R. v. Hannan, 2023 NSCA 7

Nova Scotia Court of Appeal Citation: R. v. Hannan , 2023 NSCA 7 Date: 20230202 Docket: CAC 483896 Registry: Halifax Between: Trevor Hannan Appellant v. His Majesty the King Respondent Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: November 14-15, 2022, in Halifax, Nova Scotia Subject: Criminal law: admissibility of fresh evidence; trial judge’s duty to charge the jury; and unreasonable verdicts due to inconsistency and otherwise not supported by the evidence;

Summary: The deceased owed the appellant a small drug debt. The appellant arranged to meet the deceased at a parking lot in north end Dartmouth to get paid. Unbeknownst to the deceased, the appellant contacted a youth who had a grudge against the deceased. The youth wore distinctive clothes. They went to the appellant’s apartment. The appellant changed his shoes. The youth and the appellant left carrying a bag. A security guard saw two young men attack the deceased. The young men fled. When the security guard reached the deceased, it was obvious the victim had suffered stab wounds.

Police and emergency health services could not save him. He later died of seven penetrating stab wounds to his chest, abdomen, back and side. Two knives were recovered from a storm drain on the route the assailants had used to flee the scene. One of the knives was identical to those in a knife set from the appellant’s apartment. In 2015, the youth pled guilty to second degree murder in Youth Justice Court. At the appellant’s 2018 trial for first degree murder and possession of a weapon for a purpose dangerous to the public peace, the appellant elected not to testify and did not call evidence.

The jury convicted the appellant of second degree murder but acquitted him of possession of a knife for a purpose dangerous to the public peace. On appeal, the appellant suggests his decision not to testify was involuntary due to the extraneous influence of his fear of jailhouse rules against implicating another inmate in a crime. He asserts he had no inculpatory involvement in the murder. The appellant moves to adduce fresh evidence in support of this claim.

The appellant also suggests the verdicts are unreasonable because they are inconsistent, and the judge erred in law when he charged the jury on joint principal liability and by not relating the evidence to the issues. Lastly, the evidence does not support a finding of the necessary intention for second degree murder. Issues:

(1) Is the fresh evidence admissible?

(2) Are the verdicts irreconcilably inconsistent?

(3) Did the trial judge err in his jury charge?

(4) Does the evidence reasonably support an intention to commit second degree murder? Result: The motion to adduce fresh evidence and the appeal are dismissed. The appellant made a voluntary informed decision not to testify. Nothing in the fresh evidence materials demonstrates a potential miscarriage of justice. The trial judge fulfilled his duty to properly charge the jury on the live issues at trial. There was ample evidence to support a conclusion the appellant had the requisite murderous intent and the verdicts are not irreconcilably inconsistent.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 167 paragraphs. Nova Scotia Court of Appeal Citation: R. v. Hannan , 2023 NSCA 7 Date: 20230202 Docket: CAC 483896

Registry: Halifax Between: Trevor Hannan Appellant v. His Majesty the King Respondent Judges: Beveridge, Bryson and Beaton JJ.A. Appeal Heard: November 14-15, 2022, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beveridge J.A.; Bryson and Beaton JJ.A. concurring Counsel: Nathan Gorham, KC and Breana Vandebeek, for the appellant Jennifer MacLellan, KC, for the respondent Reasons for judgment: INTRODUCTION [ 1 ] The jury acquitted the appellant of first degree murder and of unlawful possession of a knife for a purpose dangerous to the public peace or to commit an offence.

However, the jury found the appellant guilty of the lesser and included offence of second degree murder. [ 2 ] The trial judge, Justice Robert W. Wright, imposed a life sentence with no eligibility for parole until the appellant has served 15 years’ incarceration. [ 3 ] The appellant advances two bases to have this Court to quash his conviction and order a new trial or an acquittal. The first is the appellant’s motion to adduce fresh evidence.

The second are complaints the verdicts are tainted by errors in the judge’s jury instructions, are unreasonable as being inconsistent and, in one respect, unsupported by the evidence. [ 4 ] The proffered fresh evidence focusses on why the appellant did not testify at trial. The appellant’s affidavit and related materials do not persuade me that his decision was anything other than an informed, voluntary decision. No spectre of a miscarriage of justice is raised. I would not admit the evidence. [ 5 ] I am not convinced the verdicts are irreconcilably inconsistent.

Neither do I find merit in the complaints the trial judge committed reversible error in his jury instructions. Furthermore, the verdict of second degree murder is amply supported by the evidence. Accordingly, I would dismiss the appeal. The following reasons explain. [ 6 ] To put into context the appellant’s motion to adduce fresh evidence and his complaints of legal error, I will first provide an overview of the facts and how these proceedings have unfolded.

OVERVIEW OF THE FACTS [ 7 ] Daniel Pellerin was murdered in the parking lot of Farrell Hall, a community centre located in Dartmouth’s north end at approximately 10:30 p.m. on August 29, 2014. [ 8 ] Shane Colley was a security guard. While driving on Windmill Road in Dartmouth, he saw two assailants beside the victim on his bicycle by Farrell Hall. He described the victim as having been thrown off his bike and then hands were flying as they “beat the crap out of him”. [ 9 ] Mr. Colley did a U-turn. When he reached Farrell Hall, he saw the same two males running north on Windmill Road towards Farrell Street.

He followed them with his high beam lights on to try to get an accurate description of them. He stopped his pursuit and returned to the Farrell Hall parking lot. [ 10 ] As he pulled into the parking lot, he called 911. Mr. Colley saw the victim stagger against a parked car and collapse. The police arrived first. It was obvious the victim had suffered multiple stab wounds. Compression efforts were made to try to slow or stop the bleeding. As his pulse failed, they used CPR. EHS personnel took over. Despite their valiant efforts, the attending physician at the QE II Hospital later pronounced Mr. Pellerin dead.

[ 11 ] Mr. Colley was the sole eyewitness to this vicious fatal assault. He never saw the assailants’ faces. He never saw any weapons. He never saw a photo line-up. The scene was largely unlit. Colley described the assailants as both of medium build and Caucasian. [ 12 ] As the assailants were running away, Mr. Colley offered one was taller, maybe five feet, eight inches tall and the other maybe five feet, five inches. The taller one wore a track suit with a pinstripe.

One had short dirty blonde hair, like a buzz cut; the other, darker hair but still blonde. [ 13 ] A physical search that night turned up no evidence. Nonetheless, within days the police came to focus on a youth, B.P., and the appellant. [ 14 ] The police learned the deceased owed the appellant a relatively small amount of money for drugs. He planned to pay the appellant from money earned doing work for the deceased’s aunt. [ 15 ] The police also learned that in March 2014, B.P. had been a member of a trio that had accosted the deceased’s nephew.

One of the trio viciously assaulted the deceased’s nephew for no reason. Serious injuries resulted. [ 16 ] By happenstance, on Tuesday, August 26, 2014, the deceased saw one of the assailants. He confronted him about the attack on his nephew and continued social media harassment. The deceased slapped this individual who then assured him there would be no more problems. [ 17 ] As motives go, both seem trivial for what happened to Mr.

Pellerin on August 29, 2014. [ 18 ] In what can only be described as a highly professional investigation, the police gathered evidence that resulted in a compelling circumstantial case. [ 19 ] With the assistance of crews from Halifax Water, they searched 25 storm drains in the area. Approximately 50 m north of the Farrell Hall parking lot, Windmill Road intersects with Farrell Ave. Just a few feet in from Windmill Road, the police found two knives in a storm drain. One was a Farberware steak knife. It was on top of the debris in the storm drain.

Under the debris, they found a second knife. [ 20 ] The police executed a search warrant at Apt. 207 at 30 Springhill Road. There was evidence the appellant lived at that address with his brother, Brandon Hannan. In the kitchen, they found a butcher block designed to hold eight Farberware steak knives. One was missing. The one found in the catch basin on the same route the assailants used to flee from Farrell Hall was identical. [ 21 ] B.P. was arrested on September 2, 2014. Photographs demonstrated his clothing—a black Adidas track suit with yellow pinstripes on the sides.

The police seized B.P.’s phone. [ 22 ] Production orders yielded a gold mine of evidence that showed the deceased called the appellant during the evening of August 29, followed by a series of calls between B.P. and the appellant. I will provide further details of these later. [ 23 ] The parties agreed the deceased’s antemortem statements were admissible for the truth of their contents. Based on these statements, Mr. Pellerin owed the appellant $150.00 and was being pressed for payment.

The deceased had planned to pay the appellant an installment on Thursday, the rest when he got paid by his aunt. [ 24 ] Donna Pellerin was the deceased’s aunt. She lived just three blocks from Farrell Hall. She arranged to have the deceased renovate her bedroom. The appellant arrived on his bike around 7:30 p.m. on August 29, 2014. When he had finished for the night, he asked to use Ms. Pellerin’s phone. He had to call a friend, whom he referred to as “Buddy” or “Bro”.

After the call, the deceased had a serious look on his face and appeared upset. “Buddy’s mad at me cause I owe him money”. [ 25 ] Phone records show the call was at 9:46 p.m. for 52 seconds. It was to a phone identified as being the appellant’s. Then the appellant called B.P. at 9:47, 9:50 and 9:54 p.m. Each call lasting from 45 to 54 seconds. [ 26 ] Ms. Pellerin gave the deceased her bank card with instructions to withdraw the money he needed, plus some cash for her. Video from a nearby store shows the deceased withdrawing money from an ATM.

The deceased called the appellant at 10:25 p.m. and told him he had “some coin” for him. They arranged to meet at the “usual spot” by Farrell Hall. [ 27 ] The deceased immediately left Ms. Pellerin’s home by bike, wearing a bomber-style jacket she had given him. He had $100.00 for the appellant and $20.00 for cigarette money. Within minutes, he had suffered multiple stab wounds to his chest, abdomen, side, back, back of the head, right arm, and left hand.

I will refer to the details of some of these wounds later. [ 28 ] Video surveillance showed the appellant and B.P. going into the appellant’s apartment building at approximately 10:01 p.m. Neither had anything in their hands. B.P. had on his black Adidas track suit with yellow pinstripes. The appellant wore shorts, a dark t- shirt and white sneakers. Five minutes later, at 10:06 p.m., the video shows them leaving the building. [ 29 ] B.P. was dressed the same. The appellant now wore different footwear. Gone were the white sneakers.

In their place were black sneakers with white soles. [ 30 ] The appellant had in his hand a soft black tote bag. The jury could infer from the video that the appellant passed something to B.P. as they walked away. They turned in the direction of Farrell Hall—a short distance away. [ 31 ] Cheapy Tire is a garage/gas station complex on Windmill Road, approximately 100 m north of Farrell Hall. After the stabbing, video surveillance footage from Cheapy Tire shows two males peeking over the fence. At 10:33 p.m., the video depicts them climbing over the fence and running north across the front of the store.

One male is wearing a black Adidas track suit with light pinstripes, the

other is wearing a long-sleeved black sweatshirt or hoodie with shorts, black sneakers with white soles, and otherwise matches the descriptions of B.P. and the appellant. [ 32 ] The forensic pathologist had no difficulty pinpointing the deceased’s cause of death. Seven stab wounds to his chest, abdomen, side and back damaged his internal organs, leading to fatal bleeding. The wounds lined up with holes through his thick jacket.

They were clean-edged wounds that could have been caused by either a serrated or clean-edged knife or other sharp instrument. [ 33 ] The pathologist excised a portion of one of the deceased’s ribs, along the path of one of the stab wounds. Whatever weapon had been used left marks on the rib. [ 34 ] A tool marks expert conducted tests on the knives the police had found. He opined that the knife that produced the tool mark had to have been serrated.

However, the most he could say was that the second knife from the storm drain (police # I-3, Court Ex # 19) did not produce the tool mark on the deceased’s rib and that he could not identify nor eliminate the Farberware knife (police # I-1, Court Ex. # 17) as having produced that tool mark. [ 35 ] The police charged both B.P. and the appellant with the first degree murder of Daniel Pellerin. That is, a murder that was not only an intentional killing, but had been planned and deliberated. The offenders had to be separately charged and prosecuted, as B.P. was just 15 years old.

He was therefore a young person under the Youth Criminal Justice Act , S.C. 2002, c. 1 , and his proceedings could only be held in the Youth Justice Court, as defined in that Act (see R. v. S.J.L. , 2009 SCC 14 ). [ 36 ] On February 18, 2015, B.P. pled guilty in Youth Justice Court to the lesser and included offence of second degree murder. In support of his motion to adduce fresh evidence, the appellant filed the transcript of the plea proceedings from that date. The transcript documented the existence of an Agreed Statement of Facts finalized between the Crown and B.P. in support of his guilty plea.

The prosecutor had read into the record the Agreed Statement of Facts. [ 37 ] What someone agreed to in one proceeding is not normally relevant, let alone admissible, in other proceedings involving different parties. The appellant says the Agreed Statement of Facts supports his motion to adduce fresh evidence. I will provide further details when I turn to that motion. [ 38 ] For now, it suffices to say B.P. and the Crown had stipulated that B.P. accompanied an unnamed individual to meet Daniel Pellerin at Farrell Hall. B.P. stabbed Mr.

Pellerin more than once—not with the Farberware knife but with a different knife—which became marked as Ex #19 at the appellant’s trial. There was no plan, but when B.P. stabbed the victim, he intended to cause serious bodily harm and was reckless whether death ensued. [ 39 ] Derrick Prov. Ct. J., as she then was, sitting as a Youth Justice Court Judge, accepted that the Agreed Statement of Facts made out the offence of second degree murder.

She therefore found B.P. guilty under s. 36 of the Youth Criminal Justice Act . [ 40 ] On June 24, 2015, Judge Derrick imposed the maximum youth sentence of seven years on B.P. [ 41 ] The appellant stood his trial in October 2018.

Robert Rideout acted as the appellant’s trial counsel. [ 42 ] The indictment charged first degree murder, and for unknown reasons, also alleged the unlawful possession of a weapon, a knife for a purpose dangerous to the public peace or for the purpose of committing an offence contrary to s. 88(1) of the Criminal Code . [ 43 ] At the end of the Crown’s case, on October 24, 2018, appellant’s trial counsel took time to consult with the appellant.

After what he labelled as one final consultation, counsel announced the appellant would not be calling any evidence. [ 44 ] The trial judge adjourned closing submissions to Monday, October 29, 2018. Counsel and the judge held pre-charge discussions. [ 45 ] The trial judge and the parties agreed the jury should be instructed the appellant’s liability for murder was as a joint principal with B.P. Manslaughter would be an available verdict. [ 46 ] In its closing submissions, Crown counsel laid out to the jury the case for first degree murder.

Counsel’s only comment about the s. 88(1) charge was at the very end of his summation: Now, there’s also a second charge, it’s a use of a weapons offence, and he, respectfully submit to you, is also guilty of a section 88(1) weapon offence. Thank you very much for your attention. [ 47 ] Mr. Rideout not only started his argument with, but spent a considerable amount of time on, the allegation the appellant possessed a knife for a purpose dangerous to the public peace or to commit an offence. He stressed no one saw the appellant with a knife.

There was no DNA or fingerprint evidence that connected the appellant to any knife. [ 48 ] Mr. Rideout emphasized there was no real evidence of planning and deliberation. The deceased was the appellant’s good customer, and they were on friendly terms. As such, the appellant had no motive to harm the deceased. Rideout pointed out there was no evidence of the appellant’s identity as an assailant.

However, if the jury were satisfied that the appellant was present, counsel asked them to infer that B.P. was the only assailant who had perhaps stolen the Farberware knife from the appellant’s apartment and carried out a violent and spontaneous attack. [ 49 ] The judge charged the jury on October 30, 2018. After completion, appellant’s trial counsel had no objections. The jury deliberated for the afternoon. At the end of the day, they asked for clarification about “joint principals”. They asked: • If parties are agreed to be joint principals in executing

an act, do they share intent as joint principals in executing the

action? • Can joint principals have different intentions? • Do the actions of one joint principal equally effect (apply) to the other joint principal? [ 50 ] The parties filed submissions on how to answer these questions.

The trial judge repeated to the jury his earlier instructions about joint principal liability and then elaborated on the need for the Crown to establish people charged as joint principals must share a common intent, in this case, to kill the victim, and the victim died due to the combined effect of their blows or stabbings. [ 51 ] Within an hour, the jury returned with their verdicts: not guilty of first degree murder, but guilty of second degree murder, and not guilty of possession of a weapon for a purpose dangerous to the public peace or to commit an offence.

ISSUES [ 52 ] To understand what issues must be resolved, some chronology is important. [ 53 ] The appellant filed his own Notice of Appeal on January 7, 2019. He claimed the trial judge erred in his jury charge, his trial counsel was ineffective, and the verdict was unreasonable. [ 54 ] While still self-represented, in May 2019, the appellant abandoned his claim Mr. Rideout was ineffective. [ 55 ] Appellate counsel assumed carriage of this appeal in April 2021. Counsel resurrected the claim of ineffective assistance of counsel. Unfortunately, Mr. Rideout could not respond.

He had passed away on January 5, 2021. [ 56 ] Counsel announced the claim of ineffective assistance of counsel would be supported by a motion to adduce fresh evidence. [ 57 ] The Case Management judge set June 7 and 8, 2022 to hear the fresh evidence motion and the appeal. The appellant was to file his factum and proposed fresh evidence materials on or before February 28, 2022. This was extended to March 21, 2022. No fresh evidence materials were filed. [ 58 ] On June 3, 2022, appellant’s counsel requested the Court adjourn the June hearing dates.

Counsel explained the appellant had sworn an affidavit of March 21, 2022, in support of the planned fresh evidence motion, but then later that day instructed counsel not to file it. Counsel filed affidavits and argued that B.P. had now given his blessing for the appellant to proceed with his affidavit. [ 59 ] Importantly, appellate counsel abandoned the allegation of ineffective assistance of counsel but requested a further opportunity to file a motion to adduce fresh evidence.

The Court adjourned the hearing to November 14 and 15, 2022 and set new filing dates. [ 60 ] Based on the materials filed, the issues can now be summarized as follows: 1. Is the fresh evidence admissible? 2. Did the trial judge commit reversible error in his jury charge? 3. Are the verdicts inconsistent? 4. Is the jury’s verdict unreasonable? ANALYSIS [ 61 ] I will consider each issue in turn. The fresh evidence motion [ 62 ] The appellant filed two affidavits he says contain information that merits admission on appeal. The first is his own affidavit sworn March 21, 2022.

The other is by of one his lawyers, Adrian Forsythe, sworn July 13, 2022. This affidavit contains no contentious information. It attaches a copy of the transcript of the February 18, 2015, Youth Justice Court proceedings during which B.P. pled guilty to the second degree murder of Daniel Pellerin. [ 63 ] The appellant’s March 21, 2022, affidavit appears to have been originally drafted to advance his claim trial counsel was ineffective. It is sparse. There are but six paragraphs that set out any information.

He provides his date of birth and the fact he did not testify at trial, although he says he wanted to explain his side of the story. He claims he was not part of any plan to stab the victim. He did not stab the victim, nor help or encourage anyone to do it. The appellant’s explanation for why he did not testify is set out in paragraph 4: 4. I did not want to testify unless my co-accused N.B.P. testified first. I told Mr. Rideout about this problem. I do not know why he did not call my co-accused. As a result I did not testify. [ 64 ] Paragraphs 5 and 6 allege he had informed Mr.

Rideout about possible jury contamination before and during the trial, but trial counsel did nothing about these concerns. The appellant has not pursued these matters. [ 65 ] While somewhat imprecise, in essence, the appellant says he made his decision not to testify because trial counsel did not call B.P. as a witness. Somehow, this decision was not voluntary. As a consequence, the jury was “deprived” of the appellant’s evidence and this constitutes a miscarriage of justice, as the jury might have believed or had a reasonable doubt had he testified.

In support, the Agreed Statement of Facts is said to buttress the appellant’s bald assertion he was not involved in the fatal stabbing.

[66] On September 16, 2022, the Crown filed response materials and its factum on the issue of fresh evidence. The materialsincluded an affidavit from Robert B. Jackson, the Insurance Director with the Law Society of New Brunswick sworn September 15,2022. By consent, the Crown also filed a certified copy of the Agreed Statement of Facts between B.P. and the Crown, relied on in theFebruary 18, 2015, Youth Justice Court proceedings (and later quoted by the judge in her sentencing decision, reported as 2015 NSPC38). [67] There were further developments. The appellant sought leave to cross-examine Mr.

Jackson on his affidavit and to adducewhat he labelled reply evidence in the form of an affidavit of one David Bunce, an articling student in counsel’s law firm and to adduceviva voce evidence from the appellant. The panel granted leave. [68] In turn, the Crown sought leave to cross-examine Mr. Bunce. Again, leave was granted. [69] After considering all the materials tendered by the parties and the trial record, I am satisfied the appellant made a tactical,informed, voluntary decision not to testify at his trial.

His protestations through counsel and under oath of concerns he would be viewedas a “rat” had he testified about B.P.’s involvement lack credibility. Accordingly, I would not admit the fresh evidence. The applicationof the governing principles dictates this outcome. [70] The parties voice no disagreement about the principles that guide an appeal court that is asked to admit evidence not adduced attrial. That is understandable. They are well-settled. The Court must be satisfied it is in the interests of justice to admit the evidencepursuant to the Palmer[1] criteria:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. p. 775 [71] The appellant’s evidence was available at trial. Absent a well-founded allegation of ineffective assistance of counsel, I see nobasis but to proceed under the presumption counsel was competent (see R. v. G.D.B., 2000 SCC 22; R. v. Dooley, 2009 ONCA 910, atpara. 64). With the assistance of competent counsel, the appellant chose not to testify. [72] Quite apart from the existence of a presumption, trial counsel acted competently.

The materials filed on the motion reinforcethe fact he fulfilled his duty to the appellant and properly considered whether to call B.P. as a witness. [73] Mr. Jackson’s affidavit attaches letters Mr. Rideout wrote to his Professional Liability Insurer along with his Report, and hisbilling documents for the work he performed for the appellant. Some of these materials ordinarily might not gain admission as offendingthe rule against hearsay.

The Crown suggests the materials are admissible either as business records or under the principled approach ofnecessity and reliability. [74] The appellant does not contest admissibility of these materials. His concern is about reliability and the weight that the courtshould place on the materials. [75] I am satisfied Mr. Rideout met with B.P. when he was in custody in the youth detention centre in Waterville, Nova Scotia andthen travelled to Central Nova (Burnside) where he met with the appellant. Mr.

Rideout’s records are inconsistent only about the date. [76] In one account, he claimed mileage and time to meet B.P. and the appellant on March 26, 2018. In what appears to be his finalaccount of December 3, 2018, he claimed the trip to Waterville and Burnside was on May 16, 2018. [77] If the date of Mr. Rideout’s consultations were material, it would be dangerous to rely on these documents. But the date is not. It is only whether he met with B.P., and then gave advice to the appellant about whether to call B.P. as a witness. [78] Mr. Rideout wrote to Mr.

Jackson on January 18, 2019, to enclose his Professional Liability Claims Report. It is important toremember this letter was written before there were any details about how the appellant claimed trial counsel had failed him. [79] Mr. Rideout’s January 18, 2019, letter explained what the trial had been about and his overall approach to it. This included thefollowing: A co-accused young offender who plead guilty to second degree murder in an agreed statement of facts said there was someone withhim. The accused would not testify and there were no witnesses I could call.

I interviewed the co-accused and he would not havebeen a helpful witness. The only strategy was to attack the Crown’s evidence. [Emphasis added.] [80] The fact Mr. Rideout met with B.P. is confirmed by David Bunce’s affidavit. Mr. Bunce swore that the appellant’s legal teamhad spoken with B.P. on multiple occasions and received contradictory accounts of the appellant’s role, if any, in the death of Mr.Pellerin. According to B.P., he had indeed spoken with trial counsel. [81] Quite apart from this hearsay assertion by Mr. Bunce is the appellant’s own evidence. In direct examination on November 14,

2022, is the following exchange: Q. All right. Now, specifically Crown counsel suggests that either in March 2018 or May 2018 Mr. Rideout went to speak with[B.P.] and then he came into the jail and spoke to you afterwards and explained why it wouldn’t be a good idea to call [B.P.]. Do yourecall anything like that happening? A. I don’t recall why he said it wouldn’t be a good idea to call [B.P.]. I … I just know that he, ah, didn’t do anything. I wasn’treally … sh-, sh-, sure as to why. [82] The appellant may well not recall why Mr.

Rideout told him it would not be a good idea to call B.P., but it is obvious thatadvice was given. Appellate counsel expressly concedes that after their dealings with B.P., trial counsel’s assessment, advice anddecision not to call B.P. was a sound professional decision. [83] It turns out, appellate counsel had in hand at least a draft affidavit from B.P. as late as November 8, 2022. It had been uploadedinto their case management system as of November 4, 2022. They, just like trial counsel, opted not to put B.P. forward as a witness. [84] A criminal trial is sometimes said to be a search for the truth.

In reality, it involves an examination of the ability of the Crownto prove beyond a reasonable doubt the essential elements of the offences charged. There are rules to ensure a fair trial. In addition, onlyadmissible evidence can be considered by the trier of fact. [85] An accused must make important decisions before and during the trial. Probably none more important than whether to testify. In this case, trial counsel says the appellant would not testify; he had no witnesses to call, except the alleged accomplice, B.P., whom heinterviewed and concluded would not be a helpful witness.

The appellant says he always wanted to testify, but would only do so if B.P.testified first. In this scenario, the appellant would be viewed as a snitch, as presumably his evidence would implicate B.P. [86] Because B.P. did not testify, the appellant chose not to. To overcome the hurdle of due diligence, the appellant suggests it canand should be relaxed “in the interests of justice”. As a general proposition, that is accurate. [87] However, the lack of due diligence must be taken into account when considering if it is in the interests of justice to admit freshevidence.

Doherty J.A. explained the interplay in R. v. M. (P.S.) (1992), (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.): While the failure to exercise due diligence is not determinative, it cannot be ignored in deciding whether to admit “fresh” evidence. Theinterests of justice referred to in s. 683 of the Criminal Code encompass not only an accused’s interest in having his or her guiltdetermined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to thatintegrity.

The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respectivecases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(

d) of theCode recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should beused routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried onappeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of theadmission of “fresh” evidence on appeal has been stressed: McMartin v. The Queen, supra, at p. 148.

The due diligence criterion is designed to preserve the integrity of the process and it must be accorded due weight in assessing theadmissibility of “fresh” evidence on appeal. [...] p. 411[2] [88] Sixteen years later, in R. v. Maciel, 2007 ONCA 196, Justice Doherty again addressed the situation where evidence is sought tobe admitted on appeal, but for tactical reasons was not adduced at trial: [39] In Reference Re Regina v. Gorecki (No. 2) (1976), (ON CA), 32 C.C.C. (2d) 135 at 144 (Ont.

C.A.), a verystrong five-judge panel observed: It is well established, however, that on an appeal by an accused, evidence will not be admitted which was available at the trial or whichwith reasonable diligence could have been discovered or, at all events, unless there is a satisfactory explanation why the evidence wasnot adduced at trial. In particular, the Court will not permit evidence to be received on appeal which an accused for tactical reasonsdeliberately refrained from calling at his trial, and thus permit him to put forward a new defence, when the one advanced has provedunsuccessful.

The general rule which precludes the reception on appeal of evidence which was available to the accused at trial is foundedon policy considerations, since to permit further evidence to be received, as a matter of course, in such circumstances would result ininterminable litigation and, in general, would not be in the interests of justice. [Emphasis added by Doherty J.A.] [40] Similar resistance to attempts to undo tactical decisions made at trial through “fresh” evidence applications on appeal is evident inseveral cases from this court: see for example R. v. Buxbaum (1989), (ON CA), 33 O.A.C. 1 at 9-10; R. v.

Canhoto(1999), (ON CA), 140 C.C.C. (3d) 321 at paras. 43-45; R. v. Smith (2001), (ON CA), 161 C.C.C.(3d) 1 at para. 71; R. v. Perlett (2006), (ON CA), 212 C.C.C. (3d) 11 at paras. 141-145; see also Reference ReGruenke (1998), (MB CA), 131 C.C.C. (3d) 72 at paras. 90-92 (Man. C.A.), aff’d (2000), 2000 SCC 32 , 146C.C.C. (3d) 319 at 320 (S.C.C.); R. v.

Huenemann (1993), (BC CA), 38 B.C.A.C. 20 at 29 (C.A.). [89] To gain admission, the evidence must possess some added degree of cogency: [50] If the evidence could have been led at trial, but for tactical reasons it was not, some added degree of cogency is necessary beforethe admission of the evidence on appeal can be said to be in the interests of justice. Otherwise, the due diligence consideration wouldbecome irrelevant. An accused who did not testify at trial could secure a new trial by advancing an explanation on appeal that wasreasonably capable of belief.

It would not serve the interests of justice to routinely order new trials to give an accused an opportunity toreconsider his or her decision not to testify at the initial trial.

[51] Exactly where on the continuum between evidence that is sufficiently probative to meet the preconditions to the admissibility of evidence on appeal and evidence that is so probative as to warrant an acquittal, evidence will become “compelling” must depend on the totality of the circumstances. Where the proffered evidence was not led at trial because of a calculated decision made by an accused, the integrity of the criminal justice system will suffer if the evidence is received on appeal and a new trial is ordered.

That harm can only be justified if the proffered evidence gives strong reason to doubt the factual accuracy of the verdict. [ 90 ] These principles have been repeatedly adopted by this Court (see R. v. R.B. , 2018 NSCA 78 , at para. 45 ; R. v. Downey , 2022 NSCA 59 , at para. 113 ). [ 91 ] If an appeal court admits fresh evidence, the minimum remedy is an order for a new trial [3] . To admit the fresh evidence in this case and order a new trial would be to make a mockery of the criminal trial process.

The appellant had every opportunity to testify at trial and chose not to do so. [ 92 ] Nonetheless, the appellant argues due diligence should be relaxed because an extraneous influence made the appellant’s decision involuntary. What was this extraneous influence? The appellant’s perception of the jailhouse rules about implicating another inmate in a crime. His factum explains: 15. In this particular case, part of Mr. Hannan’s fresh evidence, i.e. his denial of involvement in the stabbing of Mr. Pellerin, existed at trial and could have been presented to the jury. But Mr.

Hannan chose not to testify due to an extraneous influence—his perception of the jailhouse rules relating to implicating another inmate in a crime. [Emphasis added.] [ 93 ] The Crown points out the appellant’s affidavit actually does not mention the appellant’s desire to abide by or adhere to a code of silence. That is accurate. Nonetheless, the appellant gave viva voce evidence to this effect. [ 94 ] The appellant does not claim he feared he would implicate anyone other than B.P. in the homicide.

As I indicated earlier, his claim that testifying would violate a perceived or actual code of silence lacks credibility. B.P. had already pled guilty to murder pursuant to a detailed Agreed Statement of Facts. How could the appellant’s evidence make B.P. any more guilty? [ 95 ] The appellant says no one would know about B.P.’s Agreed Statement of Facts that supported B.P.’s guilty plea because of the statutory publication ban associated with the Youth Justice Court proceedings. This is an unfounded concern. Youth Justice Court proceedings are not banned from publication.

Subject to specific exceptions, the identity of the young person and certain witnesses and information that may tend to identify them is foreclosed from being published.

There is no stricture against testifying about details in, nor the media publishing the existence of, an Agreed Statement of Facts. [ 96 ] More importantly, the so-called code of silence is not a proper foundation to sustain a claim that the appellant’s decision not to testify was somehow involuntary and this Court needs to admit fresh evidence to prevent a miscarriage of justice. [ 97 ] The existence or perception of a code of silence cannot be allowed to skew the proper operation of the criminal justice system (see R. v. Cinous , 2002 SCC 29 , at paras. 128-131 , per Binnie J.; R. v.

Boucher , 2006 QCCA 1079 , at para. 40 ; R. v. Upshaw , 2013 NSPC 1 , at para. 17 ). [ 98 ] If the proposed fresh evidence is the appellant’s protestation in his affidavit of non-involvement, it is a bare assertion that adds little to his not guilty plea. The appellant makes no effort to address the entangling web of circumstantial evidence heard by the jury.

He offers no explanation to the following questions: • Why did he immediately contact B.P. multiple times after the deceased offered to meet with him to pay him? • Why did he meet B.P. within five minutes of those calls and then go to his apartment at 30 Springhill Road? • Why did he change from white sneakers to black? • What was in the black bag when he left 30 Springhill Road with B.P.? • Where did he go with B.P.? • If he met the deceased, who was with him? • What happened to the black bag? • How did he come to be with B.P., hopping over the fence at Cheapy Tire within a minute after being chased by Shane Colley? • Why was he then wearing a black hoodie or sweatshirt? • How did a knife that was identical to the set in his apartment end up in a catch basin 50 m from Farrell Hall? [ 99 ] The appellant does not expressly claim the Agreed Statement of Facts from B.P.’s Youth Justice Court proceedings constitutes fresh evidence.

If he were to make that claim, it would fail. B.P. was an available witness at the appellant’s 2018 trial. Appellate counsel concede Mr. Rideout’s decision not to call B.P. was the result of sound professional judgment. [ 100 ] Furthermore, if B.P.’s testimony could exonerate the appellant, that evidence must come directly from B.P. The appellant had a draft affidavit from B.P. that never materialized as part of the motion to adduce fresh evidence.

[ 101 ] Instead, appellate counsel suggests the Agreed Statement of Facts corroborates the appellant’s affidavit. With respect, it does not. In fact, the reverse. The details set out in the Agreed Statement of Facts point inexorably to the appellant’s inculpatory participation in the murder. [ 102 ] Throughout the Agreed Statement of Facts, B.P. refers to the role of “an unnamed individual” who was present with him and participated in the fatal attack on Mr. Pellerin at Farrell Hall. [ 103 ] The Agreed Statement of Facts stipulates Shane Colley had accurately described two men pulling Mr.

Pellerin from his bicycle and each administering multiple blows with their hands to Mr. Pellerin’s body. B.P. further agreed he “joined in the physical altercation” witnessed by Mr. Colley. Lastly, B.P. admitted to a friend he had been “involved with Mr. Pellerin’s death along with another individual”. The relevant extracts are: 3. The Accused, [B.P.], [date of birth], was in the company of this unnamed individual. He accompanied him to the meet referenced above that was arranged with Mr.

Pellerin, arriving at approximately 10:30 pm at Farrell Hall. [B.P.] did not intend to be involved in the meeting, nor was he aware with whom the meeting would be held. 4. At this time, Shane Colley, the security guard working in the vicinity, was driving his vehicle southbound on Windmill Road. At the point when he was approaching and adjacent to Farrell Hall, he observed two white males pulling Mr. Pellerin away from his bicycle in the parking lot. He further observed these two males each administering multiple blows with their hands to the body of Mr. Pellerin. … 11.

As the meeting at Farrell Hall was taking place on August 29, 2014, [N.B.P.] and Mr. Pellerin spoke and the Accused realized that Mr. Pellerin was the same individual who had struck his friend, Mr. MacDonald, as noted above. The Accused joined in the physical altercation , as witnessed by Mr. Colley. The Accused produced a knife and stabbed Mr. Pellerin more than once. … 12. Following the events of August 29, 2014, the Accused again contacted Ms. Cooper on August 31, 2014. He inquired whether he could hide out with her. He also acknowledged to Ms. Cooper that he was involved with Mr.

Pellerin’s death along with another individual. 13. The knife used by the Accused to stab Mr. Pellerin was seized by the police from a storm sewer near Farrell Hall in the days following the murder and is depicted as Photo 103 in the photo booklet prepared by Identification Officer D/Cst. Mike Barkhouse. [Emphasis added.] [ 104 ] Who was “this unnamed individual” referred to paragraph 3? The Agreed Statement of Facts, in light of the circumstantial evidence at trial, makes it abundantly clear the unnamed individual, according to B.P., could only have been the appellant: 1.

On Friday August 29, 2014, Daniel Michael Pellerin, who was 28 years old, arrived on his bicycle at the home of his aunt Donna Pellerin, on Stairs St. in north end Dartmouth. He was assisting his aunt with a refurbishing/renovation job in her home. He arrived at approximately 7:30-8:00 p.m. 2. Ms. Pellerin gave Mr. Pellerin her bank card and directions to retrieve an amount of cash which he owed to an unnamed individual . Shortly after Mr. Pellerin returned from the bank machine he left to meet this individual at Farrell Hall (a few blocks away on the corner of Albro Lake Road and Windmill Road). Mr.

Pellerin left Ms. Pellerin’s home at approximately 10:15, 10:20 p.m., wearing a jacket Ms. Pellerin had given him and driving his bicycle. [ 105 ] In addition, the knife depicted in Photo 103 referred to in paragraph 13 of the Agreed Statement of Facts, is police # I-3 (Court Ex. # 18), which the expert ruled out as having caused the tool marks on the deceased’s rib.

In other words, the jury could easily infer the appellant was the other assailant who had used the serrated Farberware steak knife. [ 106 ] In light of the details in the Agreed Statement of Facts, B.P. can hardly be viewed as a witness who could realistically assist the appellant. [ 107 ] Lastly, the trial record fully supports the appellant’s agreement with the trial strategy that focussed on the weaknesses of the Crown’s case.

There were no eyewitnesses that could identify the appellant as an assailant, nor DNA, fingerprints or other trace evidence linking him to the homicide. [ 108 ] At the end of the Crown’s case, trial counsel sought a brief recess to consult with his client about whether to call evidence. He explained they had had some discussions about this issue, but wanted one final consultation: MR. RIDEOUT: No, not at this moment. It has not been made, although I need just a short period of time. It’s only appropriate and professional in the circumstances that I consult with my client... THE COURT: Absolutely. MR.

RIDEOUT: ...to review this evidence that went on today to see if it will necessitate us to call any evidence. I don’t think that would take very long. THE COURT: All right. Well, are you suggesting -- maybe say like a 15-minute recess? MR. RIDEOUT: Yes, I think that would be – that should do it. THE COURT: And...

MR. RIDEOUT: Obviously we’ve had some discussions about this issue because... THE COURT: Oh, no doubt. MR. RIDEOUT: But it was just – it’s only appropriate that I – that I have one final consultation with my client. THE COURT: Absolutely. MR. RIDEOUT: But 15 minutes I think could do it, My Lord. [109] After the recess, trial counsel advised he had consulted with the appellant, and they had decided they would not be callingevidence: MR.

RIDEOUT: My Lord, after considering the trial evidence with my client, we have decided that we will not be calling any witnessesor evidence, and therefore the defence rests. [110] The Crown accurately points out two things. One, the trial strategy was successful as he had been acquitted of first degreemurder and the charge of possession of a weapon for a purpose dangerous to the public peace. Second, the appellant was in fullagreement with the defence strategy: MR.

RIDEOUT: Yes, and I guess, from discussions with my client, his position is that there’s no real evidence that he was there, but that– the way that I tried to present it was that there was no evidence really that he was there. There is obviously, from our discussionyesterday, some circumstantial evidence, but his position is that there was no proof that he was actually there. THE COURT: Well, there is circumstantial evidence of that … MR. RIDEOUT: Yes. THE COURT: …through the evidence of Donna Pellerin. MR. RIDEOUT: Yes. THE COURT: If the jury accepts it. MR. RIDEOUT: Yes.

And that’s what I’ve tried to explain. [111] Based on this record, the appellant has not satisfied me he made anything other than an informed voluntary decision not to testifyor call other evidence. It is not in the interests of justice to admit the proffered fresh evidence. I would dismiss his fresh evidencemotion. The jury charge [112] A perfect jury charge, as so many things we attempt, is likely beyond our normal reach.

To withstand appellate scrutiny,perfection is not required. [113] It is well-established the overarching question is whether the jury was properly instructed to carry out its adjudicative task. Toassess complaints of error, a functional approach is employed. [114] Any putative error or shortcoming is assessed in light of the live issues at trial, the position of the parties, and the overall effect ofthe charge. There should be no undue focus on isolated phrases or minute dissection. Substance prevails over form (see: R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314; R. v.

MacKinnon (1999), (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.);R. v. Daley, 2007 SCC 53; R. v. Araya, 2015 SCC 11; R. v. Rodgerson, 2015 SCC 38, at para. 54; R. v. Robinson, 2016 BCCA 192; R. v.Cromwell, 2016 NSCA 84, at paras. 25-26; R. v. Johnson, 2017 NSCA 64, at para. 47). [115] The appellant advances two interconnected complaints. Both relate to the judge’s charge on the appellant’s potential liability as ajoint principal. First, he suggests there was no basis for liability as a joint principal.

Second, if there were, the judge failed to relate theevidence to the issues the jury had to decide. [116] I see no error in the jury charge. The issues the jury had to decide were whether the appellant was one of the two individuals whofatally attacked the deceased, and if he were, did he cause the death of the victim with the requisite murderous intent; and, lastly, if hewere guilty of murder, was it a planned and deliberate murder. [117] The judge repeatedly explained to the jury that if they had a doubt the appellant was one of the assailants or had contributed to thevictim’s death they must acquit.

Further, if they had a doubt he intended to cause death or bodily harm that he knew was likely to causedeath and was reckless whether death would ensue, the jury had to acquit the appellant of murder. Lastly, to convict the appellant of firstdegree murder they had to be satisfied beyond a reasonable doubt the murder had been planned and deliberate, as those terms have beendefined in the jurisprudence. [118] The appellant’s factum puts his complaint as follows: 32. The issue with the joint principal instruction was two-fold.

First, on the facts of this case there was no basis to leave this route ofliability with respect to a conviction for second degree murder. If the killing was not pre-planned, but rather a spontaneous event thatoccurred during the course of an assault, liability as joint principals could not arise. To avail themselves to a conviction on the basis ofjoint principals there needed to be evidence that both Mr. Hannan and the co-accused were both involved in the beating and shared thesame intention. This evidence was not available.

[119] This argument is based on an incorrect premise. Just because the jury had a reasonable doubt the appellant and B.P. had notplanned and deliberated the deceased’s murder in no way precluded the appellant’s liability for second degree murder as a jointprincipal. [120] In R. v. Strathdee, 2021 SCC 40, the Supreme Court of Canada clarified the applicability of joint or co-principal liability: [4] We also wish briefly to clarify a statement of law in R. v. Cabrera, 2019 ABCA 184, 95 Alta. L.R. (6th) 258, aff’d R. v. Shlah,2019 SCC 56.

Any implication from Cabrera that joint/co-principal liability is automatically eliminated if the evidence demonstratesapplication of force by only a single perpetrator is not accurate. Joint/co-principal liability flows whenever two or more individualscome together with an intention to commit an offence, are present during the commission of the offence, and contribute to itscommission.

In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributingcause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a singleindividual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significantcontributing cause to all injuries sustained. Properly read, the discussion of party liability in R. v.

Pickton, 2010 SCC 32, [2010] 2 S.C.R.198, is fully consistent with the foregoing. [Emphasis added.] [121] Murders cannot be pigeon-holed as being either planned and deliberate or spontaneous. R. v. Ronald, 2019 ONCA 971, properlyrejected such an unequivocal characterization: [50] With respect to the trial judge, who ably conducted a difficult trial, her reasons reveal three errors. First, she wrongly equatedany murder that was not “spontaneous” with a planned and deliberate murder.

Not every act indicative of some preparation prior to themurder, or some degree of planning, points only to a finding that the murder was planned and deliberate, as that phrase is defined in thecase law. A planned and deliberate murder must be the product of a scheme or plan that is “carefully thought out” and “considered”before it is implemented: see R. v. Nygaard and Schimmens, (SCC), [1989] 2 S.C.R. 1074, at p. 1084; R. v. Robinson,2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34 [122] It was entirely appropriate to charge the jury on the appellant’s potential liability as a joint or co-principal.

Party liability couldhave been left with the jury but may have resulted in an unnecessarily complicated jury charge that could risk obfuscation of the realissues (see for example, R. v. Johnson, 2022 ONCA 534). Neither the Crown nor appellant’s trial counsel suggested any approach otherthan joint principal liability. [123] The availability of joint principal liability was canvassed in R. v. Ball, 2011 BCCA 11[4] where two participants in a group attackwere found guilty of manslaughter as joint principals.

Ryan J.A, for the unanimous court, adopted Justice Martin’s analysis in R. v.Mena: 23 Two persons may both be actual committers for the purposes of s. 21(1)(a) (referred to in the case law variously as “co-principals”, “joint-principals”, “co-perpetrators” or “joint-perpetrators”) even though each has not performed every act which makes upthe actus reus of the offence. As Martin J.A. explained in R. v. Mena (1987), (ON CA), 34 C.C.C. (3d) 304: 57 C.R.(3d) 172 (O.C.A.) at page 309: Unquestionably, more than one person may actually commit an offence.

Perhaps the simplest example of joint perpetrators is where twoaccused attack the victim intending to kill him or her and the combined effect of the blows struck by the two accused is to kill the victim.In those circumstances, both the accused have murdered the deceased: see Smith and Hogan, Criminal Law, 5th ed. (1983), at p. 120. At common law, a principal in the first degree is one who has committed the fact with his own hands, or through an innocent agent: seeRussell on Crime, 12th ed. Vol. I (1964), at p. 131.

It was well established that, if several persons combined to commit a crime and eachperson committed a different part of the crime, every such person was a principal in the first degree. In Russell on Crime, supra, theauthor states at p. 131: All the facts of the case must be taken into account, so that where it appears that there is a joint enterprise afoot between two (or more)persons in which each has an active part to perform in order to effect the criminal purpose then each participant is equally a principal inthe first degree.

Thus in burglary if A hoists B through a half-open window and B then goes to the closed door of the house and opens itfrom the inside thus admitting A, both are principals in the first degree to burglary. So also there may be joint action in cases of stealingand other crimes. In certain circumstances each of the participants may do his

part in the absence of the others and even may not knowby whom the other parts were executed. [Footnotes omitted.] [Emphasis added.] Glanville Williams in Criminal Law: The General Part, 2d ed. (1961) states at p. 349: Two persons may be guilty as joint perpetrators.

Hence where a body of men beat a constable (some with sticks, some by throwingstones, some with their fists), and the constable died of the aggregate violence, the judge directed the jury that “If several persons acttogether in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all” (R. v.Macklin (1838), 2 Lewin 225). Part of a crime may be committed by one principal, another by another. Thus, in burglary, one may break and the other enter.

Otherillustrations are in forgery, where different persons execute different parts of the document (though in the absence of one another), and inlibel, where D composes, E prints, and F publishes. In these cases, it is not necessary for the various perpetrators to be present at thesame time.

It is even possible for two persons to manipulate the controls of a car at the same time so that both are driving. [Footnotesomitted.] In Textbook of Criminal Law, 2d ed. (1983), Glanville Williams says at p. 330: Two persons may be guilty as joint perpetrators; and part of a crime may be committed by one perpetrator, another by another. Thus, in

robbery, which involves the two elements of theft and threat, one person may steal while his companion makes the threat of force, and the two are co-perpetrators. It is, I think, clear that in the above passage the author is referring to the case where two people have acted in concert to commit a robbery as a joint enterprise. [ 124 ] More recently, Watt J.A. in R. v. Spackman , 2012 ONCA 905 , succinctly set out the basic principles: [183] Co-principal liability for concurrent acts of two or more persons often arises in prosecutions for murder or manslaughter.

Two or more people each individually beat or stab the victim. The victim dies. It may be unclear which attack caused the victim’s death as opposed to other injuries. Legal principle does not require the trier of fact to determine who struck the “fatal blow” for co-principal liability to attach to each participant. Whether this wound or that, or some combination of the two, caused the victim to die is of no concern for co-principal liability, provided both assaults are found to be a “significant contributing cause” of death: Pickton , para. 66 ; R. v.

Ball , 2011 BCCA 11 , (2011), 267 C.C.C. (3d) 532, at para. 28 [ 125 ] There was evidence that would permit the jury to infer the appellant either gave to B.P. or brought with him the Farberware steak knife to a pre-arranged meeting at Farrell Hall where they savagely beset the victim. The judge repeatedly instructed the jury that if they were not satisfied the appellant was one of the perpetrators of the attack, they had to acquit. If they were so satisfied, then were the appellant’s actions a contributing cause of the victim’s death and if so, did he have the requisite murderous intent. [ 126 ] In R. v.

Abdulle , 2020 ONCA 106 , the appellant argued the judge improperly instructed the jury on joint principal liability because there was no evidence she knew one of the other participants in the fatal attack had a knife or that she had stabbed the victim. The Ontario Court of Appeal rejected the complaint: [27] As I will explain, I would not accept this submission. The trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder.

In the circumstances of this case, the intent for murder -- subjective intent to cause bodily harm, and subjective knowledge that the bodily harm was of such a nature that it was likely to result in death -- could be inferred if the jury found that the appellants participated in the beating, kicking and stomping of an incapacitated and grievously injured victim.

It was not necessary for them to find that an accused knew that one of the other assailants was using a knife. [ 127 ] It was not necessary for the Crown to establish whether the appellant used a knife, or if he did, whether he struck one or any of the fatal blows. In the eyes of the law, the blow of one is the blow of all. [ 128 ] I am also unpersuaded the trial judge failed to adequately relate the evidence to the issues of joint principal liability. [ 129 ] The extent of the duty to review by a trial judge will depend on the circumstances of the case ( R. v. Daley , 2007 SCC 53 ).

The Supreme Court of Canada in R. v. Rodgerson , 2015 SCC 38 , again endorsed the flexible nuanced approach described in R. v. Daley : [30] In crafting the jury charge, a trial judge has a general duty to inform the jury of the relevant evidence, and to assist the jury in linking that evidence to the issues that it must consider in reaching a verdict. The level of detail that is required varies depending on the context. As the majority of this Court stated in R. v. Daley , 2007 SCC 53 , [2007] 3 S.C.R. 523, per Bastarache J.: The extent to which the evidence must be reviewed “will depend on each particular case.

The test is one of fairness. The accused is 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 to fully appreciate the issues and the defence presented, the charge will be adequate” .... [para. 57] (Quoting C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at p. 249.) [ 130 ] The live issue at trial centered on identity. Could the jury infer it was the appellant and B.P. that carried out the fatal attack at Farrell Hall?

Contrary to the appellant’s suggestion, there was ample direct and circumstantial evidence that both the appellant and B.P. did so and with the requisite intent. There were no less than seven stab wounds to the victim’s chest, abdomen, side and back delivered with sufficient force to penetrate his thick jacket and damage his internal organs. [ 131 ] The appellant’s position at trial, repeatedly urged by trial counsel, was his client was not one of the assailants at Farrell Hall.

The trial judge appropriately reviewed the evidence that would permit or run counter to an inference the appellant had attacked the deceased. As for the appellant’s role as joint principal, the judge referred to the evidence of the eyewitness, Shane Colley. [ 132 ] While instructing the jury on causation, the judge also discussed joint principals and reviewed the forensic pathologist’s evidence about the cause of death: The first one, the identity of the accused, has the Crown proven beyond a reasonable doubt that Mr. Hannan was a perpetrator of the attack on Mr. Pellerin? We covered that.

That was the whole focus of the earlier segment of my jury charge. But if you are satisfied of his identity as having committed the stabbing or as a perpetrator of the stabbing, then you’ve got to go to the next question, the second element, which is, did Mr. Hannan cause the death of Mr. Pellerin? To prove that Mr. Hannan’s conduct caused Mr. Pellerin’s death, the Crown must prove beyond a reasonable doubt that Mr. Hannan’s conduct contributed significantly to Mr.

Pellerin’s death, and a person’s conduct may contribute significantly to another person’s death even though that conduct was not the sole cause of the other’s death. That takes me back to my earlier instruction to you a few minutes ago on joint principals. Essentially, that where a criminal offence is committed by two or more persons, if they are acting together as part of a joint plan to commit the offence, both may be found guilty of it.

Thus, if two people together attack a victim and the combined effect of their blows or stabbings is to kill him, then those attackers will be found to have caused the death of the victim because each attacker contributed to it. So I refer you once again to the evidence of the medical examiner, Dr. Marnie Wood, and her uncontradicted opinion was -- on the cause

of death, the cause and manner of death, was that it was from a combination of stab wounds to Mr. Pellerin’s chest, back and abdomen,injuring his organs and leading to fatal bleeding. So if the answer to that question is a yes, there was causation of death, the next question to address is whether Mr. Hannan caused Mr.Pellerin’s death by an unlawful act, and the unlawful act alleged in this case is the assault on Mr. Pellerin in the Farrell Hall parking lotby multiple stab wounds inflicted by two persons acting together, thereby causing his death.

So ladies and gentlemen, if you are satisfiedbeyond a reasonable doubt that Mr. Hannan was a joint principal who attacked and stabbed Mr. Pellerin in the Farrell Hall parking lot,you should have little difficulty concluding that Mr. Hannan caused the death of Mr. Pellerin by means of an unlawful act. [133] Trial counsel voiced no objection to the jury charge.

While not determinative, it is evidence he was satisfied the instructionsfairly laid out the issues the jury had to decide and the evidence that bore on them. [134] Significantly, appellate counsel has not identified any evidence he now says was relevant to the issue of joint principal liabilitywhich the trial judge failed to discuss. [135] I would not accede to this ground of appeal. Inconsistent verdicts [136] Pursuant to s. 686(1)(

a) of the Criminal Code, an appeal court can overturn a conviction tainted by legal error, a miscarriage ofjustice or where it is unreasonable or unsupported by the evidence. [137] Where an appeal court is satisfied a conviction is inconsistent with an acquittal, the guilty verdict is unreasonable (R. v. Pittiman,2006 SCC 9). It cannot be reasonable for a jury to acquit and convict an accused of the same conduct. [138] The appropriate analytical approach was recently discussed in R. v. R. V., 2021 SCC 10. The appellant has the burden to establisha verdict is unreasonable.

For a verdict to be unreasonable as inconsistent with a concurrent acquittal, they must not be reconcilable onany rational or logical basis. [139] Moldaver J., for the majority, described the principles: [29] In an appeal involving inconsistent verdicts, the applicable test to determine whether a verdict of a jury is unreasonable is: “Arethe verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence?”(Pittiman, at para. 10).

Put another way, a conviction is unreasonable and must be set aside where the verdicts cannot bereconciled on any rational or logical basis and no properly instructed jury, acting reasonably, could have rendered the verdicts itdid based on the evidence (R. v. McShannock (1980), (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56; Pittiman, atparas. 6-7). [30] When verdicts cannot be reconciled and a jury that was properly instructed returns a conviction that is not supportable on theevidence presented at trial, the only available inference is that the jury acted unreasonably in arriving at the conviction (R. v.

Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381, at para. 39). The jury may have reached a compromised verdict, misunderstood the evidence, ornullified by choosing to not apply the law -- any of those paths to inconsistent verdicts reflects unreasonableness. In such cases, theconviction itself is unreasonable and appellate intervention is warranted. [31] The ultimate inquiry for appellate courts then is whether the verdicts are actually inconsistent.

Apparently inconsistent verdictscan be reconciled on the basis that the offences themselves are “temporally distinct, or are qualitatively different, or dependent on thecredibility of different complainants or witnesses” (Pittiman, at para. 8).

If verdicts are reconciled to reveal a theory on which the jurycould have returned the verdicts without acting unreasonably, the verdicts are consistent and appellate intervention is not warranted. [Emphasis added.] [140] The appellant argues the jury’s second degree murder verdict is inconsistent with their acquittal of the appellant for possession ofa weapon, the knife, for a purpose dangerous to the public peace or for the purpose of committing an offence. [141] The appellant’s factum sets out the totality of his argument: 36. On the evidence presented in this case the verdicts are irreconcilable.

In fact, the trial judge himself was perplexed by theverdicts, describing them as “inexplicable.” [Hannan, supra, para. 11] The jury acquitted Mr. Hannan of possession of the knife—afinding that established that he was not the stabber and that there was only one knife involved—yet convicted him of seconddegree murder. The problem, however, is that if he was not the stabber there was no reasonable path to a conviction of second degreemurder. There was nothing to support a finding that Mr. Hannan knew that the co-accused intended to stab Mr.

Pellerin or that he waseven in possession of a knife on the evening of the offence. Further as set out above, there was no evidence to support of [the] convictionon the basis that they were joint principles if Mr. Hannan was not a stabber. [Emphasis added.] [142] There are two problems with the appellant’s premise. First, the jury did not acquit nor in any way find the appellant was not inpossession of the knife or was not someone who had stabbed the deceased. The judge repeatedly instructed the jury that they had to besatisfied beyond a reasonable doubt the appellant was a perpetrator of the fatal stabbing.

If they were not, they had to acquit. Forexample, in his supplementary charge, the judge told the jury. And let me begin by orienting you to the setting of this instruction, it only applies if you are satisfied, considering the threshold question,if you’re satisfied beyond a reasonable doubt that Mr. Hannan was a perpetrator of the fatal stabbing of Mr. Pellerin because, of course,if you’re not satisfied of that beyond a reasonable doubt, then your deliberations are over and you must acquit. But if you do get past that

and are satisfied beyond a reasonable doubt that Mr. Hannan was a perpetrator of that stabbing, then you consider this -- consider andapply this instruction on joint principals. [143] And: The instruction that you’ve just heard should make it clear that two or more persons may commit an offence together, acting in concertwith one another. They don’t need to have the same motive, but they must share a common intent in order to be -- before they can befound to be joint principals. They must share a common intent before they can be found to be joint principals.

If you do find that theyshare that common intent to kill the victim and the combined effect of their blows or stabbings was to kill the victim, then both are guiltyof murder. Put another way, if each of them intended to kill the victim and each contributed to his death, then both have committedmurder. They would then be considered to be joint principals in the commission of the offence. Nonetheless, you, as jurors, are required to decide about the guilt of Mr.

Hannan in this trial according to the evidence that applies tohim, and you are to make your own findings of fact about what he did or what he did not do and his intent behind his actions. [144] The jury had a reasonable doubt the Crown had established the appellant possessed a weapon for a purpose dangerous to thepublic peace. The offence is set out in s. 88 of the Criminal Code: 88

(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or anyammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. [145] It can be a difficult charge to establish.

The Crown must demonstrate both that the accused possessed a weapon and that thepurpose of the possession was one dangerous to the public peace or for the purpose of committing an offence. [146] Importantly, the mens rea requirement, the purpose of the possession, generally must have been formed prior to the taking ofpossession and continue as possession is taken (R. v. Cassidy, (SCC), [1989] 2 S.C.R. 345; R. v. Kerr, 2004 SCC 44). Actual use of a weapon does not establish the offence, although a relevant factor to be taken into account (R. v.

Chomenko (1974), (ON CA), 18 C.C.C. (2d) 353 (Ont.C.A.); Kerr, supra, at para. 37). [147] The trial judge instructed the jury precisely along these lines: So, I will therefore now go on to discuss with you the third element of this offence, namely that the accused possessed the weapon for apurpose dangerous to the public peace or the purpose of committing an offence. Well, this question again relates to Mr. Hannan’s state of mind. You know, what was his purpose of having the weapon in hispossession, if you find that he did.

So an accused person must have his purpose in mind before he or she takes possession of theweapon. [148] The Crown’s response to this issue is that is understandable for the jury to have a reasonable doubt about the appellant’s mensrea—after all, they had a reasonable doubt the murder had been planned and deliberate. In other words, consistent with a doubt theappellant and B.P. had planned the murder, the jury could well have had a doubt that the appellant had formed an intention to use a knifefor the purpose of committing the offence of murder. [149] As pointed out by the Court in R. v.

Pittiman, the onus to establish a verdict is unreasonable on the basis of inconsistency is adifficult one to meet in light of the jury’s wide latitude in its evidence assessment (para. 7).

Other reasonable paths to these verdictscome to mind. [150] The jury may have found: only B.P. had been armed with a knife; they could not decide who was armed but the appellant hadjointly attacked the deceased with a murderous intent, resulting in a guilty verdict for second degree murder; or they were not satisfiedthe appellant had the necessary mens rea for the s. 88 offence. [151] I am not satisfied the trial judge’s comment in his sentencing reasons that the appellant was “inexplicably” acquitted of the s. 88offence is of any moment.

I agree with the Crown’s response that the comment suggests had the trial judge been the trier of fact, hewould have convicted the appellant of both first degree murder and the weapons offence. This can be seen from the trial judge’s findingthe appellant set up the deceased by luring him to Farrell Hall where he and B.P wreaked brutal violence on Mr. Pellerin. [152] I would also point out, the Crown made no submissions to the jury about the weapons offence.

On the other hand, appellant’strial counsel spent a considerable amount of time focussing on the lack of forensic or other evidence to establish this count. [153] In all of the circumstances, I am not satisfied the appellant has met its burden to demonstrate the verdicts are unreasonable asbeing inconsistent. Unreasonable verdict [154] The appellant also argues the second degree murder verdict is unreasonable or unsupported by the evidence within the meaning ofs. 686(1)(

a) of the Criminal Code. An appeal court must examine and carry out a limiting weighing of the evidence, but not act as athirteenth juror and substitute its view for that of the jury. The Court must be satisfied there is more than just “some evidence”. [155] In R. v. Calnen, 2019 SCC 6, Martin J., in dissent (but not on this issue) set out the relevant principles: [165] Given my conclusions on the previous issues, I am now required to consider whether the jury verdict was unreasonable.

Anunreasonable verdict, or a verdict which cannot be supported by the evidence, is one that “a properly instructed jury acting judiciallycould not reasonably have rendered”: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26; see also R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. In W.H., this Court described the

appellate court’s task in assessing the reasonableness of a verdict. Not only must the court ask whether there is some evidence which, ifbelieved, supports the conviction, it is required to review, analyze and weigh the evidence, and consider through the lens of judicialexperience, whether “judicial fact-finding precludes the conclusion reached by the jury”: W.H., at para. 28 (emphasis deleted), quotingBiniaris, at para. 39.

Thus: ... in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewingcourt must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflictswith the bulk of judicial experience: Biniaris, at para. 40. [156] The appellant appropriately cites Justice Doherty’s statement in R. v. Mars (2006), (ON CA), 205 C.C.C. (3d)376, on the relevant principles in cases where a verdict is based on circumstantial evidence: [3] Fact finding is primarily the function of the trial court.

Section 686(1)(a)(

i) provides for a limited appellate review of thefindings of fact made at trial. Where the reasonableness of the verdict is raised, the appellate court must review the entirety of theevidence using its accumulated training and experience to determine not whether the appellate court would have convicted the appellant,but whether a reasonable trier-of-fact properly instructed and acting judicially could have convicted: R. v.

Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at 20-21, 25 (S.C.C.). [4] When assessing the reasonableness of a verdict, the appellate court must have regard to the burden of proof applicable in acriminal case. Where, as here, the Crown’s case depends on inferences drawn from primary facts, the question becomes: could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence?The totality of the evidence refers to evidence that is potentially exculpatory as well as evidence that supports the Crown’s case againstan accused.

In this case, the assessment of the reasonableness of the convictions, which were based entirely on the inculpatory potentialof the fingerprint evidence, had to take into account the largely exculpatory identification evidence given by the Crown witnesses. [157] These principles were similarly expressed in R. v. Villaroman, 2016 SCC 33, by Cromwell J.: [55] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381.

Applying this standard requires the appellate court to re-examine and to some extent reweigh andconsider the effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186. This limited weighing of theevidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantialevidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was theonly reasonable conclusion available on the totality of the evidence: Yebes, at p. 186; R. v.

Mars (2006), (ON CA),205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95 , 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R.,2003 ABCA 148 ; R. v. Cardinal (1990), 1990 ABCA 115 , 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), (SK CA), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22.

The court noted that“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simplybecause “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier [of] fact todecide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [158] The appellant’s challenge is limited to what he claims is the insufficiency of the evidence to make out the requisite mens rea forsecond degree murder. His factum sets out his argument as follows: 41.

In the present case, the evidence was insufficient to establish the mens rea for murder. On this issue, the evidence was entirelycircumstantial. As set out above, since the jury acquitted Mr. Hann

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