Indexed As: R. v. J.F. Supreme Court of Canada McLachlin, C.J.C., LeBel, Fish, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ. March 1, 2013.

Transcription

1 J.F. (appellant) v. Her Majesty The Queen (respondent) and British Columbia Civil Liberties Association (intervenor) (34284; 2013 SCC 12; 2013 CSC 12) Indexed As: R. v. J.F. Supreme Court of Canada McLachlin, C.J.C., LeBel, Fish, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ. March 1, Summary: The accused youth was convicted by a judge and jury of conspiracy to commit murder and was sentenced to an 18 month custody and supervision order. The youth appealed both conviction and sentence. The youth submitted that the trial judge erred (1) in leaving liability as a party (Criminal Code, s. 21(1)) with the jury; (2) in admitting hearsay evidence under the co- conspirator's exception to the hearsay rule (and misdirected the jury on the application of that exception); (3) in admitting evidence of the youth's bad character; (4) in admitting the youth's police interview or failing to edit that interview; (5) in misdirecting the jury respecting the use of the youth's denial of guilt in the interview; (6) in failing to adequately state the position of the defence; and (7) in failing to give a Vetrovec warning respecting two Crown witnesses. The sentence appeal submitted that the trial judge erred in finding that the youth committed a violence offence under s. 39(1)(a) of the Youth Criminal Justice Act and in identifying a lack of remorse as an aggravating factor. The Ontario Court of Appeal, in a judgment reported (2011), 276 O.A.C. 292, dismissed the conviction appeal, but allowed the sentence appeal, reducing the sentence to eight months' custody followed by four months' conditional supervision. The youth appealed his conviction with leave. The primary issue was whether a person could be found liable as a party to the offence of conspiracy and, if so, under what circumstances. The Supreme Court of Canada dismissed the appeal. Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise. Criminal Law - Topic 2751 Attempts, conspiracies, accessories and parties - Parties to offences - Party to conspiracy - The Supreme Court of Canada stated that "the aiding and abetting of a conspiracy is an offence known to Canadian law. The offence is made out where the accused aids or abets the actus reus of conspiracy, namely the act of agreeing. It follows that the approach adopted in Trieu [R. v. Trieu (B.) (2008), 429 A.R. 200; 421 W.A.C. 200 (C.A.)] is the only basis upon which party liability for the offence of conspiracy may be found. The McNamara [R. v. Canadian Dredge & Dock Co. et al. (1981), 56 C.C.C.(2d) 193 (Ont. C.A.)] approach is rejected. I caution, however, that the behaviour captured in McNamara may well support a charge of conspiracy. As

2 indicated, where a person with knowledge of a conspiracy does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence of his membership in the conspiracy.... Party liability to a conspiracy is limited to cases where the accused encourages or assists in the initial formation of the agreement, or where he encourages or assists new members to join a pre-existing agreement" - See paragraphs 72 to 74. Criminal Law - Topic 2751 Attempts, conspiracies, accessories and parties - Parties to offences - Party to conspiracy - The accused dated one of two sisters who planned to murder their alcoholic mother by drowning her in the bathtub, which they subsequently did and were convicted for - A jury convicted the accused of conspiracy to commit murder - The Crown's main theory was that the accused was a principal to the conspiracy because the evidence, including MSN chats, showed that he knew of the plan, suggested ideas as to how to carry out the murder (render her unconscious with alcohol and Tylenol 3's) and how to cover up the murder, and that he assisted in creating an alibi for the sisters - An alternate theory was that the accused was liable under s. 21(1) of the Criminal Code as a party to the offence of conspiracy to commit murder - The trial judge instructed the jury on liability as a principal and as a party - The Supreme Court of Canada dismissed the accused's conviction appeal - The court agreed with the accused that party liability should not have been left with the jury, because there was no evidence that the accused aided or abetted "the formation of the agreement to murder" the mother and no evidence that he encouraged or aided a new member to join the existing conspiracy - However, the court was satisfied that the error, although significant, warranted application of s. 686(1)(b)(iii) to dismiss the appeal because the error "could not possibly have affected the verdict" - The evidence implicating the accused as a member of the conspiracy was "overwhelming" - The court noted that "the decision on the part of the Crown to charge the appellant with conspiracy to commit murder very much softened the blow that could otherwise have befallen him. The assistance he provided to [the sisters] in facilitating the murder, which they eventually committed, could well have led to a charge of first degree murder against him" - See paragraphs 1 to 66. Criminal Law - Topic 4853 Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Evidence - Topic 1527]. Criminal Law - Topic 5045 Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See second Criminal Law - Topic 2751]. Evidence - Topic 507 Presentation of evidence - Failure to object - Effect of - [See Evidence - Topic 1527].

3 Evidence - Topic 1527 Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Two sisters, R and T, were convicted of the murder of their mother - The accused was convicted of conspiracy to commit murder - R testified at the accused's trial - T did not - Evidence of the accused's involvement included what T said to R - The accused did not object - The accused argued that although the evidence was presumptively admissible under the co-conspirator's exception, the evidence was inadmissible because it was not shown to be necessary and reliable, particularly where T was available to testify but did not - The Ontario Court of Appeal rejected the submission - First, the reliability of the evidence was apparent from the circumstances - Further, "since no objection was taken to the admissibility of T's declarations on the basis of necessity, the record on that issue was not fully developed. What is known, however, is that T had not testified at her own trial and had refused to speak to Crown counsel. In these circumstances, particularly in the absence of an objection at trial, in my view, it is not open to the [accused] to raise the issue of necessity for the first time on appeal." - The Supreme Court of Canada agreed, stating that "defence counsel at trial did not raise this issue with the trial judge. Had he done so, the Crown may have chosen to call T as a witness. In the circumstances, defence counsel's decision not to raise the matter could well have been a tactical choice - and as no issue is taken with the competence of trial counsel, I see no need to address this ground further." - See paragraph 68. Cases Noticed: R. v. O'Brien, [1954] S.C.R. 666, refd to. [para. 17]. R. v. Trieu (B.) (2008), 429 A.R. 200; 421 W.A.C. 200; 2008 ABCA 143, agreed with [para. 18]. R. v. Bérubé et al. (1999), 139 C.C.C.(3d) 304 (Que. C.A.), leave to appeal refused [2000] 1 S.C.R. vii; 252 N.R. 394, agreed with [para. 18]. R. v. Canadian Dredge & Dock Co. et al. (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), disagreed with [para. 18]. R. v. McNamara et al. (No. 1) - see R. v. Canadian Dredge & Dock Co. et al. R. v. Vucetic (M.), [1998] O.A.C. Uned. 387; 129 C.C.C.(3d) 178 (C.A.), disagreed with [para. 18]. United States of America v. Lorenz et al. (2007), 243 B.C.A.C. 219; 401 W.A.C. 219; 222 C.C.C.(3d) 16; leave to appeal refused (2008), 384 N.R. 390; 267 B.C.A.C. 322; 450 W.A.C. 322 (S.C.C.), disagreed with [para. 18]. R. v. Déry (J.), [2006] 2 S.C.R. 669; 354 N.R. 335; 2006 SCC 53, dist. [para. 23]. R. v. Lam (T.K.), [2005] A.R. Uned. 878; 2005 ABQB 849, refd to. [para. 29]. R. v. Cotroni; R. v. Papalia, [1979] 2 S.C.R. 256; 26 N.R. 133, refd to. [para. 32]. R. v. Sheppe, [1980] 2 S.C.R. 22; 31 N.R. 437, refd to. [para. 32]. R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 32]. R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 39]. People v. Strauch (1909), 240 Ill. 60, refd to. [para. 41]. R. v. H.A. et al. (2005), 202 O.A.C. 54; 206 C.C.C.(3d) 233 (C.A.), refd to. [para. 51].

4 Paradis v. R., [1934] S.C.R. 165, refd to. [para. 53]. R. v. Genser (1986), 39 Man.R.(2d) 203 (C.A.), affd. [1987] 2 S.C.R. 685; 79 N.R. 351; 50 Man.R.(2d) 128, refd to. [para. 54]. R. v. Taylor (1984), 40 C.R.(3d) 222 (B.C.S.C.), disagreed with [para. 54, footnote 2]. R. v. Hernandez (J.) et al. (2012), 433 N.R. 77; 324 B.C.A.C. 40; 551 W.A.C. 40; 2012 SCC 40, refd to. [para. 58]. R. v. Vu - see R. v. Hernandez (J.) et al. R. v. Bell, [1983] 2 S.C.R. 471; 50 N.R. 172, refd to. [para. 58]. R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 70]. R. v. Naicker (R.N.) et al. (2007), 249 B.C.A.C. 145; 414 W.A.C. 145; 229 C.C.C.(3d) 187 (C.A.), leave to appeal refused [2008] 1 S.C.R. xi; 386 N.R. 399; 271 B.C.A.C. 319; 458 W.A.C. 319, refd to. [para. 71]. R. v. Simpson (C.) (2007), 231 O.A.C. 19; 230 C.C.C.(3d) 542 (C.A.), leave to appeal refused [2008] 2 S.C.R. xi; 387 N.R. 394; 255 O.A.C. 394, refd to. [para. 71]. Authors and Works Noticed: Developments in the Law: Criminal Conspiracy ( ), 72 Harv. L. Rev. 920, pp. 934, 935 [para. 46]. Doherty, David, Conspiracies and Attempts: in National Criminal Law Program, Substantive Criminal Law, vol. 1, Edmonton, Alta., Federal of Law Societies of Canada (1990), pp. 36 [para. 47]; 37 [para. 59]. LaFave, Wayne R., Substantive Criminal Law (2nd Ed. 2003), vol. 2, p. 270 [para. 55]. Manning, Morris, and Sankoff, Peter, Manning Mewett & Sankoff: Criminal Law (4th Ed. 2009), p. 316 [para. 47]. Williams, Cameron R., Complicity in a Conspiracy as an Approach to Conspiratorial Liability ( ), 16 U.C.L.A. L. Rev. 155, p. 162 [para. 60]. Counsel: Ian R. Mang and Shelley M. Kierstead, for the appellant; Alexander Alvaro and Andreea Baiasu, for the respondent; Ryan D.W. Dalziel and Micah B. Rankin, for the intervenor. Solicitors of Record: Mang, Steinberg, Toronto, Ontario, for the appellant; Attorney General of Ontario, Toronto, Ontario, for the respondent; Bull, Housser & Tupper, Vancouver, B.C., for the intervenor. This appeal was heard on October 12, 2012, before McLachlin, C.J.C., LeBel, Fish, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. On March 1, 2013, Moldaver, J., delivered the following judgment in both official languages for the Court. Appeal dismissed.

5 Editor: Steven C. McMinniman/clh