Publication Ban Interdiction de publication File number: 34284 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

J.F., A Young Person

Appellant (on appeal) (appellant in Court of Appeal) and

HER MAJESTY THE QUEEN

Respondent (Respondent in Court of Appeal)

APPELLANT'S REDACTED FACTUM NAME OF APPELLANT REDACTED PURSUANT TO SECTION 110 OF THE YOUTH CRIMINAL JUSTICEACT FILED ON BEHALF OF THE APPELLANT, J.F. BY MANG & STEINBERG PROFESSIONAL CORPORATION, COUNSEL FOR THE APPELLANT

IAN R MANG and SHELLEY M. TERRI SEMANYK KIERSTEAD Shanbaum, Semanyk Mang & Steinberg Professional Corporation 1207-150 Isabella Street 340 College Street, Suite 225 Ottawa, Ontario K I S I V7 Toronto, Ontario M5T 3A9 Tel: 613-238-6969 Tel: 416-531-4105 Fax: 613-238-9916 Fax: 416-531-3587 tsemanYk@sspc!aw.ca [email protected] Ottawa Agent for the Appellant [email protected] Counsel for the Appellant

THE ATTORNEY GENERAL FOR THE ROBERT E. HOUSTON, Q.C. PROVINCE OF ONTARIO Burke-Robertson 720 Bay Street, 10'h Floor 70 Gloucester Street Toronto, Ontario M5G 2KI Ottawa, Ontario K2P OA2 Attention: Alexander Alvaro Tel: 613-236-9665 Tel: 416-326-4555 Fax: 613-235-4430 Fax: 416-326-4656 [email protected] [email protected] Ottawa Agent for the Respondent Counsel for the Respondent Publication Ban Interdiction de publication

Part I - Overview of Position and Facts

1. J.F, born May 21987, after trial by judge and was, on December 7 2006, convicted of to commit pursuant to section 465(1 )(a) of the Criminal Code. The murder in question took place on January 18, 2003. J.F. was, on March 5, 2007, sentenced to one year secure custody plus 6 months community supervision pursuant to the provisions of the Youth Criminal Justice Act.

10 2. J.F. appealed both conviction and sentence to the Court of Appeal for Ontario. That court dismissed his appeal from conviction on April 6 2011, while at the same time allowing the appeal from Sentence and reducing the sentence to 8 months custody and 4 months supervision.

3. J.F. sought and obtained leave to appeal to this court. The core issue is whether or not on the facts of this case the appellant can be convicted of conspiracy to commit murder.

4. The appellant's position is that the Crown, in its address, and the trial

20 judge, in her charge, equated party liability to a conspiracy with membership in a conspiracy, and in so doing merged the concepts and requirements for conspiracy with those of the substantive offence. The appellant also takes the position that party liability to a conspiracy is either an offence not know to Canadian law, or is limited to aiding or abetting the formation of the conspiracy as opposed to aiding or abetting the commission of the substantive offence

5. In the event that the appeal is dismissed, the appellant will ask this court to further revise his sentence to give effect to the rehabilitative objectives

30 of the Youth Criminal Justice Act, and the fact that he has been on bail since 2004. Publication Ban

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6. The appellant's position is that the trial court and the Court of Appeal erred in allowing the merger, and that the court of appeal itself recognises the problem. The Court of Appeal states at paragraph 27:

"Admittedly, including party liability for aiding or abetting pursuit if the unlawful object blurs the line between the conspiracy and the substantive offence."

Reasons for Judgment from the Court of Appeal for Ontario, Appellant's 10 Record Tab 4 page 93

7. The court sees itself constrained by its own decision in R. v. McNamara (1981),56 C.C.C. 2d 193 (Ont. CAl, which it recognizes conflicts with the Alberta Court of Appeal decision in R. v. Trieu, 2008 ABCA 143.

Facts as set out by Court of Appeal for Ontario 8. In general the appellant adopts the facts as set out in paragraphs 3-8 of the Court of Appeal decision. There are some factual inaccuracies and additions, referenced below. For ease of reference those paragraphs

20 from the Court of Appeal Judgment are: "The Facts

3 At this point, I intend to merely give a brief overview of the facts. I will further develop the facts as I deal with certain grounds of appeal. In the fall of 2002, two sisters agreed to kill their mother. While the older sister, R, first came up with the idea, the younger sister, T, joined in the agreement. At different times, the sisters may have abandoned the plan, but it was clear that by January 2003, they had a settled intention to kill their mother. The two sisters were ultimately convicted of first degree murder. The motive for the murder was the deceased's behaviour as a result of her alcoholism. At the time the sisters were 16 and 15 years of age. The appellant, then 15 30 years of age, was a close friend ofT and they were dating prior to their arrests.

4 R testified as a Crown witness. Although, l' was brought to the courthousc during the trial, neither the Crown nor defence called her as a witness. The appellant did not testify, but the Crown did introduce a statement he gave to the police following his arrest.

5 The deceased died on January 18, 2003 as a result of drowning while affected by acute alcohol intoxication. The deceased also had codeine in her blood at 3.5 times the upper therapeutic level, a level consistent with the consumption of four to six Tylenol 3 tablets. The established that the sisters had plied the deceased with alcohol and Tylenol 3 until she was 40 unconscious, placed her in the bathtub and then R held her head underwater until she drowned. Afterwards, the sisters met up with the appellant and another friend, AS, at a local restaurant, Jack Astor's, to to establish an . The sisters then returned home to I1discover" that their mother had drowned and to call 91 1. The authorities originally believed that the deceased had drowned accidentally. As a result of further investigation, the sisters were charged with first Publication Ban

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degree murder and the appellant with conspiracy to commit murder.

6 It was the theory of the Crown that the appellant joined in the sisters' conspiracy and among other things, suggested the use of Tylenol 3 and provided the pills that were ultimately used to drug the deceased. He also agreed to assist in the fabrication of the alibi by meeting the sisters at the restaurant after the murder.

7 While R testified for the Crown and gave some evidence implicating the appellant in the conspiracy, much of the evidence against the appellant was in the form of his own words, recorded 10 in MSN chats between the appellant and the sisters, especially with T. A binder containing the relevant chats was made an exhibit at the trial. It would be open to the jury to find that those chats demonstrated that the appellant was aware of the plot to kill the deceased; that he supplied ideas to the sisters as to how the murder could be carried out and how they might cover up the killing; and first suggested the use of Tylenol 3. His chat with T on January 13,2003, less than a week before the killing, is particularly instructive:

Appellant: your mom gets Tylenol 3's, right?

T: probably 20 Appellant: seriously, you should include them in the game plan

T: why though? iftheyre not necessary

T: u cant possibly make drowning into a

T: but if she like ods in the process

T: 101 30 Appellant: I'm not talking 20 here

Appellant: 1 mean like 5

Appellant: they knock you right out

Appellant: well, what happens if she, say, wakes up to see you and [R) holding her underwater ... ?

T: were not just gonna be like .... hmm ... she looks drunk ... into the tub! 40 T: were gonna make sure she cant walk and cant possibly drink anymore

T: and doesnt react to water on her face

T: at ALL

T: and besides, head first, easier to hold down

T: and then just turn her over or sumthin 50 Appellant: not reacting to water on face and not reacting to lungs filling with water is very different

Appellant: drowning is the single most painful way to die after burning to death slowly ...

T: 101 yea .... it would suck to drown Publication Ban

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Appellant: you get water, instead of oxygen pumped through your body

T: either way shell be so shitfaced she wont be able to get up

Appellant: then the oxygen dissociates fi'om the hydrogen, into the capillaries

T: so holding her down wont be a problem

10 T: so she moves a bit

T: she still dies

Appellant: at which point the hydrogen turns to acid, and the cappilaries burst

T: beautiful

T: (wipes tear away)

20 Appellant: that's just the beginning ...

Appellant: 101

Appellant: it is not pretty ...

T: and then soaking for a while

Appellant: my advice:

30 Appellant: if she wakes up part way through

Appellant: drag her out of the tub, and pretend that you were helping her

Appellant: even an inch of water in the bottom of your lungs and you'll die withing a few days

T: ahahahha its great how u think we didn't think this through

T: that was discusscd:P

40 Appellant: I'm telling you things that I'm not sure if you KNOW them

T: it depends on how much she like fights back

Appellant: ie. an inch of water in the lungs will kill you in a few days

8 AS was a Crown witness and a close friend of R. She testified that she first found out about the plan to murder the deceased about a week before it happened. A chat between AS and R on the day of the murder was particularly graphic in its description of the plan to murder the deceased. The evidence of a conspiracy to commit murder involving at least Rand T was overwhelming. 50 The only issue at trial was the appellant's involvement in the conspiracy. The theOlY of the defence, as revealed in the appellant's statement to the police and cross-examination of the various Crown witnesses, was that the appellant was not serious in his chats with T and did not intend to join a conspiracy with her and R. " Reasons for Judgment from the Court of Appeal for Ontario, Appellant's Record Tab 4, pages 78-82 Publication Ban

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Additional facts from the evidence at trial 9. Some months prior to January 2003, two sisters, Caroline K. and Catherine K, referred to in the Court of Appeal judgment as "R" and "T" respectively, agreed to kill their alcoholic mother A.K. by drowning her. The general plan was to get the mother drunk, place her in a bathtub, and hold her head under water until she drowned. Caroline, the older sister, eventually carried out the physical act with her sister, Catherine, present on January 18, 2003.

10 10. Prior to the murder, both Caroline and Catherine engaged in a number of chats on MSN with several of their friends, including Troy Fitzgerald and Alanna Snow, both of whom testified at trial.

11. The Appellant's discussions were solely with Catherine, who did not testify at trial. Although the Court of Appeal judgment describes him as a close friend of Catherine's, Caroline's evidence was that she did not know him well, had only seen him a few times, and that he had a girlfriend named Whitney at the time of the murder. Transcript Volume 11 page 74 line 9 - page 75 line 25, Appellant's Record, 20 Tab 14 pages 167-168

12. The Appellant's first recorded chat with Catherine was January 4,2003, 14 days prior to the murder. Chat Log page 1, Appellant's Record Tab 18 page 175

13. Caroline testified that she had planned to kill her mother as early as the summer of 2002, and she had considered different methods, including overdosing. Transcript Volume 11, page 36, lines 10 -25, Appellant's Record Tab 13 30 page 164

14. She also testified that she wanted to use something more than alcohol. Transcript Volume 11, page 37, lines 1-10 Appellant's Record Tab 13 page 165 Publication Ban

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15. About 2 weeks before the murder Caroline and Catherine decided to carry it out. Caroline asked Catherine if she could obtain Tylenol pills. Caroline stated in her evidence that Catherine advised her that the Appellant could obtain them. A few days before the murder, Catherine gave Caroline five or six pills in a bag. Caroline did not ask where she obtained them. Transcript Volume 11, page 37, line 27; page 38, line 30, Appellant's Record Tab 13 pages 165-166 10 16. On January 13, 2003, the Appellant engaged in an online chat with Catherine. Among other things they discussed:

a) that they could buy movie tickets for an hour before the to

establish an alibi. Catherine rejected the suggestion. (chat log page 53) b) that she should to include Tylenol 3 in "the game plan" to which

Catherine wondered if the drowning could look like a suicide (chat log pages 62- 64) Appellant's Record Tab 18, pages 197-199 20 17. They also discussed how Catherine should act when the girls find their drowned mother and call the police. The chat logs quoted in the Court of Appeal Judgment are textually accurate; However, they are heavily edited and do not convey the whole conversation which entails several stops and starts as well as conversation about the appellant having to leave to go to hockey and study for a drama exam the next day. The chat logs show two consecutive chats, one starting on the evening of January 12, 2003, and ending with an auto - message saying" playing hockey- be back around 1 :00 or 2:00; the second starting at 1 :27 am on January 13. 30 Chat log pages 41 -51, Appellant's Record Tab 18, pages 175-186

18. This second log contains the details outlined by the court of appeal. Chat log pages 51 -67, Appellant's Record Tab 18, pages 186-202 Publication Ban

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19. Significantly, the Appellant does not offer to supply Tylenol 3 tablets. He asks Catherine whether her mother uses them. When Catherine advises that she probably does, he suggests that they should include the pills in their game plan. Chat log Page 62- 63, Appellant's Record Tab 18, pages 197-198_

Evidence of Alanna Snow 20. Ms. Snow was a friend of Caroline's. She testified that she first become aware of the plan to kill A. K. about one week prior to the event. She met

10 the Appellant through Caroline and Catherine. Transcript Volume 7, page 28, line 30; page 30, lines 10 -20 Appellant's Record Tab 9 pages 140 -142

21. Ms. Snow testified that she never discussed plans to kill A.K. with the Appellant or with anyone in his presence. She does explain that she understood Caroline's statement to the effect that they got the pills from Jeff to mean J. F. the Appellant. Transcript Volume 7, page 33, lines 5-27, Appellant's Record Tab 9 page 145 20 22. She further testified about dinner at Jack Astor's - J.K.'s mother had back problems; he could get Tylenol; what the girls would say when they got home and found their mother in the bathtub. Transcript Volume 7, page 33, lines 10-15; page 38, Appellant's Record Tab 9 page 145

23. She originally told police that she did not know where Caroline obtained the pills used in the murder but later testified that Caroline had told her that they were getting the pills from J.K .. 30 Transcript Volume 7, pages 77- 83; Appellant's Record Tab 10 pages 151- 156 Transcript Volume 9, pages 60 - 63 Appellant's Record Tab 11 pages 158- 161

Troy Fitzgerald Publication Ban

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24. The sisters and others discussed the means by which the sisters could murder their mother. One of the witnesses, Troy Fitzgerald, a friend of Caroline, testified that Caroline told him about her plan to kill her mother 2- 3 months prior to the murder. About a month prior the murder, he became aware of Caroline's plan to get her mother drunk, give her painkillers, and then hold her head under water in a bath until she drowned. He was involved in the plan to go to Jack Astor's, the restaurant alibi. He did not speak directly to the Appellant about the plan. Transcript Vol. 9 page 78 lines 10 -20, Appellant's Record Tab 12 page 162 10 25. Troy was also involved in discussions about the plan to go to a restaurant after the murder to create an alibi Transcript Volume 9 page 79 lines 9-25 Appellant's Record Tab 12 page 163

PART II - ISSUES

ISSUE # 1 Did the Court of Appeal for Ontario err in law in holding that the appellant could be convicted of conspiracy to commit murder as a party 20 pursuant to the combined effect of sections 21(1) and 465(1)(a) of the Criminal Code?

Appellant's Position 25 On proper construction of the terms "aiding" and "abetting" in the context of conspiracy, these terms must be confined to the act of formation of the conspiracy itself and are so removed from the sUbstantive offence as to be offences unknown to the law.

30 26 The Crown's position was that the Jury could convict J.F. either as a "full partner" to the conspiracy, or as a "party" to the conspiracy by aiding or abetting it. He invited the jurors to follow either path, and stated that so long as they all agreed in the result their duty was to convict. However when discussing party liability he referred not to whether J.F. aided or abetted the conspiracy but whether he aided or abetted the murder. Publication Ban

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Volume 13, pages 4-5, Appellant's Record Tab 15 pages 169-170 Volume 13, page 12, Appellant's Record Tab 16 page 171 Volume 13, pages 38-40, Appellant's Record Tab 17 pages 172-174

27 The trial judge adopted this position. Charge - Volume 14, page 63, para. 184, Appellant's Record Tab 3 page 70

ISSUE #2 10 If party liability to a conspiracy is an offence known to Canadian law, is party liability in the case of conspiracy limited to aiding or abetting the formation of the conspiracy (Trieu) as opposed to aiding or abetting the commission of the substantive offence? (McNamara)

Appellant's Position 28 This court should adopt the analysis in Trieu as opposed to that in McNamara. The appellant submits that the Court of Appeal erred in following its own decision in McNamara. 20

ISSUE #3 Does the co - conspirators' exception to the hearsay rule apply to parties to a conspiracy as opposed to members of a conspiracy?

Appellant's position 29 The Supreme Court in Carter appears to limit the exception to members of a conspiracy. Further the Supreme Court in R. v. Starr endorses a

30 principled approach to the admission of hearsay evidence even when such evidence may fit into one of the traditional exceptions to the hearsay rule.

ISSUE #4 If the appeal as to conviction is dismissed, should the appeal as to sentence be allowed and the sentence varied to a non custodial sentence

40 Appellant's position Publication Ban

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30 The rehabilitative focus of the Youth Criminal Justice Act requires a current appraisal of the youth (now aged 25 years), with a view to determining the appropriate outcome at this time.

PART 111- LAW & ARGUMENT

ISSUE #1 - No Offence Known to the Law 10 Discussion - the Essence of Conspiracy 31 Conspiracy is an inchoate or preliminary crime. It requires a meeting of minds to effect a common goal. The essence of the crime is the agreement, not the criminal act itself. R. v. Cotroni, [1979]2. S.C.R. 256 at paras 2-3, Appellant's Book of Authorities Tab 6

32 "Conspiracy is in fact a more "preliminary" crime than attempt, since the offence is considered to be complete before any acts are taken that go

20 beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence. See s. 465(1 )(c) of the Criminal Code." United States v. Dynar, [1997] 2 S.C.R. 462 at paras 86-87, Appellant's Book of Authorites Tab 20

33 In order for party liability to attach, the accused must do one of three things: a) commit the offence

30 b) do or omit to do something which aids the principle in committing the offence c) abet the commission of the offence Criminal Code, R.S.C. 1985, c C-46, s. 21 Publication Ban

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34 Party liability in Ontario for the crime of conspiracy to commit a further sUbstantive offence derives from R. v McNamara, an Ontario Court of Appeal decision from 1981. The relevant passage is:

6 JO With respect, we do not agree with Mr. McLeod's submission. To constitute the crime of conspiracy it is not sufficient for two or more persons to agree; they must agree to do something. Mere knowledge of, discussion of or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient: see Goode, Criminal Conspiracy in Canada CI975), p. 13; Glanville Williams, The General ParI 2nd ed. (1961), p. 668. "Conspiracy is 10 more than a common intention. It cannot exist without the of the wrongdoers and their agreement to co-operate in the attaining of the evil end": R. v. McCutcheon el al. (]916), 25 C.C.C. 310 [at pp. 311-2], 28 D.L.R. 378; Saskatchewan Farm & Land Co. v. Smith et aI., [1923]1 W.W.R. 1179; R. v. Harris (1947), 89 C.C.C. 231 at p. 235, [1947]4 D.L.R. 796, [1947] O.R. 461 at p. 467; R. v. Salajko, [1970] I C.C.C. 352, [1970] I O.R. 824. 9 C.R.N.S. 145. As Dickson J. said in R. v. Colroni; Papalia v. The Queen (]979), 45 C.C.C. (2d) I at p. 18, 93 D.L.R. Od) 161, [1979] 2 S.C.R. 256: "There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal." That is not to say that a person may not become a pa1ty to the criminal offence of conspiracy Cas opposed to a paIticipant in the conspiracy) by vhtue of s. 2 I of the Criminal Code. The following 20 passage appears in Wright, The Law o/Criminal Conspiracies and Agreements (1887), pp. 55-6:

For the rest, there seems to be no reason to suppose that, unless perhaps in some forms of , the kind of conduct necessary for making a man a party to a conspiracy differs in any respect fi'om that which would be necessary for making a man a party to any other sort of criminal design. If he procures, counsels, commands or abets a design of , he is involved in the guilt of the felon, though in a lower degree, if the felony is not actually committed. If he procures, counsels, commands or abets a , he is guilty of a misdemeanor at . So there can be no doubt but that a person may involve 30 himself in the guilt of a conspiracy by his mere assent to an encouragement of the design, although nothing may have been assigned or intended to be executed by him personally. If he joins a conspiracy already formed, he cannot in general be affected by what has been already done, except in so far as this may, in conjunction with more specific proof, indicate the nature of the purpose in which he joined; ...

R V McNamara (1981), 56 C.C.C, 2d 193 at para 610 (ant. C,A,), Appellant's Book of Authorities Tab 10

35 The Court of Appeal for Ontario in R. v. Vucetic, acknowledges that the

40 statement in McNamara is obiter, but decides at paragraph 6 to follow McNamara, and at paragraph 9 considers itself bound by McNamara. R. v. Vucetic (1998), 129 C.C.C. 3d 178 at 180-181 (ant. C.A.), Appellant's Book of Authorities Tab 17

36 The effect of the interpretation of the passage from Wright, above, is that acts which support the commission of the substantive offence are Publication Ban

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admissible to establish party liability in the conspiracy. It is significant to note that Wright cites no authority for the proposition.

37 The Appellant submits that the reasoning in McNamara and the line of cases relying on it have been superseded by the reasoning of this court in R. v. Dery. That case decided that the offence of attempted conspiracy is not known to the law.

38 The court in Dery does not restrict its comments to to conspire.

10 Rather, it deals with the general principle that inchoate liability offences should not be "stacked one upon the other like building blocks": 40 The argument in favour of attempted conspiracy is that the provisions governing inchoate liability can be stacked one upon the other, like building blocks. Pursuant to s. 463(d), attempting to commit any "offence for which the offender may be prosecuted by indictment" is an indictable offence punishable by half the maximum penalty for the attempted offence. Conspiracy to commit an indictable offence is itself an indictable offence, punishable by the maximum penalty provided for the underlying substantive offence: S. 465(1)(c). Likewise, it is argued, attempt to conspire is an offence punishable by half the penalty provided for the completed conspiracy. 20 41 I agree with Forget J.A. that this argument is seductive in appearance but unsound in principle (para. 79). It assumes, but does not establish, that attempt to conspire is an offence under the Criminal Code, and it leaves unresolved the question whether the definition of attempt in s. 24 captures, as a matter of law, an attempt to conspire. R. v. Dery, [2006]2 S.C.R. 669 at paras 40-41, Appellant's Book of Authorities Tab7

39 The Court dealt with and rejected the proposition, in the context of an attempt to conspire that the provisions of the criminal law goveming 30 inchoate liability can be stacked. In this context, the Court follows the reasoning of the Court of Appeal for Ontario in R. v. Dungey, which stated:

"there is no such offence as an attempt to conspire to commit a further indictable offence"

R. v. Dery, [2006]2 S.C.R. 669 at paras 19, 50, Appellant's Book of Authorities Tab 7 R. v. Dungey (1979),51 C.C.C. 2d 86 at 93-95 (Ont. C.A.), Appellant's Book of Authorities Tab 8 40 Publication Ban

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40 The Appellant submits that the reasoning is equally applicable to the situation in which the Crown seeks to attach party liability by virtue of s. 21(1) of the Code. It represents a stacking of inchoate liability, in this case the aiding or abetting with the conspiracy itself. The appellant submits that McNamara in its reasoning sanctions precisely the sort of inchoate stacking (aiding or abetting + sisters' conspiracy and unlawful end) to create an offence thematically similar, and equally as remote as that impugned by the court in Dery. The Appellant submits that the Ontario Court of Appeal, in following McNamara, erred.

10 41 The appellant therefore submits that party liability for the offence of conspiracy is an offence unknown to the law by virtue of remoteness to the criminal act itself.

ISSUE #2 Is party liability in the case of conspiracy limited to aiding or abetting the formation of the conspiracy (Trieu) as opposed to aiding or abetting the commission of the substantive offence? (McNamara)

20 42 At English common law a person who aided or abetted the commission of a crime was equally liable and equally punishable with the actual doer of the deed. Courtney S. Kenny, Kenny's Outlines of Criminal Law, 19th ed. (Cambridge: Cambridge UP, 1966) at 112, Appellant's Book of Authorities Tab 3

43 Historically: " .. But since accessories were under the ancient law, not liable to be brought to trial until the principal offenders had been convicted or outlawed they frequently went free s a result of the death or escape of 30 the principal or from his remaining unknown or concealed, being pardoned or having his clergy. To obviate this mischief the judges by degrees established the rule that all persons present, aiding and abetting when a felony is committed are principals in the second degree. Now however the difficulties of the old rule have been entirely removed by statute .... Publication Ban

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William O. Russell, Russell on Crime, 11th ed. (London: Stevens, 1958) at 140 (Aiders and Abettors), Appellant's Book of Authorities Tab 19

44.lf the court finds that party liability is available in the case of offences of conspiracy, it must then examine the circumstances under which it is available.

45. Two cases from Western Canada limit party liability for conspiracy to acts done in furtherance of the crime of conspiracy itself. 10 R. v. Taylor (1984), 40 C.R. (3d) 222 at 228·229 (B.C. S.C.), Appellant's Book of Authorities Tab 15 R. v. Trieu 2008 ABCA 143 at paras 26·35, Appellant's Book of Authorities Tab 16

46. The Alberta Court of Appeal limits party liability to those circumstances in which the accused aids or abets the formation of the conspiracy.

32 To be a party to an offence, a person must aid the principal in the commission of that offence and must perform acts or omissions for the purpose of aiding the commission of that 20 offence: R, v. Hibbert. [1995]2 S.C.R. 973. 99 C.C.C. (3d) 193 (S.C.C.) at paras. 26, 39. To be a party, a person must "have some knowledge of the essential nature of the offence to be committed": R. v, Adams (I 989), 33 O.A.C. 148 at para. 31, 49 C.C.c. (3d) 100 (Ont. C.A.) at 110.

33 It follows ITom these principles that for Trieu to be a party to the offence of conspiracy to traffic in cocaine, the Crown had to prove that Trieu performed acts for the purpose of aiding the formation of an agreement to traffic in cocaine. Acts performed after the agreement was formed did not aid in the commission of the offence of conspiracy on the facts of this case. Therefore, Trieu could not be a party to the offence of conspiracy for facilitating the 30 conspirators in attaining their object of trafficking in cocaine. Although acts performed after the agreement was reached could have aided in the commission of the offence of trafficking, Trieu was not charged with the offence of trafficking.

34 This conclusion does not ignore the possibility that conspiracy may be an ongoing crime. Members may leave the conspiracy and new members may join: Cotroni at 276 (S.C.R.). In an ongoing conspiracy of that nature, party liability can arise after the initial agreement is formed if, for example, a person aids another to join the agreement. However, no such allegation was advanced against Trieu.

40 Therefore, I respectfully decline to follow the reasoning in McNamara and Vucetic. I conclude the trial judge did not err in finding that Trieu was not a party to the offence of conspiracy. R. v Trieu, 2008 ABCA 143, Appellant's Book of Authorities Tab 16 Publication Ban

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47. Significantly, the principle articulated in Trieu at paragraph 35 (and Taylor) appears in a 1990 article Conspiracies and Attempts by Justice David Doherty, then of the Superior Court of Ontario. At page 36: "The aiding and abetting provisions should apply to conspiracy charges. They must however be applied with caution. Those sections require that the assistance be rendered for the purpose of assisting the commission of the crime. In the context of a conspiracy charge the alleged acts of assistance or encouragement should have to be done for the purpose of assisting the act of agreeing. Conduct which aids or JO assists in the achievement of the object of the conspiracy should not be equated with assistance in the making of the conspiracy."

Conspiracies and Attempts, Appellant's Book of Authorities Tab 2

48. The Appellant submits that this interpretation is correct. It maintains the topical distinction between the charges of conspiracy and the substantive offences. Even the Court of Appeal for Ontario notes that "admittedly including party liability for aiding or abetting pursuit of the unlawful object blurs the line between the conspiracy and the substantive offence." That

20 observation and the ambiguity it generates has been the subject of recent academic criticism. Pierre Rainville et Julie Desrosiers, "La Particularisme Juridique de la Repression de la Criminalite Organisee au Canada" (2011) 89 C.B.R 545 at 553-555, Appellant's book of Authorities tab 4

49.Although this is not a Charter case, one must be mindful of the spirit of section 11 (a) as well as the provision of section 581 of the Criminal Code, both of which mandate specificity, with a view to enabling an accused to make full answer to a defined charge.

30

The Consequences for this Case 50. It is apparent that the sisters had hatched a complete the conspiracy at least 2-3 months before the Appellant's involvement. His acts, whatever they were, contributed nothing to the formation of that conspiracy. Publication Ban

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51. Both the Crown attorney, in his closing, and the trial judge, in her charge to the jury, invited the jury to convict if they found that the accused was either a member of the conspiracy or a party to the conspiracy, on the basis of the McNamara analysis. It did not matter which and the jury did not have to agree on whether he was a member or simply a party. Crown Closing, Transcript Volume 13, page 12, Appellant's Record Tab 16 page 171 Charge, Transcript Volume 14, page 63, paragraph 184 Appellant's Record Tab 3 page 70 10 52. Significantly, the Court of Appeal found this aspect of the trial judge's instructions to be deficient, but applied s 686(1) (b) (iii) of the Code [no SUbstantial wrong or ] to dismiss the appeal. Reasons for Judgment from the Court of Appeal for Ontario, paragraph 73, Appellant's Record Tab 4 page 117

53. The Appellant submits that, if this conclusion is based on a McNamara analysis, it would at the very least require the trial judge to specify the fact finding required as noted by the Court of Appeal. In Vucetic, the Court of

20 Appeal directed a new trial on the basis that the instructions on party liability for conspiracy were inadequate. R. v. Vucetic (1998), 129 C.C.C. 3d 178 at 180-181 (Ont. C.A.), Appellant's Book of Authorities Tab 17

54. The Appellant therefore submits that the Trieu analysis is correct, and that the Court of Appeal for Ontario erred in that it premised acts in pursuance of the substantive crime as being probative of party status in the conspiracy.

30 ISSUE # 3 The co - conspirator's exception to the hearsay rule, as applied to party liability.

55. The Appellant submits that the following argument is relevant only if this court finds that the McNamara analysis to party liability for conspiracy is correct. If the offence of party liability to a conspiracy is not known to the Publication Ban

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law it follows that there is no need to consider evidentiary rules in dealing with it. If the Trieu analysis is correct, party liability will be confined to aiding or abetting the formation of the conspiracy.

56. The principle underlying the co - conspirators exception to the hearsay rule appears in R. v. Carter.

6 There are many expositions of the conspirators' exception to the hearsay rule which attempt to resolve the logical problem inherent in its application. The problem may be simply 10 stated. Where an accused is charged with the crime of conspiracy, proof of his agreement in the illegal design alleged, that is, his pmticipation or membership in the conspiracy, is sufficient for a conviction. The conspirators' exception to the hearsay rule may be applied to afford evidence of the accused's membership through acts and declarations of fellow members of the conspiracy performed and made in pursuance of the objects of the conspiracy. The exception, however, depends on the preliminary fact of membership in the same conspiracy. Membership must therefore be proven before the exception is operative. Since membership is the gist of the offence, however, once that is proven the hearsay exception appears to be unnecessary.

20 R v. Carter, [1982]1 S.C.R. 938 at para 6, Appellant's Book of Authorities Tab 5

57. The Appellant submits that application of the co- conspirator's exception in these circumstances results in an intellectual absurdity on the facts of this case. Carter requires the jury to consider whether the accused is more likely than not to be a member of the conspiracy. R v. Carter, [1982]1 S.C.R. 938 at paras 6-8, 11 Appellant's Book of Authorities Tab 5

30 58. If party liability is confined to aiding or abetting the formation of the conspiracy, the acts which constitute the aiding or abetting, by definition take place at a time when no conspiracy was as yet in existence, thereby violating another Carter threshold criterion namely:

"11. The trial judge must bear in mind that in order to convict an accused upon a charge of conspiracy the jury, or other trier of fact, must be satisfied beyond a reasonable doubt that the conspiracy alleged in the indictment existed, and that the accused was a member of it." Publication Ban

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R v. Carter, [1982]1 S.C.R. 938 at para 11, Appellant's Book of Authorities Tab 5

59. The chats of January 12 and January 13, 2003, between J.F. and Catherine take place long after the formation of the conspiracy, and also after both Troy Fitzgerald and Alanna Snow were aware of the key details.

60. Significantly, the court in Carter speaks only in terms of membership in the conspiracy, not in terms of party liability to the crime of conspiracy. The

10 case went to the jury on the basis that the Appellant could be convicted as a party to the conspiracy or as a member of the conspiracy. There is no indication in the case law that there is a co -conspirator's exception for party liability to a conspiracy. As such, it was incumbent on the trial judge to explain to the jury that the co -conspirators' exception did not apply in the event that they were considering the appellant's guilt as a party to the offence of conspiracy, rather than as a member of the conspiracy.

Application to the facts of this case 61. Catherine did not testify. The chat logs which the Crown tendered are

20 chats between Catherine and the appellant. It is conceded that Catherine and Caroline were members of the conspiracy to kill their mother.

62. The evidence of Alanna Snow is to the effect that Caroline told her that J.F. was supplying the Tylenol 3 tabs to be used in the murder. As such the Crown relied on the co- conspirator's exception to the hearsay rule to admit the chats as well as Ms. Snow's recitation of her conversation with Caroline. This evidence is in effect a second level of hearsay, which is not admissible unless subject to the co - conspirators exception, or some other exception to the hearsay rule. Arguably, it simply shows Caroline's

30 state of mind. Caroline herself did not testify that Catherine had told her J.F. supplied the pills. She had not spoken to J.F. Publication Ban

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63. When examining the admission process it is useful to examine the principles arising from the line of cases subsequent to R. v. Smith, and the court's periodic revisiting of the concepts of and reliability. In particular, the majority in R. v Starr holds that evidence admitted under the traditional exceptions must also comply with a principled approach. R.v. Smith, [1992] 2 S.C.R. 915 at 927, Appellant's Book of Authorities Tab 13 R. v. Starr, [2000] 2 S.C.R. 144 at paras 172-174, Appellant's Book of Authorities Tab 14 10 R.v. Griffin, 2009 see 28 at paras 56-58, Appellant's Book of Authorities Tab 9

64. The trial judge provided Carter instructions at paragraphs 119-142 of the charge. At paragraph 120 she used the conventional terms: " your first task is to consider only what Mr. Fisher said and did in the context of the conspiracy. From this evidence and only this evidence it is for you to say whether Mr. Fisher was probably a member of the conspiracy. "

20 65. The Appellant took issue with the lack of detail in the charge. The Court of Appeal agreed that it was deficient:

28.. " I agree with the appellant that the directions were not clear and failed to specify the findings the Jury would have to make to find the appellant guilty on the basis of party liability.

29. The directions that the trial judge gave with respect to the law of party liability were generic, divorced from the facts of the case, and failed to make clear that the jury had to find that the appellant knew 30 the object of the conspiracy and that his assistance was intended to assist the sisters in pursuing the unlawful object of murdering their mother... , Reasons for Judgment from the Court of Appeal for Ontario, paragraphs 28 and 29, Appellant's Record Tab 4 pages 93-94 Publication Ban

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66. The Appellant submits that the Court of Appeal erred in applying the curative provision of s. 686(1)(b)(iii) of the Criminal Code for the following reasons.

67. The trial judge has an obligation to specify what acts and statements by co - conspirators are capable of being in furtherance of the conspiracy, and thus potentially admissible against the Appellant. The trial judge has an obligation to instruct the jury that it is their duty to weigh these facts. By failing to distinguish party liability from membership in the conspiracy, her

10 honour blurred the admissibility line irretrievably.

68.Further, the process adopted by the Crown to admit the logs and the hearsay statements fall short of establishing that there is legal necessity. Catherine was available and was in the court house. The Crown made the decision not to call her and instead relied on the hearsay evidence of Catherine's conversations with Caroline and the chat logs. The appellant submits that the proper procedure is that adopted by the Ontario Court of Appeal in R. v. Simpson:

20 "If the crown wishes to rely on this evidence it cannot do so through the out of court statements themselves. The crown should therefore call the declarant Mr. Williams to tender the evidence. And, as this court referenced in Chang, If the declarant as a witness recants or gives evidence that is not consistent with the statement that the crown seeks to have admitted, then the crown can seek to confront the witness with the earlier statement under s. 9 of the Canada Evidence Act or by having the witness declared adverse.

R. v. Simpson, 2007 ONCA 793 at para 54, Appellant's Book of 30 Authorities Tab 11

69. The appellant submits that necessity in law entails far more than convenience. Reliablity consists of more than a favourable transcript. The principled approach requires that a court should not permit a traditional exception to operate as an evidentiary shortcut around due process, when Publication Ban

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such process is otherwise available. The appellant submits that this is the message in the majority decision in Starr, as opposed to the dissent R. v. Starr, [2000] 2 S.C.R. 144 at paras 172-174, Dissent at paras 20-21 Appellant's Book of Authorities Tab 14

70. Accordingly, absent a co - conspirator's exception, the chats between Catherine and the Appellant are hearsay and the important evidence from Caroline about where she believed Catherine may have obtained the pills is nothing more than speculation by Caroline.

10 71. For the foregoing reasons, the Appellant submits that the co-conspirators exception does not apply to party liability, and that the hearsay evidence, when viewed in any principled manner, does not meet the test of necessity.

Sentence 72. The Court of Appeal varied the Appellant's sentence from 12 months secure custody plus 6 months supervision to one of 8 months custody plus 4 months conditional supervision. It considered the crime of conspiracy to

20 fall within the category of "violent" crimes as defined in C.D. v. The Queen (2005), 203 C.C.C. 3d 450 (S.C.C.).

73. The court in CD. adopts a narrow interpretation of the term violent offence, and directs that criteria for finding that there is a violent offence should be harm based rather than force based. C.D. v. The Queen, 2005 see 78 at paras 17, 40 - 49; 60-69, Appellant's Book of Authorities Tab 1

74. The Supreme Court in CD. limits the scope of violent offences to those in

30 which the accused youth actually causes or attempts to cause bodily harm. C.D. v. The Queen, 2005 see 78 at para 65, Appellant's Book of Authorities Tab 1 Publication Ban

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75. The conspiracy is complete at the time of making of the agreement. It does not include the substantive offence or even an attempt to commit the offence. Conspiracy is a separate offence. Section 39(1)(a) of Youth Criminal Justice Act deals with the facts of the offence itself, not the facts of some other offence, in determining the" harm base" as directed by this court Youth Criminal Justice Act S.C. 2002, c.1, s. 39

10 76. Alternatively, if it is appropriate to look beyond the constituent elements of the conspiracy, including the execution of its object, essentially a McNamara corollary, surely it is then appropriate to focus on J.F.'s actions, not those of the sisters. He was charged with conspiracy, not murder. There is no suggestion that he participated in the homicide. He did not cause or attempt to cause any bodily harm. The case for the Crown was, essentially that he supplied the pills to the sisters. The pills did not kill AK. One of her daughters did so by drowning her in the bathtub.

20 77. The Appellant submits that on a narrow construction of his actions, they are too remote from the substantive offence to fall within the definition of violent offence so as to trigger s. 39(1 )(a) of the Youth Criminal Justice Act.

78. The Appellant has been on bail since 2004. Initially the bail orders were restrictive, and included a prohibition against attending his regular school, internet usage and a curfew. Over time they have lessened, however he is still subject to terms. Bail orders - Appellant's Record Tabs 5,6,8, 30 79. The Appellant submits that the objectives of the Youth Criminal Justice Act which promote accountability and rehabilitation have been satisfied Publication Ban

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through the passage of time. The homicide occurred when he was 15 years old. By the time this appeal is heard he will be 25. Neither general nor specific deterrence is a factor in a youth sentence. R. v. P (B.W.), 2006 see 27 at paras 36-41, Appellant's Book of Authorities Tab 11

80. The appellant has been on a variety of bail conditions since his arrest in 2004. Bails - Appellant's Record Tab 5,6,8,- 10 81. He submits that eight years on bail is sufficient to demonstrate rehabilitation, and that a further custodial sentence would not promote the principles and policies set out in s. 3 of the youth Criminal Justice Act.

82. Even in circumstances where the Code provides a minimum sentence, the court retains discretion to vary that sentence in accordance with the requirements of justice to suit the individual case. R. v. W. (LW.), 2000 see 18 at para 21, Appellant's Book of Authorities Tab 18 20 83. While this might typically involve pre trial custody, the appellant submits that it is equally applicable to the current situation in which he has been subject to bail restrictions for a period of eight years.

PART IV - COSTS 84. The appellant does not seek costs

PART V - ORDERS SOUGHT 85.An order allowing the appeal from conviction and directing a verdict of not

30 guilty to the charge of conspiracy to commit murder.

86. if the appeal from conviction is dismissed, an order allowing the appeal from sentence and varying it to a non custodial disposition. Publication Ban

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All of which is respectfully submitted Date: Ian Richard Mang

Shelley Margot Kierstead Counsel for the Appellant Publication Ban

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PART 6 - TABLE OF AUTHORITIES

PART 7 - STATUTORY EXRACTS

Criminal Code (R.S.C., 1985, c. C-46) Parties to offence

21. (l) Everyone is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to 10 commit it; or

(c) abets any person in committing it.

20