properly to call witnesses. [ 81 ] The effect of the trial judge's decision was to force defence counsel to call these witnesses, thereby losing the advantage of being able to plead last before the jury. [33] As I also mentioned earlier, their testimony was necessary for the defence in order to impugn the credibility of Ms. B.. Although it is impossible to know with certainty, it appears likely that the production of these records was instrumental in bringing about the jury's acquittal of Mr.

St-Jacques on the obstruction of justice count, since the only testimony related to that count was that of Ms. B.. Therefore, the importance of the records to the defence at trial cannot be underestimated. [ 82 ] Before analyzing the trial judge's decision not to call the witnesses herself, it is useful to review the circumstances and holdings in Finta and Cook . [ 83 ] In Finta , the accused was charged in Ontario with a series of crimes committed at a Hungarian concentration camp during World War II.

The trial judge exercised a discretionary power to produce a written statement from a witness and to call two witnesses for the defence after the close of the Crown's case, before the defence had exercised a choice to call witnesses or not. He did so because he considered the evidence thus introduced to be essential to the narrative. [ 84 ] The accused was acquitted, and the Crown's appeal was dismissed by a majority of a five-judge panel of the Ontario Court of Appeal.

On the evidentiary issue, that Court's majority held that the trial judge had erred in allowing the evidence he had called since he had proceeded in this manner in order to preserve the accused's right to address the jury last. [ 85 ] The majority of the Supreme Court, in reasons delivered by Cory, J., dismissed the appeal from the majority judgment of the Ontario Court of Appeal and thus confirmed the acquittal. [ 86 ] Two paragraphs from the reasons of Cory, J. summarizing the relevant principles are particularly important in delineating the parameters within which a trial judge may properly exercise discretion to call a witness: In order to take this unusual and serious step of calling witnesses, the trial judge must believe it is essential to exercise the discretion in order to do justice in the case.

In the case at bar, where the trial judge had decided that certain evidence was essential to the narrative it was a reasonable and proper exercise of the discretion to call the evidence if the Crown refused to do so. It is essential in a case where the events took place 45 years ago that all material evidence be put before the jury. With the passage of time it becomes increasingly difficult to get at the truth of events; witnesses die or cannot be located, memories fade, and evidence can be so easily forever lost. It is then essential that in such a case all available accounts are placed before the court.

The majority of the Court of Appeal dismissed concerns about the problems of defending in this case by saying that all cases pose difficulties in presenting a defence. With respect, I think this fails to recognize that this case presents very real difficulties for the defence in getting at the truth which are not comparable to other cases due to the length of time that has elapsed since the events at issue occurred. The Court of Appeal erred in holding that the trial judge was wrong to take into account the fact that if he did not call the evidence the defence would lose its right to address the jury last.

In a case where the trial judge has found that the evidence in question should have been called by the Crown, the issue of who addresses the jury last is indeed relevant. If this were not so it would be open to the Crown not to call certain evidence in order to force the defence to give up its right to address the jury last. I am certainly not suggesting the Crown acted for improper reasons in this case, but it seems to me that the opportunity for such abuse should not be left open.

Further, I think the trial judge's concern for the order of addresses to the jury was secondary to his finding that the evidence was essential to the narrative, which was the principal reason for calling the evidence himself. [34] [ 87 ] In the case of Mr. St-Jacques, the trial judge placed emphasis on her determination that the evidence in question need not have been introduced by the Crown as a basis not to exercise her discretion in the manner the defence proposed. [ 88 ] Three years later, the Supreme Court revisited the issue of a trial court calling a witness in R. v.

Cook , a case in which the Crown did not call the victim of an assault for which the accused was found guilty. [35] The Court, speaking through L'Heureux-Dubé, J., reiterated that the Crown was the master of the manner in which it made its case, including the decision, absent evidence of abuse of the Crown's discretion, as to which witnesses it would call.

In the same vein, she noted that once the Crown had satisfied its evidentiary burden, "it is up to the accused to call evidence or face conviction" and that "I fail to see why the defence should not have to call witnesses which are beneficial to its own case." [36] [ 89 ] In Cook , the Court held that the Crown was under no obligation to call the victim of the assault as a witness, thus precluding the cross-examination of the victim and forcing the defence to call him as its own witness.

As a result, it allowed the Crown's appeal from the majority judgment of the New Brunswick Court of Appeal that had allowed the accused's appeal and restored the verdict of conviction. [ 90 ] The Court nevertheless recognized the limited power of trial judges to call witnesses on their own, and gave as an example the Court's judgment in Finta : 47. […] It is clear that the degree to which an accused is prejudiced by the order of closing addresses will vary upon the facts of each case, and most importantly by whether or not he or she already planned to call witnesses.

For this reason, I do not feel that this factor is

sufficient to warrant impeding the Crown’s discretion to produce witnesses as the Crown chooses. Rather, as Finta points out, it can be a factor for the trial judge to consider in deciding whether or not to call the witness him- or herself. In my view, this is a preferable, flexible solution. This process allows the trial judge to balance the competing factors carefully and assess the actual prejudice to an accused rather than merely speculating about potential harm.

As such, I believe this is the route which should be followed. [ 91 ] L'Heureux-Dubé summarized the Court's position in the following manner: 57 […] It seems to me that where the Crown does not call a given witness two potential problems can theoretically arise as a result. First, there could be a question about disclosure in that it is alleged that the Crown has discovered information, or perhaps some type of statement made by the witness which would damage its case, and has not disclosed it to the defence.

In this scenario, the proper method of analysis is to apply the approach taken by this Court in cases where disclosure is not properly made: see O’Connor , (reference omitted). 58 A second possibility is where the Crown intentionally abuses its discretion in some manner by failing to call the witness. While this has traditionally been referred to as being an “oblique motive”, it would seem to have much in common with the doctrine of abuse of process.

Indeed, given that the finding of an “oblique motive” by its very name implies improper conduct on the part of the Crown, I feel it is unlikely that such a finding could arise without there being a legitimate claim of an abuse of process.

This does not, of course, preclude the trial judge from considering conduct of the Crown which, although falling short of an abuse, could be one factor influencing him or her to exercise the discretion to call the witness. […]. [Emphasis added.] [ 92 ] In this case, the trial judge focused on the first possibility that L'Heureux-Dubé, J. evoked when she noted that the documents that the defence sought to introduce were properly the subject of the Crown's pre-trial disclosure.

She addressed the second possibility as to whether the Crown's conduct nevertheless could be a factor in influencing her to exercise her discretion to call the witnesses herself in a more restrictive manner. [ 93 ] Whether this factor was present would necessarily engage an analysis of whether, as in Finta , it was necessary "in order to do justice in the case", a holding that was confirmed in Cook . [37] Apart from the conduct of the Crown, other factors to be examined in such circumstances include " the degree to which an accused is prejudiced by the order of closing addresses", which will vary from case to case, [38] and that the onus to establish Crown misconduct, if alleged, is "clearly" on the accused. [39] [ 94 ] With respect, it seems to me that the trial judge misapprehended the argument of Mr.

St-Jacques with respect to Crown misconduct. [ 95 ] The Crown's conduct was not abusive because it did not produce the cell phone and pager records as part of its case. Having satisfied its duty of disclosure of the records, its decision not to call the two witnesses to produce them was perfectly understandable. They formed no part of the Crown's case. That, however, is not the end of the inquiry. [ 96 ] Rather, once the Crown acknowledged the veracity of the records it disclosed, it was abusive not to consent to their production as part of an admission.

It is obvious that the objective of the Crown in acting as it did was precisely to force the defence to call the two witnesses, which would then give it the tactical advantage of addressing the jury last, with all that advantage implies. Considering as well the perfunctory cross-examination of these witnesses by the Crown, no other conclusion is reasonably possible. [ 97 ] The advantage the defence would otherwise enjoy under subsection 651(3) Cr.C . was therefore lost. Unlike the victim of assault in Cook that the Crown did not call, the two witnesses Mr.

St-Jacques was forced to call were not material in any way. Their presence was required for purely technical reasons, since absent an admission, documents do not arrive at trial unescorted by a witness. [40] I am therefore of the view that the trial judge erred in not calling the two witnesses to produce the relevant cell phone and pager records as witnesses of the Court, and that accordingly this ground of appeal is also well-founded.

(5) Did the trial judge err in the delivery of her instructions to the jury? [ 98 ] Mr. St-Jacques asserts a considerable number of grievances against the instructions the trial judge delivered, some more serious than others. Before examining them, however, it is worth recalling some of the governing principles concerning appellate review of jury instructions, as they may relate to the issues Mr. St-Jacques' appellate counsel raises. [ 99 ] A useful

summary is contained in the majority reasons of Bastarache, J. in R. v. Daley : [41] [29] This case concerns a number of issues relating to the trial judge’s final charge. B. Q. H.

Der, in The Jury — A Handbook of Law and Procedure (loose-leaf), at p. 14-1, sets out eight elements that should be covered: 1. instruction on the relevant legal issues, including the charges faced by the accused; 2. an explanation of the theories of each side; 3. a review of the salient facts which support the theories and case of each side; 4. a review of the evidence relating to the law; 5. a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations; 6. instruction about the burden of proof and presumption of innocence; 7. the possible verdicts open to the jury; and

8. the requirements of unanimity for reaching a verdict. [30] When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind thefollowing. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind ofthe jury that matters, and not whether a particular formula was recited by the judge.

The particular words used, or the sequencefollowed, 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 thecharge 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 properlyinstructed jury, not a perfectly instructed jury: see Jacquard, at para. 2.

It is the overall effect of the charge that matters. [100] Bastarache, J. returned to the subject later in his reasons when he wrote this: [54] One of the classic statements describing the trial judge’s duty to review the evidence in the charge to the jury is found in thisCourt’s decision in Azoulay v.

The Queen, (SCC), [1952] 2 S.C.R. 495, at pp. 497-98, per Taschereau J.: The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where itwould be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they mayappreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them. [Emphasis added.] This statement, however, must be understood in the context of that particular case.

There, the trial judge had not reviewed the evidenceat all. He simply indicated that both counsel had elaborated on this matter sufficiently. A majority of this Court found the chargeinadequate because it left the whole of the evidence for the jury in bulk for evaluation. [101] As Bastarache, J. also pointed out, counsel have a duty to draw to the attention of a trial judge any problems they identify in theinstructions given so that the trial judge may, if warranted, correct them.

The failure to do so will not be fatal, but an appellate court willtake account of the omission in evaluating the seriousness of the supposed error.[42] [102] I turn now to the specific grievances Mr. St-Jacques has identified.

A) The failure to mention the theory of each party [103] Here is what the trial judge said in her instructions: J'achève. J'arrive maintenant à la question des plaidoiries et les thèses des parties. Vous avez entendu les plaidoiries assez détaillées cematin, je ne vais pas les répéter et j'ai fait allusion, à plusieurs reprises, sur les points soumis par les deux (2) parties.

Quant à la défense, je souligne qu'il faudrait vérifier, selon la preuve qui est devant vous, la preuve que vous avez reçue et entendueentre ces quatre (4) murs, si les défenses ou les hypothèses soumises par maître Lapointe rencontrent, sont appuyées par cette preuve etcréent, en votre esprit, un doute raisonnable quant à l'un ou plusieurs éléments des infractions.

Quant à la couronne, je ne répèterai pas que maître Simard prétend avoir fait la preuve de tous les éléments essentiels de chacune destrois(3) infractions et je crois que je n'aurai pas à répéter davantage ce qu'il a plaidé. [104] It is often the case that trial judges will ask counsel before the delivery of their instructions to give them a brief statement of thetheory of their case that the trial judge will then read to the jury when the time comes to do so.

Other judges will act differently, forexample, by verifying their respective theories with counsel and then stating them in their own words at the appropriate moment duringtheir instructions. [105] In whatever way a judge presents the theory of each party, what is important is that it be described accurately, with a view tofocusing the jury's attention on that theory as it relates to the evidence. [106] The transcript of the pleading of defence counsel to the jury in this case discloses that Mr.

St-Jacques' theory was that the Crownhad not satisfied its evidentiary burden of proof beyond a reasonable doubt that he was the author of the homicide. What is significant,however, is that the trial judge did not mention in her instructions relating to the defence theory of the case what elements of proof, orwhat absence of proof, formed the basis of the defence theory that there existed a reasonable doubt. It is insufficient to simply refer thejury back to what counsel may have argued, however fresh in the jury's collective mind that argument may have been.

Moreover, whatthe trial judge did say could easily have left the impression that the defence had some kind of evidentiary burden to prove something,which is certainly not the case. [107] I recognize that the trial judge's treatment of the Crown's theory of the case was similarly deficient, as its counsel acknowledgesin its factum. It argues, however, that since the trial judge mentioned elsewhere in her instructions, in particular, how to assesscredibility, and that the credibility of Ms.

B. was at the heart of the case, while pointing to evidence that both corroborated andcontradicted her testimony, the jury, in that fashion, would have been exposed to the defence theory of the case. [108] While it cannot be denied that the trial judge did indeed discuss these elements elsewhere in her instructions, she opened aspecific topic in which she said she would present the theory of each party's case. She then did not do so, and simply referred the jury tothe pleading of counsel. [109] In my respectful view, that was not enough.

Both the Crown and the defence were entitled to have the trial judge present theirrespective theories of the case in a concise and coherent manner. This she did not do. The jury is also entitled to hear from the judgewhat those theories are, with a view to assisting them, rather than merely referring them back to what counsel had pleaded. [110] With the necessary adaptations, the trial judge's presentation of the theories of the case that I have reproduced at paragraph

[103] could be delivered at virtually any criminal trial. They amount to little more than boilerplate language. I therefore consider thisreproach to be well founded.

B) The failure to relate the evidence to the theory of each party

C) The failure to fairly relate the evidence to the essential elements of the offence of murder. [111] Bastarache, J. described the extent of the duty incumbent on a trial judge delivering instructions to review the evidence asfollows: [57] The extent to which the evidence must be reviewed “will depend on each particular case. The test is one of fairness. The accusedis entitled to a fair trial and to make full answer and defence. So long as the evidence is put to the jury in a manner that will allow it tofully appreciate the issues and the defence presented, the charge will be adequate”: see Granger, at p. 249.

The duty of the trial judgewas succinctly put by Scott C.J.M. in R. v. Jack (1993), (MB CA), 88 Man. R. (2d) 93 (C.A.), aff’d (SCC), [1994] 2 S.C.R. 310: “the task of the trial judge is to explain the critical evidence and the law and relate them to the essentialissues in plain, understandable language” (para. 39). [112] The purpose of the exercise allows a trial judge to assist the jury in drawing a link between the evidence and the constitutiveelements of each offence, as well as the parties respective theories of the case.

In this instance, immediately after the trial judge told thejury what she had to say about the respective theories of the case in the extract I have reproduced at paragraph [103], here is how sheintroduced the subject of the evidence heard at trial in her instructions: Avant de terminer avec quelques mots sur vos délibérations, je dois vous résumer … je vais vous donner la liste des témoins. Je vais pasvous dire qu'est ce que chaque témoin a dit, seulement le sujet général.

Encore une fois, si vous voulez le réécouter du début jusqu'à lafin, vous êtes libre à le faire, vous êtes même encouragés si vous voulez. [113] The trial judge then proceeded to do exactly what she said she would, that is, enumerating the witnesses who testified, whilementioning the general subject matter of their testimony. She did not summarize the testimony in any detail, nor relate it to the theories ofthe case, nor the components of the offences. [114] Mr.

St-Jacques also notes that during their deliberations, the jury returned with a question to the trial judge in which theysought: Davantage de détails sur les points suivants: 2- Identité de l'accusé; 3 – Acte illégal; 4 – Lien de causalité; 5 – Intention et 6 –Préméditation. [115] Mr. St-Jacques argues that the extent of information sought by this question is indicative of the inadequacy of the informationthe trial judge conveyed in her instructions relating to murder.

In other words, the question seeks not clarification, but basic informationthat the jury perceived as lacking when the instructions were delivered. [116] The judge remarked in her answer that she would return to some of the points she had covered in her instructions the previousday "parce que c'est sûr que j'ai passé vite et peut-être vous avez pas… c'était nouveau." [117] No one could be mistaken that the outcome of the prosecution turned on the substance of Ms. B.'s testimony and her credibilityas a witness.

A major complaint in appeal, however, is that the trial judge did not mention any of the following elements of fact thatwould raise a doubt as to her account of what Mr. St-Jacques told her on the morning of July 13, namely: • the contradiction between her testimony about not having contact with Mr. St-Jacques between July 13 and 18, and the latter's cellphone and pager records that show there were communications between them; • lack of evidence of a crime scene; • absence of the confirmed death of Mr. Cléroux, that is, absence of a corpse; • the victim's un-coagulated blood found in the trunk of Mr.

St-Jacques' car 10 days after the victim's disappearance. [118] As for the Crown, it argues that these omissions were either dealt with at length in the oral argument of Mr. St-Jacques' counselto the jury (such as his view as to the evidence that suggested Ms. B. lacked credibility), or were insufficient to affect the integrity of theinstructions as a whole (such as not going into the possible effect of the presence of un-coagulated blood in the trunk of Mr. St-Jacques'car well after the disappearance of Mr. Cléroux). It also points out that the trial judge did mention that the jury would have to find thatMr.

Cléroux was in fact deceased, despite the absence of a corpse, if it were to find Mr. St-Jacques guilty of murder. [119] It should be said at once that the respective roles of counsel and the trial judge are quite separate and should not be blurred.Counsel are arguing a point of view as to what the evidence may mean, and will frequently have very different

interpretations of theevidence and the weight to attach to it. The addresses of defence and Crown counsel to the jury in this case show exactly that. Counselare engaging in the art of advocacy, which is an exercise in persuasion. Judges, however, are meant to perform a distinct function. Theyare not meant to persuade anyone.

Juries look to judges both for an understanding of the law and a neutral presentation of the evidence toassist them in their deliberations. [120] In my view, the trial judge had an affirmative duty in relating the respective theories of the case and in explaining theconstitutive elements of the offence, to carry out a review of the evidence that went beyond identifying the witnesses and the subjectmatter of their testimony.

A reading of the instructions as a whole on the first degree murder count does not show a structured orcoherent review of the evidence, whether in relation to the theories of the case or the constitutive elements of the offence.

[ 121 ] I consider this particular reproach to be well founded.

D) The failure to instruct the jury on the absence of evidence of a motive for Mr. St-Jacques to murder Mr. Doray with respect to the offence of counselling an offence that is not committed. [ 122 ] Mr. St-Jacques complains that there was no evidence to explain why he would have wanted to murder Mr. Doray, which was a significant omission in the trial judge's instructions on the third count in the indictment. [ 123 ] The trial judge did address the issue of motive with respect to the murder count, and there was ample evidence to explain that motive.

The trial judge made no such comments in her instructions on the third count. [ 124 ] In Proulx v. R ., [43] this Court examined the question of motive and referred to the basic propositions enunciated by the Supreme Court in Lewis v .The Queen . [44] Amongst those propositions was the fact that proof of motive is always relevant and admissible, though the Crown is not required to establish motive as part of its case.

Proof of absence of motive of an accused is also always an important fact and ordinarily should be part of a judge's address to a jury. [ 125 ] I think it more appropriate to say in this case that there may have been very slight proof of a motive, but not affirmative proof of absence of motive. Mr. St-Jacques and Mr. Doray had squabbled in the past, their relationship was not good, and there was evidence that Mr. St-Jacques had struck Mr.

Doray four years before the events in issue. [ 126 ] Overall, I do not consider the trial judge to have erred by omitting to mention absence of proof of motive on the part of Mr. St- Jacques in her instructions on the counselling count. In any event, this issue is now academic since I have already concluded that a verdict of acquittal should be substituted for the verdict of conviction because of the judge's failure to instruct the jury on the theory of risk associated with the offence under paragraph 464 (

a) Cr.C . (

E) The trial judge erred by inviting the jury to speculate as to where Mr. Cléroux was murdered, thereby permitting it to render an unreasonable verdict. [ 127 ] During their deliberations, the jury asked a question of the trial judge. She stated the question on the record as follows: Alors demande de clarification sur acte…l'acte d'accusation numéro 1, meurtre au premier degré: 1 – Lieu, et là il y a une flèche et on pose la question, Sainte Hyacinthe ou l'entrepôt. [ 128 ] Mr.

St-Jacques suggests that the question was posed because in his opening statement, Crown counsel said that the Crown would prove that the murder occurred in the Philtex warehouse.

The count in the indictment, however, states simply that the homicide occurred in Saint-Hyacinthe, District of Saint-Hyacinthe, without reference to any particular location in Saint-Hyacinthe. [ 129 ] In discussing the answer to give to this question with counsel, the trial judge made it clear that the Crown had no obligation beyond proving what was alleged in the count in the indictment, which is to say that the murder occurred in Saint-Hyacinthe. That is what she told the jury, adding that it was unnecessary for the Crown to prove anything more specific. [ 130 ] Mr.

St-Jacques argues that while the answer the trial judge gave may have been technically correct, what underlay the question was a doubt in the jury's mind that the Crown had in fact proved, as it said it would, that the homicide took place in the Philtex warehouse. Such a doubt could be considered a reasonable one, from his perspective, given the absence of any evidence of a crime scene at the warehouse, or the projection of blood onto any surface. [ 131 ] Such a doubt, according to Mr. St-Jacques, would also suggest that the jury did not necessarily believe Ms.

B.'s testimony as to what he told her on July 13 about how and where he killed Mr. Cléroux. Since her testimony was all that there was to establish the necessary specific intent as well as planning and deliberation to convict Mr. St-Jacques of first degree murder, he argues that the trial judge needed to go further than simply referring to the text of the count in the indictment. Had she done so, the jury would have been better able to assess whether he should be convicted of second degree murder or manslaughter. [ 132 ] In this respect, he relies on the Supreme Court judgment in R. v.

S.(W.D.) [45] in which Cory, J., on behalf of the majority, summarized the duties of a trial judge in answering questions from the jury during their deliberations: The manner in which questions from the jury should be handled may be summarized in this way: 1.All questions received from the jury must be considered to be of significance and important. 2.Counsel must be advised of the question and their submissions heard as to the nature and content of the r

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