R v Petrin, 2018 SKCA 100

Restriction on Publication An order has been made in accordance with s. 486 of the Criminal Code directing that any information identifying the witnesses shall not be published. Court of Appeal for Saskatchewan Docket: CACR2869 Citation: R v Petrin , 2018 SKCA 100 Date: 2018-12-17 Between: Joshua Dylan Petrin Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Ottenbreit and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Whitmore On Appeal From: 2016 SKQB 363 , Saskatoon Appeal Heard: September 17, 2018 Counsel: Paul McMurray for the Appellant W. Dean Sinclair, Q.C., for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Joshua Dylan Petrin appeals the decision of a Queen’s Bench judge dated November 3, 2016, convicting him of the first degree murder of Lorry Santos and conspiracy with K. and Randy O’Hagan to cause the death of T.J. Cromartie. Mr. Petrin also applies for an order pursuant to s. 683 of the Criminal Code permitting him to adduce fresh evidence.

For the reasons hereinafter set forth, the application to adduce fresh evidence is denied. The appeal is dismissed. II. Facts and Background [ 2 ] Mr. Petrin was a high-ranking member or “boss” of a group known as the White Boy Posse that was active in the drug trade in the Northwest Territories and Alberta. He resided in Edmonton, Alberta, with his girlfriend, Karissa Dow. [ 3 ] Mr. Cromartie was Mr. Petrin’s “right-hand man” in the drug trade doing whatever Mr. Petrin told him to do. He lived with Mr. Petrin and Ms. Dow. Mr. Cromartie had been in charge of the Lloydminster drug operation for some time.

In the spring of 2012, while Mr. Petrin was in the hospital, Mr. Cromartie packed up some money and a gun and, without telling Mr. Petrin where he was going, left the home. This infuriated Mr. Petrin. As Mr. Cromartie was close to Mr. Petrin, he had information that could potentially harm his drug operation. Mr. Petrin perceived Mr. Cromartie to be disloyal and, as the boss, he was going to do something about it. [ 4 ] Mr. Petrin asked another associate, Colten Menard, to run the drug operation in Lloydminster. He showed Mr. Menard a surveillance video of Mr.

Cromartie, whom he described as the “rat”, leaving his home and told him there was $40,000 on his head. He later told Mr. Menard that they had to get rid of the “goof”. He offered to put in a good word for Mr. Menard regarding becoming a full patch member of the White Boy Posse if he would help him find Mr. Cromartie. As a result of that conversation, Mr. Menard believed that Mr. Petrin wanted Mr. Cromartie killed. [ 5 ] Chelsey Hart and her boyfriend, Mr. O’Hagan, both sold drugs for Mr. Petrin. Ms. Hart believed that everyone in the gang knew that Mr. Petrin was angry about Mr.

Cromartie’s leaving and his betrayal of the organization. She had knowledge that Mr. Petrin had put a $40,000 price on Mr. Cromartie’s head as a result of overhearing conversations between Mr. O’Hagan and Mr. Petrin and seeing some texts between them on a phone she shared with Mr. O’Hagan. The two of them owed a drug debt to Mr. Petrin of $7,000 to $10,000. By the summer of 2012, as a result of that debt, Mr. Petrin had removed Mr. O’Hagan from operating a drug phone line and made him his “mission man”, which Ms. Hart understood to mean doing Mr.

Petrin’s “dirty” missions for him. [ 6 ] Serena Lodoen was one of Mr. O’Hagan’s drug customers and regularly exchanged texts with him. She was friends with Melissa Star. Each woman had a child with Ashley Cadrain. Ms. Star had arranged for her daughter to visit Mr. Cadrain at his then

residence of 223 Peterson Terrace in Saskatoon. Ms. Lodoen asked Ms. Star for Mr. Cadrain’s address. Ms. Star gave her what shemistakenly remembered the address to be – 203 Peterson Terrace. That was the address of Ms. Santos. This was the first of twounfortunate mistakes that ultimately resulted in Ms. Santos’ death. [7] Ms. Lodoen believed Mr. Cadrain owed Mr. Cromartie money. She also believed Mr. O’Hagan and Mr. Cromartie wereassociated and contacted Mr. O’Hagan to advise him that Mr. Cadrain owed money to Mr. Cromartie. On September 8, 2012,Ms. Lodoen exchanged a series of text messages with Mr.

O’Hagan telling him Mr. Cadrain lived at 203 Peterson Terrace, the addressgiven to her by Ms. Star. Unfortunately, Mr. O’Hagan mistook Ms. Lodoen’s messages as conveying the address of Mr. Cromartieinstead of Mr. Cadrain. This second mistake compounded the one initially made by Ms. Star. [8] Mr. O’Hagan then told Mr. Petrin that Mr. Cromartie lived at 203 Peterson Terrace in Saskatoon. Mr. Petrin instructedMr. O’Hagan to deal with the situation. Mr. Petrin, who was in Lloydminster, Alberta, when he received that information, askedMr.

Menard to procure guns and ammunition from a third party in Edmonton and give them to Mr. O’Hagan. Mr. Petrin textedMr. Menard saying that he was going to Saskatoon to “TCB”, which Mr. Menard interpreted as Mr. Petrin saying he was going to takecare of business by taking out or killing Mr. Cromartie. [9] Another associate of Mr. Petrin, K., was instructed by Mr. Petrin to drive from Saskatoon to Lloydminster to pick upMr. O’Hagan. When he arrived in Lloydminster, Mr. O’Hagan showed him a duffle bag with two handguns – a 9mm and a .40 calibre.Mr.

Petrin also instructed B. to purchase a sledgehammer, which B. put in storage at the four-plex where he and his girlfriend lived inSaskatoon. [10] On September 10, 2012, K. and Mr. O’Hagan returned to Saskatoon and went to the four-plex. Mr. Petrin and Ms. Dow werepresent. Mr. Petrin, K. and Mr. O’Hagan then had a discussion outside the four-plex. The only witness to testify about the content of thatdiscussion was K. who indicated that they discussed what had to be done about Mr. Cromartie, including what their options were.Mr. Petrin ultimately told them that they were to find Mr.

Cromartie and figure out a plan to “blast” him. K. also testified that thesledgehammer was to be used to get through the door so “we could rush in and get” Mr. Cromartie. [11] On September 10, 2012, K. and Mr. O’Hagan took a taxi to the area near 203 Peterson Terrace to walk around and look at thearea. They did not see Mr. Cromartie that day. On September 11, 2012, K. and Mr. O’Hagan drove to the area near 203 Peterson Terracebut again did not see Mr. Cromartie. Mr. Petrin, Mr. O’Hagan and K. went to Canadian Tire and purchased masks and gloves to assist inavoiding detection. On their return from the store, Mr.

Petrin expressed his frustration to Mr. O’Hagan and K. about their inability tolocate Mr. Cromartie. Mr. Petrin wanted Mr. Cromartie to be taken care of and told K. and Mr. O’Hagan it had to be done that night. [12] After midnight on the morning of September 12, 2012, the two again drove to the area and parked. They walked around thearea and hid the sledgehammer in an alley nearby and then kept watch on 203 Peterson Terrace. K. testified he had the 9mm handgunand Mr. O’Hagan had the .40 calibre handgun. While keeping watch, Mr. O’Hagan texted Mr.

Petrin throughout the night keeping himinformed as to what was happening on a secure Blackberry phone used by the group. [13] As it became daylight, Mr. O’Hagan became more impatient about getting it done. At about 6:00 a.m., Mr. O’Hagan ran to203 Peterson Terrace and rang the doorbell. Mr. O’Hagan fired seven rounds into the door, the front bay windows and the south side ofthe house. K., who was a distance away, fired one round in the general direction of the house. [14] Ms.

Santos, a 34-year-old mother of four children, was killed when she went to the front door of her home shortly after 6:00a.m. to find out who rang the doorbell. One of the bullets that had been fired went through Ms. Santos’ lungs, heart and aorta leading toexcessive blood loss that resulted in her death. The bullet came from Mr. O’Hagan’s gun. [15] After the shooting, Mr. O’Hagan and K. ran back to their vehicle and drove off, removing the barrels from the guns andthrowing them off a bridge. K. stashed the other parts of the guns. [16] The two returned to the four-plex. They had a brief conversation with Mr.

Petrin and told him what had happened. He seemedpleased that they had gotten something done. Mr. Petrin and Ms. Dow packed their belongings in Ms. Dow’s car. They also packed a bagcontaining the clothes that had been worn by Mr. O’Hagan and K. Mr. Petrin, Ms. Dow, a person known as Jaylene and Mr. O’Hagandrove back to Lloydminster and Edmonton in the vehicle. [17] During the trip back, Mr. Petrin sent Mr. Menard a message inquiring about the amount of Mr. O’Hagan’s debt to the WhiteBoy Posse. Mr. Menard thought it was $8,000 to $8,500. Mr. Petrin instructed him to wipe it out. Mr. Menard had not seen Mr.

Petrin dothis before. As a result, Mr. O’Hagan’s debt was extinguished. [18] Eight spent shells were found at the scene by the police. Seven were identified as coming from the .40 calibre gun thatMr. O’Hagan had and one from the 9mm gun that K. had. After his arrest, K. eventually led the police to the location where he hadstashed the guns. K. pleaded guilty to first degree murder in the death of Ms. Santos. Mr. O’Hagan was tried separately and was foundguilty of first degree murder. III.

Decision of the Queen’s Bench Judge [19] After briefly reviewing the facts and dealing with some preliminary matters, the trial judge addressed the arguments of theparties regarding the applicability of R v Vetrovec, (SCC), [1982] 1 SCR 811 [Vetrovec]. Mr. Petrin argued the Crown’scase was largely based on the testimony of his associates who were criminals, liars and heavy drug users and that when assessing theircredibility the Court should give itself a Vetrovec warning.

The Crown submitted the warning was not necessary but, if it was, there wasan abundance of evidence confirming the testimony of those Crown witnesses. [20] The trial judge reviewed the governing law with respect to Vetrovec warnings, noting that the decision whether to give a

Vetrovec warning was case specific, was often potential accomplice witness specific and that there was no strict rule. The trial judge noted that the court could believe a potential unsavoury witness and that it was not always necessary to give a Vetrovec warning. She then turned to a review of the witness evidence for the purposes of determining if a Vetrovec warning was necessary. [ 21 ] The trial judge started with K. She noted that although he was initially unrepentant, he ended up pleading guilty to his involvement in the murder of Ms. Santos and was apparently remorseful.

She noted that as a result of guilty pleas to charges concerning Ms. Santos’ murder and another murder in Alberta, he was serving a substantial period of incarceration before parole and there had been no leniency shown to him. The trial judge determined that he had not received any preferential treatment and had not benefited personally from testifying. She noted that K. gave his evidence in a detailed and comprehensive manner as to what occurred both before and after the murder of Ms. Santos and that, for the most part, his testimony went unchallenged and uncontradicted.

She concluded that while it would not have been necessary to give a Vetrovec warning with respect to him, she would nevertheless do so and would, as her decision proceeded, provide confirmatory evidence of his testimony. [ 22 ] The trial judge then turned to the witnesses B., Mr. Menard, Ms. Hart, Jazmyne Night and Ms. Dow. She noted that B., Mr. Menard, Ms. Hart and Ms. Night all sold drugs for the White Boy Posse and Ms. Dow was the girlfriend of Mr. Petrin.

She accepted that there were challenges with their testimony but found in general those witnesses were doing their very best to remember and set forth in as much detail as they could what they remembered happening four years earlier when many of them were still teenagers. Nevertheless, the trial judge concluded a Vetrovec warning with respect to these additional five Crown witnesses was necessary. She then proceeded to review the circumstances of each witness and the part they played in the events surrounding Ms. Santos’ murder. [ 23 ] The trial judge noted that Mr.

Menard had been and still may have been in the Witness Protection Program and had received a financial benefit as a result of that program, the particulars of which had been disclosed. Although Mr. Menard had asked for money from the Saskatoon Police Service for his assistance, the Saskatoon Police Service confirmed that no individual other than Ms. Night had ever been paid to testify or participate in the prosecution. The trial judge was satisfied that Mr. Menard was never actually promised or paid any money to testify. She also noted that Mr. Menard was, at the direction of Mr.

Petrin, involved in the planning stage of the murder by obtaining handguns from someone in Edmonton and ammunition from his father’s farm without questioning why he was obtaining illegal guns and ammunition for Mr. O’Hagan. [ 24 ] The trial judge acknowledged that Mr. Menard’s criminal record was a factor for her to consider. She noted that he had, since 2012, been convicted of obstruction of justice. Although she was not convinced with his explanation as to why he should not have been convicted, she determined most of his evidence should be accepted. She noted that Mr.

Menard’s evidence fit into the evidence of the other Crown witnesses. [ 25 ] The trial judge observed that B. was also involved in selling drugs for the White Boy Posse and had a criminal record for multiple drug offences. He had been instructed by Mr. Petrin to purchase the sledgehammer that K. took with him to take down the door of Mr. Cromartie’s supposed residence. She noted that he never questioned why he was buying the sledgehammer and never went to the authorities after K. told him about Ms. Santos’ murder.

She also noted that although he had requested $80,000–$90,000 from the police, he was never paid any money. [ 26 ] The trial judge then turned to Ms. Hart. She noted that Ms. Hart had started selling drugs supplied by Mr. Petrin at an early age with her then boyfriend, Mr. O’Hagan. Ms. Hart was addicted to OxyContin. She noted that while Ms. Hart was involved with the White Boy Posse, she had no criminal record. The trial judge acknowledged that her testimony with respect to whether Mr. O’Hagan owed Mr. Petrin a drug debt at the time of Ms. Santos’ death was at odds with her testimony at Mr. O’Hagan’s trial.

She accepted that this was because at the time Ms. Hart was still addicted to drugs and still emotionally connected to Mr. O’Hagan. [ 27 ] The trial judge next addressed the testimony and circumstances of Ms. Night. She was concerned that Ms. Night had been paid $2,500 by the Saskatoon Police Service when she came forward with the first break the police had received in Ms. Santos’ murder. Ms. Night had provided a warned statement to the police and entered into an arrangement whereby she could receive as much as an additional $12,500 at the conclusion of all court proceedings.

The trial judge accepted the $2,500 payment had been made to her as an incentive for her to cooperate because she had expressed to the police she was genuinely scared for her safety if she did so. [ 28 ] The trial judge then turned to Ms. Dow. She noted Ms. Dow had no criminal record. She accepted that her involvement in the White Boy Posse was minimal. However, Ms. Dow was a former girlfriend of Mr. Petrin, the “Boss”, and the mother of his daughter. The trial judge observed she was involved in the criminal subculture and her vehicle had been involved in the murder of Ms.

Santos thereby potentially categorizing her as an accomplice. [ 29 ] After analyzing the circumstances and involvement of the foregoing six witnesses, the trial judge determined that a Vetrovec warning was necessary for each of them and that she would note confirmatory evidence with respect to the testimony of each as she proceeded. [ 30 ] The trial judge then reviewed the relevant provisions of the Criminal Code governing the offences and the positions of the defence and the Crown. Thereafter, she outlined, in approximately 70 paragraphs, the evidence and facts as to how and why Ms.

Santos was shot, noting along the way confirmatory evidence of those witnesses for whom she had given herself a Vetrovec warning. [ 31 ] The trial judge addressed the elements of the offences charged. She reviewed the elements of first degree murder, the law governing parties to an offence and transferred intent. She determined that Mr. Petrin was an aider and abettor to Mr. O’Hagan and K. in the first degree murder of Ms. Santos. She found they all had the same intention, which was to “blast” or kill Mr. Cromartie. [ 32 ] The trial judge found that all of the parties responsible for Ms.

Santos’ death, including Mr. O’Hagan, intended to cause her death or meant to cause her bodily harm that they knew was likely to cause her death and were reckless whether death ensued or not. On this basis, she determined the intent to kill Ms. Santos had been established under s. 229 (a)(

i) and (ii) of the Criminal Code . She concluded that Mr. Petrin, as an aider and abettor, had the required intent to cause death and therefore had the necessary intent for murder.

[ 33 ] The trial judge concluded that although the plan orchestrated by Mr. Petrin and discussed with K. and Mr. O’Hagan was to kill Mr. Cromartie and not Ms. Santos, it did not make any difference who they intended to kill since s. 229 (

b) of the Criminal Code applied. She also determined it made no difference that the killers were mistaken as to their victim as long as the necessary intent to murder had been established by the Crown beyond a reasonable doubt. Further, it mattered not that Mr. O’Hagan departed from the specifics of the original plan in carrying out the killing by not first identifying Mr. Cromartie before he began shooting. The objective of the plan to blast Mr.

Cromartie at his residence was carried out, but the wrong person was killed. [ 34 ] The trial judge then turned to whether the Crown had proven beyond a reasonable doubt that Mr. Petrin was guilty of first degree murder because the murder was planned and deliberate under s. 231(2) of the Criminal Code , it was a murder for hire under s. 231(3) or Ms. Santos’ death was caused for the benefit of, at the direction of or in association with a criminal organization under s. 231(6.1). [ 35 ] The trial judge concluded that the murder was planned and deliberate. Mr. Petrin, on receiving the supposed address of Mr.

Cromartie, arranged for the procurement of guns, a sledgehammer, masks and gloves. Mr. Petrin, Mr. O’Hagan and K. had discussions at the four-plex in Saskatoon about what to do with Mr. Cromartie. She found that the simple plan to “blast” Mr. Cromartie constituted a plan within the definition of “planned and deliberate” in s. 231(2) of the Criminal Code . [ 36 ] In connection with s. 231(3) of the Criminal Code , the trial judge next found that there was a contract for hire in place. She noted that both Mr. Menard and Ms. Hart testified about $40,000 being put on Mr. Cromartie’s head by Mr. Petrin.

She also noted that no one had ever been paid $40,000 or, for that matter, any actual cash. She underlined that Mr. Petrin had, after the killing, directed Mr. Menard to forgive Mr. O’Hagan’s drug debt of $7,000 to $10,000 and he had therefore received something of value. [ 37 ] The trial judge then turned to whether murder under s. 231(6.1) of the Criminal Code had been proven. She noted that there was no evidence as to the internal structure of the White Boy Posse but there was consistent and considerable evidence of an organization. She observed that Mr.

Petrin was the “Boss” of the drug trafficking organizations in the cities of Inuvik, Northwest Territories, and Lloydminster, Alberta; that he called the shots, supplied the drugs, kept track of tallies and received the proceeds of crime, that crime being the trafficking of drugs – mostly cocaine. She observed that Mr. Petrin had several right-hand men, including Mr. Cromartie at one time and then Mr. Menard, along with associates, including K., Mr. O’Hagan, Ms. Night, Ms. Hart and others. The trial judge described it as a pyramid scheme with the proceeds of trafficking ultimately ending up in Mr. Petrin’s hands.

She concluded that the White Boy Posse was a criminal organization within the meaning of s. 467.1(1) of the Criminal Code . [ 38 ] The trial judge also determined that the plan to locate and deal with Mr. Cromartie was never personal to Mr. Petrin. She found as a fact that everything he did was on behalf of the White Boy Posse and there was no suggestion that he wanted to find Mr. Cromartie because of a personal issue he had with him. She found as a fact that Mr. Petrin wanted to locate Mr.

Cromartie because he had left the criminal organization without permission and was a threat to it as he possessed valuable and dangerous information that could result in Mr. Petrin and many others being in serious jeopardy. This was because of his high rank in the organization as well as the fact that he had lived with Mr. Petrin and Ms. Dow for a time and might have had considerably more information about the organization than others did. [ 39 ] The trial judge found as a fact that Mr. Cromartie leaving was a betrayal of the criminal organization, more than a betrayal of Mr. Petrin personally.

She noted that in considering whether the murder was associated with a criminal organization as opposed to being personal, of significance was Mr. Petrin’s inquiry after the murder as to what Mr. O’Hagan’s debt with the organization was. She found as a fact that this inquiry was on behalf of the organization and the debt that was extinguished was with the organization. Ultimately, it was the organization that paid for Mr. O’Hagan’s participation as the shooter in the murder. [ 40 ] The trial judge concluded that the plans made by Mr. Petrin to have K. and Mr.

O’Hagan actually carry out the murder were all at the direction of and for the benefit of the White Boy Posse, a criminal organization. [ 41 ] The trial judge then addressed the charge of criminal conspiracy. She first reviewed the law of criminal conspiracy and the factual narrative applicable. Considering all the evidence as a whole, she concluded that a conspiracy had been proven beyond a reasonable doubt, that Mr. Petrin was the creator of the plan and was probably a member of the conspiracy. She then considered whether Mr.

Petrin was member of the conspiracy, looking at all the evidence as a whole, including out-of-court acts and declarations of other members of the conspiracy made in furtherance of the conspiracy. She determined beyond a reasonable doubt he was a member of the conspiracy. [ 42 ] The trial judge found Mr. Petrin guilty of both the first degree murder of Ms. Santos and conspiracy to cause the death of Mr. Cromartie. IV. Application for Fresh Evidence [ 43 ] Mr. Petrin argues that trial counsel was unaware of the payments made to Ms. Dow, Ms. Night and Mr.

Menard and because of that he did not cross-examine them about the payments. He submits that, as a result, the trial judge’s analysis of the worth and credibility of their testimony was affected, as was the fairness of the trial. With respect to Mr. Menard, Mr. Petrin also submits that trial counsel was unaware of Mr. Menard’s criminal record while in witness protection and that this disregard for the program and the law, had it been known at trial, would have affected the trial judge’s analysis and the fairness of the trial in a similar way. [ 44 ] Mr.

Petrin applies to adduce fresh evidence to support these arguments. The fresh evidence proffered is set forth in the affidavits of Mr. Markham Silver, Q.C., and Mr. Brian Pfefferle. Mr. Silver was counsel for Mr. Petrin on a charge of murder laid in Alberta concerning the death of a Mr. Gower. Mr. Pfefferle was trial counsel on the matter before this Court. [ 45 ] Mr. Silver’s affidavit sets forth information received by him in the course of the proceedings on the Gower matter that concerned Mr. Menard and Ms. Dow. It has attached to it numerous exhibits including documentation from the Gower matter. With

respect to Mr. Menard, that information was that while he was in the Witness Protection Program, he had accumulated a further criminalrecord. This included drug, gun and threatening charges. Mr. Silver also stated that certain payments had been made to Mr. Menard whilein witness protection and there was an issue of whether he had been paid or offered $20,000 specifically. With respect to Ms. Dow, theinformation was that she had received cash payments of $5,028.43 and $30,000 from the RCMP. There was no reference to any moneyreceived by Ms.

Night. [46] The Crown, in response, filed the affidavit of Matthew Miazga, Q.C. He stated that information regarding payments receivedby Mr. Menard and Ms. Dow was disclosed before trial by email dated April 20, 2015, to Mr. Hrycan, who represented Mr. Petrin at thetime. This email disclosed that Ms. Dow had, in connection with the Witness Protection Program, received $5,028.43 for expenses whilebeing assessed for the Witness Protection Program and a onetime payment of $30,000 to assist her with security, protection and re-establishment. [47] Total funds expended on behalf of Mr.

Menard under the same program were also disclosed in the email. Mr. Miazga statedthat full disclosure respecting Ms. Dow had also been made to Mr. Petrin in January 2016 while he was without counsel and again toMr. Pfefferle in April 2016 when he began his representation of Mr. Petrin. Additionally, the updated criminal record of Mr. Menardwith dates and locations redacted had been disclosed to Mr. Pfefferle prior to trial. In oral argument before us, counsel for Mr. Petrinconceded that disclosure about the payments had been made to one of Mr.

Petrin’s lawyers before trial but that his lawyer at trial forsome reason did not get possession of that disclosure when taking over the file. [48] The affidavit of Mr. Miazga also set forth that Mr. Pfefferle had cross-examined Mr. Menard about the two entries on hisupdated criminal record regarding convictions for assault and attempted obstruction of justice, which appear to correspond to theoffences after Mr. Menard was in witness protection referred to by Mr. Silver. This was not disputed by counsel for Mr. Petrin before us. [49] Mr. Pfefferle, in his affidavit, stated in response to Mr.

Miazga’s affidavit that he was trial counsel for Mr. Petrin but thatMr. Petrin had been represented by four previous counsel. He stated he did not have the email referred to by Mr. Miazga regardingpayments made to Mr. Menard and Ms. Dow on his file. He stated that the exact and accurate payment to Ms. Dow was conveyed to himby Mr. Silver only after the conclusion of the trial and that at the trial he was only aware of a payment of $500.48 to Ms. Dow. [50] With this background, I turn to the governing law.

The criteria for admission of fresh evidence is well known and is set forthin R v Palmer (1979), (SCC), [1980] 1 SCR 759 at 775: Parliament has given the Court of Appeal a broad discretion in s. 610(1)(d). The overriding consideration must be in the words of theenactment “the interests of justice” … the following principles have emerged:

(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 evi​dence adduced at trial, be expected to have affectedthe result. [51] As an initial point, I am satisfied that the details of any payments and benefits received by Crown witnesses includingMr. Menard and Ms. Dow were disclosed to Mr. Petrin and at least one, if not more, of his defence counsel prior to trial. There is nofailure by the Crown to provide disclosure. Counsel for Mr.

Petrin admitted this before us. [52] Further, after a review of the three affidavits filed on this application and the transcript, it can be reasonably inferred thatsome, if not all, of the proffered fresh evidence was actually known to counsel at trial. It was a given that some witnesses had been paidmoney pursuant to the Witness Protection Program. The evidence of Sgt. Kyla Hicks early on in the proceedings indicated thatMr. Menard had asked for but was not paid the sum of $20,000. Counsel for Mr. Petrin later cross-examined Mr. Menard on that issue. [53] Mr. Pfefferle also substantially cross-examined Mr.

Menard on some of the details of his criminal activities while in theWitness Protection Program. The subject matter of that cross-examination corresponded to the information set out in Mr. Silver’saffidavit about that matter. Tellingly, in her decision the trial judge even commented on Mr. Menard’s efforts to minimize an obstructionof justice charge that occurred while he was in witness protection. I am not satisfied that the information set out by Mr. Silver concerningMr.

Menard, whether in relation to payments made to him or to his further criminal record, was unknown to trial counsel and is freshevidence at all. [54] With respect to Ms. Dow, it is possible that trial counsel was actually unaware of the onetime payment of $30,000 made to heras outlined in Mr. Miazga’s affidavit. However, Ms. Dow was not cross-examined on even the one payment she did receive of which trialcounsel, Mr. Pfefferle, states he was aware. It would have been open for him to do so and to ask her about further payments.

I can onlytake the failure to do so as a tactical decision. [55] I am not satisfied that the due diligence requirement respecting evidence of payments to Ms. Dow has been met given thatdisclosure of the payments was made to Mr. Petrin. Even if the due diligence requirement was met, the payment was to assist her withsafety concerns and not for testimony or participation in the trial. As a result, I am not satisfied that the fresh evidence proffered, takentogether with the evidence of Ms. Dow, could have affected the trial judge’s Vetrovec analysis regarding Ms.

Dow’s testimony.Accordingly, taken with all the other evidence at trial, the new evidence could not reasonably be expected to have affected the verdict. [56] The application for fresh evidence is denied.

V. Issues [ 57 ] Mr. Petrin raises the following issues: (

a) Did the trial judge err by failing to properly apply Vetrovec ? (

b) Did the trial judge err by failing to order disclosure of third-party records from the Witness Protection Program and failing to allow cross-examination of the witnesses, Ms. Dow and Mr. Menard, on benefits received under the program? (

c) Did the trial judge err by finding that Mr. Petrin was guilty of first degree murder on the basis that the murder was planned and deliberate, a murder for hire or a murder committed for the benefit of a criminal organization? (

d) Was the trial judge’s finding that Mr. Petrin was guilty of conspiracy to commit murder unreasonable? VI. Analysis A. Did the trial judge err by failing to properly apply Vetrovec ? [ 58 ] Mr. Petrin acknowledges the trial judge was correct in determining that, with respect to each of the witnesses Mr. Menard, Ms. Night, K., Ms. Dow, Ms. Hart and B., she should give herself a Vetrovec caution.

However, he submits that in applying the principles in Vetrovec , the trial judge ignored R v Khela , 2009 SCC 4 , [2009] 1 SCR 104 [ Khela ], which required her to be mindful of the risks associated with the testimony of witnesses of doubtful credit or veracity. He argues that the trial judge reversed the Vetrovec analysis by first determining if the evidence of the witnesses could be relied on as being truthful rather than beginning with the degree of scepticism required by Khela and then looking for independent, confirmatory evidence. [ 59 ] Mr.

Petrin also argues that the trial judge did not properly deal with the contradictory prior statements of witnesses as they affected their credibility and failed to consider whether the confirmatory evidence for each witness was independent. [ 60 ] This Court has recently summarized the governing law with respect to the application of Vetrovec in R v Smith , 2018 SKCA 42 , 363 CCC (3d) 559: [35] In assessing when to give a warning, the Supreme Court of Canada in Vetrovec moved away from a rigid, categorical approach in relation to Crown witnesses in favour of a more holistic approach based on the trial judge’s appreciation of the circumstances and factors at play in the trial that might otherwise impair the credibility or trustworthiness of a particular witness. [36] To that end, trial judges must examine the circumstances of each case and the factors that might impair the worth of a witness’s testimony ( Brooks at para 5; R v Carroll , 2014 ONCA 2 at para 65 , 304 CCC (3d) 252 [ Carroll ]).

Where a witness’s evidence is centrally important to the Crown’s case, yet may be suspect because of the disreputable and untrustworthy character of the witness, a “clear and sharp” warning may be appropriate to alert the jury to the risks of adopting the evidence without more ( Brooks at para 3; Carroll at para 62 ). [37] Broadly speaking, in assessing whether a Vetrovec warning should be given, the trial judge must give prominence to two factors: the credibility of the witness and the importance of the witness’s evidence to the Crown’s case. This point was summarized in Brooks : [80] In

summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness’s credibility, and the importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness is absolutely essential to the Crown’s case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown’s case is a strong one without the witness’s evidence.

In short, the factors should not be looked to independently of one another but in combination. [38] Trial judges must carefully assess the trustworthiness of Crown witnesses who seek to avoid prosecution or incarceration by testifying for the Crown. That said, and as courts have clarified, this factor – on its own – does not mandate a Vetrovec warning ( Brooks at para 12 ; Carroll at para 66 ).

Instead, trial judges must assess the credibility of the Crown witness – including the testimony of accomplices – in light of the circumstances of the case to determine whether the trustworthiness of that witness is impaired. … [42] Whether a Vetrovec warning should be given is a matter of discretion.

The trial judge is, after all, “an eyewitness to the testimony of the witness and the temperature of the trial proceedings” ( Carroll at para 60 ) and therefore best positioned in the ebb and flow of the trial to assess and consider the “myriad factors that might impair the worth of a witness’ testimony” ( Carroll at para 65 ; Vetrovec at 823; Brooks at para 5 ). … [43] A discretionary decision warrants appellate intervention only “if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice” ( R v Regan , 2002 SCC 12 at para 117 , [2002] 1 SCR 297; see also R v C.C.Y. , 2001 SKCA 107 , 213 Sask R 120; Brooks at para 24; R v Richard (D.R.) , 2013 MBCA 105 at para 85 , 299 Man R (2d) 1; R v Peekeekoot , 2014 SKCA 97 at para 93 , 446 Sask R 22). [44] Finally, as noted in Bevan , the exercise of a trial judge’s discretion is subject to considerable appellate deference with particular regard to the unique and dynamic circumstances of the trial setting ( Brooks at para 24; Bevan at 614; Carroll at para 67 ).

An appellate court should not interfere with a trial judge’s decision on the Vetrovec warning if there is a foundation for the trial judge’s exercise of discretion and must refrain from imposing its after-the-fact view based on an “abstract category of witness without having heard the

testimonies directly” (Brooks at paras 4 and 10). [61] Khela, at paragraph 37, set forth a four-step framework in constructing Vetrovec warnings appropriate to the circumstances ofeach case: (

a) draw attention to the testimonial evidence requiring special scrutiny; (

b) explain why the evidence is subject to special scrutiny; (

c) caution that it is dangerous to convict on unconfirmed evidence of this sort although this is possible if satisfied the evidenceis true; and (

d) in determining the veracity of the suspect evidence, look for evidence from another source tending to show that theuntrustworthy witness is telling the truth as to the guilt of the accused. [62] In R v Brass, 2007 SKCA 94, [2007] 11 WWR 191, leave to appeal to the SCC refused, [2009] 1 SCR vi [Brass], this Courtset out the factors to be considered when determining what might impair the worth of a particular witness: [24] Based on Vetrovec and the subsequent jurisprudence, I conclude that to determine whether an accomplice’s testimony may beinherently untrustworthy, a court looks at factors such as these: (

i) whether the witness is facing charges; (ii) whether the witness openlyacknowledges participation in the crime; (iii) whether the witness has anything to gain or lose by testifying; (iv) whether the witness istestifying to deflect blame on another; (

v) whether the witness is protecting another; (vi) whether there is some other reason why thewitness would seek to blame another or minimize his or her own participation. [63] The trial judge is permitted to consider the evidence of one unsavoury witness as confirmatory of another such witness: see Rv Pollock (2004), (ON CA), 187 CCC (3d) 213 (Ont CA), leave to appeal to the SCC refused, [2005] 1 SCR xiv, andR v McCann, 2013 BCCA 69. [64] With the foregoing jurisprudence in mind, I turn to the trial judge’s analysis of the testimony for which a Vetrovec cautionwas given.

The trial judge first reviewed K.’s evidence. She observed that K. was potentially the most evident accomplice and/orunsavoury Crown witness because he had pleaded guilty to the murder of Ms. Santos. She found that he had given his evidence in adetailed and comprehensive manner and that his evidence was not challenged or disputed. She noted that he had pleaded guilty to themurder of Ms. Santos and another murder and, as a result, was serving a long sentence with a long period before parole eligibility.

Thetrial judge also observed that since the murder, K. had changed from being unrepentant to remorseful about Ms. Santos’ murder. Shefound as a fact that there was no evidence he had received preferential treatment and accepted that he was testifying because he wanted tomake things right. The trial judge concluded that he had no motive to lie. She nevertheless determined she would caution herself abouthis testimony and look for confirmatory evidence. [65] She also accepted that the witnesses Mr. Menard, Ms. Night, Ms. Dow, Ms. Hart and B. were doing their best to rememberthe details of the events.

In that respect, she accepted they were trying to tell the truth. However, she then went on to consider whetherVetrovec warnings were required. As she went through the evidence of each one, she determined a Vetrovec caution was, in fact,necessary. [66] Mr. Petrin argues that the trial judge, having accepted the testimony of the witnesses, made findings of credibility and shecould not undo those findings by cautioning herself and looking for confirmatory evidence.

Admittedly, near the beginning of herdecision, at the outset of her Vetrovec analysis, the trial judge determined that K. had no motive to lie and that the other witnesses weretrying their best to tell the truth. However, I am satisfied such comments were not conclusive findings of the credibility of thosewitnesses as argued by Mr. Petrin. I say this for several reasons. First, the fact she made these initial comments does not compel aninference she could, as a result, not do an appropriate Vetrovec analysis thereafter.

Second, it appears that she in fact did a robustVetrovec analysis in respect of each witness, which she would not have done had she made conclusive findings regarding their credibility. [67] I am satisfied that the trial judge conducted her Vetrovec analysis with the necessary judicial scepticism in accordance withthe jurisprudence set forth above and identified and relied on confirmatory evidence in respect of each witness. [68] Mr. Petrin, however, submits that the trial judge failed to consider if the confirmatory evidence of the testimony of theforegoing witnesses was independent.

He cites contradictions in their testimony, the relationship between them, animus towardsMr. Petrin and the opportunity to collude in their testimony. [69] The hallmark of independent confirmatory evidence is that it is untainted by connection to the Vetrovec witness (Khela atpara 39). However, just because two witnesses tell parallel stories does not mean that the evidence of one is tainted by the evidence ofanother.

The evidence can only be tainted if it appeared the two witnesses had colluded to implicate the accused (R v Church, 2017ABCA 421). [70] The trial judge was alive to the nature of confirmatory evidence quoting R v Kehler, 2004 SCC 11, [2004] 1 SCR 328, asfollows: [12] The appellant concedes, at para. 11 of his factum, that “confirmatory evidence”, in the sense that concerns us here, “need notdirectly implicate the accused or confirm the Crown witness’ evidence in every respect”.

In his submission, however, “the evi​denceshould . . . be capable of restoring the trier’s faith in the relevant aspects of the witness’ account” (emphasis added). … [15] The appellant wrongly equates “relevant” with “disputed”. Mr. Greenwood’s detailed account of the robbery, though undisputed,was no less “rel​evant” to the offences charged than his implication of the appellant in their commission. And while con​firmatory

evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evi​dence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged. (Emphasis in original) [ 71 ] The trial judge very carefully reviewed the facts germane to each offence and took pains to identify many instances of confirmatory evidence of the witnesses when doing so. [ 72 ] As noted, Mr.

Petrin also submits that the trial judge ignored contradictory statements given by each of the witnesses. However, counsel for Mr. Petrin pointed to only one such contradiction. That was in relation to Ms. Hart who had testified at Mr. O’Hagan’s trial that he owed no drug debt to Mr. Petrin. The trial judge noted that Ms. Hart did not adopt that testimony in her cross-examination. The trial judge resolved that contradiction, explaining the basis for doing so. She was entitled to believe Ms. Hart’s testimony at trial that there was in fact a drug debt.

While there may have been inconsistencies between the other witnesses as to details of their testimony, their evidence was generally consistent in relation to the important facts. [ 73 ] There was no indication that any confirmatory evidence was tainted. The fact there was a relationship between the parties is, of itself, not a determining factor. Often witnesses whose testimony is subject to a Vetrovec caution are somehow related to either the accused or each other and have played some role, large or small, in the case. [ 74 ] There was no evidence that any of the witnesses were motivated to testify against Mr.

Petrin to cause him harm. Mr. Petrin argued that Ms. Dow had a motive to lie because a police officer pressured her to give a statement by making reference to having a baby in jail. This issue was canvassed in her cross-examination. It may be assumed the trial judge was aware of this matter but it did not affect her ultimate conclusion regarding Ms. Dow’s testimony. Moreover, it was admitted in oral argument by Mr. Petrin’s counsel there was no actual evidence that the witnesses colluded or had the opportunity or motive to collude with each other to falsely implicate Mr. Petrin.

This area was tellingly not explored in cross-examination. Collusion was only weakly suggested as a bare assertion in argument by Mr. Petrin’s counsel. [ 75 ] I am satisfied that the instances of confirmatory evidence identified by the trial judge for each of the witnesses are indeed confirmatory. [ 76 ] Looking at the trial judge’s approach to the impugned witnesses as a whole, I am satisfied she properly applied the principles in Vetrovec .

In approaching the testimony of all the witnesses, the trial judge’s analysis was guided by the factors set forth in Brass and followed the four-step framework of Khela noted above. [ 77 ] In short, I can see no error in the trial judge’s application of the Vetrovec principles to the evidence of K. and the other witnesses. B. Did the trial judge err by failing to order disclosure of third-party records from the Witness Protection Program and failing to allow cross-examination of the witnesses, Ms. Dow and Mr.

Menard, on benefits received under the program? [ 78 ] There is nothing in the record to indicate defence counsel ever made an application to have third-party records disclosed. Nor is there, in the record as a whole, any indication that defence counsel was prevented from cross-examining witnesses with regard to benefits received under the Witness Protection Program. [ 79 ] As such, this ground must fail. C. Did the trial judge err by finding that Mr.

Petrin was guilty of first degree murder on the basis that the murder was planned and deliberate, a murder for hire or a murder committed for the benefit of a criminal organization? [ 80 ] As noted, the trial judge found Mr. Petrin guilty of first degree murder on three separate lines of analysis. I will deal with each line of analysis in turn. 1. Planned and deliberate [ 81 ] The germane provisions of the Criminal Code are as follows: 231

(1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate. [ 82 ] Mr. Petrin argues that Mr. O’Hagan was not acting in accordance with the plan to first identify Mr. Cromartie in the house and then break down the door before shooting him, but rather on impulse shot through the door and window. He submits the murder was therefore not planned and deliberate as required by s. 231(2) . This argument cannot succeed. [ 83 ] There was substantial evidence that Mr. Petrin had a plan to deal with Mr. Cromartie. A number of witnesses testified that he would pay $40,000 to anyone who found or killed Mr. Cromartie.

This was widely known among Mr. Petrin’s associates, including Mr. O’Hagan. In his words, he wanted to get rid of the “goof”. Mr. Petrin’s plan to kill Mr. Cromartie became more specific when he

believed he had been located. [84] Mr. Petrin picked up Mr. O’Hagan and K. to carry out the plan. He discussed the plan to “blast” Mr. Cromartie withMr. O’Hagan and K. He ensured that they had the necessary equipment to do so by instructing Mr. Menard to procure the guns and B. tobuy a sledgehammer, presumably to get access to Mr. Cromartie if he failed to come to the door. Mr. Petrin was present when masks andgloves were purchased to conceal the identity of the men who would carry out the plan. He communicated with them as they waited tocarry out the plan. Clearly, the overall plan was to kill Mr.

Cromartie. [85] The foregoing shows Mr. Petrin’s plan to “blast” Mr. Cromartie was considered and carefully thought out and not “hasty, rashor impulsive” (R v Jacquard, (SCC), [1997] 1 SCR 314 at para 26). [86] Mr. Petrin submits the trial judge erred by relying on R v Wallen (1988), 1988 ABCA 52 , 84 AR 12 (CA) todetermine that Mr. O’Hagan was not required to carry out the terms of the plan precisely.

Although this case was overturned on appealon another basis (R v Wallen, (SCC), [1990] 1 SCR 827), the comments of Lieberman J.A. are still apt: [7] In my view, once there is a finding of planning and deliberation, and a murder is thereafter committed, it matters not that theaccused departed from the specifics of the original plan in carrying out the killing. We are not talking about abandonment. It is theobjective of the planning and deliberation, rather than the exact performance of details of the original plan that must be examined.

It is,for example, untenable to find that if a person plans to kill another with a gun, but finds that the gun malfunctions and consequentlystrangles his victim, the killing is not planned and deliberate. [87] I agree with the above quote that in circumstances such as these the essential element of s. 231(2) is the objective of theplanning and deliberation rather than the exact performance of details of the original plan. [88] Mr. Petrin’s argument ignores the fact that Mr. O’Hagan, in being near Ms. Santos’ house, was acting in accordance with theoverall plan to kill Mr. Cromartie. Mr.

Petrin was growing impatient that the plan had not been fulfilled. The trial judge found as a factthat he wanted the deed done that night. This obviously spurred Mr. O’Hagan to act as he did that morning and carry out the plan as besthe could, given that it was getting light outside. The evidence indicated that Mr. O’Hagan began shooting after there was movement inthe house. He was not sure after the shooting if it was Mr. Cromartie near the door. However, in going to the door of the Santos homeand shooting to kill Mr.

Cromartie, who he believed was inside, he was acting in accordance with the overall plan conceived byMr. Petrin. [89] Mr. O’Hagan’s actions in the exigencies of the moment, i.e., pressure from Mr. Petrin to do the deed and the coming ofmorning light, deviated from the plan only in respect of not first identifying Mr. Cromartie at the door before shooting him. Thatdeviation does not mean the murder was not planned and deliberate. In short, the killing was not an impulsive act by Mr. O’Hagan – itwas in accordance with a careful plan to eliminate Mr. Cromartie. [90] Mr. Petrin also argues that because Ms.

Santos was killed instead of Mr. Cromartie, the unintended killing was not inaccordance with the plan. However, s. 229(

b) of the Criminal Code applies where the actual victim is different than the planned victim: 229 Culpable homicide is murder: (

b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause hisdeath, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding thathe does not mean to cause death or bodily harm to that human being; [91] The interplay of the predecessors of s. 229(

b) and s. 231(2) was discussed in R v Droste, (SCC), [1984] 1SCR 208 (WL) [Droste], where the appellant had planned to kill his wife by staging a car accident, but in carrying out his plan killed histwo young children instead. He was convicted of first degree murder for the death of both children on the basis the murder was plannedand deliberate.

Justice Dickson, as he then was, explained at paragraph 27 that “[a] mistake or accident as to the victim is not amitigating factor” and that “[t]he legal evaluation of the magnitude of the crime should not be affected by the fact that the accused is apoor marksman, hitting and killing B rather than A”. Consequently, the identity and character of any victim is irrelevant for determiningwhether a murder is first degree: [27] … When s. [231(2)] is combined with s. [229(b)] the identity and character of any victim is entirely irrelevant.

The requirementof planning and deliberation is a requirement that relates to the intention to take a human life and not to the identity of the victim. [92] Justice Dickson concluded: [28] In the result, whether one approaches the question on an analysis of the relationship of s. [231(2)] to the substantive offence ins.[229(b)], or on the basis of the underlying policy rationale of s. [231(2)], or, even if it were relevant, on the basis of transferred intent,one arrives at precisely the same conclusion: planning and deliberation with relation to the killing of a specific person makes the offencefirst degree murder when in the course of carrying out the plan the accused in fact kills someone else. (Emphasis added) [93] In R v Nygaard, (SCC), [1989] 2 SCR 1074 (WL) [Nygaard], Cory J., for the majority, described the decisionin Droste as finding “that the requirement of planning and deliberation was a requirement that related to the intention to take a human lifeand not to the identity of the victim” (at para 52). [94] Accordingly, there is no merit to this part of Mr.

Petrin’s submission. The trial judge did not err when she found the killingwas planned and deliberate. 2. Murder for hire

[95] The germane provision of s. 231 of the Criminal Code is as follows: 231(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to anarrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by oneperson to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to doany act causing or assisting in causing that death. [96] For a murder to be deemed planned and deliberate by virtue of s. 231(3), the killing must have been “pursuant to anarrangement”.

This phrase was explained in R v Smith, 2007 NSCA 19, 216 CCC (3d) 490 [Smith], aff’d on other grounds, 2009 SCC 5,[2009] 1 SCR 146: [137] The requirement that the murder be committed “pursuant to an arrangement ...” means that the arrangement must have been inplace at the time of the murder: see R. v. Sauvé, [ (ON CA), 182 CCC (3d) 321] at paras. 151 - 153. [97] The content of such an arrangement was correctly set forth in R v Tingle, 2016 SKQB 212: [126] If a homicide is shown to be a contract killing, by operation of law, it is first degree murder. To be a contract killing, there mustbe a quid pro quo.

Some value (often, but not always, money) must be paid or promised to be paid, in exchange for the killing. Thekilling must actually occur. These three sub-elements (value, consideration, conduct) comprise the basic components of a contractkilling. The jurisprudence suggests the value need not actually be paid but must at least be promised. See also R v Karim, 2010 ABCA 401 at paras 65–66, 493 AR 312; R v Rochon (2002), (QC CA), 167 CCC (3d) 257(Que CA) at para 123. [98] Mr. Petrin submits that the trial judge erred by finding that there was consideration for the murder.

He argues that the trialjudge erred by finding that the drug debt of Mr. O’Hagan, which was forgiven by Mr. Petrin, was “money” – that is, something of“value” that “passes or is intended to pass … as consideration for … causing or assisting in causing” death within the meaning ofs. 231(3) of the Criminal Code. He submits the forgiveness of the debt was gratuitous only. He argues that there was no evidenceMr. O’Hagan knew of the $40,000 price on Mr. Cromartie’s head and that, even if he did, there was no evidence he was motivated bythat price. [99] The trial judge found as a fact that Mr.

Petrin put a $40,000 bounty on Mr. Cromartie. The evidence indicated Mr. Petrin toldMr. O’Hagan and others that he would pay this sum for the killing of Mr. Cromartie. There is no doubt that knowledge by Mr. O’Haganof a prior arrangement to pay for the killing had been established. [100] The trial judge also found that although the sum of $40,000 was never paid, Mr. O’Hagan did receive “money or [something] ofvalue”, i.e., forgiveness of his debt to Mr. Petrin, as consideration for the killing. [101] The fact $40,000 was not actually paid to Mr. O’Hagan in this case is of no consequence.

The forgiveness of his debt was notgratuitous but rather referrable to the prior arrangement to pay money to anyone who caused the death of Mr. Cromartie. The trial judgehad substantial evidence upon which she could find that the forgiveness of debt was consideration paid to Mr. O’Hagan for participationin the killing. [102] Mr. Petrin’s argument that the Crown must also prove motivation to establish murder for hire cannot succeed. Section 231(3)merely requires the Crown to establish the person doing the killing did so “pursuant” to an arrangement.

Albeit there must be some nexusbetween the killing and the prior arrangement, the Crown need not prove that Mr. O’Hagan was solely motivated by the “arrangement”.Therefore the Crown need only prove it was “pursuant” to the arrangement. [103] In Smith, the Court accepted as correct the trial judge’s charge to the jury respecting that issue: [139] The trial judge told the jury that for an arrangement to exist, there had to be the quid pro quo of the recipient to cause or helpcause the death of another person. He also told them the murder must be committed pursuant to the arrangement (p. 3257).

He provideddefinitions of the word “pursuant” which included “in accordance with” and “by reason of” or “done in consequence of.” (p. 3257) Thetrial judge told the jury that for there to be an arrangement, the person who killed Mr. Simmons must know that he is to be paid for doingthe killing; he must commit the murder in accordance with or by reason of an arrangement in which there is to be gain or benefit tohimself (p. 3258). He added: “... the person who killed Mr.

Simmons must know of the arrangement under which there is to be gain orbenefit to himself prior to the murder (p. 3258) Each of these instructions made it clear that the arrangement had to have been in placebefore the killing. (Emphasis in original) [104] Whether the death of Ms. Santos occurred “pursuant to an arrangement” was ultimately a question of fact looking at theevidence as a whole. In this case, there was a prior arrangement to pay for the killing. Mr. O’Hagan was aware of it. Mr. O’Hagan tooksteps to kill and killed who he believed to be Mr. Cromartie (conduct).

He received forgiveness of his debt after the killing on theinstructions of Mr. Petrin, who had put the arrangement in place (value). That forgiveness of debt was, on the evidence, connected towhat Mr. Petrin believed to be the shooting of Mr. Cromartie, coming as it did on the heels of Mr. Cromartie’s apparent killing(consideration). [105] As a result, the trial judge made no error in her finding. The trial judge was correct to find the prerequisites of s. 231(3) hadbeen proven. 3. Criminal organization [106] The germane provisions of the Criminal Code are as follows:

231(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when (

a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or (

b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization. … 467.1(1) The following

definitions apply in this Act. criminal organization means a group, however organized, that (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. [ 107 ] Mr.

Petrin argues that a criminal organization within the meaning of s. 467.1(1) has not been proven to exist and even if it was, the killing was not done at the direction and for the benefit of the criminal organization within the meaning of s. 231(6.1) . These arguments also cannot succeed. [ 108 ] Notably, at trial Mr. Petrin took no issue with the fact that the White Boy Posse was a criminal organization. Mr.

Petrin now submits there was no evidence of any organizational structure, membership, hierarchy or continuity of existence of the White Boy Posse, as contemplated by R v Venneri , 2012 SCC 33 at paras 25–31 , [2012] 2 SCR 211 [ Venneri ]. [ 109 ] The language of s. 467.1(1) is comprehensive and covers a wide variety of groups ( R v Beauchamp , 2015 ONCA 260 at para 148 , 326 CCC (3d) 280). The definition in s. 467.1(1) requires a flexible approach. [ 110 ] To constitute a criminal organization the group must be organized, at least to some degree.

A minimal degree of organization may be sufficient ( Venneri at para 36 ). There is no checklist of factors that a criminal organization must meet ( Venneri at para 38 ).

Rather than requiring a checklist, “[i]t is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members” ( Venneri at para 40 ). [ 111 ] There is no need for criminal organizations to be particularly sophisticated or to comply with stereotypical hallmarks of organized crime to fall within the scope of s. 467.1(1) .

The Ontario Court of Appeal noted the following in R v Saikaley , 2017 ONCA 374 , 135 OR (3d) 641: [121] Courts have found that criminal organizations exist even in small drug operations, where they involve a division of labour, temporal continuity, and an intention by the members to advance their illicit goals through the organization. [ 112 ] With this jurisprudence in mind, I turn to the evidence before the trial judge on this issue. That evidence showed there was a structure to the immediate organization of which Mr. Petrin was the head. The organization had rules that members were expected to follow.

It had methods of discipline for those who broke the rules, levels of membership and a chain of command. There is, in my view, overwhelming evidence that there was a criminal organization within the definition of s. 467.1(1) and Mr. Petrin was its head. The trial judge made no error in finding that a criminal organization had been proven. [ 113 ] With respect to the second aspect of this argument, Mr. Petrin submits that the killing of Ms. Santos was of no benefit to the organization. There are two prongs to this submission. [ 114 ] The first is that because Ms. Santos was killed instead of Mr.

Cromartie, the plan did not play out to the benefit of the criminal organization. This argument ignores the wording of s. 231(6.1) . First degree murder is made out if the killing was at the direction of or in association with a criminal organization. In this case there is ample evidence this was so. As explained above, it matters not that there was an unintended victim. The focus must be on the intended victim, not the actual one (see Droste and Nygaard ). [ 115 ] Mr. Petrin next argues that the killing was, at most, a personal matter for him because he felt Mr. Cromartie had personally betrayed him.

While there is evidence that Mr. Petrin was angry that Mr. Cromartie had left, this in itself does not make his betrayal strictly personal. There was overwhelming evidence that Mr. Petrin’s concern was for the organization. There was ample evidence that one of Mr. Petrin’s concerns was that Mr. Cromartie had information that could harm the drug business. There was also the aspect of punishment for his leaving surreptitiously. The resources of the organization and personnel were used to track down and to deal with Mr. Cromartie. Ultimately, the organization forgave Mr. O’Hagan’s debt.

On the whole of it, the trial judge made no error in determining Mr. Petrin’s plan to kill Mr. Cromartie was for the benefit and at the direction of the criminal organization and was not personal to him. Accordingly, this aspect of the argument fails as well. [ 116 ] I see no error in the finding of the trial judge regarding this issue. D. Was the trial judge’s finding that Mr. Petrin was guilty of conspiracy to commit murder unreasonable?

[117] Mr. Petrin’s last argument is that the trial judge conflated evidence of the planning and deliberation with conspiracy. He arguesthere was no evidence of an agreement. He argues the trial judge misapprehended the evidence of K. regarding whether Mr. Cromartiehad to be killed the night of September 11, 2012, and erred in relying exclusively on K.’s testimony as to any discussions between him,Mr. Petrin and Mr.

O’Hagan that grounded the conspiracy. [118] The test to be employed by this Court to determine whether there is an unreasonable verdict is that set out in R v Biniaris, 2000SCC 15 at para 36, [2000] 1 SCR 381 [Biniaris], and R v Yebes, (SCC), [1987] 2 SCR 168 at 185. It is whether theverdict is one that a properly instructed trier of fact acting judicially could reasonably have rendered.

In applying the test, this Court mustreview, analyze and, within the limits of appellate disadvantage, weigh the evidence. [119] This Court must be able to identify a flaw in the evaluation of the evidence or in the analysis that would serve to explain theunreasonable conclusion reached and justify its reversal (Biniaris at para 37). With these principles in mind, I turn to Mr. Petrin’sarguments. [120] There is no suggestion by Mr. Petrin that the trial judge was unaware of the required elements of conspiracy.

These elementshave recently been summarized by this Court in R v Nicholson, 2018 SKCA 62, [2018] 11 WWR 410, as follows: [156] According to the case law (e.g., Dynar), the four elements of the offence of conspiracy to commit murder are these: (

a) an intention to agree; (

b) a common unlawful purpose of committing murder; (

c) an intention to put the common unlawful purpose into effect; and (

d) the completion of an agreement. [121] Likewise, the trial judge considered the three-stage test set out in R v Carter, (SCC), [1982] 1 SCR 938[Carter], used to analyze the evidence relevant to the offence. The trial judge stated: [207] In considering the offence of criminal conspiracy, the Court must address the three stages of the Carter test as were outlined bythe Supreme Court of Canada in R v Carter. Those three stages can be summarized as follows: 1. The trier of fact must consider all of the evidence to determine whether the existence of a conspiracy has been proven beyond areasonable doubt; 2.

The trier of fact considers only the evidence directly admissible against the accused to determine if the accused is probably a memberof the conspiracy; and 3. Once the first two stages are established, the trier of fact may consider all of the evidence, including the out-of-court acts anddeclarations of other members of the conspiracy and made in furtherance of the conspiracy to determine if the accused is an actualmember of the conspiracy. This determination is beyond a reasonable doubt. [122] Mr.

Petrin’s submissions that the trial judge conflated the evidence of conspiracy with the evidence of planning and deliberationmust fail. Evidence is capable of being relevant to more than one offence. The evidence of planning and deliberation is obviouslyrelevant to the elements of conspiracy. What Mr. Petrin really argues is that this evidence does not amount to an agreement to murder. Idisagree. [123] The trial judge extensively reviewed the evidence relevant to the conspiracy. She appropriately concluded after that review thatthere was a conspiracy based on a common intention to cause Mr.

Cromartie’s death grounded on evidence of meetings betweenMr. Petrin, Mr. O’Hagan and K., and preparations for the murder. [124] She also appropriately concluded that considering the evidence directly admissible against Mr. Petrin, he was probably amember of the conspiracy. This is so because the evidence was overwhelming that he was the creator of the conspiracy or agreement tokill Mr. Cromartie. [125] The trial judge, having concluded the first two stages of the Carter test were met, considered all the evidence and concludedMr.

Petrin was an actual member of the conspiracy beyond a reasonable doubt. [126] After reviewing the evidence relied on by the trial judge with respect to this offence, and indeed the evidence as a whole, I canfind no flaw in the trial judge’s evaluation of the evidence or in her analysis that leads me to conclude her conclusion on the conspiracyto commit murder is unreasonable. On the whole, the verdict of the trial judge was one that she could properly have rendered based onthe evidence before her. VII. Conclusion [127] The application for fresh evidence is dismissed.

The appeal is dismissed. “Ottenbreit J.A.” Ottenbreit J.A. “Richards C.J.S.” I concur. Richards C.J.S.

“Whitmore J.A.” I concur. Whitmore J.A.