R. v. Cadeddu (J.) et al., (2013) 313 O.A.C. 170 (CA)

• Judge: Laskin, Gillese and Strathy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 18, 2013
• Jurisdiction: Ontario
• Citations: (2013), 313 O.A.C. 170 (CA);2013 ONCA 729

R. v. Cadeddu (J.) (2013), 313 O.A.C. 170 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. DE.005

Her Majesty the Queen (respondent) v. John Cadeddu and Douglas Seaton (appellants)

(C55147; C54351; 2013 ONCA 729)

Indexed As: R. v. Cadeddu (J.) et al.

Ontario Court of Appeal

Laskin, Gillese and Strathy, JJ.A.

December 4, 2013.

Summary:

The 75 year old victim was severely beaten with a baseball bat while he was in bed in his home, which was then robbed. Cadeddu and Seaton were convicted of break and enter, aggravated assault, theft and using stolen credit cards. Both were sentenced to eight years' imprisonment. Cadeddu appealed from the convictions and Seaton sought leave to appeal from the sentence.

The Ontario Court of Appeal allowed Cadeddu's conviction appeal, ordering a new trial. The court granted Seaton leave to appeal from his sentence and dismissed the appeal.

Criminal Law - Topic 2754

Attempts, conspiracies, accessories and parties - Parties to offences - Offence resulting from acting on common intention to carry out unlawful purpose - Cadeddu and Seaton faced a number of charges after the victim was severely beaten in his home and robbed - At trial, they admitted driving together to the victim's house, but each denied responsibility and blamed the other - Both were convicted of, inter alia, aggravated assault - Cadeddu appealed, asserting that the trial judge gave a flawed and incomplete instruction on liability as a participant in a common unlawful purpose under s. 21(2) of the Criminal Code - The Ontario Court of Appeal allowed the appeal, ordering a new trial - The instruction did little more than paraphrase s. 21(2) - A proper instruction under s. 21(2) required an explanation of the three elements of that mode of liability (agreement, offence and knowledge) and related the evidence to those elements - The instruction here did neither - This made it incomplete and misleading - It was incomplete because it did not explain the elements of this form of liability or the evidence to be considered in relation to each element - It was misleading because it did not explain that the offence committed had to be different from the original common unlawful purpose - See paragraph 35.

Criminal Law - Topic 2754

Attempts, conspiracies, accessories and parties - Parties to offences - Offence resulting from acting on common intention to carry out unlawful purpose - The Ontario Court of Appeal discussed the principles of party liability under s. 21(2) of the Criminal Code, noting that the scope of s. 21(2) was broader than that of s. 21(1) - Section 21(2) extended liability to those who would not be found responsible as aiders or abettors and it extended responsibility for offences other than the offence in which they had participated, if they had the requisite degree of foresight in respect of the commission of the offence charged - The foundational element of s. 21(2) was an agreement between a principal and a party (or parties) to carry out an unlawful purpose - The unlawful purpose had to be shared by all parties and had to be different from the offence ultimately committed - The jury had to be satisfied that the accused and the other participants agreed to carry out a common unlawful purpose - Under s. 21(2), the offence committed had to be different from the offence intended by the parties, though it could be closely related - For liability to be found under s. 21(2), the jury had to find that the offence committed was one that the members of the original agreement did not intend to commit but one that took place in course of carrying out the original agreement - Finally, a person would be liable under s. 21(2) if he or she knew or ought to have known that the offence committed by the principal was a probable consequence of the unlawful agreement - The jury had to be instructed as to how the required knowledge could be established - See paragraphs 50 to 62.

Criminal Law - Topic 2754

Attempts, conspiracies, accessories and parties - Parties to offences - Offence resulting from acting on common intention to carry out unlawful purpose - Cadeddu and Seaton faced a number of charges after the victim was severely beaten in his home and robbed - At trial, they admitted driving together to the victim's house, but each denied responsibility and blamed the other - Both were convicted of, inter alia, aggravated assault - Cadeddu appealed, asserting that the trial judge gave a flawed and incomplete instruction on liability as a participant in a common unlawful purpose under s. 21(2) of the Criminal Code - The Ontario Court of Appeal allowed the appeal, ordering a new trial - Where there was an air of reality to liability under s. 21(2), the trial judge was required to explain the three elements of that basis of liability and what the Crown had to prove in relation to each element - The trial judge also had to review the evidence that the jury could consider in relation to the elements in determining whether that route to liability was established - Here, the trial judge failed to (1) describe the original unlawful purpose (break and enter); (2) explain that for Cadeddu to be guilty under s. 21(2), Seaton had to commit a different offence (aggravated assault); and (3) explain that Cadeddu had to have the required knowledge or foresight concerning the assault - Nor had the trial judge related the evidence to the offence's elements or explained what finding the jury had to make before liability could arise - The deficiency was amplified because it was repeated in response to the jury's question - Defence counsel's failure to object to the instruction did not, here, preclude an appeal on the misdirection - See paragraphs 63 to 72.

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - [See all Criminal Law - Topic 2754 ].

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See first and third Criminal Law - Topic 2754 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See third Criminal Law - Topic 2754 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See third Criminal Law - Topic 2754 and Criminal Law - Topic 5041 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - Cadeddu and Seaton faced a number of charges after the victim was severely beaten in his home and robbed - At trial, they admitted driving together to the victim's house, but each denied responsibility and blamed the other - Both were convicted of, inter alia, aggravated assault - Cadeddu appealed, asserting that the trial judge gave a flawed and incomplete instruction on liability as a participant in a common unlawful purpose under s. 21(2) of the Criminal Code - The Ontario Court of Appeal agreed that the instruction was flawed and incomplete - The curative proviso in s. 686(1)(b)(iii) did not apply as the court was unable to find that a properly instructed jury would necessarily have arrived at the same verdict - The evidence was not so overwhelming that the jury would necessarily have convicted Cadeddu if there had been a proper instruction - The appeal was allowed and a new trial was ordered - See paragraphs 73 to 86.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - [See Criminal Law - Topic 5849.23 ].

Criminal Law - Topic 5849.23

Sentencing - Considerations on imposing sentence - Home invasion - The 75 year old victim was severely beaten with a baseball bat while he was in bed in his home, which was then robbed - Seaton and one other were convicted of break and enter, aggravated assault, theft and using stolen credit cards - Both were sentenced to eight years' imprisonment - Seaton sought leave to appeal from the sentence - The Ontario Court of Appeal granted leave to appeal and dismissed the appeal - The trial judge concluded that, for a number of reasons, but particularly that the assault was a home invasion involving an elderly victim, a sentence of eight years was appropriate - There was no error in principle - The sentence was well within the range of sentences for home invasions in which serious harm was inflicted - The trial judge's conclusion that Seaton and the other accused were equally culpable was open to her - While the other accused's more serious criminal antecedents might have warranted a departure from the parity principle and a longer sentence for him, Seaton's sentence was not unfit - See paragraphs 87 to 92.

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 5849.23 ].

Criminal Law - Topic 5854

Sentence - Theft - [See Criminal Law - Topic 5849.23 ].

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - [See Criminal Law - Topic 5849.23 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5849.23 ].

Cases Noticed:

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 41, footnote 3].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 50].

R. v. Simon (A.D.) (2010), 269 O.A.C. 359; 104 O.R.(3d) 340; 2010 ONCA 754, leave to appeal denied (2011), 422 N.R. 399 (S.C.C.) refd to. [para. 51].

R. v. Ferrari (P.) (2012), 295 O.A.C. 9; 287 C.C.C.(3d) 503; 2012 ONCA 399, refd to. [para. 52].

R. v. Jackson and Davy (1991), 51 O.A.C. 92; 68 C.C.C.(3d) 385 (C.A.), refd to. [para. 52].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 54].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 57].

R. v. Vang (L.T.) and Chanthaboury (P.) (1999), 118 O.A.C. 75 (C.A.), leave to appeal refused (1999), 247 N.R. 200 (S.C.C.), refd to. [para. 57].

R. v. McDonald (D.) et al. (2013), 306 O.A.C. 250; 2013 ONCA 442, refd to. [para. 59].

R. v. Wood et al. (1989), 33 O.A.C. 260 (C.A.), leave to appeal refused (1990), 115 N.R. 319 (S.C.C.), refd to. [para. 59].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 63].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 63].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 63].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 67].

R. v. Quinn (L.M.), [2009] O.A.C. Uned. 559; 2009 ONCA 817, refd to. [para. 69].

R. v. King, Gallipeau and Jariett (1975), 18 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 70].

R. v. Roy (R.L.), [2012] 2 S.C.R. 60; 430 N.R. 201; 321 B.C.A.C. 112; 547 W.A.C. 112; 2012 SCC 26, refd to. [para. 73].

R. v. Sarrazin (R.) et al., [2011] 3 S.C.R. 505; 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 73].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 74].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 75].

R. v. W.W. (2006), 218 O.A.C. 215; 83 O.R.(3d) 427 (C.A.), refd to. [para. 90].

R. v. Wright - see R. v. W.W.

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 91].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(2) [para. 28].

Authors and Works Noticed:

Watt, David, Watt's Manual of Criminal Jury Instructions (2005), pp. 247 [para. 65, footnote 5]; 248 [paras. 41, 65]; 258 [para. 61].

Counsel:

Joshua D. Frost, for the appellant, John Cadeddu;

Frances S. Brennan, for the appellant, Douglas Seaton;

Shawn Porter, for the respondent.

These appeals were heard on July 18, 2013, by Laskin, Gillese and Strathy, JJ.A., of the Ontario Court of Appeal. On December 4, 2013, Strathy, J.A., delivered the following judgment for the court.