R. v. Salah (G.) et al., (2015) 328 O.A.C. 333 (CA)

• Judge: Rosenberg*, Watt and Strathy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 20, 2015
• Jurisdiction: Ontario
• Citations: (2015), 328 O.A.C. 333 (CA);2015 ONCA 23

R. v. Salah (G.) (2015), 328 O.A.C. 333 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.024

Her Majesty the Queen (respondent) v. Ghassan Salah (appellant)

(C46991)

Her Majesty the Queen (respondent) v. Randy William Parish (appellant)

(C47004)

Her Majesty the Queen (respondent) v. Thomas J. McDowell (appellant)

(C47882; 2015 ONCA 23)

Indexed As: R. v. Salah (G.) et al.

Ontario Court of Appeal

Rosenberg*, Watt and Strathy, JJ.A.

January 20, 2015.

Summary:

C.R. told her friends that Parish was a paedophile. Parish allegedly decided to silence C.R. by setting fire to her home. Parish assembled a team to execute the plan, two to set the fire (McDowell and S.C.) and a third to act as a lookout (Salah). The fire was set. C.R.'s two children died in the fire. C.R. escaped. S.C. pleaded guilty to second degree murder and testified for the Crown in proceedings against Parish, Salah and McDowell. Parish and Salah were convicted of first degree murder and McDowell of second degree murder. All three appealed their convictions and McDowell appealed his 23 year period of parole ineligibility. The accused raised a number of grounds of appeal concerning the admissibility of evidence and the charge to the jury.

The Ontario Court of Appeal dismissed the appeals.

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.

*Rosenberg, J.A., took no part in the reasons for judgment.

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - [See second Criminal Law - Topic 1267 ].

Criminal Law - Topic 1267

Murder - General principles - Murder resulting from act for unlawful object - The Ontario Court of Appeal discussed the elements of unlawful object murder under s. 229(c) of the Criminal Code (i.e., an unlawful object, a dangerous act and knowledge or foresight) - See paragraphs 179 to 191.

Criminal Law - Topic 1267

Murder - General principles - Murder resulting from act for unlawful object - Parish assembled a team, including McDowell, to set fire to C.R.'s house after she told her friends that Parish was a paedophile - C.R.'s two children died in the fire, but C.R. escaped - McDowell was convicted of second degree murder - He appealed, challenging the adequacy of the trial judge's instructions on unlawful object of murder as defined in s. 229(c) of the Criminal Code - The Ontario Court of Appeal reviewed the charge and rejected this ground of appeal - See paragraphs 157 to 211.

Criminal Law - Topic 1306

Murder - Evidence and proof - Affiliation with gang or criminal organization - Parish assembled a team to set fire to C.R.'s house after she told her friends that Parish was a paedophile - C.R.'s two children died in the fire, but C.R. escaped - Parish was convicted of first degree murder - He appealed, arguing that the trial judge erred in admitting evidence relating to his relating to his involvement in gang activity - Parish claimed that since the trial judge concluded that there was no air of reality to the Crown's theory that the murders were committed in connection with a criminal organization, the evidence of his gang activity should have been excluded - The Ontario Court of Appeal dismissed the appel - The gang evidence was admissible because the evidence could have supported first degree murder under s. 231(6.1) of the Criminal Code - Also the evidence was admissible to show the close association between Parish and the co-accused - See paragraphs 48, 61 to 63 and 73 to 76.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Ontario Court of Appeal reviewed the general principles respecting the review of evidence in a jury charge - See paragraphs 146 to 151.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - Parish and Salah were convicted of first degree murder and McDowell of second degree murder - All three appealed, arguing that the trial judge erred in deciding not to conduct an independent, thorough review of the evidence in the jury charge - The Ontario Court of Appeal rejected this ground of appeal - At the conclusion of the case, the jury had a full understanding of the relevant facts as they applied to the legal issues - There was no legal requirement for the judge to repeat the facts a second time when the charge as a whole laid out the relevant factual issues for the jury - This was not a case where the jury was unfamiliar with the defence position on each of the relevant issues - They were set out partially in the trial judge's directions and more thoroughly in his review of the defence theories - A lengthy independent review of all the evidence was not required for the trial judge to meet the requirements set out in the jurisprudence - See paragraphs 140 to 156.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal reviewed the principles respecting a Vetrovec instruction - See paragraphs 110 to 113.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Parish assembled a team to set fire to C.R.'s house after she told her friends that Parish was a paedophile - McDowell and S.C. were to set the fire and Salah was to act as a lookout - C.R.'s two children died in the fire, but C.R. escaped - S.C. pleaded guilty to second degree murder and testified for the Crown against Parish, Salah and McDowell - Parish and Salah were convicted of first degree murder and McDowell of second degree murder - All three appealed, challenging the adequacy of the trial judge's Vetrovec caution regarding S.C.'s evidence - The Ontario Court of Appeal reviewed the charge, holding that the judge's Vetrovec instruction did not reflect reversible legal error - The appeal was dismissed - See paragraphs 91 to 125.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - The Ontario Court of Appeal stated that "As a general rule, limiting instructions are required where prior consistent statements have been admitted to rebut a claim of recent fabrication. These instructions explain to the jury that consistency is not the same as accuracy and that the prior statement can only be used to rebut the allegation of recent fabrication, not to support the fact at issue or the general reliability of the witness ... However, the rule that generally requires limiting instructions is not unyielding. Exceptions exist, including in cases in which the defence relies on the prior statement ..." - See paragraph 136.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - Parish assembled a team to set fire to C.R.'s house after she told her friends that Parish was a paedophile - McDowell and S.C. were to set the fire and Salah was to act as a lookout - C.R.'s two children died in the fire, but C.R. escaped - S.C. pleaded guilty to second degree murder and testified for the Crown against Parish - Parish was convicted of first degree murder - He appealed, taking issue with the trial judge's instruction regarding a prior consistent statement to police by S.C. - The Ontario Court of Appeal dismissed the appeal - The defence wanted the statement admitted - The trial judge properly instructed the jury that the prior consistent statement was not being admitted to bolster credibility but to meet the suggestion of recent fabrication - See paragraphs 126 to 139.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - Parish assembled a team to set fire to C.R.'s house after she told her friends that he was a paedophile because he sexually assaulted a 10 year old boy (R.P.) - C.R.'s two children died in the fire, but C.R. escaped - Parish was convicted of first degree murder - He appealed, challenging the trial judge's jury charge regarding the use of bad character evidence as it related to Parish's alleged sexual assault of R.P., his interest in young men and involvement in gang activity - The Ontario Court of Appeal dismissed the appeal - Although it was unnecessary to give a limiting instruction in this case, the trial judge did so regarding the use of the revenge and gang evidence - See paragraphs 77 to 90.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The Ontario Court of Appeal stated that "Where bad character evidence is relevant to motive the trial judge is not required to provide a limiting instruction to the jury warning them against the improper use of this evidence ..." - See paragraph 88.

Criminal Law - Topic 4399.9

Procedure - Jury charge - Directions re flight and other post-offence behaviour of accused - Parish assembled a team, including Salah, to set fire to C.R.'s house after she told her friends that Parish was a paedophile - C.R.'s two children died in the fire, but C.R. escaped - Parish and Salah were convicted of first degree murder - They appealed, complaining about the trial judge's jury instructions respecting post-offence conduct - The principal source of the post-offence conduct evidence was from Salah's girlfriend, who testified about what the accused did and said after they learned that C.R.'s two children had been killed in the fire and not their intended target, C.R. - The Ontario Court of Appeal, after reviewing the applicable principles and the post-offence conduct evidence, declined to give effect to this ground of appeal - See paragraphs 212 to 243.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See first and second Criminal Law - Topic 5494 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - The Ontario Court of Appeal reviewed the principles respecting admissibility of evidence of post-offence conduct - See paragraphs 223 to 232.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See both Criminal Law - Topic 4379 ].

Criminal Law - Topic 5450

Evidence and witnesses - Testimony respecting the accused - Character of the accused - Jury charge - [See both Criminal Law - Topic 4379 ].

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - Parish assembled a team to set fire to C.R.'s house after she told her friends that Parish was a paedophile because he sexually assaulted a 10 year old boy (R.P.) - C.R.'s two children died in the fire, but C.R. escaped - Parish was convicted of first degree murder - He appealed, arguing that the trial judge erred in admitting evidence relating to his sexual assault of R.P. (i.e., whether R.P.'s testimony that the sexual assault did in fact take place was necessary) - The Ontario Court of Appeal dismissed the appeal - The evidence was central to understanding the case - It was for the trial judge to measure the probative value of the evidence against its prejudicial effect - It was open to him to find the evidence of the sexual assault relevant and necessary for the jury to understand the issues in the case, especially the scope of the motive allegation - See paragraphs 45 to 46, 49 to 55 and 67 to 69.

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - Parish assembled a team to set fire to C.R.'s house after she told her friends that he was a paedophile - C.R.'s two children died in the fire, but C.R. escaped - Parish was convicted of first degree murder - He appealed, arguing that the trial judge erred in admitting evidence relating to his interest in young men - The Ontario Court of Appeal dismissed the appeal - This evidence from the young men was admissible to establish Parish's involvement in planning the fire and to show motive - It was capable of supporting the inference that he was not simply interested in scaring C.R., but wanted to eliminate her from his life so he could pursue his lifestyle, which centred around his involvement with young men - The photographs of young men later found in Parish's possession fell into the same category - See paragraphs 47, 56 to 60 and 70 to 72.

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - The Ontario Court of Appeal reviewed the general principles relating to evidence of motive - See paragraphs 64 to 66.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The Ontario Court of Appeal reviewed the principles applicable in determining parole ineligibility - See paragraphs 265 to 274.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - McDowell was convicted of second degree murder for his role in setting fire to a house resulting in the deaths of two children - He appealed the 23 year period of parole ineligibility imposed on him - The Ontario Court of Appeal dismissed the appeal after considering the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence and the jury's recommendation about parole ineligibility - McDowell was 26 at the time - First offender - Unremorseful - Jury recommendation was 25 years of ineligibility - While the trial judge overemphasized the jury's recommendation, the court was not persuaded that the period set by the trial judge reflected legal error - See paragraphs 244 to 290.

Cases Noticed:

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 51].

R. v. Stubbs (S.) (2013), 309 O.A.C. 114; 300 C.C.C.(3d) 181; 2013 ONCA 514, refd to. [para. 55].

R. v. Candir (E.) (2009), 257 O.A.C. 119; 250 C.C.C.(3d) 139; 2009 ONCA 915, refd to. [para. 65].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 65].

R. v. Malone (1984), 2 O.A.C. 321; 11 C.C.C.(3d) 34 (C.A.), leave to appeal refused (1984), 55 N.R. 160; 3 O.A.C. 319 (S.C.C.), refd to. [para. 66].

R. v. Walker (J.P.) (1994), 70 O.A.C. 148; 90 C.C.C.(3d) 144 (C.A.), refd to. [para. 69].

R. v. Gratton; R. v. Weaver (1995), 101 C.C.C.(3d) 479 (Ont. C.A.), refd to. [para. 69].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 46 O.R.(3d) 161 (C.A.), leave to appeal refused (2000), 263 N.R. 391; 141 O.A.C. 398 (S.C.C.), refd to. [para. 69].

R. v. Jackson (1980), 57 C.C.C.(2d) 154 (Ont. C.A.), refd to. [para. 83].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 83].

R. v. Holtam (D.J.) (2002), 168 B.C.A.C. 278; 275 W.A.C. 278; 165 C.C.C.(3d) 502; 2002 BCCA 339, leave to appeal refused (2003), 317 N.R. 397; 201 B.C.A.C. 320; 328 W.A.C. 320 (S.C.C.), refd to. [para. 86].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 98].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 98].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2005), 336 N.R. 195; 204 O.A.C. 395 (S.C.C.), refd to. [para. 98].

R. v. Perciballi (P.) et al. (2001), 146 O.A.C. 1; 154 C.C.C.(3d) 481 (C.A.), affd. [2002] 2 S.C.R. 761; 289 N.R. 376; 161 O.A.C. 201; 2002 SCC 51, refd to. [para. 102].

R. v. Winmill (T.E.) (1999), 116 O.A.C. 201; 131 C.C.C.(3d) 380 (C.A.), refd to. [para. 106].

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. 106].

R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23; 211 C.C.C.(3d) 199 (C.A.), refd to. [para. 107].

R. v. Rojas (M.A.) et al., [2008] 3 S.C.R. 111; 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258; 2008 SCC 56, refd to. [para. 109].

R. v. James (W.A.) et al., [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 110].

R. v. Smith (N.W.) - see R. v. James (W.A.) et al.

R. v. Kehler (R.A.), [2004] 1 S.C.R 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 111].

R. v. Kostyk (F.) (2014), 321 O.A.C. 256; 312 C.C.C.(3d) 101; 2014 ONCA 447, refd to. [para. 111].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 112].

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R. v. Saleh (F.) (2013), 314 O.A.C. 60; 303 C.C.C.(3d) 431; 2013 ONCA 742, refd to. [para. 144].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 146].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 151].

R. v. Roks (A.) (2011), 281 O.A.C. 235; 274 C.C.C.(3d) 1; 2011 ONCA 526, refd to. [para. 180].

R. v. Shand (J.E.) (2011), 273 O.A.C. 199; 266 C.C.C.(3d) 137; 2011 ONCA 5, leave to appeal refused (2012), 432 N.R. 391; 295 O.A.C. 398 (S.C.C.), refd to. [para. 181].

R. v. Vasil, [1981] 1 S.C.R. 469; 35 N.R. 451, refd to. [para. 183].

R. v. Meiler (M.) (1999), 120 O.A.C. 227; 136 C.C.C.(3d) 11 (C.A.), refd to. [para. 183].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 190].

R. v. Edelenbos (2004), 187 C.C.C.(3d) 465 (Ont. C.A.), refd to. [para. 190].

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. 207].

R. v. Hall (C.) (2010), 269 O.A.C. 199; 263 C.C.C.(3d) 5 (C.A.), leave to appeal refused (2011), 423 N.R. 393; 287 O.A.C. 397 (S.C.C.), refd to. [para. 219].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 223].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 223].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51; 2008 ONCA 106, refd to. [para. 223].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 223].

R. v. Stiers (K.) (2010), 264 O.A.C. 305; 255 C.C.C.(3d) 99; 2010 ONCA 382, leave to appeal refused (2011), 426 N.R. 384; 288 O.A.C. 400 (S.C.C.), refd to. [para. 226].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 68 C.R.(6th) 86; 2009 ONCA 543, refd to. [para. 226].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 228].

R. v. Angelis (D.) (2013), 300 O.A.C. 367; 296 C.C.C.(3d) 143; 2013 ONCA 70, refd to. [para. 228].

R. v. Pelletier (M.T.) (2004), 196 B.C.A.C. 247; 322 W.A.C. 247; 186 C.C.C.(3d) 1; 2004 BCCA 264, refd to. [para. 266].

R. v. Wise (M.) et al., [2003] N.R. Uned. 11; 2003 SCC 2, refd to. [para. 266].

R. v. Pelletier (M.T.) - see R. v. Wise (M.) et al.

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 135 C.C.C.(3d) 41 (C.A.), refd to. [para. 266].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 267].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 267].

R. v. Ramage (R.) (2010), 265 O.A.C. 158; 257 C.C.C.(3d) 261; 2010 ONCA 488, refd to. [para. 267].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 280].

Authors and Works Noticed:

Wigmore on Evidence (1983), vol. 1A, pp. 1138 to 1142, § 43 [paras. 64, 224, 225].

Counsel:

Philip Campbell and Howard L. Krongold, for the appellant, Ghassan Salah;

Michael W. Lacy, for the appellant, Randy William Parish;

Michael Davies and Tyler Botten, for the appellant, Thomas J. McDowell;

David Finley and Greg Skerkowski, for the respondent.

This appeal was heard on May 6 and 7, 2014, before Rosenberg, Watt and Strathy, JJ., of the Ontario Court of Appeal. The following decision was delivered for the court by Watt, J.A., on January 20, 2015. Rosenberg, J.A., took no part in the reasons for judgment.