R v Nicholson, 2018 SKCA 62

Restriction on Publication An order has been made in accordance with s. 486.5 of the Criminal Code directing that any information identifying undercover operatives shall not be published. Court of Appeal for Saskatchewan Docket: CACR2852 and CACR2854 Citation: R v Nicholson , 2018 SKCA 62 Date: 2018-08-08 Between: Docket CACR2852 Angela Dawn Nicholson Appellant And Her Majesty the Queen Respondent Between: Docket CACR2854 Curtis Vey Appellant And Her Majesty the Queen Respondent Before: Jackson, Herauf and Schwann JJ.A.

Disposition: Appeals allowed, new trial ordered Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Herauf The Honourable Madam Justice Schwann On Appeal From: QB CR 34/14, Prince Albert Appeal Heard: December 15, 2017 Counsel: Ronald Piché for Appellant Nicholson Aaron Fox, Q.C., for Appellant Vey B.L. Klatt for the Respondent Jackson J.A. I. Introduction [ 1 ] Ms. Angela Nicholson and Mr. Curtis Vey were found guilty of two counts of conspiracy to commit murder contrary to s. 465(1) (

a) of the Criminal Code , RSC 1985, c C-46. The first count charged that they conspired to murder Jim Taylor, Ms. Nicholson’s spouse. The second count charged that they conspired to murder Brigitte Vey, Mr. Vey’s spouse. [ 2 ] Sometime during the course of 2012, Brigitte Vey began to suspect that her husband was having an affair, but she did not know with whom. She began periodically to leave a device in their home to record her husband’s conversations. On July 1, 2013, she recorded what turned out to be a conversation between Ms. Nicholson and Mr. Vey [the July 1 Recording].

During that conversation, the two talked about taking the lives of their respective spouses. They were arrested five days later. [ 3 ] The Crown’s case was based largely on (

a) the July 1 Recording, (

b) the statements Ms. Nicholson and Mr. Vey gave to the police, and (

c) recorded conversations with undercover officers who had been placed in their respective cells. Neither accused testified. [ 4 ] When the police interviewed Mr. Vey after his arrest, and in his conversations with the undercover officer in his cell, he maintained that he knew or suspected his wife was recording him on July 1, 2013, and said he had engaged in the murder conversation to give his wife and family something to talk about. He also said that all Ms. Nicholson and he had were “discussions” with no intention to commit murder.

From his statement, the jury might have inferred there had been a previous similar discussion. [ 5 ] When Brigitte Vey testified for the Crown, she confirmed that she had recorded Mr. Vey on other occasions and had confronted him with those previous recordings in an attempt to get him to admit he was having an affair. Indeed, Brigitte Vey confronted Mr. Vey with the July 1 Recording before listening to all of it and before going to the police. She also testified that Mr. Vey had suggested that they prepare new wills, which he did, leaving everything to each other in the event of death.

These wills were signed on June 12, 2013. There was, however, other evidence from which the jury might infer that the writing of new wills was a joint idea. Brigitte Vey did not draw the Crown’s attention to the wills until the fall of 2015. [ 6 ] When the police interviewed Ms. Nicholson after her arrest, she admitted there had been an earlier conversation about taking the lives of their spouses. She also appeared to have admitted that she had agreed to such a plan, but she never said she intended to carry it out.

She told the police she had conducted an internet search on June 22, 2013, about how to start a grease fire, which was to be her

role in the murder of Brigitte Vey, but she did not do so with the intention of carrying out the act of murder. Ms. Nicholson did not mention that the July 1 Recording was about giving Brigitte Vey something to talk about. [ 7 ] Ms. Nicholson and Mr. Vey were tried by a jury in the spring of 2016. The jury began deliberating at about 1:00 p.m. on Friday, June 3, 2016. They were sequestered and deliberated for two-and-one-half days before rendering guilty verdicts at about 5:30 p.m. on Sunday, June 5, 2016. During their deliberations, they asked three questions of the court: (

a) How do you find an agreement? (

b) What is the difference between intention and agreement? and (

c) What is the difference between proving intention by “overt acts” and “inferences”? [ 8 ] The standard of review concerning errors alleged in a jury charge requires an appellate court to take a functional approach ( R v Lumberjack , 2017 SKCA 106 , 357 CCC (3d) 263). It is the overall effect of the charge that matters. Jury instructions must be viewed as a whole and the jury charge in this case was admirable.

However, notwithstanding this deferential approach, and with much respect, I conclude that a new trial must be ordered. [ 9 ] As mentioned, the jury charge was crafted with obvious attention and, as such, I would dismiss most of the grounds of appeal. Nonetheless, having regard for the evidence that suggested Mr. Vey knew, or suspected, he was being recorded, and in light of the questions the jury asked, I am persuaded it was not made plain to the jury that (

a) they were required to be satisfied beyond a reasonable doubt that both appellants had a genuine intention to agree to commit murder and (

b) they could not draw an inference of guilt from circumstantial evidence unless it were the only reasonable inference that the evidence permitted. [ 10 ] The crime of conspiracy seeks to prevent the harm caused when two or more people agree to act together to achieve a common unlawful purpose. The Crown must prove both a genuine intention to agree and an intention to achieve the common unlawful purpose beyond a reasonable doubt. There must be a true consensus. [ 11 ] In light of the above considerations, I would order a new trial. II.

Evidentiary Overview [ 12 ] The indictment charged an offence of conspiracy arising “on or about” July 1, 2013: ANGELA NICHOLSON … in the Province of Saskatchewan, and CURTIS VEY … in the Province of Saskatchewan stand charged: Count 1 That they, the said ANGELA NICHOLSON AND CURTIS VEY , on or about the 1st day of July A.D., 2013 … in the Province of Saskatchewan, did conspire together to murder Jim Taylor contrary to Section 465(1) (

a) of the Criminal Code . Count 2 That they, the said ANGELA NICHOLSON AND CURTIS VEY , on or about the 1st day of July A.D., 2013 … in the Province of Saskatchewan, did conspire together to murder Brigitte Vey contrary to Section 465(1) (

a) of the Criminal Code . (Bold emphasis in original) [ 13 ] The primary evidence against both accused was the July 1 Recording. The conversation lasted one-and-one-quarter hours and took place in the Vey home. In addition to discussing children, crops and plans for a future without their spouses, the two talked about taking the lives of their respective partners. In terms of the actual words said, the most direct reference to an agreement to murder is contained in the following passages, which are transcribed from the July 1 Recording: Curtis VEY: Well, I moved out.

So … that’s why … was another reason that the other way just … just wouldn’t have worked. Do you know what I mean? Angela TAYLOR [Ms. Nicholson’s married name]: Mmm-hmmm. [affirmative] Curtis VEY: It … it’s got to be this kind of way otherwise … and … and … and just … you know? It … it’s got to be where it’s … ‘cause his habitual stuff … [unintelligible] they’ll think that, “Well, it finally caught up to him”, or whoever it is . Angela TAYLOR: Yeah. Curtis VEY: Right? Angela TAYLOR: I was thinking you had curtains here. Curtis VEY: No. Angela TAYLOR: That was going to help it along.

Angela TAYLOR: There used to be [unintelligible] here didn’t there? Curtis VEY: Yeah. Took them down when we did that ah … did the casings. … Angela TAYLOR: I thought if I could just pre-start the curtains, they’re not going to be able to tell how it start.

Curtis VEY: Oh. Okay. I know what you mean. Angela TAYLOR: So it starts there. And these get going. And I could [unintelligible] get these going. See I could get those ones going to help it along. Curtis VEY: Exactly. Angela TAYLOR: ‘Cause I won’t be helping it along [unintelligible]. Curtis VEY: Just remember to ah … shut these blinds. Angela TAYLOR: Blinds will have to be shut, and the lights will have to be off. Curtis VEY: Yeah. Angela TAYLOR: ‘Cause then they won’t see the lights from the highway or the flames until hopefully it’s too late. Curtis VEY: Oh, it will go up fast. It will. It’s old.

Angela TAYLOR: You promise. Curtis VEY: Well, I’m assuming. They usually do. Angela TAYLOR: I just thought if I could … I could put oil there, and then I’d spill a little on the stove. That’ll help. Leave the bottle out, it’s going to break [unintelligible] the heat. Curtis VEY: Yeah. Angela TAYLOR: Which will ignite it more. Then I thought I could start a curtain … Curtis VEY: Mmm-hmm. [affirmative]. Angela TAYLOR: … ‘cause curtains you can’t … ‘cause I just need ah … Curtis VEY: I’ve actually ah … I did ah … did more thinking about it actually. And ah … the morning of, I am going to ah … hmm.

You see what you think. I’m actually thinking of … well, if he’s around, I was actually thinking of getting ah … if it’s the Crop Production Show … Angela TAYLOR: Mmm-hmm. [affirmative]. Curtis VEY: … first few days of January … Angela TAYLOR: Mmm-hmm. [affirmative]. Curtis VEY: … I was going to get [unintelligible] … I was going to organize [a colleague] coming with me. Okay? Angela TAYLOR: Mmm-hmm. [affirmative]. Curtis VEY: I’ll get him to come in the morning … We’ll have coffee, and before we leave, she’ll have coffee. Then him and I will leave. … Then him and I will go.

I’ll have to [unintelligible] or text ‘cause he won’t even notice. I’ll just make sure [unintelligible] or I’ll go into the bathroom before I leave and text you with … not my real phone. Angela TAYLOR: Mmm-hmm. [affirmative]. Curtis VEY: [unintelligible comment] This way [a colleague] is with me. One or two things. They can never say I started it. Right? Angela TAYLOR: Right. Curtis VEY: Plus he was with me and had coffee here. So that’s how I’m going to organize it. I’m going to make sure he doesn’t [unintelligible]. So I’m good … I’m going to tell him, “Hey, you got to come with me to the Crop Production Show”.

So I’m going to wait till schedule’s out, and I’m going to organize which day it is. You might even have to take a sick day. If it’s that day, it’s that day. Angela TAYLOR: ‘Kay. Curtis VEY: So … and then it’s kind of iron clad. Right? Angela TAYLOR: Mmm-hmm. [affirmative]. Curtis VEY: So the only issue will … and it’s better if it’s daytime. Reason, if it’s in the morning, by the time they see the [unintelligible], [unintelligible]. If it’s at night … Angela TAYLOR: You think they’ll see the flames if the lights are on? Curtis VEY: During the dark?

Angela TAYLOR: Mmm-hmm. [affirmative]. Curtis VEY: Well, I think we probably won’t leave too early in the morning. But I think it’s better. (Emphasis added, transcript of Session #12, July 1 Recording at 25–28.) [ 14 ] The investigation in this case was conducted by the major crimes unit of the RCMP. In addition to long interviews with each of the accused, an undercover officer was placed in their respective cells. Neither accused contested the voluntariness of their statements and they were admitted in their entirety. [ 15 ] In her interview with the police, Ms.

Nicholson told the officers that there had been one previous conversation during which she and Mr. Vey talked about killing their respective spouses. She also filled in some gaps in the plan, including how they planned to drug Mr. Taylor, and how they planned to forge a will in his name. She also admitted that on June 22, 2013, she looked up how to start a “grease fire” on the internet. However, when the interviewing officer asked her, “What part of that plan was yours?”, she responded, “Agreeing to do it”.

In further conversations with the interviewing officers, when asked “If you could do it”, she said, “I don’t think I could”. [ 16 ] The Crown’s case against Mr. Vey revealed an additional piece of evidence – which he maintained throughout – that this was all a fantasy borne out of frustration and he knew he was being taped. Significantly, the evidence at trial him included the following: (

a) Brigitte Vey testified that she had told her husband on previous occasions she had been recording him and, indeed, she had played some of these recordings for him; (

b) Mr. Vey told the undercover officer, who had been placed in his cell, the following: (

i) he knew he was being recorded on July 1, 2013; (ii) he was upset with his wife’s surveillance of his activities and how his children were siding with his wife and it came to a head on June 30, 2013; (iii) he was going to give them something to talk about; (iv) he was going to teach his wife and children a lesson, but it backfired; and (

v) after his first interview with the police, he said the interviewing officers had told him they were going to check his computer and phones and he was glad to hear that because he knew there was no evidence of a conspiracy; (

c) Mr. Vey also told the interviewing police officers that he knew his wife was recording him on July 1, 2013; and (

d) throughout his second police interview, Mr. Vey maintained that he had no intention to carry out any murder – he and Ms. Nicholson had discussions only, and had admitted only to having “thoughts” (transcript of the July 7, 2013, police interview at 358). [ 17 ] According to the Crown’s case against Mr. Vey, which included a search of two of his old tablets and two old computers, and a password protected email account, there was no other evidence of conspiracy or acts in furtherance of a conspiracy.

In cross- examination of the various police officers (both interviewing and undercover), defence counsel demonstrated how far-reaching the investigation had been. The most damaging additional evidence against Mr. Vey was that he had written wills for himself and his wife, wherein each had left the other their entire estate in the event of death; the strength of this evidence was muted somewhat because Brigitte Vey admitted in cross-examination that she had also expressed the need to have new wills due to the danger of spring-time farm work. [ 18 ] In relation to Ms.

Nicholson, an extensive police investigation revealed no evidence of conspiracy other than what has been recounted above. [ 19 ] In his charge to the jury on June 3, 2016 [Jury Charge], the trial judge fairly summarized the evidence against Ms. Nicholson, including conversations with an undercover officer and the police interviews: [1] [131] Angela Nicholson came to the Vey household at which time she and Mr. Vey had a conversation. Towards the end of the conversation Angela Nicholson said words to the effect, “Kay.

So I have a question for you”. [132] What follows is a conversation about murdering their respective spouses. With respect to Mr. Taylor [Ms. Nicholson’s spouse], the concept seemed to be that Mr. Vey would put some type of sleeping pills in his coffee after which he would “go missing”. [133] With respect to Ms. Vey, the concept was that some type of stupefying drug would be administered to her. Mr. Vey would leave, with a friend, for a Farm Production Show, thus giving him an alibi, while Ms. Nicholson would burn down the house, presumably with Ms.

Vey in it. [134] There was a conversation about how long it would be before it would be appropriate for these two to get together after the demise of their spouses. [135] Some of the details of what was meant or intended by Ms. Nicholson when she was speaking to Mr. Vey on July 1, 2013, was filled in, to some degree, by what she told police and her undercover cellmate.

[136] Consider carefully what she said to the police and her undercover cellmate. Initially she would not confirm that she was having an affair, and then, when presented with irrefutable evidence on this point, she readily admitted the affair and admitted that she loved Curtis Vey. Under some fairly aggressive questioning from Sgt. Skilnick [an interviewing officer] she admitted talking about a plan to kill Ms. Vey and Mr. Taylor. She added detail that made the July 1, 2013, conversation more understandable.

She admitted looking up “grease fire” on the internet and stated that the grease fire idea was that of Curtis Vey. There does not appear to be any evidence that Ms. Nicholson knew she was being recorded on July 1, 2013, but that is for you to decide. [137] In her cellmate conversation, further light is shed on what she meant when she said certain things on July 1, 2013.

She confides in her cellmate that “funny thing, we just talked about it” and “probably that’s all it would have been, is just talk”. [138] These are just some examples of the types of things that you may want to examine when discussing whether there was just a “mere discussion” or an “agreement”. [139] At times, under some pressure from the police, she volunteered details about the nature of the discussion respecting the deaths of Jim Taylor and Brigitte Vey. However, she maintained that there was never any intention to go through with the plan and that it was a discussion and not an agreement.

She claimed that she knew that she was not capable of actually carrying through with what she and Mr. Vey talked about. [140] This is what you need to decide. Was this a fantasy and just harmless ranting or was it an agreement? [ 20 ] Next, the trial judge fairly summarized the evidence against Mr.

Vey, including conversations with an undercover officer in his cell and two police interviews: [152] The state of Curtis Vey’s marriage, from his point of view, varied from loving Brigitte, with the last five years being the best in his life, to recognizing that the marriage was over. [153] Curtis Vey knew that his wife was suspicious and that she had recorded him on previous occasions. [154] We know that because Brigitte Vey was suspicious, she secretly recorded their household on July 1st, 2013. We heard the recording, what was said.

It is apparent that Curtis Vey and Angela Nicholson were talking about murdering their respective spouses. [155] The subsequent police interviews and cellmate conversations respecting Curtis Vey shed light on the July 1st, 2013, conversation. These subsequent conversations will help you decide if there was an agreement or merely a discussion. [156] In the first interview by Corporal Ewert, Mr. Vey essentially denies everything, including the affair. In the second interview, after being confronted with irrefutable evidence, Mr. Vey admits the affair.

Eventually, he also admits to having a discussion about murdering their respective spouses, but denies that it was an agreement, only a discussion, adding that his character is such that he would never have done anything as drastic as murder. [157] In his cellmate discussion, he initially tells his cellmate, who he may have, at least at the beginning, suspected was a police plant, that he was innocent of all wrongdoing. In fact, he told his cellmate informant that he knew he was being recorded and said outrageous things to stir the pot with his family. Whether that has a ring of truth to it is for you to decide.

After his return from meeting with Sergeant Kalmakoff [another interviewing officer], his position changed somewhat, and he was accepting that what he said may be criminal. [158] However, whether his words and actions amount to a criminal offence is for you to decide, not him. [159] When Mr. Vey returned to his cell after the interview with Sergeant Kalmakoff, he let down his guard somewhat and said a number of things. Throughout, he appears to maintain the position that he had no intention to actually agree to proceed with either murder, although it is evident that he discussed it.

Was he serious about actually entering into an agreement with Angela Nicholson to commit murder? Was he just trying to get back at his family by saying outlandish things? Was it a mere discussion with no actual intent to form an agreement?

That is for you to decide. [160] If you are not satisfied beyond a reasonable doubt that there was a conspiracy between Curtis Vey and Angela Nicholson to murder Jim Taylor you must find Curtis Vey not guilty of Count # 1. [161 If you are satisfied beyond a reasonable doubt that there was a conspiracy between Curtis Vey and Angela Nicholson to murder Jim Taylor, you must find Curtis Vey guilty of Count #1. III. Settling the Issues [ 21 ] Ms. Nicholson and Mr.

Vey have raised a number of grounds of appeal concerning the process leading to the development of the charge, the charge itself, the judge’s re-charge and his answers to the jury’s questions, and about what they call jury tampering. Significant background information is required to explain each ground of appeal and the issues arising therefrom, which I will present as the issues are analyzed. [ 22 ] In my respectful view, there are three key issues arising from the grounds of appeal: (

a) Issue #1 – Did the trial judge adequately charge the jury with respect to the appellants’ defence that Mr. Vey did not have a genuine intention to agree to commit murder? (

b) Issue #2 – Did the trial judge properly explain the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt?

(

c) Issue #3 – Did the trial judge properly address the question of inconsistent verdicts and the test in R v Carter, (SCC), [1982] 1 SCR 938 [Carter]? [23] I would order a new trial in relation to the first two issues. While I find error in relation to the trial judge’s handling of someaspects of the third issue, I would not order a new trial in relation to it. Instead, I offer some instruction for the purposes of a new trial. [24] The appellants raise other issues that, in my view, cannot succeed.

Nonetheless, for the sake of completeness, I will brieflyprovide my reasons for not finding the errors that the appellants have alleged regarding the following grounds of appeal, which I havecast as issues: (

a) Did the trial judge err by not instructing the jury that they should not draw an adverse inference from the fact that theappellants did not testify? (

b) Did the trial judge err by not putting to the jury that it was open to them to find either or both of the appellants guilty of thelesser included offences of conspiracy to administer a noxious substance or to commit arson? (

c) Was there a miscarriage of justice because the recordings of the various conversations tendered in evidence by the Crowncould not be heard by people sitting in the gallery of the courtroom? (

d) Did the trial judge err by failing to make inquiries when issues about possible jury interference were raised? To be clear, I would not give effect to any of this latter group of issues. IV. Addressing the Issues A. Issue #1: Did the trial judge adequately charge the jury with respect tothe appellants’ defence that Mr. Vey did not have a genuine intention to agree tocommit murder? 1. Background Law a. Overview of the theory [25] Ms. Nicholson and Mr. Vey were charged with conspiracy under s. 465(1)(

a) of the Criminal Code: Conspiracy 465(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: (

a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, isguilty of an indictable offence and liable to a maximum term of imprisonment for life … . Thus, the crime of conspiracy to commit murder requires at least two people conspiring to make it a crime. While s. 465(1)(

a) isstraightforward, the legal determination of what constitutes a conspiracy to commit murder, or how to prove a conspiracy, has beendeveloped by the common law. [26] The courts have frequently said that the essence or gist of conspiracy, or its actus reus, is the agreement. This simplestatement, while wholly accurate, nonetheless masks a number of legal issues about which there is much academic and jurisprudentialdebate: Matthew R.

Goode, Criminal Conspiracy in Canada (Toronto: Carswell, 1975) [Goode]; Peter MacKinnon, “Developments inthe Law of Criminal Conspiracy” (1981) 59 CBR 301; Eric Colvin and Sanjeev Singh Anand, Principles of Criminal Law, 3d ed(Toronto: Carswell, 2007) [Principles of Criminal Law]; and Don Stuart, Canadian Criminal Law, 6th ed (Toronto: Carswell, 2011)[Stuart] at 715 to 725. As Stuart notes, “Since the actus reus requirement for conspiracy is merely that of agreement, the distinctionbetween actus reus and mens rea is particularly artificial” (at 716).

Similarly, in Principles of Criminal Law, the authors state, “our chiefanalytical tools for diagnosing the elements of offences, the concepts of actus reus and mens rea, face some difficulties with the specialproblems raised by allegations of conspiracy” (at 541). [27] In R v Papalia, (SCC), [1979] 2 SCR 256 at 276–277 [Papalia], Dickson J., as he then was, for the majority,described the offence of conspiracy as “to breathe together”: The word “conspire” derives from two Latin words, “con” and “spirare”, meaning “to breathe together”. To conspire is to agree.

Theessence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v.R. [ (SCC), [1934] SCR 165], at p. 168. The actus reus is the fact of agreement: D.D.P. v. Nock [[1978] 3 WLR 57(HL)], at p. 66. The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of personsmay be privy to it. Additional persons may join the ongoing scheme while others may drop out.

So long as there is a continuing overall,dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end. Theimportant inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to whichthe acts are referable and to which all of the alleged offenders were privy. In R. v.

Meyrick and Ribuffi [(1929), 21 Cr App R 94 (CCA)],at p. 102 the question asked was whether “the acts of the accused were done in pursuance of a criminal purpose held in common betweenthem”, and in 11 Halsbury (4th ed.), at p. 44 it is said:

It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to showa meeting of minds, a consensus to effect an unlawful purpose.

There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal. (Emphasis added.) [28] In R v Alexander (2005), (ON CA), 206 CCC (3d) 233 (Ont CA), leave to appeal to the SCC dismissed, [Alexander], Doherty J.A. explained that a true consensus is required to justify criminalizing joint conduct that fallsshort of an attempt to commit the substantive crime: [48] The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective.

Thisemphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy.Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by atrue agreement to jointly bring about a criminal end justifies a pre-emptive strike by the criminal law as soon as the agreement exists,even if it is far from fruition.

However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime ofconspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime: see I.H. Dennis, “TheRationale of Criminal Conspiracy” (1977), 93 Law Q. Rev. 39; P. Gillies, The Law of Criminal Conspiracy (Sydney, Australia: LawBook Co. Ltd., 1981) at 327. (Emphasis added.) b.

The mens rea and its role in establishing the actus reus [29] With this brief explanation of the legal theory pertaining to conspiracy, it is possible now to consider the elements moredeeply as they apply to the issues of this case. i. Conspiracy requires a genuine intention: “Pretending to agree” is a defence [30] In The Queen v O’Brien, (SCC), [1954] SCR 666 at 668 [O’Brien], the question the Supreme Court had todecide was what to make of the evidence of one of two co-conspirators who said “he never had any intention of going through with thisplan, but was just fooling the respondent, or hoaxing him” (at 667).

As in this case, O’Brien concerned a two-person conspiracy wherethe unlawful act had not been perpetrated. The alleged co-conspirator in O’Brien was not charged, but he was called as a Crown witness. [31] At trial, the judge in O’Brien directed the jury that the offence was complete if the co-conspirator and the accused made theagreement, even though the co-conspirator never had any intention of carrying it out. The jury convicted the accused. On appeal to theBritish Columbia Court of Appeal on the point of pretending to agree (inter alia), the majority ordered a new trial.

On appeal to theSupreme Court, the appeal court’s decision to order a new trial was affirmed. Three judges wrote separate concurring opinions for themajority: Justices Taschereau, Rand and Estey. [32] Justice Taschereau recognized the confusion regarding the element of intention that is necessary to constitute a conspiracy tocommit an offence. He set out to clarify the applicable law: I think there has been some confusion as to the element of intention which is necessary to constitute the offence. It is, of course, essentialthat the conspirators have the intention to agree, and this agreement must be complete.

There must also be a common design to dosomething unlawful, or something lawful by illegal means. Although it is not necessary that there should be an overt act in furtherance ofthe conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect. A commondesign necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object ofthe agreement.

I cannot imagine several conspirators agreeing to defraud, to restrain trade, or to commit any indictable offence, withouthaving the intention to reach the common goal. (Emphasis added, at 668.) [33] To further illustrate the intention required, Taschereau J. drew from Mulcahy v The Queen (1868), LR 3 HL 306 at 317, asfollows: The two elements of agreement and of common design are specifically stated to be essential ingredients of the crime of conspiracy.Willes, J. in Mulcahy v.

The Queen (1868), L.R. 3 H.L. 306 at 317: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do alawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect,the very plot is

an act in itself, and the act of each of the parties … punishable if for a criminal object … . Vide also Rex v. McCutcheon (1916), (ON SC), 25 C.C.C. 310. (Italic emphasis in original, underline emphasis added, at 668–669.) [34] In concurring reasons, Justice Rand wrote, “a conspiracy requires an actual intention in both parties at the moment ofexchanging the words of agreement to participate in the act proposed; mere words purporting agreement, without an assenting mind tothe act proposed are not sufficient” (O’Brien at 670).

Justice Estey referred to an “intention to conspire” (at 677). [35] It is not entirely clear from these three opinions which element of the mens rea is lacking when one of two conspirators isonly pretending to agree. Nonetheless, the result of the majority opinions is that a new trial was in order because the trial judge had

instructed the jury that the offence was complete if the agreement was made even if one of two co-conspirators “never at any time hadany intention of carrying the agreement into effect” (at 667). [36] The Supreme Court has affirmed O’Brien on a number of occasions: Sokoloski v R, (SCC), [1977] 2 SCR 523[Sokoloski]; R v Chambers, (SCC), [1990] 2 SCR 1293 [Chambers]; United States of America v Dynar, (SCC), [1997] 2 SCR 462 [Dynar]; R v Déry, 2006 SCC 53, [2006] 2 SCR 669 [Déry]; and R v J.F., 2013 SCC 12, [2013] 1 SCR565 [J.F.]. [37] While Sokoloski has been frequently distinguished with respect to its approach to what constitutes conspiracy (e.g., Sheppe vThe Queen, (SCC), [1980] 2 SCR 22 at 26), it affirms O’Brien: “this Court has held that neither party to an allegedconspiracy can be convicted of the crime if one does not have the requisite mens rea for the substantive offence …” (Sokoloski at 531–532). [38] In Chambers, it appears that the Crown asked the Supreme Court to reconsider the mens rea principles articulated in O’Brien,but the Court declined to do so as reconsideration had been raised for the first time on appeal. [39] In Dynar, the Supreme Court wrote that where one member of a charged conspiracy is, for example, an undercover officerwho never intends to carry out the common design, there can be no conspiracy between that officer and any other person in the so-calledconspiracy: “A person cannot be a conspirator if he or she merely pretends to agree” (at para 88).

In making this point, Cory andIacobucci JJ. relied upon the statement made by Rand J. in O’Brien: “mere words purporting agreement without an assenting mind to theact proposed are not sufficient” (at 670). [40] In Déry, the Supreme Court refused to recognize attempted conspiracy: “Recognition of attempted conspiracy as a crime … isbest left to Parliament” (at para 36). As part of its analysis, the Supreme Court noted that the United States of America recognizes“unilateral conspiracy”, which permits conviction in the circumstance where the agreement of one of the “interlocutors is feigned” (atpara 34).

The Supreme Court, relying on O’Brien and Dynar, declined to follow the American approach regarding unilateral conspiracy.One of the reasons for refusing to do so was because it “might well capture cases of feigned agreement”, which “will in any eventnormally be caught by the offence of ‘counselling an offence not committed’” (Déry at para 36). Justice Fish, writing for the Court, alsotook the occasion to reinforce that an actual agreement requires genuine intention: [35] A consistent line of case law in this country precludes us from adopting the American approach.

Most notably, the recent decisionof this Court in United States of America v. Dynar, (SCC), [1997] 2 S.C.R. 462, takes a strictly bilateral view ofconspiracy. See also R. v. O’Brien, (SCC), [1954] S.C.R. 666, at p. 670, quoted with approval and reaffirmed in Dynar,at para. 88; R. v. Lessard (1982), (QC CA), 10 C.C.C. (3d) 61 (Que. C.A.); R. v. Campeau, [1999] Q.J. No. 5436(QL) (C.A.). It is thus well established in Canada that there must be actual agreement for a conspiracy to be formed. And actualagreement requires genuine intention.

The unilateral conspiracy doctrine, however well established in the American legal environment,is thus not viable here. (Emphasis added.) [41] In J.F., the Supreme Court considered how, and under what circumstances, a person can be found a party to the offence ofconspiracy under s. 21 of the Criminal Code (parties to offence). The Supreme Court determined that the only legitimate basis formaking a person a party to a conspiracy is if the person aids or abets the actus reus of conspiracy, namely, the conspirators’ act ofagreeing.

In limiting the application of s. 21 in this way, Moldaver J., on behalf of the Court, relied on O’Brien for “how oneconceptualizes the offence of conspiracy for party liability” (J.F. at para 17).

Importantly, he pronounced that “the prohibited act in aconspiracy (the actus reus) consists of an agreement by two or more persons to pursue an unlawful object, specifically a criminal offence…”. [42] The specific fact pattern in O’Brien, i.e., a co-conspirator only pretending to agree, can be found in cases such as R v Thomson(1965), [1966] 50 Cr App R 1 (UK Mid Cir) [Thomson], and R v Delay (1976), (ON CA), 25 CCC (2d) 575 (Ont CA)[Delay], which are both referred to in Stuart at 722, footnote 267.

In Thomson, Lawton J. was asked to make a preliminary ruling as towhether the jury should be instructed differently because of the accused’s assertion that he did not genuinely agree to the unlawfuldesign.

Expressly following O’Brien – “I agree with the view of the majority of the Supreme Court of Canada” (Thomson at 2) – LawtonJ. concluded that he was required to provide different instructions: If the facts show, as the jury might on the evidence in this case infer that they do, that the defendant manifested his assent to a criminalenterprise, but that his mind did not go with his assent, then it seems to me that the element of the guilty mind is missing and,accordingly, on those facts he would be entitled to be acquitted, and I propose to direct the jury accordingly. (At 4.) [43] In Delay, Jessup J.A. stated the following for the Court: [1] The appellant appeals his conviction on a charge of conspiring with other named conspirators to commit the indictable offence ofrobbery.

While the charge is in many ways an admirable one, we are of the view that the trial judge did not adequately put to the jury theessential defence, which was that the appellant had no intention to agree to commit the offence of robbery, or indeed, to commit thatoffence, and only pretended to agree with the plan of his alleged co-conspirators. … [3] In this case there were “words purporting agreement”, in a statement given by the appellant, but there was also evidence of theappellant that in fact his mind did not assent to the conspiracy, and that he merely pretended to do so.

In our view that evidence and thatdefence was not put to the jury with sufficient clarity. In the result, we think there must be a new trial.

(Emphasis added.) [44] By way of

summary of the necessary mental elements and the pretending to agree defence, it is useful to refer to a paper onconspiracy written by Mr. David Doherty (as he then was): The requirement that an intention to carry out the agreement must be proved has given rise to the “only pretending to agree” defence.The defence has two possible formats, either the accused was only pretending to agree and is therefore not guilty, or his only alleged co-conspirator was only pretending in which case the accused is also not guilty.

If the accused has only pretended to agree he must beacquitted because he lacks the necessary mens rea. If his only alleged co-conspirator only pretends to agree, the accused has the requisitemens rea but there is no actus reus since there is no act of agreement in that there is not a true meeting of the minds. The defence will have its best chance of success where the Crown has direct evidence of an agreement but no evidence of anything donein furtherance of the agreement by the particular accused.

This may be the case in wiretap cases where arrests have been made prior toany attempt to implement the scheme allegedly agreed to by the conspirators.

An accused who is not guilty of conspiracy by virtue of the other party’s lack of intent may be guilty of incitement but is not guilty (inOntario at least) of attempted conspiracy (see infra). (Emphasis added, footnotes omitted, “Recent Developments in the Law of Conspiracy – Fall 1982”, Current Criminal Law EveningSessions (Toronto: Law Society of Upper Canada, 1982) at 48 [Doherty 1982] .) [45] Thus, it is quite clear that the Canadian law of conspiracy requires at least two conspirators for a conspiracy to be found.

Aconspiracy can only exist when at least two people intend to agree and intend to carry out the common purpose. Seeming or pretending toagree does not satisfy the mental element of the offence. As Fish J. states in Déry, “actual agreement requires genuine intention” (atpara 35). ii. Sub-issues [46] In considering the above authorities, I note the case law raises three sub-issues that must be resolved to decide this appeal: (

a) Are there two aspects of the mens rea required to be proven, i.e., an intention to agree and an intention to put the commondesign (or purpose) into effect? (

b) Is mutuality required with respect to the intention to put the common purpose into effect or is it a separate aspect, standingoutside of the agreement? (

c) To what aspect of the mental element of conspiracy is the pretending to agree defence directed, i.e., the intention to agree orthe intention to put the common purpose into effect? [47] In most cases of conspiracy, precision with respect to answering the above questions is not required because the trier of fact isasked to infer the intention to agree (and the intention to carry out the common purpose), as well as the agreement, from overt acts donein furtherance of the conspiracy and through the use of the co-conspirators’ exception to the hearsay rule.

In this case, the Crown did notrely on the co-conspirators’ exception to the hearsay rule and the appellants put the proof of the intention to agree, and the intention tocarry out the common purpose, directly into issue. [48] Regarding the first sub-issue, the Supreme Court, in Dynar, clearly stated that the mental element of conspiracy divides itselfinto an intention to agree and an intention to carry out the unlawful act: [86] … There must be an intention to agree, the completion of an agreement, and a common design.

Taschereau J., in O’Brien, [ (SCC), [1954] SCR 666], at p. 668, added that: Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt thatthere must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both aresynonymous.

The intention cannot be anything else but the will to attain the object of the agreement. (Italic emphasis in original, underline emphasis added.) [49] This confirms the point that had been contested in case authority decided after O’Brien as to whether the crime of conspiracyrequires a double intent (see Chambers at 1302–1303). With Dynar, the Supreme Court confirmed that the burden on the Crown is toprove two intents in order to make out conspiracy: the intention to agree and the intention to carry out the common purpose.

In thatregard, see also Goode at 28 and 29. [50] That brings us to the second sub-issue: Is mutuality required with respect to the intention to carry out the common purpose?This is an important question in this appeal because of the appellants’ defences and also because the trial judge asked the jury to decidewhether there was a “completed agreement” and he also asked them to decide whether the accused intended to put the unlawfulagreement into effect, suggesting that the second question stood outside the agreement and mutuality was not required in relation to it(Jury Charge at paras 122 and 147).

Further, if mutuality is required in relation to the intention to carry out the common purpose, it mustbe made clear to the jury that if one of the appellants did not intend to agree or did not intend to carry out the common purpose, bothwould have to be acquitted because there could be no actus reus of the crime of conspiracy (see Doherty 1982 at 48 as quoted above). [51] Notwithstanding some comments to the contrary in the jurisprudence, it is my view the weight of authority supports theproposition that the intention to carry out the common purpose must be present before it can be found that there is an agreement.

In thatregard, it is sufficient to quote from the opinion of Moldaver J., writing for the majority in J.F.:

[44] As I have explained, agreement is a central element to the offence of conspiracy. Conversely,

an act done in furtherance of theunlawful object is not an element of the offence of conspiracy. Although such acts can serve as circumstantial evidence to support theexistence of a conspiracy, they are not themselves a component of the actus reus of conspiracy. Indeed, a conspiracy can be establishedin the absence of any overt acts done in furtherance of its unlawful object.

In other words, “[t]he crime of conspiracy is complete oncethe agreement is reached”: Trieu, at para. 31. (Emphasis added.) Thus, conspiracy requires both the intention to agree and the intention to carry out the common purpose before an agreement can beproven. Both parts of the mens rea must be proven – as well as the act of agreeing. [52] There is a final sub-issue in this series: To what element of intention is the pretending to agree defence directed? In O’Brien,the Court appears to have been satisfied that there was an intention to agree, but no intention to carry out the common purpose.

But whatof the first element discussed above: the intention to agree? Does the defence of feigned agreement apply to it as well? While it may bepossible to pretend to intend to agree, the most likely scenario is that someone feigning agreement is intending to agree to the extentnecessary to secure another’s agreement, but does not intend to carry out the common purpose.

It is to the latter element that the defenceis directed: “his mind did not assent to the conspiracy, and that he merely pretended to do so” (Delay at para 3). [53] With that forming the background to the law of conspiracy applicable to this case, I will now consider the appellants’positions at trial. 2. The appellants’ positions at trial [54] In the Court of Queen’s Bench, Mr. Vey’s counsel filed a brief of law and a memorandum entitled “Defence Theory Re:Curtis Vey”. The brief of law quoted extensively from O’Brien, Papalia and Alexander, and then makes the following assertions: 8. Mr.

Vey repeatedly told the police that he was aware that he was being taped on July 1st. Significantly, he disclosed this to theundercover police officer who was placed in cells with him. Bearing in mind the intense scrutiny that his conduct had been under for the past nine months, including the incident that occurred on the evening of June 30th in the basement of his residence, it is not surprisingthat he would have known, or at least reasonably suspected, that he was being taped that day. 9.

Against that background, why would he have invited Angela Nicholson into his house to have this extensive discussion about hisrelationship with her? We will argue that the explanation is found at the outset of his discussion with the undercover police officerplaced in his cell. Rightly or wrongly, he was frustrated with the situation with his wife and, it seemed, he was especially frustrated with the fact that his sons were constantly becoming involved in it. After the incident on June 30th he felt he had had enough and reached thepoint where he was going to give them indeed something to talk about.

As he candidly stated to the undercover officer, it backfired. Hedid not expect them to go to the police but they did and now he was facing a charge. The brief of law goes on to submit there can be no conspiracy with a person who has no intention to agree or follow through with theagreed-upon act: 11. Both O’Brien and Alexander indicate that this is an all or nothing situation. Cases involving undercover police officers in a “sting”scenario are not covered by this offence because the police officer or agent lacks the intention to commit the act or form the agreement. 12.

In Alexander, as quoted above, the Court makes it clears that there needs to be an actual agreement in order to justify this offence asdistinct from attempts, parties to an offence, etc. This “pre-emptive strike” is only justified where there is a true consensus. If one partydid not agree, then there is no true consensus and no offence (see paragraph 48 of Alexander above). (Emphasis added.) [55] Ms.

Nicholson’s counsel filed a similar brief, relying on R v Kotyszyn (1949), (QC CA), 95 CCC 261 (QueCA); O’Brien; R v McNamara (No 1) (1981), (ON CA), 56 CCC (2d) 193 (Ont CA), leave to appeal refused, [1981]SCCA No 189 (QL); Dynar; Alexander; and Déry for the following propositions: (

a) the onus is on the Crown to prove both (

i) that an actual agreement existed (there is more than just knowledge or a passiveacquiescence (actus reus)) and (ii) that an intention to agree and an intention to put the common design into effect are both present (mensrea); (

b) it is “misdirection for a trial judge to tell the jury … that the offence of conspiracy was complete by the making of theagreement” (O’Brien case

summary at 666) – there must be an intention to carry through with the common design; (

c) a conspiracy needs, at the minimum, two people; and (

d) in this case, the jury must be charged on an “all or nothing” basis, i.e., inconsistent verdicts were not possible (if one of thetwo accused were acquitted on the basis of a lack of the mental element, they both must be acquitted). [56] During the pre-charge conference, Mr. Vey’s counsel, in particular, stressed that if only one of the two accused had agreed,there could be no conspiracy. In support of what would ultimately be his approach regarding inconsistent verdicts, the trial judgeidentified R v Guimond, (SCC), [1979] 1 SCR 960 [Guimond]. 3. The charge [57] In his

summary of the accused’s positions, the trial judge made reference to Mr. Vey “just trying to get back at his family by

saying outlandish things” (Jury Charge at 159), but he did not link this evidence to the mens rea elements that the jury would have to find for both accused. Instead, he charged in the usual way regarding the evidence and treated the question of the intention to carry out the common purpose as standing outside of the formation of the agreement. He also charged the jury on the basis that it would be possible to convict one of Ms. Nicholson or Mr. Vey and not the other . [ 58 ] He began by instructing the jury as to the use that could be made of the evidence of Ms. Nicholson’s and Mr. Vey’s intentions.

Specifically, he cautioned that evidence about Ms. Nicholson could only be used against her, while the evidence about Mr. Vey could only be used against him: [68] I must also tell you that any of the out-of-court statements that you find were made by Angela Nicholson (i.e., the police statement and the cellmate recordings) can only be considered as evidence in relation to Angela Nicholson, and not Curtis Vey.

Likewise, the out- of-court statements that you find were made by Curtis Vey (i.e., the two police statements and the cellmate recording) can only be considered as evidence in relation to Curtis Vey, and not Angela Nicholson. [69] Even if one of the accused’s statements relates to something that the other accused said or did, you must not consider that statement as evidence in relation to the other accused. [70] The comments that I have just made respecting out-of-court statements does not apply to the July 1, 2013, iPod recording (exhibit P- 2) because that is direct evidence relating to the Crown’s allegation of a conspiracy.

That iPod recording is evidence against both Ms. Nicholson and Mr. Vey. (Italic emphasis in original, Jury Charge.) [ 59 ] He then instructed the jury that it was possible for them to convict Ms. Nicholson or Mr.

Vey, and not the other: [98] Also, it would be possible for you to conclude that the Crown has established beyond a reasonable doubt that Angela Nicholson is guilty of one or both counts of conspiracy, but have failed to establish beyond a reasonable doubt that Curtis Vey is guilty of one or both counts. [99] Similarly, it would be possible for you to conclude that the Crown has established beyond a reasonable doubt that Curtis Vey is guilty of one or both counts of conspiracy, but have failed to establish beyond a reasonable doubt that Angela Nicholson is guilty of one or both counts. [100] As you well know, the indictment alleges that Angela Nicholson and Curtis Vey conspired with each other to murder both Jim Taylor and Brigitte Vey.

It might occur to you that logic would say that if you are satisfied beyond a reasonable doubt that an agreement to murder existed, it follows that both Angela Nicholson and Curtis Vey entered into that agreement. [101] Whatever logic might say to you on this point, that is not the law.

It is not the law because, as I have already explained to you, the evidence that you are entitled to consider against Angela Nicholson is different than the evidence that you are entitled to consider against Curtis Vey, and the evidence that you are entitled to consider against Curtis Vey is different than the evidence that you are entitled to consider against Angela Nicholson. [102] The iPod recording that you heard as to what took place at the Vey household on July 1, 2013, is direct evidence of the alleged conspiracy and is admissible and properly considered evidence against both Angela Nicholson and Curtis Vey. [103] However, the video-recorded police statement given by Angela Nicholson is evidence only against Ms.

Nicholson and not Mr. Vey. Similarly, the audio recording of Ms. Nicholson speaking to the undercover operator while she was in cells is evidence only against Ms. Nicholson and not Mr. Vey. [104] Similarly, the two video-recorded police statements given by Curtis Vey is evidence only against Mr. Vey and not Ms. Nicholson. [105] In

summary, you can come to different answers to the four questions because you may be considering different evidence when answering each question. (Italic emphasis in original.) [ 60 ] He defined the actus reus of conspiracy: [106] So, what is a conspiracy? A conspiracy is a crime of intention. [107] A conspiracy is an agreement between at least two people to commit a crime. The essence of the conspiracy is one of agreement. Once the agreement is made, the offence is committed .

That it was not carried out or executed is not the issue. [108] In other words, a conspiracy is complete once two or more persons agree to commit an offence, regardless of whether the offence is to be committed immediately or sometime in the future . [109] The Crown does not have to prove that the alleged conspirators, Angela Nicholson and Curtis Vey, actually did anything beyond making the agreement. (Emphasis added.) [ 61 ] In the Jury Charge, the trial judge then gave his instruction on the mens rea elements: [110] However, there is a distinction in law between an intention to agree, on the one hand, and an agreement on the other hand.

On its own, an intention to agree is not sufficient to establish a conspiracy . Although the Crown need not prove that anyone did any act in

furtherance of the conspiracy, the Crown must prove that both had the intention to put the common design into effect. In other words, the Crown must prove that the accused persons intended to adhere to the agreement in the sense of having the intention to put the common design into effect . [111] Since conspiracy is a completed offence the moment that there is an agreement it is irrelevant that a conspirator subsequently withdraws from the agreement.

If a person agrees to commit an unlawful act, and later, after having the intention to carry it through, refuses to put the plan into effect, that person is nevertheless guilty because all the ingredients of the conspiracy have already been established. [112] The agreement does not have to be something formal, like a written document nor does it have to be successfully carried out. [113] A person may be a part of a conspiracy, or to put it another way, a member of a conspiracy without knowing all of the details of the agreement and it is not necessary that a person agree to play a specific

part in carrying out the agreement or understanding. [114] An agreement is the coming together or the meeting of the minds of two or more people who have a common objective or purpose. [115] As I told you earlier, the crime of conspiracy is complete when members of the conspiracy agree to commit the crime of murder . I tell you as a matter of law that to intentionally kill another human being by an unlawful act constitutes murder.

It is not necessary for the Crown to prove that the crime itself, namely the murder of Jim Taylor, or the murder of Brigitte Vey was actually committed. [116] What is essential, however, is that the person has an understanding of the unlawful nature of the plan, and voluntarily and intentionally joins in it.

In other words, to be found guilty of conspiracy to commit the murder of Jim Taylor or conspiracy to commit the murder of Brigitte Vey, the Crown must establish beyond a reasonable doubt that both Angela Nicholson and Curtis Vey actually agreed and intended to agree to achieve the common unlawful purpose – namely the murder of Jim Taylor or Brigitte Vey . (Italic emphasis in original, underline emphasis added.) [ 62 ] Later in the Jury Charge, the trial judge used a hypothetical to demonstrate the difference between a discussion and an agreement: [117] In this case, there has been some attention paid to whether what occurred was a discussion or an agreement.

In order to highlight the differences between a discussion and an agreement, I have created a hypothetical. Let’s assume that I decide I wish to take my wife out for supper on Friday night. I phone her from my office and tell her that this Friday night I don’t feel like making supper and cleaning up. I inquire as to how she would feel about going out for supper. In response, my wife reminds me that we have gone out for supper several times over the past few weeks and perhaps another dinner outside the home does not fit within our budget.

She does mention, however, that she does like to go out for dinner, especially on Friday nights. We talk about the fact that if we do go out for supper on Friday night, I will miss the Blue Jay’s game on television. She mentions that if we go, I could record it and watch it later. We talk about inviting another couple to join us. We then talk about various restaurants that we have been to in the past and also that there are a number of new restaurants that have just opened up in our area. [118] Up to this point, we are having a discussion. There is no agreement. [119] Then my wife says to me, “why don’t we go?

I don’t feel like cooking or cleaning either”. I say, “Sure”. At this point we have an agreement. Both of us have agreed and fully intend to go out for dinner Friday night. We have an agreement even though we haven’t decided the precise time that we will be going out for dinner, the restaurant we will be going to, or whether we will be inviting another couple to join us.

Of course, in this hypothetical, going out for dinner is not an unlawful purpose. [120] I should add, as well, that if, later on, I receive a call from a friend who then invites me to a football game taking place on Friday night and I contact my wife and abandon the plan that we had made, this does not change the fact that an agreement had been entered into, even though it has subsequently been cancelled. (Emphasis added.) This portion of the Jury Charge was given in reference to both Ms. Nicholson and Mr.

Vey. [ 63 ] The trial judge directed the jury that they must answer four questions: [94] In this case, as you will know by now, we have two people charged with two counts of conspiracy to commit murder. Broken down, or “compartmentalized”, this results in four separate questions for you to answer. They are:

(1) Did Angela Nicholson conspire to murder Jim Taylor?

(2) Did Angela Nicholson conspire to murder Brigitte Vey?

(3) Did Curtis Vey conspire to murder Jim Taylor?

(4) Did Curtis Vey conspire to murder Brigitte Vey? He then went on to say, that it was “theoretically possible for you to have different answers to each of the above questions” (at para 95). [ 64 ] The trial judge then began his review of the evidence, but did not refer to the evidence pertaining to Mr. Vey’s defence that he did not intend to agree to carry out the common purpose, when addressing the jury regarding Ms. Nicholson. The trial judge’s opening paragraph, regarding Ms. Nicholson, is as follows: [122] In order for you to find Angela Nicholson guilty of conspiring to murder Jim Taylor the Crown must prove beyond a reasonable

doubt, on the evidence admissible against Angela Nicholson, that:

a) There was a completed agreement between Angela Nicholson and Curtis Vey;

b) That the agreement was to commit the murder of Jim Taylor; and

c) That Angela Nicholson and Curtis Vey intended to put the unlawful agreement (i.e., the murder of Jim Taylor) into effect. This format and layout was followed in relation to all four of the questions posed by the trial judge in paragraph 94 of the Jury Charge: when the trial judge instructed the jury in relation to Angela Nicholson’s role in the conspiracy to murder Brigitte Vey (in paragraph 143), the judge said the above comments apply; when he charged the jury in relation to determining whether Mr.

Vey was guilty (in paragraphs 147 and 162), he followed the same format. [ 65 ] After the trial judge had charged the jury, counsel for Mr. Vey asked for several changes, including reiterating his claim regarding inconsistent verdicts and asking that it be stressed that the evidence showed that Mr. Vey knew he was being taped, that his intention in having Ms.

Nicholson in his home was not for the purpose of discussing and agreeing to a murder (but for the purpose of inciting his wife and family) and that detail alone did not make an agreement to commit the crime of conspiracy. [ 66 ] Regarding what to make of a detailed discussion in the process of coming to an agreement, the trial judge agreed to re-charge the jury on that point only: Charge to the Jury THE COURT: Ladies and gentlemen of the jury, I’ve had a discussion with the lawyers about the charge, and they’ve asked me to clarify a point. And I think it’s fair that I do so.

And you don’t have to look at your material, but it deals with the hypothetical that I provided to you, where I’m inviting my wife out for dinner on Friday night. The point that they have asked me to make, and which I am prepared to -- to make, is this: Is that even if there’s a lot of detail, but no agreement, that still is just a discussion. So there can be a -- a lot of detail within a discussion without an agreement. So, for example, if I was to have phoned my wife and said: How about going out for dinner on Friday night? We’re going with this specified couple, Mrs. A and Mrs. B. We want to go to the Keg.

We’re going to go at seven o’clock. And we have lots of detail. And I’m going to have that steak sandwich that I always like to have, except I shouldn’t be talking about that at ten to one o’clock, should I? But we’re going to have that steak sandwich and with gravy and all of that. We go into all sorts of detail. [B]ut we’ve still haven’t decided whether we’re going to go, there’s no -- there -- there’s been a discussion up to that point. There is no agreement.

So even though there’s a lot of detail on the discussion, there may not be an agreement until we ultimately decide that we want to go. (Trial transcript at T577.) [ 67 ] Instructions to the jury were completed at about 1:00 p.m. on Friday, June 3, 2016, which was the first day they began deliberating. The jury deliberated that day until 9:30 p.m. They resumed at 9:00 a.m. on Saturday, June 4, 2016. At 11:00 a.m. on Saturday, the trial judge indicated to the lawyers that he had received three questions from the jury, two of which are relevant at this point: (

a) Question #1: “Could the Judge repeat his last remarks to us when we were called back after conferring with the lawyers at the end of the trial regarding the details being discussed in relation to an agreement re: supper plans (hypothetical)?” (

b) Question #2: “Elaborate on paragraph 110, page 25 of the charge, which discusses the distinction between an intention and an agreement”. 4. Resolution [ 68 ] At the outset, it must be acknowledged that charging a jury with respect to conspiracy is a difficult task. Further, I note the trial judge’s charge to the jury follows closely the various model jury charges in a number of aspects. The difficulty, however, is that charging the jury in this case had several distinctive features, including the evidence that Mr. Vey knew or suspected that he was being recorded and the effect of that evidence on both Mr.

Vey’s and Ms. Nicholson’s culpability. [ 69 ] In my respectful view, the Jury Charge did not adequately address this critical aspect of the appellants’ defence, notably, that one of them was not intending to agree, but was giving the pretence of an agreement to get back at his family. In light of the evidence that showed Mr. Vey had known in the past that his wife had been recording him – a fact confirmed by Brigitte Vey – the judge was required to draw the jury’s attention specifically to Mr. Vey’s defence and its effect on both Ms. Nicholson and Mr. Vey, and the burden on the Crown in relation to the evidence.

The jury should have been instructed that if they were satisfied that Mr. Vey did not intend to agree to carry out the common purpose, or if they had a reasonable doubt as to his intention, not only would they be required to acquit Mr. Vey, they would also be required to acquit Ms. Nicholson.

[ 70 ] Given the appellants’ defence on this point, the hypothetical that the trial judge used was problematic because it left the impression that any agreement , including one that was feigned, was enough to satisfy the actus reus of the offence. The hypothetical did not import the crucial element of Mr. Vey’s lack of intention and what that would mean in terms of whether there was an agreement.

The problem with the hypothetical was compounded when the jury asked the following question in relation to it: “Could the Judge repeat his last remarks to us when we were called back after conferring with the lawyers at the end of the trial regarding the details being discussed in relation to an agreement re: supper plans (hypothetical)” (Question #1). [ 71 ] To answer this question, the trial judge proposed replaying what he had told them. While counsel for Ms. Nicholson agreed with this approach, Mr. Fox, counsel for Mr. Vey, did not.

He requested that the trial judge give some explanation or details as to how to apply his instruction, but the trial judge declined, unless the jury had further questions: MR. FOX: Thank you, My Lord. The only comment I have on -- on just playing back, obviously, they’ve heard it once and -- and didn’t seem to pick up the -- the point. And I’m wondering -- certainly I have no problem with playing it back again.

But it -- it might be helpful to -- to really apply it to what’s being alleged here, and -- and simply make the point that you can look at the details that were discussed here, and you can decide whether that leads you to a conclusion that there was an agreement or there wasn’t. And -- because it -- again, I think I -- the only concern I have with just playing it back is that you -- they -- they didn’t seem to pick it up the first time. And I’m not sure you just playing it back without some explanation of what you were trying to get at there.

And so I -- I’d be inclined -- if -- if you just want to stick with the hypothetical, to -- to simply sum it up maybe by after playing it back. And I can’t remember exactly what was said, but to simply say: So the flip-side of my hypothetical is you may have worked out all of the details of what we were going to do for supper, but there’s no agreement until we actually agree we’re going to go to supper. And you maybe want to wrap it up with that. So I -- I -- as I said, I can’t remember exactly how you did wrap it up at the end, but I think that’s the important point that -- that comes out of that direction.

THE COURT: Well, I think what I prefer to do is play it back, and then if they do have a further question about it -- MR. FOX: Yeah. THE COURT: -- then -- MR. FOX: Or even after you’ve played it back, My Lord, and you’ve heard it again, you know, you may, yourself -- and I encourage you to, sort of, assess: Okay, should I be adding something more to clarify it because -- THE COURT: Okay. MR. FOX: -- as I said, I can’t remember exactly how it was concluded. And it’s that concluding part that I think is most important.

THE COURT: Okay. (At T586.) The trial judge then played back what he had said earlier, but did not elaborate on it. [ 72 ] In my respectful view, the trial judge’s response to Question #1 reinforced the scenario of the hypothetical, and may have given the impression that the defence, of no genuine intention, was incidental to the verbal agreement to commit murder and not a valid aspect of the appellants’ defence. That is to say, Mr.

Vey verbally seemed to agree with carrying out the unlawful act of murder and the jury may have believed that a feigned, verbal agreement (if it were that) was all that was required for him to be found guilty of conspiracy with Ms. Nicholson. [ 73 ] I acknowledge that the trial judge, when he was reviewing the evidence and the questions the jury should consider when deciding Mr. Vey’s guilt, instructed the jury as follows (and I repeat): [159] When Mr. Vey returned to his cell, after the interview with Sgt. Kalmakoff, he let down his guard somewhat and said a number of things.

Throughout he appears to maintain the position that he had no intention to actually agree to proceed with either murder – although it is evident that he discussed it. Was he serious about actually entering into an agreement with Angela Nicholson to commit murder? Was he just trying to get back at his family by saying outlandish things? Was it a mere discussion with no actual intent to form an agreement? That is for you to decide. Further, the trial judge did review the submissions of Mr. Fox with respect to Mr. Vey’s knowledge about being taped: [176] Mr. Fox argues that Mr.

Vey was aware that he was being recorded on July 1 st . Mr. Fox points to the fact that at the outset of his discussion with the undercover police officer placed in his cell, he told the officer that he was going to give them something to talk about, namely the affair and the fake murder plot. Mr. Fox points to words of Mr. Vey that he did not expect them to go to the police and that this ploy backfired. … [179] Finally, Mr.

Fox reminds you that the onus in on the Crown to prove beyond a reasonable doubt that there was an actual agreement to take the lives of Jim Taylor and Brigitte Vey and that both parties intended to do that. There is no onus on the accused to prove their innocence or to offer an explanation. Although the conduct that day was offensive, the making of the statements, knowing that they were taped, was stupid. [2]

[74] In my respectful view, however, paragraph 159 of the Jury Charge does not differentiate the two defences – one of discussion,but of no agreement, and the other of no genuine intention to agree – and appears to equate the two. Similarly, paragraphs 176 and 179do not capture the point that Mr. Fox was making, which was that, if the jury were satisfied Mr. Vey knew he was being recorded andwas only pretending to agree, he would have to be acquitted. Further, paragraphs 159, 176 and 179 also did not convey to the jury that, ifthey found Mr.

Vey did not intend to agree or did not intend to carry out the common purpose, there could be no agreement. This hadimplications for both Mr. Vey and Ms. Nicholson. [75] The trial judge’s charge in paragraphs 107, 108, 110, 115 and 116 are also problematic when considering the appellants’assertion of no genuine agreement. For example, the trial judge states, “Once the agreement is made, the offence is committed” (at 107)and “the crime of conspiracy is complete when members of the conspiracy agree to commit the crime of murder” (at para 115). The issuewas not only whether there was an agreement.

Words of seeming to agree were spoken, but the issue was whether both parties intendedto agree to the common unlawful purpose of committing murder. As Stuart states, “It is trite law that the offence is complete as soon asthere has been agreement with the necessary mens rea” (emphasis added, at 716). The last part of that sentence is important.

With thephrase, “Once the agreement is made, the offence is committed”, it is not clear that the jury would have understood the burden on theCrown to prove the necessary intention. [76] In paragraph 110, the trial judge instructs the jury that there is a distinction between an intention to agree and an agreement.That part of paragraph 110 is correct, as far as it goes.

But, he instructs the jury that an agreement must be found, not an intention toagree – in that, the Crown must show the “accused persons intended to adhere to the agreement in the sense of having the intention toput the common design into effect” (emphasis added, at para 110). In light of what has already been said, this is a confusing sentence. Itleaves open the possibility that the jury need only find one intention: either an intention to agree or an intention to put the commondesign into effect, and not both.

It also conveys the idea that a jury is required to find agreement and then is required to consider whetherthe parties intended to carry out the common purpose. [77] At paragraph 115, the trial judge goes on to instruct the jury on the knowledge component and how the Crown must showMs. Nicholson and Mr. Vey “actually agreed and intended to agree to achieve the common unlawful purpose” (at para 116). He does notinstruct the jury it must find Ms. Nicholson and Mr. Vey intended to agree and intended to achieve the common purpose.

Both elementsmust be proven beyond a reasonable doubt. [78] On its own, and in another charge where there was no defence of pretending to agree, the way the trial judge had expressedthe mental element in these paragraphs may not amount to reversible error; but here, both intentions were critical to the appellants’defence.

Yet, when the trial judge instructed the jury on what they must find, he limited the mental element to the intention to carry outthe unlawful purpose – as something standing outside of the agreement (and I repeat): [122] In order for you to find Angela Nicholson guilty of conspiring to murder Jim Taylor the Crown must prove beyond a reasonabledoubt, on the evidence admissible against Angela Nicholson, that:

a) There was a completed agreement between Angela Nicholson and Curtis Vey;

b) That the agreement was to commit the murder of Jim Taylor; and

c) That Angela Nicholson and Curtis Vey intended to put the unlawful agreement (i.e., the murder of Jim Taylor) into effect. [79] Question #2 also demonstrated the jury’s confusion about what the Crown had to prove by way of the mental elements:“Elaborate on paragraph 110, page 25 of the charge, which discusses the distinction between an intention and an agreement”. [80] In response to this question, the trial judge instructed the jury: THE COURT: … So the second question that you’ve asked is: (as read) “Elaborate on paragraph 110, page 25 of the charge, which discusses the distinction between an intention and an agreement”.

Now, the first thing I’d like to point out is that in paragraph 110, I don’t talk about the difference between an intention and an agreement.If you see what I have there, it says: (as read) “However, there is a distinction in law between an intention to agree on the one hand, and an agreement on the other hand”. So the distinction between an intention to -- to agree on the one hand and an agreement on the other is as follows: the difference betweenthe two is that an agreement is complete, the deal has been made.

An intention to agree means that although you have come to theconclusion in your own mind that you intend to agree, you have not actually made the agreement with the other person. (At T593.) [81] In this response, the trial judge stated that he was not talking in paragraph 110 “about the difference between an intention andan agreement”. Instead, what he was talking about was the distinction between an intention to agree and an agreement.

By doing so, thetrial judge demonstrated paragraph 110 did not relate to the issue of intention to put the common design into effect, but was meant toaddress intention to agree only. But this then seems to confirm the problem with paragraph 110, which is whether the Crown must provean intention to agree and an intention to carry out the common purpose. [82] The Supreme Court has often written about the dangers associated with answering a jury’s response in a limited way.

Forexample, in R v Brydon, (SCC), [1995] 4 SCR 253, the Supreme Court noted the following: [16] This Court has on a number of occasions highlighted the importance of answering jury queries in a careful, complete and correctmanner: see R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v. Naglik, (SCC), [1993] 3 S.C.R. 122; R. v.

Pétel, (SCC), [1994] 1 S.C.R. 3; and R. v. S.(W.D.), (SCC), [1994] 3 S.C.R. 521. In Naglik, I held,writing for the majority, at p. 139: Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge.

Ifthe jury asks a question about an issue addressed in the main charge, it is clear that they did not understand or remember that part of themain charge, and it is also clear that they must exclusively rely on the answer given by the trial judge to resolve any confusion or debateon the point which may have taken place in the jury room during their deliberations up to that point. In this case, the jury had the written charge with them in the jury room.

They could read paragraph 110 and they were struggling with it.They were struggling with how to determine the mental elements of the charge of conspiracy. [83] The critical point, however, is whether the jury understood the effect of finding Mr. Vey had only pretended to agree, if theydid so find. [84] In short, if the jury found that Mr.

Vey was only pretending to agree or pretending to have a conversation about murder so asto somehow agitate or inflame relations with his family, or if they had a reasonable doubt about whether he intended to put the commonpurpose into effect, the jury would have had to find him not guilty because he lacked the necessary mens rea. If the jury reached thatconclusion, then they would have been required to find Ms.

Nicholson not guilty because there would be no actus reus or agreementbecause there would have been no true meeting of the minds. [85] In my respectful view, the trial judge did not adequately charge the jury with respect to the appellants’ defence regarding agenuine intention to carry out the common purpose. This ground of appeal merits a new trial. B. Issue #2: Did the trial judge properly explain the relationship betweenproof by circumstantial evidence and the requirement of proof beyond reasonabledoubt? 1.

The Jury Charge as it relates to the drawing of inferences [86] The appellants argue that the trial judge erred in his instruction to the jury regarding how inferences can be drawn from theevidence. They assert that the explanations left the jury with the impression that, because Ms. Nicholson and Mr. Vey had discussedkilling their spouses, the jury was then required to draw the i

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