R. v. Simon (A.D.),

• Jurisdiction: Ontario
• Judge: Juriansz, Rouleau and Watt, JJ.A.
• Neutral Citation: 2010 ONCA 754
• Citation: 2010 ONCA 754,(2010), 269 O.A.C. 359 (CA),104 OR (3d) 340,263 CCC (3d) 59,[2010] OJ No 4723 (QL),269 OAC 359,104 O.R. (3d) 340,(2010), 269 OAC 359 (CA),269 O.A.C. 359,[2010] O.J. No 4723 (QL)
• Date: 09 November 2010
• Court: Court of Appeal (Ontario)

R. v. Simon (A.D.) (2010), 269 O.A.C. 359 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. NO.015

Her Majesty The Queen (respondent) v. Allister Derrick Simon (appellant)

(C45935; 2010 ONCA 754)

Indexed As: R. v. Simon (A.D.)

Ontario Court of Appeal

Juriansz, Rouleau and Watt, JJ.A.

November 9, 2010.

Summary:

The accused and Cribb went to a drug dealer to purchase marijuana. Both had handguns. During a struggle, the accused or Cribb shot and killed the drug dealer. Cribb pleaded guilty to manslaughter and testified for the Crown at the accused's trial. A jury convicted the accused of second degree murder. The accused appealed his conviction, submitting that the trial judge erred (1) in instructing the jury that the accused could be guilty of as a party (Criminal Code, s. 21(2)); in instructing the jury on the recklessness component of the fault element in murder (s. 229(a)(ii)); and in failing to provide an R. v. D.W. instruction respecting the evidence of one Crown witness. The accused also alleged that he was improperly excluded from judge's chambers when counsel met with the judge to discuss the final jury instructions.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - Section 650(1) of the Criminal Code entitled an accused to be "present in court during the whole of his ... trial" - During the trial, the trial judge sought to take advantage of the time scheduled for a witness who was unable to attend by having a pre-charge conference to discuss the contents of the jury charge - The accused's lawyer suggested that they discuss the matter in chambers, with the substance of their discussion being put on the record - The judge chose to discuss the matter in open court, in the presence of the accused - During the discussion, the Crown suggested that since the accused had not yet elected to testify, the issue of the jury instruction should be adjourned to chambers to avoid giving the accused a full and complete summary of the law before he choose to testify or not - The trial judge accepted the suggestion - The Ontario Court of Appeal dismissed the accused's appeal on the ground that his s. 650(1) rights were violated - The court found it unnecessary to decide whether the chambers discussion was part of the "trial", as the curative provisions of s. 686(1)(b)(iv) would apply to dismiss the appeal on the grounds of this procedural error - The chambers discussion was a short, preliminary discussion of what to include in the jury charge - No discussion occurred respecting the substance of the instructions - No drafts were prepared - Subsequent discussions occurred later in open court, in the accused's presence - Nothing was decided in chambers about the substance of the final instructions - The court stated that "that these conferences are part of the 'trial' for the purposes of s. 650(1) of the Criminal Code, at least to the extent that they go beyond some preliminary matters, seems inescapable" - The court cautioned that "the courtroom is the place for discussion. On the record. In the presence of the accused" - See paragraphs 93 to 137.

Criminal Law - Topic 1265.2

Murder - General principles - Jury charge - Second degree murder - Section 229(a)(ii) of the Criminal Code made an accused guilty of second degree murder where he meant to cause the victim bodily harm that he knew was likely to cause death and was reckless whether death ensued or not - The victim was shot in the chest from a distance of 1-6 feet - The trial judge correctly instructed the jury on the intention, knowledge and recklessness requirements of s. 229(a)(ii), but subsequently erred in instructing the jury on recklessness in paraphrasing his earlier instruction - The mistake was immediately recognized, acknowledged as such, and corrected - The Ontario Court of Appeal dismissed the accused's second degree murder conviction appeal on the basis of the corrected error in the "recklessness" instruction - The court stated that "recklessness consists of the conduct of a person who sees the risk (of a particular result) and who takes the chance (that the result will not occur) ... But under s. 229(a)(ii), foresight of the danger or risk of death (from the injuries clause) is not sufficient; the accused must foresee the likelihood of death following from the bodily harm inflicted." - The critical elements of the s. 229(a)(ii) fault component were intention and knowledge - "Recklessness" played a subservient role - The instructions respecting intention and knowledge were error-free - The "recklessness" instruction was immediately corrected without objection from defence counsel - The court noted that the case involved a victim being shot in the chest, with a handgun of significant calibre, from a distance of 1-6 feet - The court stated that "nothing more need be said" - See paragraphs 55 to 73.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - [See second Criminal Law - Topic 2754 ].

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 stated that s. 21(2) of the Criminal Code extended liability "to those engaged on one unlawful purpose to incidental or collateral crimes: crimes committed by any participant (in the original purpose) in carrying out the original purpose that the other knew or should have known would likely be committed in pursuing the original purpose. Under s. 21(2), the liability of a party to a common unlawful purpose for an incidental crime committed by another participant requires proof of the party's participation in the original unlawful purpose, the commission of the incidental crime by another participant and the required degree of foresight of the likelihood that the incidental crime will be committed. Consistent with general principle, each of these essential elements, earlier described as 'agreement', 'offence' and 'knowledge', must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. What we require is some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation." - See paragraphs 42 to 43.

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 accused and Cribb went to a drug dealer to purchase marijuana - Both had handguns - During a struggle, the accused or Cribb shot and killed the drug dealer - Cribb pleaded guilty to manslaughter and testified for the Crown at the accused's trial - A jury convicted the accused of second degree murder - The accused appealed his conviction, submitting that the trial judge in leaving with the jury criminal liability for murder as a party under s. 21(2) of the Criminal Code and, alternatively, that he improperly instructed the jury on s. 21(2) - The Ontario Court of Appeal dismissed the appeal - The evidentiary record supported participation in an unlawful drug transaction as the "unlawful purpose" required by s. 21(2) - The evidence also engaged s. 21(2) as a basis for liability arising out of a robbery as the underlying "unlawful purpose" - There was no error in instructing the jury on s. 21(2) - The trial judge made it clear that only actual knowledge of the likelihood that Cribb would commit murder would satisfy the knowledge requirement of s. 21(2) - See paragraphs 30 to 54.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - The accused and Cribb, both armed with handguns, went to a drug dealer to purchase marijuana - A struggle ensued - The drug dealer was shot from 1-6 feet by either the accused or Cribb - Cribb pleaded guilty to manslaughter and testified for the Crown - The accused was charged with second degree murder as either the shooter or as a party if Cribb was the shooter - The jury convicted the accused of second degree murder - The drug dealer's common law partner, at the preliminary inquiry, identified the taller one of the two (Cribb) as the shooter - The accused alleged that the trial judge erred in failing to give an R. v. D.W. jury instruction on the burden of proof and reasonable doubt respecting the partner's evidence - He argued that the significant evidence of "non-identification" warranted such an instruction - The Ontario Court of Appeal dismissed the appeal - The court held, inter alia, that "the trial judge's instructions made it clear that if the jurors had a reasonable doubt about the appellant's participation as the shooter and as a party under s. 21(2), they were to acquit. They were told, and more than once, that to find the appellant guilty of second degree murder, the Crown must satisfy them of all the essential elements of that offence beyond a reasonable doubt, whether the appellant's participation was as the shooter or as a party under s. 21(2). The message was clear." - An R. v. D.W. instruction was not required - See paragraphs 73 to 92.

Criminal Law - Topic 5038

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Procedural error - [See Criminal Law - Topic 127 ].

Cases Noticed:

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 37].

R. v. Chow Bew, [1956] S.C.R. 124, refd to. [para. 37].

R. v. Harder, [1956] S.C.R. 489, refd to. [para. 37].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 40].

R. v. Turkiewicz, Barrow and MacNamara (1979), 50 C.C.C.(2d) 406 (Ont. C.A.), refd to. [para. 40].

R. v. Howard and Trudel (1983), 3 C.C.C.(3d) 399 (Ont. C.A.), refd to. [para. 40].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1, refd to. [para. 43].

R. v. Isaac, [1984] 1 S.C.R. 74; 51 N.R. 308, refd to. [para. 43].

R. v. Sparrow (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 43].

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. 44].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 45].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 45].

R. v. Thériault, [1981] 1 S.C.R. 336; 37 N.R. 361, refd to. [para. 45].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 247 C.C.C.(3d) 34 (C.A.), refd to. [para. 64].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 65].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 67].

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. 67].

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. 68].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203, refd to. [para. 81].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 82].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338, refd to. [para. 83].

R. v. T.L., [2008] O.A.C. Uned. 539 (C.A.), refd to. [para. 84].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 114].

R. v. Grimba (1980), 56 C.C.C.(2d) 570 (Ont. C.A.), refd to. [para. 114].

R. v. Côté and Vézina, [1986] 1 S.C.R. 2; 64 N.R. 93, refd to. [para. 116].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 116].

R. v. Laws (D.) (1998), 112 O.A.C. 353; 128 C.C.C.(3d) 516 (C.A.), refd to. [para. 117].

R. v. James (D.) (2009), 248 O.A.C. 350; 244 C.C.C.(3d) 330 (C.A.), refd to. [para. 117].

R. v. Dunbar (J.) and Logan (K.) (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 117].

R. v. Chaudhary (No. 1) (1988), 31 O.A.C. 241 (C.A.), refd to. [para. 117].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 119].

R. v. Cloutier (1988), 27 O.A.C. 246; 43 C.C.C.(3d) 35 (C.A.), refd to. [para. 120].

R. v. Joinson (1986), 32 C.C.C.(3d) 542 (B.C.C.A.), refd to. [para. 122].

R. v. Scott (1989), 50 C.C.C.(3d) 337 (B.C.C.A.), refd to. [para. 122].

R. v. L.W.T. (2008), 307 Sask.R. 246; 417 W.A.C. 246; 230 C.C.C.(3d) 220 (C.A.), refd to. [para. 122].

R. v. Mohebtash (M.) (2007), 243 B.C.A.C. 70; 401 W.A.C. 70; 220 C.C.C.(3d) 244 (C.A.), refd to. [para. 122].

Counsel:

Michael Lacy, for the appellant;

John McInnis, for the respondent.

This appeal was heard on March 31, 2010, before Juriansz, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Watt, J.A., and released on November 9, 2010.