An order has been made in accordance with s. 486.

5 of
Restriction on
the Criminal Code directing that any information
Publication
identifying undercover operatives shall not be published.

Court of Appeal for Saskatchewan Citation: R v Nicholson,

Docket: CACR2852 and CACR2854 2018 SKCA 62
Date: 2018-08-08

Between: Docket CACR2852

Angela Dawn Nicholson
Appellant
And
Her Majesty the Queen
Respondent

Between: Docket CACR2854

Curtis Vey
Appellant
And
Her Majesty the Queen
Respondent

Before: Jackson, Herauf and Schwann JJ.A.

Disposition: Appeals allowed, new trial ordered

Written reasons by: The Honourable Madam Justice Jackson

In concurrence: The Honourable Mr. Justice Herauf
The Honourable Madam Justice Schwann

On Appeal From: QB CR 34/14, Prince Albert

Appeal Heard: December 15, 2017

Counsel: Ronald Piché for Appellant Nicholson

Aaron Fox, Q.C., for Appellant Vey
B.L. Klatt for the Respondent
 Page 1

Jackson J.A.

I. Introduction

[1] Ms. Angela Nicholson and Mr. Curtis Vey were found guilty of two counts of conspiracy
to commit murder contrary to s. 465(1)(a) of the Criminal Code, RSC 1985, c C-46. The first
count charged that they conspired to murder Jim Taylor, Ms. Nicholson’s spouse. The second
count charged that they conspired to murder Brigitte Vey, Mr. Vey’s spouse.

[2] Sometime during the course of 2012, Brigitte Vey began to suspect that her husband was
having an affair, but she did not know with whom. She began periodically to leave a device in
their home to record her husband’s conversations. On July 1, 2013, she recorded what turned out
to be a conversation between Ms. Nicholson and Mr. Vey [the July 1 Recording]. During that
conversation, the two talked about taking the lives of their respective spouses. They were
arrested five days later.

[3] The Crown’s case was based largely on (a) the July 1 Recording, (b) the statements
Ms. Nicholson and Mr. Vey gave to the police, and (c) recorded conversations with undercover
officers who had been placed in their respective cells. Neither accused testified.

[4] When the police interviewed Mr. Vey after his arrest, and in his conversations with the
undercover officer in his cell, he maintained that he knew or suspected his wife was recording
him on July 1, 2013, and said he had engaged in the murder conversation to give his wife and
family something to talk about. He also said that all Ms. Nicholson and he had were
“discussions” with no intention to commit murder. From his statement, the jury might have
inferred there had been a previous similar discussion.

[5] When Brigitte Vey testified for the Crown, she confirmed that she had recorded Mr. Vey
on other occasions and had confronted him with those previous recordings in an attempt to get
him to admit he was having an affair. Indeed, Brigitte Vey confronted Mr. Vey with the July 1
Recording before listening to all of it and before going to the police. She also testified that
Mr. Vey had suggested that they prepare new wills, which he did, leaving everything to each
other in the event of death. These wills were signed on June 12, 2013. There was, however, other
 Page 2

evidence from which the jury might infer that the writing of new wills was a joint idea. Brigitte
Vey did not draw the Crown’s attention to the wills until the fall of 2015.

[6] When the police interviewed Ms. Nicholson after her arrest, she admitted there had been
an earlier conversation about taking the lives of their spouses. She also appeared to have
admitted that she had agreed to such a plan, but she never said she intended to carry it out. She
told the police she had conducted an internet search on June 22, 2013, about how to start a grease
fire, which was to be her role in the murder of Brigitte Vey, but she did not do so with the
intention of carrying out the act of murder. Ms. Nicholson did not mention that the July 1
Recording was about giving Brigitte Vey something to talk about.

[7] Ms. Nicholson and Mr. Vey were tried by a jury in the spring of 2016. The jury began
deliberating at about 1:00 p.m. on Friday, June 3, 2016. They were sequestered and deliberated
for two-and-one-half days before rendering guilty verdicts at about 5:30 p.m. on Sunday, June 5,
2016. During their deliberations, they asked three questions of the court: (a) How do you find an
agreement? (b) What is the difference between intention and agreement? and (c) What is the
difference between proving intention by “overt acts” and “inferences”?

[8] The standard of review concerning errors alleged in a jury charge requires an appellate
court to take a functional approach (R v Lumberjack, 2017 SKCA 106, 357 CCC (3d) 263). It is
the overall effect of the charge that matters. Jury instructions must be viewed as a whole and the
jury charge in this case was admirable. However, notwithstanding this deferential approach, and
with much respect, I conclude that a new trial must be ordered.

[9] As mentioned, the jury charge was crafted with obvious attention and, as such, I would
dismiss most of the grounds of appeal. Nonetheless, having regard for the evidence that
suggested Mr. Vey knew, or suspected, he was being recorded, and in light of the questions the
jury asked, I am persuaded it was not made plain to the jury that (a) they were required to be
satisfied beyond a reasonable doubt that both appellants had a genuine intention to agree to
commit murder and (b) they could not draw an inference of guilt from circumstantial evidence
unless it were the only reasonable inference that the evidence permitted.
 Page 3

[10] The crime of conspiracy seeks to prevent the harm caused when two or more people
agree to act together to achieve a common unlawful purpose. The Crown must prove both a
genuine intention to agree and an intention to achieve the common unlawful purpose beyond a
reasonable doubt. There must be a true consensus.

[11] In light of the above considerations, I would order a new trial.

II. Evidentiary Overview

[12] The indictment charged an offence of conspiracy arising “on or about” July 1, 2013:
ANGELA NICHOLSON … in the Province of Saskatchewan, and CURTIS VEY … in
the Province of Saskatchewan stand charged:
Count 1 That they, the said ANGELA NICHOLSON AND CURTIS VEY, on or
about the 1st day of July A.D., 2013 … in the Province of Saskatchewan,
did conspire together to murder Jim Taylor contrary to Section 465(1)(a)
of the Criminal Code.
Count 2 That they, the said ANGELA NICHOLSON AND CURTIS VEY, on or
about the 1st day of July A.D., 2013 … in the Province of Saskatchewan,
did conspire together to murder Brigitte Vey contrary to Section 465(1)(a)
of the Criminal Code.
(Bold emphasis in original)

[13] The primary evidence against both accused was the July 1 Recording. The conversation
lasted one-and-one-quarter hours and took place in the Vey home. In addition to discussing
children, crops and plans for a future without their spouses, the two talked about taking the lives
of their respective partners. In terms of the actual words said, the most direct reference to an
agreement to murder is contained in the following passages, which are transcribed from the July
1 Recording:
Curtis VEY: Well, I moved out. So … that’s why … was another reason that
the other way just … just wouldn’t have worked. Do you know
what I mean?
Angela TAYLOR [Ms. Nicholson’s married name]: Mmm-hmmm. [affirmative]
Curtis VEY: It … it’s got to be this kind of way otherwise … and … and …
and just … you know? It … it’s got to be where it’s … ‘cause his
habitual stuff … [unintelligible] they’ll think that, “Well, it
finally caught up to him”, or whoever it is.
Angela TAYLOR: Yeah.
Curtis VEY: Right?
 Page 4

Angela TAYLOR: I was thinking you had curtains here.

Curtis VEY: No.
Angela TAYLOR: That was going to help it along.
Angela TAYLOR: There used to be [unintelligible] here didn’t there?
Curtis VEY: Yeah. Took them down when we did that ah … did the casings.
…
Angela TAYLOR: I thought if I could just pre-start the curtains, they’re not going to
be able to tell how it start.
Curtis VEY: Oh. Okay. I know what you mean.
Angela TAYLOR: So it starts there. And these get going. And I could
[unintelligible] get these going. See I could get those ones going
to help it along.
Curtis VEY: Exactly.
Angela TAYLOR: ‘Cause I won’t be helping it along [unintelligible].
Curtis VEY: Just remember to ah … shut these blinds.
Angela TAYLOR: Blinds will have to be shut, and the lights will have to be off.
Curtis VEY: Yeah.
Angela TAYLOR: ‘Cause then they won’t see the lights from the highway or the
flames until hopefully it’s too late.
Curtis VEY: Oh, it will go up fast. It will. It’s old.
Angela TAYLOR: You promise.
Curtis VEY: Well, I’m assuming. They usually do.
Angela TAYLOR: I just thought if I could … I could put oil there, and then I’d spill
a little on the stove. That’ll help. Leave the bottle out, it’s going
to break [unintelligible] the heat.
Curtis VEY: Yeah.
Angela TAYLOR: Which will ignite it more. Then I thought I could start a curtain
…
Curtis VEY: Mmm-hmm. [affirmative].
Angela TAYLOR: … ‘cause curtains you can’t … ‘cause I just need ah …
Curtis VEY: I’ve actually ah … I did ah … did more thinking about it
actually. And ah … the morning of, I am going to ah … hmm.
You see what you think. I’m actually thinking of … well, if he’s
around, I was actually thinking of getting ah … if it’s the Crop
Production Show …
Angela TAYLOR: Mmm-hmm. [affirmative].
Curtis VEY: … first few days of January …
Angela TAYLOR: Mmm-hmm. [affirmative].
 Page 5

Curtis VEY: … I was going to get [unintelligible] … I was going to organize

[a colleague] coming with me. Okay?
Angela TAYLOR: Mmm-hmm. [affirmative].
Curtis VEY: I’ll get him to come in the morning … We’ll have coffee, and
before we leave, she’ll have coffee. Then him and I will leave.
… Then him and I will go. I’ll have to [unintelligible] or text
‘cause he won’t even notice. I’ll just make sure [unintelligible]
or I’ll go into the bathroom before I leave and text you with …
not my real phone.
Angela TAYLOR: Mmm-hmm. [affirmative].
Curtis VEY: [unintelligible comment] This way [a colleague] is with me. One
or two things. They can never say I started it. Right?
Angela TAYLOR: Right.
Curtis VEY: Plus he was with me and had coffee here. So that’s how I’m
going to organize it. I’m going to make sure he doesn’t
[unintelligible]. So I’m good … I’m going to tell him, “Hey, you
got to come with me to the Crop Production Show”. So I’m
going to wait till schedule’s out, and I’m going to organize
which day it is. You might even have to take a sick day. If it’s
that day, it’s that day.
Angela TAYLOR: ‘Kay.
Curtis VEY: So … and then it’s kind of iron clad. Right?
Angela TAYLOR: Mmm-hmm. [affirmative].
Curtis VEY: So the only issue will … and it’s better if it’s daytime. Reason, if
it’s in the morning, by the time they see the [unintelligible],
[unintelligible]. If it’s at night …
Angela TAYLOR: You think they’ll see the flames if the lights are on?
Curtis VEY: During the dark?
Angela TAYLOR: Mmm-hmm. [affirmative].
Curtis VEY: Well, I think we probably won’t leave too early in the morning.
But I think it’s better.
(Emphasis added, transcript of Session #12, July 1 Recording at 25–28.)

[14] The investigation in this case was conducted by the major crimes unit of the RCMP. In
addition to long interviews with each of the accused, an undercover officer was placed in their
respective cells. Neither accused contested the voluntariness of their statements and they were
admitted in their entirety.
 Page 6

[15] In her interview with the police, Ms. Nicholson told the officers that there had been one
previous conversation during which she and Mr. Vey talked about killing their respective
spouses. She also filled in some gaps in the plan, including how they planned to drug Mr. Taylor,
and how they planned to forge a will in his name. She also admitted that on June 22, 2013, she
looked up how to start a “grease fire” on the internet. However, when the interviewing officer
asked her, “What part of that plan was yours?”, she responded, “Agreeing to do it”. In further
conversations with the interviewing officers, when asked “If you could do it”, she said, “I don’t
think I could”.

[16] The Crown’s case against Mr. Vey revealed an additional piece of evidence – which he
maintained throughout – that this was all a fantasy borne out of frustration and he knew he was
being taped. Significantly, the evidence at trial him included the following:

(a) Brigitte Vey testified that she had told her husband on previous occasions she had
been recording him and, indeed, she had played some of these recordings for him;

(b) Mr. Vey told the undercover officer, who had been placed in his cell, the
following:

(i) he knew he was being recorded on July 1, 2013;

(ii) he was upset with his wife’s surveillance of his activities and how his
children were siding with his wife and it came to a head on June 30, 2013;

(iii) he was going to give them something to talk about;

(iv) he was going to teach his wife and children a lesson, but it backfired; and

(v) after his first interview with the police, he said the interviewing officers
had told him they were going to check his computer and phones and he
was glad to hear that because he knew there was no evidence of a
conspiracy;

(c) Mr. Vey also told the interviewing police officers that he knew his wife was
recording him on July 1, 2013; and
 Page 7

(d) throughout his second police interview, Mr. Vey maintained that he had no
intention to carry out any murder – he and Ms. Nicholson had discussions only,
and had admitted only to having “thoughts” (transcript of the July 7, 2013, police
interview at 358).

[17] According to the Crown’s case against Mr. Vey, which included a search of two of his
old tablets and two old computers, and a password protected email account, there was no other
evidence of conspiracy or acts in furtherance of a conspiracy. In cross-examination of the various
police officers (both interviewing and undercover), defence counsel demonstrated how far-
reaching the investigation had been. The most damaging additional evidence against Mr. Vey
was that he had written wills for himself and his wife, wherein each had left the other their entire
estate in the event of death; the strength of this evidence was muted somewhat because Brigitte
Vey admitted in cross-examination that she had also expressed the need to have new wills due to
the danger of spring-time farm work.

[18] In relation to Ms. Nicholson, an extensive police investigation revealed no evidence of

conspiracy other than what has been recounted above.

[19] In his charge to the jury on June 3, 2016 [Jury Charge], the trial judge fairly summarized
the evidence against Ms. Nicholson, including conversations with an undercover officer and the
police interviews: 1
[131] Angela Nicholson came to the Vey household at which time she and Mr. Vey had a
conversation. Towards the end of the conversation Angela Nicholson said words to the
effect, “Kay. So I have a question for you”.
[132] What follows is a conversation about murdering their respective spouses. With
respect to Mr. Taylor [Ms. Nicholson’s spouse], the concept seemed to be that Mr. Vey
would put some type of sleeping pills in his coffee after which he would “go missing”.
[133] With respect to Ms. Vey, the concept was that some type of stupefying drug would
be administered to her. Mr. Vey would leave, with a friend, for a Farm Production Show,
thus giving him an alibi, while Ms. Nicholson would burn down the house, presumably
with Ms. Vey in it.

1
All Jury Charge quotations in these reasons are taken from a paper copy of the charge that was given to each of the
jurors. By taking the quotations from the paper copy of the charge, it is possible to show the paragraph numbers,
which are relevant to the questions that the jurors asked of the trial judge. A comparison has been made between the
quotations taken from the paper copy and the transcription of the oral charge. Except for differences in paragraphing
and punctuation, the two are exact.
 Page 8

[134] There was a conversation about how long it would be before it would be
appropriate for these two to get together after the demise of their spouses.
[135] Some of the details of what was meant or intended by Ms. Nicholson when she was
speaking to Mr. Vey on July 1, 2013, was filled in, to some degree, by what she told
police and her undercover cellmate.
[136] Consider carefully what she said to the police and her undercover cellmate. Initially
she would not confirm that she was having an affair, and then, when presented with
irrefutable evidence on this point, she readily admitted the affair and admitted that she
loved Curtis Vey. Under some fairly aggressive questioning from Sgt. Skilnick [an
interviewing officer] she admitted talking about a plan to kill Ms. Vey and Mr. Taylor.
She added detail that made the July 1, 2013, conversation more understandable. She
admitted looking up “grease fire” on the internet and stated that the grease fire idea was
that of Curtis Vey. There does not appear to be any evidence that Ms. Nicholson knew
she was being recorded on July 1, 2013, but that is for you to decide.
[137] In her cellmate conversation, further light is shed on what she meant when she said
certain things on July 1, 2013. She confides in her cellmate that “funny thing, we just
talked about it” and “probably that’s all it would have been, is just talk”.
[138] These are just some examples of the types of things that you may want to examine
when discussing whether there was just a “mere discussion” or an “agreement”.
[139] At times, under some pressure from the police, she volunteered details about the
nature of the discussion respecting the deaths of Jim Taylor and Brigitte Vey. However,
she maintained that there was never any intention to go through with the plan and that it
was a discussion and not an agreement. She claimed that she knew that she was not
capable of actually carrying through with what she and Mr. Vey talked about.
[140] This is what you need to decide. Was this a fantasy and just harmless ranting or
was it an agreement?

[20] Next, the trial judge fairly summarized the evidence against Mr. Vey, including
conversations with an undercover officer in his cell and two police interviews:
[152] The state of Curtis Vey’s marriage, from his point of view, varied from loving
Brigitte, with the last five years being the best in his life, to recognizing that the marriage
was over.
[153] Curtis Vey knew that his wife was suspicious and that she had recorded him on
previous occasions.
[154] We know that because Brigitte Vey was suspicious, she secretly recorded their
household on July 1st, 2013. We heard the recording, what was said. It is apparent that
Curtis Vey and Angela Nicholson were talking about murdering their respective spouses.
[155] The subsequent police interviews and cellmate conversations respecting Curtis Vey
shed light on the July 1st, 2013, conversation. These subsequent conversations will help
you decide if there was an agreement or merely a discussion.
[156] In the first interview by Corporal Ewert, Mr. Vey essentially denies everything,
including the affair. In the second interview, after being confronted with irrefutable
evidence, Mr. Vey admits the affair. Eventually, he also admits to having a discussion
about murdering their respective spouses, but denies that it was an agreement, only a
 Page 9

discussion, adding that his character is such that he would never have done anything as
drastic as murder.
[157] In his cellmate discussion, he initially tells his cellmate, who he may have, at least
at the beginning, suspected was a police plant, that he was innocent of all wrongdoing. In
fact, he told his cellmate informant that he knew he was being recorded and said
outrageous things to stir the pot with his family. Whether that has a ring of truth to it is
for you to decide. After his return from meeting with Sergeant Kalmakoff [another
interviewing officer], his position changed somewhat, and he was accepting that what he
said may be criminal.
[158] However, whether his words and actions amount to a criminal offence is for you to
decide, not him.
[159] When Mr. Vey returned to his cell after the interview with Sergeant Kalmakoff, he
let down his guard somewhat and said a number of things. Throughout, he appears to
maintain the position that he had no intention to actually agree to proceed with either
murder, although it is evident that he discussed it. Was he serious about actually entering
into an agreement with Angela Nicholson to commit murder? Was he just trying to get
back at his family by saying outlandish things? Was it a mere discussion with no actual
intent to form an agreement? That is for you to decide.
[160] If you are not satisfied beyond a reasonable doubt that there was a conspiracy
between Curtis Vey and Angela Nicholson to murder Jim Taylor you must find Curtis
Vey not guilty of Count # 1.
[161 If you are satisfied beyond a reasonable doubt that there was a conspiracy between
Curtis Vey and Angela Nicholson to murder Jim Taylor, you must find Curtis Vey guilty
of Count #1.

III. Settling the Issues

[21] Ms. Nicholson and Mr. Vey have raised a number of grounds of appeal concerning the
process leading to the development of the charge, the charge itself, the judge’s re-charge and his
answers to the jury’s questions, and about what they call jury tampering. Significant background
information is required to explain each ground of appeal and the issues arising therefrom, which
I will present as the issues are analyzed.

[22] In my respectful view, there are three key issues arising from the grounds of appeal:

(a) Issue #1 – Did the trial judge adequately charge the jury with respect to the
appellants’ defence that Mr. Vey did not have a genuine intention to agree to
commit murder?

(b) Issue #2 – Did the trial judge properly explain the relationship between proof by
circumstantial evidence and the requirement of proof beyond reasonable doubt?
 Page 10

(c) Issue #3 – Did the trial judge properly address the question of inconsistent
verdicts and the test in R v Carter, [1982] 1 SCR 938 [Carter]?

[23] I would order a new trial in relation to the first two issues. While I find error in relation to
the trial judge’s handling of some aspects of the third issue, I would not order a new trial in
relation to it. Instead, I offer some instruction for the purposes of a new trial.

[24] The appellants raise other issues that, in my view, cannot succeed. Nonetheless, for the
sake of completeness, I will briefly provide my reasons for not finding the errors that the
appellants have alleged regarding the following grounds of appeal, which I have cast as issues:

(a) Did the trial judge err by not instructing the jury that they should not draw an
adverse inference from the fact that the appellants did not testify?

(b) Did the trial judge err by not putting to the jury that it was open to them to find
either or both of the appellants guilty of the lesser included offences of conspiracy
to administer a noxious substance or to commit arson?

(c) Was there a miscarriage of justice because the recordings of the various
conversations tendered in evidence by the Crown could not be heard by people
sitting in the gallery of the courtroom?

(d) Did the trial judge err by failing to make inquiries when issues about possible jury
interference were raised?

To be clear, I would not give effect to any of this latter group of issues.
 Page 11

IV. Addressing the Issues

A. Issue #1: Did the trial judge adequately charge the jury with respect to
the appellants’ defence that Mr. Vey did not have a genuine intention
to agree to commit murder?

1. Background Law

a. Overview of the theory

[25] Ms. Nicholson and Mr. Vey were charged with conspiracy under s. 465(1)(a) of the
Criminal Code:
Conspiracy
465(1) Except where otherwise expressly provided by law, the following provisions
apply in respect of conspiracy:
(a) every one who conspires with any one to commit murder or to cause another
person to be murdered, whether in Canada or not, is guilty of an indictable
offence and liable to a maximum term of imprisonment for life … .

Thus, the crime of conspiracy to commit murder requires at least two people conspiring to make
it a crime. While s. 465(1)(a) is straightforward, the legal determination of what constitutes a
conspiracy to commit murder, or how to prove a conspiracy, has been developed by the common
law.

[26] The courts have frequently said that the essence or gist of conspiracy, or its actus reus, is
the agreement. This simple statement, while wholly accurate, nonetheless masks a number of
legal issues about which there is much academic and jurisprudential debate: Matthew R. Goode,
Criminal Conspiracy in Canada (Toronto: Carswell, 1975) [Goode]; Peter MacKinnon,
“Developments in the Law of Criminal Conspiracy” (1981) 59 CBR 301; Eric Colvin and
Sanjeev Singh Anand, Principles of Criminal Law, 3d ed (Toronto: Carswell, 2007) [Principles
of Criminal Law]; and Don Stuart, Canadian Criminal Law, 6th ed (Toronto: Carswell, 2011)
[Stuart] at 715 to 725. As Stuart notes, “Since the actus reus requirement for conspiracy is
merely that of agreement, the distinction between actus reus and mens rea is particularly
artificial” (at 716). Similarly, in Principles of Criminal Law, the authors state, “our chief
analytical tools for diagnosing the elements of offences, the concepts of actus reus and mens rea,
face some difficulties with the special problems raised by allegations of conspiracy” (at 541).
 Page 12

[27] In R v Papalia, [1979] 2 SCR 256 at 276–277 [Papalia], Dickson J., as he then was, for
the majority, described the offence of conspiracy as “to breathe together”:
The word “conspire” derives from two Latin words, “con” and “spirare”, meaning “to
breathe together”. To conspire is to agree. The essence of criminal conspiracy is proof of
agreement. On a charge of conspiracy the agreement itself is the gist of the offence:
Paradis v. R. [[1934] SCR 165], at p. 168. The actus reus is the fact of agreement:
D.D.P. v. Nock [[1978] 3 WLR 57 (HL)], at p. 66. The agreement reached by the co-
conspirators may contemplate a number of acts or offences. Any number of persons may
be privy to it. Additional persons may join the ongoing scheme while others may drop
out. So long as there is a continuing overall, dominant plan there may be changes in
methods of operation, personnel, or victims, without bringing the conspiracy to an end.
The important inquiry is not as to the acts done in pursuance of the agreement, but
whether there was, in fact, a common agreement to which the acts are referable and to
which all of the alleged offenders were privy. In R. v. Meyrick and Ribuffi [(1929), 21 Cr
App R 94 (CCA)], at p. 102 the question asked was whether “the acts of the accused were
done in pursuance of a criminal purpose held in common between them”, and in 11
Halsbury (4th ed.), at p. 44 it is said:
It is not enough that two or more persons pursued the same unlawful
object at the same time or in the same place; it is necessary to show a
meeting of minds, a consensus to effect an unlawful purpose.
There must be evidence beyond reasonable doubt that the alleged conspirators acted in
concert in pursuit of a common goal.
(Emphasis added.)

[28] In R v Alexander (2005), 206 CCC (3d) 233 (Ont CA), leave to appeal to the SCC
dismissed, 2006 CanLII 6160 [Alexander], Doherty J.A. explained that a true consensus is
required to justify criminalizing joint conduct that falls short of an attempt to commit the
substantive crime:
[48] The actus reus of the crime emphasizes the need to establish a meeting of the minds
to achieve a mutual criminal objective. This emphasis on the need for a consensus
reflects the rationale justifying the existence of a separate inchoate crime of conspiracy.
Confederacies bent upon the commission of criminal acts pose a powerful threat to the
security of the community. The threat posed by a true agreement to jointly bring about a
criminal end justifies a pre-emptive strike by the criminal law as soon as the agreement
exists, even if it is far from fruition. However, absent a true consensus to achieve a
mutual criminal objective, the rationale for the crime of conspiracy cannot justify
criminalizing joint conduct that falls short of an attempt to commit the substantive crime:
see I.H. Dennis, “The Rationale of Criminal Conspiracy” (1977), 93 Law Q. Rev. 39; P.
Gillies, The Law of Criminal Conspiracy (Sydney, Australia: Law Book Co. Ltd., 1981)
at 327.
(Emphasis added.)
 Page 13

b. The mens rea and its role in establishing the actus reus

[29] With this brief explanation of the legal theory pertaining to conspiracy, it is possible now
to consider the elements more deeply as they apply to the issues of this case.

i. Conspiracy requires a genuine intention: “Pretending to

agree” is a defence

[30] In The Queen v O’Brien, [1954] SCR 666 at 668 [O’Brien], the question the Supreme
Court had to decide was what to make of the evidence of one of two co-conspirators who said
“he never had any intention of going through with this plan, but was just fooling the respondent,
or hoaxing him” (at 667). As in this case, O’Brien concerned a two-person conspiracy where the
unlawful act had not been perpetrated. The alleged co-conspirator in O’Brien was not charged,
but he was called as a Crown witness.

[31] At trial, the judge in O’Brien directed the jury that the offence was complete if the co-
conspirator and the accused made the agreement, even though the co-conspirator never had any
intention of carrying it out. The jury convicted the accused. On appeal to the British Columbia
Court of Appeal on the point of pretending to agree (inter alia), the majority ordered a new trial.
On appeal to the Supreme Court, the appeal court’s decision to order a new trial was affirmed.
Three judges wrote separate concurring opinions for the majority: Justices Taschereau, Rand and
Estey.

[32] Justice Taschereau recognized the confusion regarding the element of intention that is
necessary to constitute a conspiracy to commit an offence. He set out to clarify the applicable
law:
I think there has been some confusion as to the element of intention which is necessary to
constitute the offence. It is, of course, essential that the conspirators have the intention to
agree, and this agreement must be complete. There must also be a common design to do
something unlawful, or something lawful by illegal means. Although it is not necessary
that there should be an overt act in furtherance of the conspiracy, to complete the crime, I
have no doubt that there must exist an intention to put the common design into effect. A
common design necessarily involves an intention. Both are synonymous. The intention
cannot be anything else but the will to attain the object of the agreement. I cannot
imagine several conspirators agreeing to defraud, to restrain trade, or to commit any
indictable offence, without having the intention to reach the common goal.
(Emphasis added, at 668.)
 Page 14

[33] To further illustrate the intention required, Taschereau J. drew from Mulcahy v The
Queen (1868), LR 3 HL 306 at 317, as follows:
The two elements of agreement and of common design are specifically stated to be
essential ingredients of the crime of conspiracy. Willes, J. in Mulcahy v. The Queen
(1868), L.R. 3 H.L. 306 at 317:
A conspiracy consists not merely in the intention of two or more, but in
the agreement of two or more to do an unlawful act, or to do a lawful act
by unlawful means. So long as such a design rests in intention only, it is
not indictable. When two agree to carry it into effect, the very plot is an
act in itself, and the act of each of the parties … punishable if for a
criminal object … .
Vide also Rex v. McCutcheon (1916), 25 C.C.C. 310.
(Italic emphasis in original, underline emphasis added, at 668–669.)

[34] In concurring reasons, Justice Rand wrote, “a conspiracy requires an actual intention in
both parties at the moment of exchanging the words of agreement to participate in the act
proposed; mere words purporting agreement, without an assenting mind to the act proposed are
not sufficient” (O’Brien at 670). Justice Estey referred to an “intention to conspire” (at 677).

[35] It is not entirely clear from these three opinions which element of the mens rea is lacking
when one of two conspirators is only pretending to agree. Nonetheless, the result of the majority
opinions is that a new trial was in order because the trial judge had instructed the jury that the
offence was complete if the agreement was made even if one of two co-conspirators “never at
any time had any intention of carrying the agreement into effect” (at 667).

[36] The Supreme Court has affirmed O’Brien on a number of occasions: Sokoloski v R,
[1977] 2 SCR 523 [Sokoloski]; R v Chambers, [1990] 2 SCR 1293 [Chambers]; United States of
America v Dynar, [1997] 2 SCR 462 [Dynar]; R v Déry, 2006 SCC 53, [2006] 2 SCR 669
[Déry]; and R v J.F., 2013 SCC 12, [2013] 1 SCR 565 [J.F.].

[37] While Sokoloski has been frequently distinguished with respect to its approach to what
constitutes conspiracy (e.g., Sheppe v The Queen, [1980] 2 SCR 22 at 26), it affirms O’Brien:
“this Court has held that neither party to an alleged conspiracy can be convicted of the crime if
one does not have the requisite mens rea for the substantive offence …” (Sokoloski at 531–532).
 Page 15

[38] In Chambers, it appears that the Crown asked the Supreme Court to reconsider the mens
rea principles articulated in O’Brien, but the Court declined to do so as reconsideration had been
raised for the first time on appeal.

[39] In Dynar, the Supreme Court wrote that where one member of a charged conspiracy is,
for example, an undercover officer who never intends to carry out the common design, there can
be no conspiracy between that officer and any other person in the so-called conspiracy: “A
person cannot be a conspirator if he or she merely pretends to agree” (at para 88). In making this
point, Cory and Iacobucci JJ. relied upon the statement made by Rand J. in O’Brien: “mere
words purporting agreement without an assenting mind to the act proposed are not sufficient” (at
670).

[40] In Déry, the Supreme Court refused to recognize attempted conspiracy: “Recognition of
attempted conspiracy as a crime … is best left to Parliament” (at para 36). As part of its analysis,
the Supreme Court noted that the United States of America recognizes “unilateral conspiracy”,
which permits conviction in the circumstance where the agreement of one of the “interlocutors is
feigned” (at para 34). The Supreme Court, relying on O’Brien and Dynar, declined to follow the
American approach regarding unilateral conspiracy. One of the reasons for refusing to do so was
because it “might well capture cases of feigned agreement”, which “will in any event normally
be caught by the offence of ‘counselling an offence not committed’” (Déry at para 36). Justice
Fish, writing for the Court, also took the occasion to reinforce that an actual agreement requires
genuine intention:
[35] A consistent line of case law in this country precludes us from adopting the
American approach. Most notably, the recent decision of this Court in United States of
America v. Dynar, [1997] 2 S.C.R. 462, takes a strictly bilateral view of conspiracy. See
also R. v. O’Brien, [1954] S.C.R. 666, at p. 670, quoted with approval and reaffirmed in
Dynar, at para. 88; R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Que. C.A.); R. v. Campeau,
[1999] Q.J. No. 5436 (QL) (C.A.). It is thus well established in Canada that there must be
actual agreement for a conspiracy to be formed. And actual agreement requires genuine
intention. The unilateral conspiracy doctrine, however well established in the American
legal environment, is thus not viable here.
(Emphasis added.)

[41] In J.F., the Supreme Court considered how, and under what circumstances, a person can
be found a party to the offence of conspiracy under s. 21 of the Criminal Code (parties to
offence). The Supreme Court determined that the only legitimate basis for making a person a
 Page 16

party to a conspiracy is if the person aids or abets the actus reus of conspiracy, namely, the
conspirators’ act of agreeing. In limiting the application of s. 21 in this way, Moldaver J., on
behalf of the Court, relied on O’Brien for “how one conceptualizes the offence of conspiracy for
party liability” (J.F. at para 17). Importantly, he pronounced that “the prohibited act in a
conspiracy (the actus reus) consists of an agreement by two or more persons to pursue an
unlawful object, specifically a criminal offence …”.

[42] The specific fact pattern in O’Brien, i.e., a co-conspirator only pretending to agree, can
be found in cases such as R v Thomson (1965), [1966] 50 Cr App R 1 (UK Mid Cir) [Thomson],
and R v Delay (1976), 25 CCC (2d) 575 (Ont CA) [Delay], which are both referred to in Stuart at
722, footnote 267. In Thomson, Lawton J. was asked to make a preliminary ruling as to whether
the jury should be instructed differently because of the accused’s assertion that he did not
genuinely agree to the unlawful design. Expressly following O’Brien – “I agree with the view of
the majority of the Supreme Court of Canada” (Thomson at 2) – Lawton J. concluded that he was
required to provide different instructions:
If the facts show, as the jury might on the evidence in this case infer that they do, that the
defendant manifested his assent to a criminal enterprise, but that his mind did not go with
his assent, then it seems to me that the element of the guilty mind is missing and,
accordingly, on those facts he would be entitled to be acquitted, and I propose to direct
the jury accordingly.
(At 4.)

[43] In Delay, Jessup J.A. stated the following for the Court:
[1] The appellant appeals his conviction on a charge of conspiring with other named
conspirators to commit the indictable offence of robbery. While the charge is in many
ways an admirable one, we are of the view that the trial judge did not adequately put to
the jury the essential defence, which was that the appellant had no intention to agree to
commit the offence of robbery, or indeed, to commit that offence, and only pretended to
agree with the plan of his alleged co-conspirators.
…
[3] In this case there were “words purporting agreement”, in a statement given by the
appellant, but there was also evidence of the appellant that in fact his mind did not assent
to the conspiracy, and that he merely pretended to do so. In our view that evidence and
that defence was not put to the jury with sufficient clarity. In the result, we think there
must be a new trial.
(Emphasis added.)
 Page 17

[44] By way of summary of the necessary mental elements and the pretending to agree
defence, it is useful to refer to a paper on conspiracy written by Mr. David Doherty (as he then
was):
The requirement that an intention to carry out the agreement must be proved has given
rise to the “only pretending to agree” defence. The defence has two possible formats,
either the accused was only pretending to agree and is therefore not guilty, or his only
alleged co-conspirator was only pretending in which case the accused is also not guilty. If
the accused has only pretended to agree he must be acquitted because he lacks the
necessary mens rea. If his only alleged co-conspirator only pretends to agree, the accused
has the requisite mens rea but there is no actus reus since there is no act of agreement in
that there is not a true meeting of the minds.
The defence will have its best chance of success where the Crown has direct evidence of
an agreement but no evidence of anything done in furtherance of the agreement by the
particular accused. This may be the case in wiretap cases where arrests have been made
prior to any attempt to implement the scheme allegedly agreed to by the conspirators.
An accused who is not guilty of conspiracy by virtue of the other party’s lack of intent
may be guilty of incitement but is not guilty (in Ontario at least) of attempted conspiracy
(see infra).
(Emphasis added, footnotes omitted, “Recent Developments in the Law of
Conspiracy – Fall 1982”, Current Criminal Law Evening Sessions (Toronto:
Law Society of Upper Canada, 1982) at 48 [Doherty 1982] .)

[45] Thus, it is quite clear that the Canadian law of conspiracy requires at least two
conspirators for a conspiracy to be found. A conspiracy can only exist when at least two people
intend to agree and intend to carry out the common purpose. Seeming or pretending to agree
does not satisfy the mental element of the offence. As Fish J. states in Déry, “actual agreement
requires genuine intention” (at para 35).

ii. Sub-issues

[46] In considering the above authorities, I note the case law raises three sub-issues that must
be resolved to decide this appeal:

(a) Are there two aspects of the mens rea required to be proven, i.e., an intention to
agree and an intention to put the common design (or purpose) into effect?

(b) Is mutuality required with respect to the intention to put the common purpose into
effect or is it a separate aspect, standing outside of the agreement?
 Page 18

(c) To what aspect of the mental element of conspiracy is the pretending to agree
defence directed, i.e., the intention to agree or the intention to put the common
purpose into effect?

[47] In most cases of conspiracy, precision with respect to answering the above questions is
not required because the trier of fact is asked to infer the intention to agree (and the intention to
carry out the common purpose), as well as the agreement, from overt acts done in furtherance of
the conspiracy and through the use of the co-conspirators’ exception to the hearsay rule. In this
case, the Crown did not rely on the co-conspirators’ exception to the hearsay rule and the
appellants put the proof of the intention to agree, and the intention to carry out the common
purpose, directly into issue.

[48] Regarding the first sub-issue, the Supreme Court, in Dynar, clearly stated that the mental
element of conspiracy divides itself into an intention to agree and an intention to carry out the
unlawful act:
[86] … There must be an intention to agree, the completion of an agreement, and a
common design. Taschereau J., in O’Brien, [[1954] SCR 666], at p. 668, added that:
Although it is not necessary that there should be an overt act in
furtherance of the conspiracy, to complete the crime, I have no doubt that
there must exist an intention to put the common design into effect. A
common design necessarily involves an intention. Both are synonymous.
The intention cannot be anything else but the will to attain the object of
the agreement.
(Italic emphasis in original, underline emphasis added.)

[49] This confirms the point that had been contested in case authority decided after O’Brien as
to whether the crime of conspiracy requires a double intent (see Chambers at 1302–1303). With
Dynar, the Supreme Court confirmed that the burden on the Crown is to prove two intents in
order to make out conspiracy: the intention to agree and the intention to carry out the common
purpose. In that regard, see also Goode at 28 and 29.

[50] That brings us to the second sub-issue: Is mutuality required with respect to the intention
to carry out the common purpose? This is an important question in this appeal because of the
appellants’ defences and also because the trial judge asked the jury to decide whether there was a
“completed agreement” and he also asked them to decide whether the accused intended to put the
 Page 19

unlawful agreement into effect, suggesting that the second question stood outside the agreement
and mutuality was not required in relation to it (Jury Charge at paras 122 and 147). Further, if
mutuality is required in relation to the intention to carry out the common purpose, it must be
made clear to the jury that if one of the appellants did not intend to agree or did not intend to
carry out the common purpose, both would have to be acquitted because there could be no actus
reus of the crime of conspiracy (see Doherty 1982 at 48 as quoted above).

[51] Notwithstanding some comments to the contrary in the jurisprudence, it is my view the
weight of authority supports the proposition that the intention to carry out the common purpose
must be present before it can be found that there is an agreement. In that regard, it is sufficient to
quote from the opinion of Moldaver J., writing for the majority in J.F.:
[44] As I have explained, agreement is a central element to the offence of conspiracy.
Conversely, an act done in furtherance of the unlawful object is not an element of the
offence of conspiracy. Although such acts can serve as circumstantial evidence to support
the existence of a conspiracy, they are not themselves a component of the actus reus of
conspiracy. Indeed, a conspiracy can be established in the absence of any overt acts done
in furtherance of its unlawful object. In other words, “[t]he crime of conspiracy is
complete once the agreement is reached”: Trieu, at para. 31.
(Emphasis added.)

Thus, conspiracy requires both the intention to agree and the intention to carry out the common
purpose before an agreement can be proven. Both parts of the mens rea must be proven – as well
as the act of agreeing.

[52] There is a final sub-issue in this series: To what element of intention is the pretending to
agree defence directed? In O’Brien, the Court appears to have been satisfied that there was an
intention to agree, but no intention to carry out the common purpose. But what of the first
element discussed above: the intention to agree? Does the defence of feigned agreement apply to
it as well? While it may be possible to pretend to intend to agree, the most likely scenario is that
someone feigning agreement is intending to agree to the extent necessary to secure another’s
agreement, but does not intend to carry out the common purpose. It is to the latter element that
the defence is directed: “his mind did not assent to the conspiracy, and that he merely pretended
to do so” (Delay at para 3).
 Page 20

[53] With that forming the background to the law of conspiracy applicable to this case, I will
now consider the appellants’ positions at trial.

2. The appellants’ positions at trial

[54] In the Court of Queen’s Bench, Mr. Vey’s counsel filed a brief of law and a
memorandum entitled “Defence Theory Re: Curtis Vey”. The brief of law quoted extensively
from O’Brien, Papalia and Alexander, and then makes the following assertions:
8. Mr. Vey repeatedly told the police that he was aware that he was being taped on July
1st. Significantly, he disclosed this to the undercover police officer who was placed in
cells with him. Bearing in mind the intense scrutiny that his conduct had been under for
the past nine months, including the incident that occurred on the evening of June 30th in
the basement of his residence, it is not surprising that he would have known, or at least
reasonably suspected, that he was being taped that day.
9. Against that background, why would he have invited Angela Nicholson into his house
to have this extensive discussion about his relationship with her? We will argue that the
explanation is found at the outset of his discussion with the undercover police officer
placed in his cell. Rightly or wrongly, he was frustrated with the situation with his wife
and, it seemed, he was especially frustrated with the fact that his sons were constantly
becoming involved in it. After the incident on June 30th he felt he had had enough and
reached the point where he was going to give them indeed something to talk about. As he
candidly stated to the undercover officer, it backfired. He did not expect them to go to the
police but they did and now he was facing a charge.

The brief of law goes on to submit there can be no conspiracy with a person who has no intention
to agree or follow through with the agreed-upon act:
11. Both O’Brien and Alexander indicate that this is an all or nothing situation. Cases
involving undercover police officers in a “sting” scenario are not covered by this offence
because the police officer or agent lacks the intention to commit the act or form the
agreement.
12. In Alexander, as quoted above, the Court makes it clears that there needs to be an
actual agreement in order to justify this offence as distinct from attempts, parties to an
offence, etc. This “pre-emptive strike” is only justified where there is a true consensus. If
one party did not agree, then there is no true consensus and no offence (see paragraph 48
of Alexander above).
(Emphasis added.)

[55] Ms. Nicholson’s counsel filed a similar brief, relying on R v Kotyszyn (1949), 95 CCC
261 (Que CA); O’Brien; R v McNamara (No 1) (1981), 56 CCC (2d) 193 (Ont CA), leave to
appeal refused, [1981] SCCA No 189 (QL); Dynar; Alexander; and Déry for the following
propositions:
 Page 21

(a) the onus is on the Crown to prove both (i) that an actual agreement existed (there
is more than just knowledge or a passive acquiescence (actus reus)) and (ii) that
an intention to agree and an intention to put the common design into effect are
both present (mens rea);

(b) it is “misdirection for a trial judge to tell the jury … that the offence of conspiracy
was complete by the making of the agreement” (O’Brien case summary at 666) –
there must be an intention to carry through with the common design;

(c) a conspiracy needs, at the minimum, two people; and

(d) in this case, the jury must be charged on an “all or nothing” basis, i.e.,
inconsistent verdicts were not possible (if one of the two accused were acquitted
on the basis of a lack of the mental element, they both must be acquitted).

[56] During the pre-charge conference, Mr. Vey’s counsel, in particular, stressed that if only
one of the two accused had agreed, there could be no conspiracy. In support of what would
ultimately be his approach regarding inconsistent verdicts, the trial judge identified R v
Guimond, [1979] 1 SCR 960 [Guimond].

3. The charge

[57] In his summary of the accused’s positions, the trial judge made reference to Mr. Vey
“just trying to get back at his family by saying outlandish things” (Jury Charge at 159), but he
did not link this evidence to the mens rea elements that the jury would have to find for both
accused. Instead, he charged in the usual way regarding the evidence and treated the question of
the intention to carry out the common purpose as standing outside of the formation of the
agreement. He also charged the jury on the basis that it would be possible to convict one of
Ms. Nicholson or Mr. Vey and not the other.

[58] He began by instructing the jury as to the use that could be made of the evidence of
Ms. Nicholson’s and Mr. Vey’s intentions. Specifically, he cautioned that evidence about
Ms. Nicholson could only be used against her, while the evidence about Mr. Vey could only be
used against him:
 Page 22

[68] I must also tell you that any of the out-of-court statements that you find were made
by Angela Nicholson (i.e., the police statement and the cellmate recordings) can only be
considered as evidence in relation to Angela Nicholson, and not Curtis Vey. Likewise,
the out-of-court statements that you find were made by Curtis Vey (i.e., the two police
statements and the cellmate recording) can only be considered as evidence in relation to
Curtis Vey, and not Angela Nicholson.
[69] Even if one of the accused’s statements relates to something that the other accused
said or did, you must not consider that statement as evidence in relation to the other
accused.
[70] The comments that I have just made respecting out-of-court statements does not
apply to the July 1, 2013, iPod recording (exhibit P-2) because that is direct evidence
relating to the Crown’s allegation of a conspiracy. That iPod recording is evidence
against both Ms. Nicholson and Mr. Vey.
(Italic emphasis in original, Jury Charge.)

[59] He then instructed the jury that it was possible for them to convict Ms. Nicholson or
Mr. Vey, and not the other:
[98] Also, it would be possible for you to conclude that the Crown has established
beyond a reasonable doubt that Angela Nicholson is guilty of one or both counts of
conspiracy, but have failed to establish beyond a reasonable doubt that Curtis Vey is
guilty of one or both counts.
[99] Similarly, it would be possible for you to conclude that the Crown has established
beyond a reasonable doubt that Curtis Vey is guilty of one or both counts of conspiracy,
but have failed to establish beyond a reasonable doubt that Angela Nicholson is guilty of
one or both counts.
[100] As you well know, the indictment alleges that Angela Nicholson and Curtis Vey
conspired with each other to murder both Jim Taylor and Brigitte Vey. It might occur to
you that logic would say that if you are satisfied beyond a reasonable doubt that an
agreement to murder existed, it follows that both Angela Nicholson and Curtis Vey
entered into that agreement.
[101] Whatever logic might say to you on this point, that is not the law. It is not the law
because, as I have already explained to you, the evidence that you are entitled to consider
against Angela Nicholson is different than the evidence that you are entitled to consider
against Curtis Vey, and the evidence that you are entitled to consider against Curtis Vey
is different than the evidence that you are entitled to consider against Angela Nicholson.
[102] The iPod recording that you heard as to what took place at the Vey household on
July 1, 2013, is direct evidence of the alleged conspiracy and is admissible and properly
considered evidence against both Angela Nicholson and Curtis Vey.
[103] However, the video-recorded police statement given by Angela Nicholson is
evidence only against Ms. Nicholson and not Mr. Vey. Similarly, the audio recording of
Ms. Nicholson speaking to the undercover operator while she was in cells is evidence
only against Ms. Nicholson and not Mr. Vey.
[104] Similarly, the two video-recorded police statements given by Curtis Vey is
evidence only against Mr. Vey and not Ms. Nicholson.
 Page 23

[105] In summary, you can come to different answers to the four questions because you
may be considering different evidence when answering each question.
(Italic emphasis in original.)

[60] He defined the actus reus of conspiracy:

[106] So, what is a conspiracy? A conspiracy is a crime of intention.
[107] A conspiracy is an agreement between at least two people to commit a crime. The
essence of the conspiracy is one of agreement. Once the agreement is made, the offence
is committed. That it was not carried out or executed is not the issue.
[108] In other words, a conspiracy is complete once two or more persons agree to commit
an offence, regardless of whether the offence is to be committed immediately or
sometime in the future.
[109] The Crown does not have to prove that the alleged conspirators, Angela Nicholson
and Curtis Vey, actually did anything beyond making the agreement.
(Emphasis added.)

[61] In the Jury Charge, the trial judge then gave his instruction on the mens rea elements:
[110] However, there is a distinction in law between an intention to agree, on the one
hand, and an agreement on the other hand. On its own, an intention to agree is not
sufficient to establish a conspiracy. Although the Crown need not prove that anyone did
any act in furtherance of the conspiracy, the Crown must prove that both had the intention
to put the common design into effect. In other words, the Crown must prove that the
accused persons intended to adhere to the agreement in the sense of having the intention
to put the common design into effect.
[111] Since conspiracy is a completed offence the moment that there is an agreement it is
irrelevant that a conspirator subsequently withdraws from the agreement. If a person
agrees to commit an unlawful act, and later, after having the intention to carry it through,
refuses to put the plan into effect, that person is nevertheless guilty because all the
ingredients of the conspiracy have already been established.
[112] The agreement does not have to be something formal, like a written document nor
does it have to be successfully carried out.
[113] A person may be a part of a conspiracy, or to put it another way, a member of a
conspiracy without knowing all of the details of the agreement and it is not necessary that
a person agree to play a specific part in carrying out the agreement or understanding.
[114] An agreement is the coming together or the meeting of the minds of two or more
people who have a common objective or purpose.
[115] As I told you earlier, the crime of conspiracy is complete when members of the
conspiracy agree to commit the crime of murder. I tell you as a matter of law that to
intentionally kill another human being by an unlawful act constitutes murder. It is not
necessary for the Crown to prove that the crime itself, namely the murder of Jim Taylor,
or the murder of Brigitte Vey was actually committed.
[116] What is essential, however, is that the person has an understanding of the unlawful
nature of the plan, and voluntarily and intentionally joins in it. In other words, to be
found guilty of conspiracy to commit the murder of Jim Taylor or conspiracy to commit
 Page 24

the murder of Brigitte Vey, the Crown must establish beyond a reasonable doubt that
both Angela Nicholson and Curtis Vey actually agreed and intended to agree to achieve
the common unlawful purpose – namely the murder of Jim Taylor or Brigitte Vey.
(Italic emphasis in original, underline emphasis added.)

[62] Later in the Jury Charge, the trial judge used a hypothetical to demonstrate the difference
between a discussion and an agreement:
[117] In this case, there has been some attention paid to whether what occurred was a
discussion or an agreement. In order to highlight the differences between a discussion and
an agreement, I have created a hypothetical. Let’s assume that I decide I wish to take my
wife out for supper on Friday night. I phone her from my office and tell her that this
Friday night I don’t feel like making supper and cleaning up. I inquire as to how she
would feel about going out for supper. In response, my wife reminds me that we have
gone out for supper several times over the past few weeks and perhaps another dinner
outside the home does not fit within our budget. She does mention, however, that she
does like to go out for dinner, especially on Friday nights. We talk about the fact that if
we do go out for supper on Friday night, I will miss the Blue Jay’s game on television.
She mentions that if we go, I could record it and watch it later. We talk about inviting
another couple to join us. We then talk about various restaurants that we have been to in
the past and also that there are a number of new restaurants that have just opened up in
our area.
[118] Up to this point, we are having a discussion. There is no agreement.
[119] Then my wife says to me, “why don’t we go? I don’t feel like cooking or cleaning
either”. I say, “Sure”. At this point we have an agreement. Both of us have agreed and
fully intend to go out for dinner Friday night. We have an agreement even though we
haven’t decided the precise time that we will be going out for dinner, the restaurant we
will be going to, or whether we will be inviting another couple to join us. Of course, in
this hypothetical, going out for dinner is not an unlawful purpose.
[120] I should add, as well, that if, later on, I receive a call from a friend who then invites
me to a football game taking place on Friday night and I contact my wife and abandon
the plan that we had made, this does not change the fact that an agreement had been
entered into, even though it has subsequently been cancelled.
(Emphasis added.)

This portion of the Jury Charge was given in reference to both Ms. Nicholson and Mr. Vey.

[63] The trial judge directed the jury that they must answer four questions:
[94] In this case, as you will know by now, we have two people charged with two counts
of conspiracy to commit murder. Broken down, or “compartmentalized”, this results in
four separate questions for you to answer. They are:
(1) Did Angela Nicholson conspire to murder Jim Taylor?
(2) Did Angela Nicholson conspire to murder Brigitte Vey?
(3) Did Curtis Vey conspire to murder Jim Taylor?
(4) Did Curtis Vey conspire to murder Brigitte Vey?
 Page 25

He then went on to say, that it was “theoretically possible for you to have different answers to
each of the above questions” (at para 95).

[64] The trial judge then began his review of the evidence, but did not refer to the evidence
pertaining to Mr. Vey’s defence that he did not intend to agree to carry out the common purpose,
when addressing the jury regarding Ms. Nicholson. The trial judge’s opening paragraph,
regarding Ms. Nicholson, is as follows:
[122] In order for you to find Angela Nicholson guilty of conspiring to murder Jim
Taylor the Crown must prove beyond a reasonable doubt, on the evidence admissible
against Angela Nicholson, that:
a) There was a completed agreement between Angela Nicholson and Curtis Vey;
b) That the agreement was to commit the murder of Jim Taylor; and
c) That Angela Nicholson and Curtis Vey intended to put the unlawful agreement
(i.e., the murder of Jim Taylor) into effect.

This format and layout was followed in relation to all four of the questions posed by the trial
judge in paragraph 94 of the Jury Charge: when the trial judge instructed the jury in relation to
Angela Nicholson’s role in the conspiracy to murder Brigitte Vey (in paragraph 143), the judge
said the above comments apply; when he charged the jury in relation to determining whether
Mr. Vey was guilty (in paragraphs 147 and 162), he followed the same format.

[65] After the trial judge had charged the jury, counsel for Mr. Vey asked for several changes,
including reiterating his claim regarding inconsistent verdicts and asking that it be stressed that
the evidence showed that Mr. Vey knew he was being taped, that his intention in having
Ms. Nicholson in his home was not for the purpose of discussing and agreeing to a murder (but
for the purpose of inciting his wife and family) and that detail alone did not make an agreement
to commit the crime of conspiracy.

[66] Regarding what to make of a detailed discussion in the process of coming to an

agreement, the trial judge agreed to re-charge the jury on that point only:
Charge to the Jury
THE COURT: Ladies and gentlemen of the jury, I’ve had a discussion with the lawyers
about the charge, and they’ve asked me to clarify a point. And I think it’s fair that I
do so.
 Page 26

And you don’t have to look at your material, but it deals with the hypothetical that I
provided to you, where I’m inviting my wife out for dinner on Friday night.
The point that they have asked me to make, and which I am prepared to -- to make, is
this: Is that even if there’s a lot of detail, but no agreement, that still is just a
discussion. So there can be a -- a lot of detail within a discussion without an
agreement.
So, for example, if I was to have phoned my wife and said: How about going out for
dinner on Friday night? We’re going with this specified couple, Mrs. A and Mrs. B.
We want to go to the Keg. We’re going to go at seven o’clock. And we have lots of
detail. And I’m going to have that steak sandwich that I always like to have, except I
shouldn’t be talking about that at ten to one o’clock, should I? But we’re going to
have that steak sandwich and with gravy and all of that. We go into all sorts of detail.
[B]ut we’ve still haven’t decided whether we’re going to go, there’s no -- there --
there’s been a discussion up to that point. There is no agreement.
So even though there’s a lot of detail on the discussion, there may not be an
agreement until we ultimately decide that we want to go.
(Trial transcript at T577.)

[67] Instructions to the jury were completed at about 1:00 p.m. on Friday, June 3, 2016, which
was the first day they began deliberating. The jury deliberated that day until 9:30 p.m. They
resumed at 9:00 a.m. on Saturday, June 4, 2016. At 11:00 a.m. on Saturday, the trial judge
indicated to the lawyers that he had received three questions from the jury, two of which are
relevant at this point:

(a) Question #1: “Could the Judge repeat his last remarks to us when we were called
back after conferring with the lawyers at the end of the trial regarding the details
being discussed in relation to an agreement re: supper plans (hypothetical)?”

(b) Question #2: “Elaborate on paragraph 110, page 25 of the charge, which discusses
the distinction between an intention and an agreement”.

4. Resolution

[68] At the outset, it must be acknowledged that charging a jury with respect to conspiracy is a
difficult task. Further, I note the trial judge’s charge to the jury follows closely the various model
jury charges in a number of aspects. The difficulty, however, is that charging the jury in this case
had several distinctive features, including the evidence that Mr. Vey knew or suspected that he
was being recorded and the effect of that evidence on both Mr. Vey’s and Ms. Nicholson’s
culpability.
 Page 27

[69] In my respectful view, the Jury Charge did not adequately address this critical aspect of
the appellants’ defence, notably, that one of them was not intending to agree, but was giving the
pretence of an agreement to get back at his family. In light of the evidence that showed Mr. Vey
had known in the past that his wife had been recording him – a fact confirmed by Brigitte Vey –
the judge was required to draw the jury’s attention specifically to Mr. Vey’s defence and its
effect on both Ms. Nicholson and Mr. Vey, and the burden on the Crown in relation to the
evidence. The jury should have been instructed that if they were satisfied that Mr. Vey did not
intend to agree to carry out the common purpose, or if they had a reasonable doubt as to his
intention, not only would they be required to acquit Mr. Vey, they would also be required to
acquit Ms. Nicholson.

[70] Given the appellants’ defence on this point, the hypothetical that the trial judge used was
problematic because it left the impression that any agreement, including one that was feigned,
was enough to satisfy the actus reus of the offence. The hypothetical did not import the crucial
element of Mr. Vey’s lack of intention and what that would mean in terms of whether there was
an agreement. The problem with the hypothetical was compounded when the jury asked the
following question in relation to it: “Could the Judge repeat his last remarks to us when we were
called back after conferring with the lawyers at the end of the trial regarding the details being
discussed in relation to an agreement re: supper plans (hypothetical)” (Question #1).

[71] To answer this question, the trial judge proposed replaying what he had told them. While
counsel for Ms. Nicholson agreed with this approach, Mr. Fox, counsel for Mr. Vey, did not. He
requested that the trial judge give some explanation or details as to how to apply his instruction,
but the trial judge declined, unless the jury had further questions:
MR. FOX: Thank you, My Lord. The only comment I have on -- on just playing back,
obviously, they’ve heard it once and -- and didn’t seem to pick up the -- the point.
And I’m wondering -- certainly I have no problem with playing it back again. But it -
- it might be helpful to -- to really apply it to what’s being alleged here, and -- and
simply make the point that you can look at the details that were discussed here, and
you can decide whether that leads you to a conclusion that there was an agreement or
there wasn’t.
And -- because it -- again, I think I -- the only concern I have with just playing it
back is that you -- they -- they didn’t seem to pick it up the first time. And I’m not
sure you just playing it back without some explanation of what you were trying to get
at there. And so I -- I’d be inclined -- if -- if you just want to stick with the
hypothetical, to -- to simply sum it up maybe by after playing it back.
 Page 28

And I can’t remember exactly what was said, but to simply say: So the flip-side of
my hypothetical is you may have worked out all of the details of what we were going
to do for supper, but there’s no agreement until we actually agree we’re going to go
to supper. And you maybe want to wrap it up with that.
So I -- I -- as I said, I can’t remember exactly how you did wrap it up at the end, but I
think that’s the important point that -- that comes out of that direction.
THE COURT: Well, I think what I prefer to do is play it back, and then if they do have a
further question about it --
MR. FOX: Yeah.
THE COURT: -- then --
MR. FOX: Or even after you’ve played it back, My Lord, and you’ve heard it again, you
know, you may, yourself -- and I encourage you to, sort of, assess: Okay, should I be
adding something more to clarify it because --
THE COURT: Okay.
MR. FOX: -- as I said, I can’t remember exactly how it was concluded. And it’s that
concluding part that I think is most important.
THE COURT: Okay.
(At T586.)

The trial judge then played back what he had said earlier, but did not elaborate on it.

[72] In my respectful view, the trial judge’s response to Question #1 reinforced the scenario of
the hypothetical, and may have given the impression that the defence, of no genuine intention,
was incidental to the verbal agreement to commit murder and not a valid aspect of the appellants’
defence. That is to say, Mr. Vey verbally seemed to agree with carrying out the unlawful act of
murder and the jury may have believed that a feigned, verbal agreement (if it were that) was all
that was required for him to be found guilty of conspiracy with Ms. Nicholson.

[73] I acknowledge that the trial judge, when he was reviewing the evidence and the questions
the jury should consider when deciding Mr. Vey’s guilt, instructed the jury as follows (and I
repeat):
[159] When Mr. Vey returned to his cell, after the interview with Sgt. Kalmakoff, he let
down his guard somewhat and said a number of things. Throughout he appears to
maintain the position that he had no intention to actually agree to proceed with either
murder – although it is evident that he discussed it. Was he serious about actually
entering into an agreement with Angela Nicholson to commit murder? Was he just trying
to get back at his family by saying outlandish things? Was it a mere discussion with no
actual intent to form an agreement? That is for you to decide.
 Page 29

Further, the trial judge did review the submissions of Mr. Fox with respect to Mr. Vey’s
knowledge about being taped:
[176] Mr. Fox argues that Mr. Vey was aware that he was being recorded on July 1st.
Mr. Fox points to the fact that at the outset of his discussion with the undercover police
officer placed in his cell, he told the officer that he was going to give them something to
talk about, namely the affair and the fake murder plot. Mr. Fox points to words of
Mr. Vey that he did not expect them to go to the police and that this ploy backfired.
…
[179] Finally, Mr. Fox reminds you that the onus in on the Crown to prove beyond a
reasonable doubt that there was an actual agreement to take the lives of Jim Taylor and
Brigitte Vey and that both parties intended to do that. There is no onus on the accused to
prove their innocence or to offer an explanation. Although the conduct that day was
offensive, the making of the statements, knowing that they were taped, was stupid. 2

[74] In my respectful view, however, paragraph 159 of the Jury Charge does not differentiate
the two defences – one of discussion, but of no agreement, and the other of no genuine intention
to agree – and appears to equate the two. Similarly, paragraphs 176 and 179 do not capture the
point that Mr. Fox was making, which was that, if the jury were satisfied Mr. Vey knew he was
being recorded and was only pretending to agree, he would have to be acquitted. Further,
paragraphs 159, 176 and 179 also did not convey to the jury that, if they found Mr. Vey did not
intend to agree or did not intend to carry out the common purpose, there could be no agreement.
This had implications for both Mr. Vey and Ms. Nicholson.

[75] The trial judge’s charge in paragraphs 107, 108, 110, 115 and 116 are also problematic
when considering the appellants’ assertion of no genuine agreement. For example, the trial judge
states, “Once the agreement is made, the offence is committed” (at 107) and “the crime of
conspiracy is complete when members of the conspiracy agree to commit the crime of murder”
(at para 115). The issue was not only whether there was an agreement. Words of seeming to
agree were spoken, but the issue was whether both parties intended to agree to the common
unlawful purpose of committing murder. As Stuart states, “It is trite law that the offence is
complete as soon as there has been agreement with the necessary mens rea” (emphasis added, at
716). The last part of that sentence is important. With the phrase, “Once the agreement is made,
the offence is committed”, it is not clear that the jury would have understood the burden on the
Crown to prove the necessary intention.

2
In the copy presented to the jury, a heading precedes this part: “6.3 Position of Curtis Vey”. Paragraphs 174 to 179
form the entirety of this part.
 Page 30

[76] In paragraph 110, the trial judge instructs the jury that there is a distinction between an
intention to agree and an agreement. That part of paragraph 110 is correct, as far as it goes. But,
he instructs the jury that an agreement must be found, not an intention to agree – in that, the
Crown must show the “accused persons intended to adhere to the agreement in the sense of
having the intention to put the common design into effect” (emphasis added, at para 110). In
light of what has already been said, this is a confusing sentence. It leaves open the possibility
that the jury need only find one intention: either an intention to agree or an intention to put the
common design into effect, and not both. It also conveys the idea that a jury is required to find
agreement and then is required to consider whether the parties intended to carry out the common
purpose.

[77] At paragraph 115, the trial judge goes on to instruct the jury on the knowledge
component and how the Crown must show Ms. Nicholson and Mr. Vey “actually agreed and
intended to agree to achieve the common unlawful purpose” (at para 116). He does not instruct
the jury it must find Ms. Nicholson and Mr. Vey intended to agree and intended to achieve the
common purpose. Both elements must be proven beyond a reasonable doubt.

[78] On its own, and in another charge where there was no defence of pretending to agree, the
way the trial judge had expressed the mental element in these paragraphs may not amount to
reversible error; but here, both intentions were critical to the appellants’ defence. Yet, when the
trial judge instructed the jury on what they must find, he limited the mental element to the
intention to carry out the unlawful purpose – as something standing outside of the agreement
(and I repeat):
[122] In order for you to find Angela Nicholson guilty of conspiring to murder Jim
Taylor the Crown must prove beyond a reasonable doubt, on the evidence admissible
against Angela Nicholson, that:
a) There was a completed agreement between Angela Nicholson and Curtis Vey;
b) That the agreement was to commit the murder of Jim Taylor; and
c) That Angela Nicholson and Curtis Vey intended to put the unlawful agreement
(i.e., the murder of Jim Taylor) into effect.

[79] Question #2 also demonstrated the jury’s confusion about what the Crown had to prove
by way of the mental elements: “Elaborate on paragraph 110, page 25 of the charge, which
discusses the distinction between an intention and an agreement”.
 Page 31

[80] In response to this question, the trial judge instructed the jury:
THE COURT: … So the second question that you’ve asked is: (as read)
“Elaborate on paragraph 110, page 25 of the charge, which discusses the
distinction between an intention and an agreement”.
Now, the first thing I’d like to point out is that in paragraph 110, I don’t talk about the
difference between an intention and an agreement. If you see what I have there, it says:
(as read)
“However, there is a distinction in law between an intention to agree on
the one hand, and an agreement on the other hand”.
So the distinction between an intention to -- to agree on the one hand and an agreement
on the other is as follows: the difference between the two is that an agreement is
complete, the deal has been made. An intention to agree means that although you have
come to the conclusion in your own mind that you intend to agree, you have not actually
made the agreement with the other person.
(At T593.)

[81] In this response, the trial judge stated that he was not talking in paragraph 110 “about the
difference between an intention and an agreement”. Instead, what he was talking about was the
distinction between an intention to agree and an agreement. By doing so, the trial judge
demonstrated paragraph 110 did not relate to the issue of intention to put the common design into
effect, but was meant to address intention to agree only. But this then seems to confirm the
problem with paragraph 110, which is whether the Crown must prove an intention to agree and
an intention to carry out the common purpose.

[82] The Supreme Court has often written about the dangers associated with answering a
jury’s response in a limited way. For example, in R v Brydon, [1995] 4 SCR 253, the Supreme
Court noted the following:
[16] This Court has on a number of occasions highlighted the importance of answering
jury queries in a careful, complete and correct manner: see R. v. W.(D.), [1991] 1 S.C.R.
742; R. v. Naglik, [1993] 3 S.C.R. 122; R. v. Pétel, [1994] 1 S.C.R. 3; and R. v. S.(W.D.),
[1994] 3 S.C.R. 521. In Naglik, I held, writing for the majority, at p. 139:
Answers to questions from the jury are extremely important, and carry
influence far exceeding instructions given in the main charge. If the jury
asks a question about an issue addressed in the main charge, it is clear
that they did not understand or remember that part of the main charge,
and it is also clear that they must exclusively rely on the answer given by
the trial judge to resolve any confusion or debate on the point which may
have taken place in the jury room during their deliberations up to that
point.
 Page 32

In this case, the jury had the written charge with them in the jury room. They could read
paragraph 110 and they were struggling with it. They were struggling with how to determine the
mental elements of the charge of conspiracy.

[83] The critical point, however, is whether the jury understood the effect of finding Mr. Vey
had only pretended to agree, if they did so find.

[84] In short, if the jury found that Mr. Vey was only pretending to agree or pretending to
have a conversation about murder so as to somehow agitate or inflame relations with his family,
or if they had a reasonable doubt about whether he intended to put the common purpose into
effect, the jury would have had to find him not guilty because he lacked the necessary mens rea.
If the jury reached that conclusion, then they would have been required to find Ms. Nicholson
not guilty because there would be no actus reus or agreement because there would have been no
true meeting of the minds.

[85] In my respectful view, the trial judge did not adequately charge the jury with respect to
the appellants’ defence regarding a genuine intention to carry out the common purpose. This
ground of appeal merits a new trial.

B. Issue #2: Did the trial judge properly explain the relationship between
proof by circumstantial evidence and the requirement of proof beyond
reasonable doubt?

1. The Jury Charge as it relates to the drawing of inferences

[86] The appellants argue that the trial judge erred in his instruction to the jury regarding how
inferences can be drawn from the evidence. They assert that the explanations left the jury with
the impression that, because Ms. Nicholson and Mr. Vey had discussed killing their spouses, the
jury was then required to draw the inference that the Crown had proven beyond a reasonable
doubt the following: (a) they intended to agree to commit murder, (b) they intended to carry out
the unlawful purpose and (c) they had an agreement to do so.

[87] The trial judge gave the following instruction regarding direct and circumstantial
evidence:
 Page 33

[52] As I explained at the beginning of the trial, you must rely on direct evidence and on
circumstantial evidence in reaching your verdict. Let me remind you of these terms.
[53] Usually, witnesses tell us what they personally saw or heard. For example, a witness
might say that he or she saw it raining outside. This is called direct evidence.
[54] Sometimes, however, witnesses say things from which you are asked to draw certain
inferences. For example, a witness might say that he or she had seen someone enter the
courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you
believe that witness, you might infer that it was raining outside, even though the evidence
was indirect. Indirect evidence is sometimes called circumstantial evidence.
[55] Exhibits, also, may provide direct or circumstantial evidence.
[56] In reaching a verdict, you can take both kinds of evidence into account. In each case,
your job is to decide what conclusions you will reach based upon the evidence as a
whole, both direct and circumstantial. 3
(Emphasis added.)

[88] He gave the following instruction in relation to Ms. Nicholson:

[123] Often it is not easy to decide whether or not a conspiracy existed. We would not
expect that this type of agreement would be in writing or clearly and perfectly captured
by audio or video recordings. A conspiracy is more likely to be proven by evidence of
overt acts and statements by the alleged conspirators from which the agreement can be
logically inferred. Therefore you will have to consider all of the circumstances with the
exception of the out-of-court statements made by Curtis Vey to the police and the
undercover officer (because that evidence is admissible against him only).
(Emphasis added.)

[89] He then gave a similar instruction about Mr. Vey:

[148] Often it is not easy to decide whether or not a conspiracy existed. We would not
expect that this type of agreement would be in writing or clearly and perfectly captured
by audio or video recording. A conspiracy is more likely to be proven by evidence of
overt acts and statements by the alleged conspirators from which the agreement can be
logically inferred. Therefore, you will have to consider all of the circumstances, with the
exception of the out-of-court statements made by Angela Nicholson to the police and the
other undercover officer because that evidence is admissible against her only.
(Emphasis added.)

2. The re-charge as it relates to drawing inferences

[90] As mentioned, on the morning after the first day of deliberations, the jury asked three
questions. I have already addressed the first two questions. Question #3 concerned inferences:

3
In the paper copy presented to the jury, a heading precedes this part: “3.2 Direct and Circumstantial Evidence”.
Paragraphs 52 to 56 form the entirety of this part.
 Page 34

[THE COURT:] The third question is: (as read)

“Please, provide us with more detail and clarification on the following
line in paragraph 123, page 28, quote:
‘A conspiracy is more likely to be proven by evidence of
overt acts and statements by the alleged conspirators
from which the agreement can be logically inferred’.
We would like more detail and clarification regarding the meaning of
overt acts and inferred, in particular”.
(Trial transcript at T582)

[91] After receiving counsels’ submissions, the trial judge re-charged as follows:
[THE COURT:] So as I said in paragraph 123, often conspiracies are not put in writing.
One likely never sees two people who are about to rob a bank actually put on paper a
formal agreement where they say: We, the bank robbers, hereby agree that we intend
to rob the Royal Bank on Saturday, June 5th, at 6:00 o’clock PM.
Rather, one would expect that the evidence against them would be more subtle. You
have to hear what they said and observe what they did. From those acts and
statements, one could infer what they agreed to and intended, or what they did not
agree to.
An inference is a conclusion that you come to on the basis of evidence and reasoning.
According to the Meriam Webster Dictionary, an inference is: (as read)
“The act or process of reaching a conclusion about something from
known facts or evidence, or a conclusion or opinion that is formed
because of known facts or evidence.”
For example if you see me drinking a glass of water, you might infer that I was
thirsty.
As far as an overt act, an overt act is something that is plain or readily apparent to the
observer. Overt acts or lack of overt acts are just a part of the evidence that you may
use to determine whether there was an agreement or whether there was not an
agreement.
(At T594.)

3. Inferences from proven facts analysis

[92] In fairness to the trial judge, he charged the jury shortly before the Supreme Court issued
its decision in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 [Villaroman], which
considered circumstantial evidence, the drawing of inferences from circumstantial evidence and
the burden of proof on the Crown when guilt is determined on the basis of inferential reasoning.
 Page 35

[93] The jury in the present case was charged on June 3, 2016, and returned its verdict on June
5, 2016. The Supreme Court issued its decision in Villaroman on July 29, 2016. Counsel for the
appellants submit that their concerns with the trial judge’s charge and re-charge, as they relate to
the drawing of inferences, must be assessed in light of Villaroman. The Crown does not contend
otherwise. Since Villaroman addresses an important part of the appellants’ case, it is my view
that it must be considered. In support of this conclusion, I note that Villaroman was applied in R
v Calnen, 2017 NSCA 49, 358 CCC (3d) 362 (leave to appeal to the SCC as of right and
presently on reserve, [2017] SCCA No 305 (QL)).

[94] In Villaroman, Cromwell J. resolved a number of issues that had arisen in the
jurisprudence regarding the use of circumstantial evidence and the need to give some form of
Hodge’s Case instruction (R v Hodge, 1838 CanLII 1, 168 ER 1136 (FOREP)). He explained the
relationship between circumstantial evidence and proof beyond a reasonable doubt, and how this
must be addressed when charging a jury. He warned that there is a danger the jury will “fill in the
blanks” and “jump to conclusions” (at para 29) when there is circumstantial evidence:
[25] The Court has generally described the rule in Hodge’s Case as an elaboration of the
reasonable doubt standard: Mitchell [[1964] SCR 471]; R. v. John (1970), [1971] S.C.R.
781 (S.C.C.) [John], per Ritchie J., at pp. 791–92; Cooper [[1978] 1 SCR 860]; R. v.
Mezzo, [1986] 1 S.C.R. 802 (S.C.C.), at p. 843. If that is all that Hodge’s Case was
concerned with, then any special instruction relating to circumstantial evidence could be
seen as an unnecessary and potentially confusing addition to the reasonable doubt
instruction.
[26] However, that is not all that Hodge’s Case was concerned with. There is a special
concern inherent in the inferential reasoning from circumstantial evidence. The concern is
that the jury may unconsciously “fill in the blanks” or bridge gaps in the evidence to
support the inference that the Crown invites it to draw. Baron Alderson referred to this
risk in Hodge’s Case. He noted the jury may “look for – and often slightly … distort the
facts” to make them fit the inference that they are invited to draw: p. 1137. Or, as his
remarks are recorded in another report, the danger is that the mind may “take a pleasure
in adapting circumstances to one another, and even straining them a little, if need be, to
force them to form parts of one connected whole”: W. Wills, Wills’ Principles of
Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissenting
but not on this point, at p. 813.
[27] While this 19th century language is not suitable for a contemporary jury instruction,
the basic concern that Baron Alderson described – the danger of jumping to unwarranted
conclusions in circumstantial cases – remains real. When the concern about
circumstantial evidence is understood in this way, an instruction concerning the use of
circumstantial evidence and the reasonable doubt instruction have different, although
related, purposes: see B. L. Berger, “The Rule in Hodge’s Case: Rumours of its Death are
Greatly Exaggerated” (2005), 84 Can. Bar Rev. 47, at p. 60–61 [Berger].
 Page 36

[28] The reasonable doubt instruction describes a state of mind – the degree of persuasion
that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable
doubt is not an inference or a finding of fact that needs support in the evidence presented
at trial: see, e.g., R. v. Schuldt, [1985] 2 S.C.R. 592 (S.C.C.), at pp. 600–610. A
reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or
frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically
connected to the evidence or absence of evidence”: Lifchus, [[1997] 3 SCR 320] at
para. 36. The reasonable doubt instructions are all directed to describing for the jurors
how sure they must be of guilt in order to convict.
[29] An instruction about circumstantial evidence, in contrast, alerts the jury to the
dangers of the path of reasoning involved in drawing inferences from circumstantial
evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his
comments. And the danger he identified so long ago – the risk that the jury will “fill in
the blanks” or “jump to conclusions” – has more recently been confirmed by social
science research: see Berger, at pp. 52–53. This Court on occasion has noted this
cautionary purpose of a circumstantial evidence instruction: see, e.g., R. v. Boucher
(1954), [1955] S.C.R. 16 (S.C.C.) per Rand J., at p. 22; John, per Laskin J., dissenting but
not on this point, at p. 813.
[30] It follows that in a case in which proof of one or more elements of the offence
depends exclusively or largely on circumstantial evidence, it will generally be helpful to
the jury to be cautioned about too readily drawing inferences of guilt. No particular
language is required. Telling the jury that an inference of guilt drawn from circumstantial
evidence should be the only reasonable inference that such evidence permits will often be
a succinct and accurate way of helping the jury to guard against the risk of “filling in the
blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to
illustrate the concern about jumping to conclusions with an example. If we look out the
window and see that the road is wet, we may jump to the conclusion that it has been
raining. But we may then notice that the sidewalks are dry or that there is a loud noise
coming from the distance that could be street-cleaning equipment, and re-evaluate our
premature conclusion. The observation that the road is wet, on its own, does not exclude
other reasonable explanations than that it has been raining. The inferences that may be
drawn from this observation must be considered in light of all of the evidence and the
absence of evidence, assessed logically, and in light of human experience and common
sense.
[31] I emphasize, however, that assistance to the jury about the risk of jumping to
conclusions may be given in different ways and, as noted in Fleet [(1997), 120 CCC (3d)
457 (Ont CA)], trial judges will provide this assistance in the manner they consider most
appropriate in the circumstances: p. 549.
(Emphasis added.)

[95] Lastly, Villaroman reviewed how the trier of fact should consider and assess
circumstantial evidence:
[37] When assessing circumstantial evidence, the trier of fact should consider “other
plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with
guilt: R. v. Comba, [1938] O.R. 200 (Ont. C.A.), at pp. 205 and 211, per Middleton J.A.,
aff’d [1938] S.C.R. 396 (S.C.C.); R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C.
C.A.), at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the
 Page 37

appellant that the Crown thus may need to negative these reasonable possibilities, but
certainly does not need to “negative every possible conjecture, no matter how irrational
or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw
(1971), [1972] S.C.R. 2 (S.C.C.), at p. 8. “Other plausible theories” or “other reasonable
possibilities” must be based on logic and experience applied to the evidence or the
absence of evidence, not on speculation.
[38] Of course, the line between a “plausible theory” and “speculation” is not always
easy to draw. But the basic question is whether the circumstantial evidence, viewed
logically and in light of human experience, is reasonably capable of supporting an
inference other than that the accused is guilty.
(Emphasis added.)

[96] As stated by Ryan-Froslie J.A. in R v Farnham, 2016 SKCA 111, [2016] 12 WWR 635
[Farnham], Villaroman dealt with the appropriate instructions to be given to a jury in cases
where the evidence against an accused was mainly circumstantial. She then noted that the
discussion of the rule of the reasonable doubt standard in Hodge’s Case, and the purpose of the
rule, is twofold: (a) ensuring guilt is proven beyond a reasonable doubt in cases involving
circumstantial evidence and (b) addressing “the concern that a jury … may unconsciously ‘fill in
the blanks’ or bridge gaps in the evidence to support an inference it wishes to draw” (Farnham at
para 37). Further, she stated that the rule in Hodge’s Case applies not just to a guilty verdict, but
also to the elements of the offence:
[39] It is important to remember that the rule in Hodge’s Case applies, not just to a guilty
verdict but to the elements of the offence. It does not, however, apply to findings of
subsidiary facts made on the pathway to the verdict. This is so because such facts are to
be established on a balance of probabilities as opposed to proven beyond a reasonable
doubt.

[97] Relying on R v Mitchell, [1964] SCR 471 at 479 [Mitchell], and R v Cooper, [1978] 1
SCR 860 at 874, the Crown submits that the rule in Hodge’s Case, about circumstantial
evidence, has no application to a case that turns on the intention or mental processes of an
accused. I understand this submission, but, in my view, it does not apply to the determination of
whether a conspiracy, in fact, exists. In Peter MacKinnon’s review of Goode’s text, he also
distinguishes Mitchell: 4
Where, as in Mitchell, the act is a demonstrable physical occurrence, it is reasonable to
make the distinction. The question of intent can be readily distinguished and subjected to
a different test, or a different illustration of the reasonable doubt principle, whichever
Hodge’s Case may be. This is not so when the charge is conspiracy. The formation of an
agreement is an act of the intellect on the part of each party to the agreement. Although

4
Cited in Stuart at page 717, footnote 231.
 Page 38

there may be verbal expressions or other manifestations of concurrence, the existence of

an unlawful agreement can only be established by indirect evidence. Both Professor
Goode and the authorities preserve a distinction between direct evidence and indirect
evidence of agreement, but the basis of any suggestion that a conspiracy can be proved
directly is questionable. Even when a conspirator appears as a witness, he can testify
directly only to his own intention and demonstration of concurrence, and to
manifestations of a conspiracy – to other expressions of agreement and the acts done or
words spoken in pursuing the unlawful object. But no one can see or otherwise directly
experience the formation of a conspiracy.
(Emphasis added, Peter MacKinnon, “Reviews” (October 1977)
4.1 Dalhousie Law J 212 at 220.)

I agree with this analysis.

[98] In any event, the actus reus of conspiracy requires the Crown to prove whether there was
an agreement in fact. An agreement can be found to exist only if the trier of fact is satisfied that
two people intended to agree, intended to carry out the common purpose and completed the
agreement. The determination of whether someone agrees can only be inferred from the
evidence. I note, as well, that in R v Smith, 6 CCC (2d) 170 (Ont CA) [Smith], Gale C.J.O. made
a similar point when a new trial was ordered on the basis that the jury had not been warned of the
effect of Hodge’s Case on the essential question of whether the accused was a party to the
alleged conspiracy. See also Goode at 244.

[99] At two points in his charge, the trial judge referred to the July 1 Recording as being direct
evidence (and I repeat):
[70] The comments that I have just made respecting out-of-court statements does not
apply to the July 1, 2013, iPod recording (exhibit P-2) because that is direct evidence
relating to the Crown’s allegation of a conspiracy. That iPod recording is evidence
against both Ms. Nicholson and Mr. Vey.
[102] The iPod recording that you heard as to what took place at the Vey household on
July 1, 2013, is direct evidence of the alleged conspiracy and is admissible and properly
considered evidence against both Angela Nicholson and Curtis Vey.

[100] In R v Cinous, 2002 SCC 29 at para 88, [2002] 2 SCR 3, the Supreme Court defined
direct evidence and circumstantial evidence as follows:

(a) “direct evidence is evidence which, if believed, resolves a matter in issue” (at
para 88);
 Page 39

(b) “direct evidence is witness testimony as to ‘the precise fact which is the subject of
the issue on trial’” (at para 88); and

(c) “[c]ircumstantial evidence is ‘evidence that tends to prove a factual matter by

proving other events or circumstances from which the occurrence of the matter at
issue can be reasonably inferred’” (at para 89).

[101] In my respectful view, and contrary to the judge’s instruction on this point, the July 1
Recording was direct evidence that a conversation about murder took place; but it was
circumstantial evidence in relation to the proof of intention: R v Smith (R v James), 2007 NSCA
19 at para 189 and 190, 216 CCC (3d) 490, aff’d 2009 SCC 5, [2009] 1 SCR 146.

[102] If the July 1 Recording were “direct evidence of the alleged conspiracies”, the jury would
not have needed to consider any other evidence: the conspiracy would be proven. Rather, the
July 1 Recording was circumstantial evidence from which the agreement could be inferred. I am
certain that the trial judge meant to say “directly admissible evidence” against the two of them,
rather than “direct evidence of the alleged conspiracy”, but the slip serves to underscore the point
as to how little significant, direct evidence existed in this case.

[103] With little or no direct evidence, Villaroman instructs that “it may be helpful” for the jury
to receive instructions on two issues: (a) “the nature of circumstantial evidence” and (b) “the
relationship between proof by circumstantial evidence and the requirement of proof beyond
reasonable doubt” (at para 22).

[104] I find no fault with the trial judge’s instruction on the first issue. His instruction on the
nature of circumstantial evidence aligns with the instruction endorsed by Cromwell J. in
Villaroman:
[23] An explanation of the difference between direct and circumstantial evidence is
included in most criminal jury charges and rarely causes difficulty. One example of how
this distinction may be conveyed to a jury is found in s. 10.2 of the Model Jury
Instructions (online) prepared by the National Committee on Jury Instructions of the
Canadian Judicial Council:
[1] As I explained at the beginning of the trial, you may rely on direct
evidence and on circumstantial evidence in reaching your verdict. Let me
remind you what these terms mean.
 Page 40

[2] Usually, witnesses tell us what they personally saw or heard. For
example, a witness might say that he or she saw it raining outside. That is
called direct evidence.
[3] Sometimes, however, witnesses say things from which you are asked
to draw certain inferences. For example, a witness might say that he or
she had seen someone enter the courthouse lobby wearing a raincoat and
carrying an umbrella, both dripping wet. If you believed that witness,
you might infer that it was raining outside, even though the evidence was
indirect. Indirect evidence is sometimes called circumstantial evidence.

[105] The problem arises with the second issue: the relationship between proof by
circumstantial evidence and the requirement of proof beyond reasonable doubt. The trial judge
did not instruct the jury specifically on this issue. The National Committee on Jury Instructions,
“10.2 Direct and Circumstantial Evidence”, Model Jury Instructions (Ottawa: Canadian Judicial
Council, 2012) at para 10.2.5, online publication: National Judicial Institute <www.nji-inm.ca>
(July 2018), cautions the following:
Where the evidence for the prosecution is entirely or substantially circumstantial, it is
necessary to give a further instruction:
However, you cannot reach a verdict of guilty based on circumstantial
evidence unless you are satisfied beyond a reasonable doubt that [the
name of the accused’s] guilt is the only reasonable conclusion to be
drawn from the whole of the evidence [R v Griffin, 2009 SCC 28, at
para 33].

[106] While this is the suggested instruction, it must be acknowledged that in Villaroman the
Supreme Court has not made it mandatory for trial judges to provide a specific instruction where
proof depends on circumstantial evidence. Instead, Cromwell J. wrote that an instruction “may
be helpful” (at para 22), “will usually be helpful” (at para 24) and that “it will generally be
helpful to the jury to be cautioned about too readily drawing inferences of guilt” (at para 30): see
also Don Stuart’s case comment on Villaroman as found on WestlawNext Canada.

[107] Since it is not mandatory to provide a Villaroman instruction, an appellate court must be
careful not to intervene simply on the basis that a trial judge has not charged the jury in
accordance with Hodge’s Case or some other similar form of instruction. In this case, the jury
was instructed that it could use both direct and circumstantial evidence in reaching a verdict, and
that the jury was required to make conclusions based on the evidence as a whole, including both
types of evidence. The jury was also instructed that it must find each of the accused guilty
beyond a reasonable doubt.
 Page 41

[108] While the trial judge gave instructions on these matters, he did not instruct the jury in
either the charge or in his response to the jury’s question about the standard of proof to apply to
inferences drawn from the evidence. He did not explain to the jury that they could draw an
inference of guilt from the circumstantial evidence where it was the only reasonable inference
that such evidence permitted and that the burden on the Crown remained the same with respect to
the drawing of inferences as in relation to direct evidence.

[109] In his charge, after explaining the difference between direct and indirect evidence, the
trial judge introduced a new notion of “overt acts and statements” in the context of a sentence
that may have led the jury to believe that they would be free to draw an inference of proof on the
basis of logic: “A conspiracy is more likely to be proven by evidence of overt acts and
statements by the alleged conspirators from which the agreement can be logically inferred” (Jury
Charge at paras 123 and 148).

[110] Question #3 revealed that the jury did not understand what an overt act was in the context
of this trial or how to draw inferences from an overt act. The trial judge’s response left them with
the impression that they would be at liberty to draw inferences from what was said and observed
on the basis of reasoning alone. In my respectful view, whatever the charge said on this point, in
response to the question, the trial judge was required to expand on his charge and explain that the
jury could draw the inference only if they were satisfied beyond a reasonable doubt that there
was no other rational inference. The jury needed further instruction about how to draw inferences
and to what degree they had to be satisfied before they could find guilt.

[111] Clearly, it was part of the Crown’s case that the jury could draw inferences of guilt from
the July 1 Recording, and Crown counsel, in her address to the jury, appropriately invited the
jury to draw such inferences:
No one actually comes out and says: This is how we’re going to kill Brigitte Vey, but the
inference is there. If she’s incapacitated by sleeping pills and she’s going -- when the
house catches fire, she’ll be inside the house. Now, the inference is that the actions taken
by Mr. Vey and Ms. -- Ms. Nicholson will [cause] her death.
Similarly, with Mr. Taylor, the parties don’t say: This is how we’re going to cause his
death. They say: We’re going to give him sleeping pills some time on or after November
1st and leave him somewhere. Again, they don’t say: This is how we’ll kill him. But the
inference is, if you leave someone in an abandoned building, having been drugged in
November, it’s likely that this will cause their -- cause their death. The intention was
clearly to make him disappear.
(Trial transcript at T474.)
 Page 42

[112] Notwithstanding this invitation, the jury was not instructed as to the burden the Crown
was required to bear with respect to the drawing of these or any other inferences.

[113] Importantly, as stated in Villaroman, there is a special concern inherent in circumstantial

evidence in a case, such as this, that the jury may unconsciously “fill in the blanks”. In that
regard, in deciding whether this Court should intervene, we cannot overlook the oral recordings
of Mr. Vey during his police interview and while speaking to the undercover police officer in his
cell, wherein he repeatedly stated that he had entered into the conversation with Ms. Nicholson
intending to teach his family a lesson, an averment supported by Brigitte Vey’s evidence. Where
appellate review of the evidence reveals what a jury might find to be an alternate reasonable
inference, it is more likely that a special instruction ought to have been given. Respectfully, I
find the trial judge failed to caution the jury on how to infer guilt and the reasonable doubt
instruction and, thereby, erred.

[114] In my respectful view, this ground of appeal merits a new trial.

C. Issue #3: Did the trial judge properly address the question of
inconsistent verdicts and the test in Carter?

[115] Either of the two previous grounds would be sufficient to resolve this appeal such that it
would not be necessary to consider this issue. But three factors influence my decision to do so.
First, the appellants submit that apart from any consideration of intention, the trial judge should
not have left open the possibility of inconsistent verdicts; rather, the jury should have been
charged in such a way as to emphasize the need for bilateral agreement being proven beyond a
reasonable doubt. Second, Mr. Vey argues that, if the jury were going to be charged leaving open
the possibility of inconsistent verdicts, they should have been charged along the lines of a
modified Carter test, emphasizing the differences between his client and Ms. Nicholson. Third,
since a new trial will be ordered, and this same issue will arise again, it is prudent to give
guidance on this issue.

1. The background law on inconsistent verdicts and the Carter test

[116] In Guimond, the appellant’s conviction had been confirmed upon appeal. However, his
co-conspirator’s second trial resulted in an acquittal. The Supreme Court was asked to decide
 Page 43

whether the conviction of the appellant should be quashed after the acquittal of the co-
conspirator. Like the case at bar, Guimond concerned a two-person conspiracy only. Justice
Ritchie, for the majority, after an extensive review of the law, concluded that the appellant’s
conviction could stand. From his review of the law, he concluded as follows:
I think it can be taken, that where only two persons are charged with conspiracy and they
are separately tried whether or not they are separately indicted, the conviction of one is
not necessarily invalidated by the acquittal of the other.
…
The old rule as to the effect of inconsistent verdicts is sometimes said to subsist in cases
where the same or substantially the same evidence is admissible against the jointly tried
conspirators. In such an event it would be illogical to acquit one and convict the other but
this does not appear to me to be because of the force of any “imperative rule of law”
stemming from the existence of inconsistency on the face of the record but is rather the
logical result of the evidence having established the guilt or innocence of both the alleged
co-conspirators.
(Emphasis added, at 977, 981–982.)

[117] In the years since Guimond was decided, issues in relation to two-person conspiracies
have been almost exclusively linked to Carter, which permits the trier of fact to use hearsay
evidence of acts and statements of co-conspirators made in furtherance of the common purpose
to complete the proof of an individual’s participation in a conspiracy. (The admissibility of
hearsay evidence pursuant to the co-conspirators’ exception was affirmed in R v Mapara, 2005
SCC 23 at para 31, [2005] 1 SCR 358.)

[118] On a charge of conspiracy, Carter holds that the trial judge should instruct the jury in the
following manner:
[T]he trial judge should instruct them to consider whether on all the evidence they are
satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed.
If they are not satisfied, then the accused charged with participation in the conspiracy
must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they
must then review the evidence and decide whether, on the basis of the evidence directly
receivable against the accused, a probability is raised that he was a member of the
conspiracy. If this conclusion is reached, they then become entitled to apply hearsay
exception and consider evidence of the acts and declarations performed and made by the
co-conspirators in furtherance of the objects of the conspiracy as evidence against the
accused on the issue of his guilt. This evidence, taken with the other evidence, may be
sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of
the conspiracy and that he is accordingly guilty.
(At 947.)
 Page 44

[119] The Supreme Court considered the implications of the Carter test for two-person
conspiracies in R v Barrow, [1987] 2 SCR 694 [Barrow]. The majority of the Court ordered a
new trial with respect to one of the four grounds of appeal. Justice McIntyre, writing for himself
and Le Dain J., disagreed with the majority on the necessity of ordering a new trial on that one
ground, and, therefore, went on to consider all four of the grounds, including an examination of
Guimond’s reach, its application to a two-person conspiracy and how Carter applied to such
conspiracies. Importantly, Dickson C.J., writing for the majority, concluded the following:
“Although strictly speaking I do not have to decide the other three issues, for the guidance of the
trial judge who retries the case I think it useful to state that I would agree with McIntyre J.’s
opinions on those issues” (at 722). The majority concurrence makes what would otherwise be a
dissenting opinion strong obiter.

[120] In addressing the applicability of the Carter test to a two-person conspiracy, McIntyre J.
approved this summary of the test in Carter:
1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged
conspiracy in fact existed.
2. If the alleged conspiracy is found to exist then the trier of fact must review all the
evidence that is directly admissible against the accused and decide on a balance of
probabilities whether or not he is a member of the conspiracy.
3. If the trier of fact concludes on a balance of probabilities that the accused is a member
of the conspiracy then he or they must go on and decide whether the Crown has
established such membership beyond reasonable doubt. In this last step, only the trier of
fact can apply the hearsay exception and consider evidence of acts and declarations of co-
conspirators done in furtherance of the object of the conspiracy as evidence against the
accused on the issue of his guilt.
(Barrow at 740.)

[121] Having approved this formulation of the test, McIntyre J. also made it clear that only
admissible evidence can be used to determine whether there is an agreement at the first step:
On this first step what is considered is the existence of the conspiracy, not individual
membership. At this point the hearsay exception is inapplicable. This is in accordance
with the view expressed by Martin J.A. in R. v. Baron and Wertman (1976), 31 C.C.C.
(2d) 525, in reference to the conspirator’s exception to the hearsay rule, where he said, at
p. 544:
It only comes into play, however, where there is evidence fit to be
considered by the jury that the conspiracy alleged between A and B
exists. It is clear that where the fact in issue to be proved is whether a
conspiracy exists between A and B, A’s acts, or declarations implicating
B cannot be used to prove that B was a party to the conspiracy, in the
 Page 45

absence of some other evidence admissible against B to bring him within

the conspiracy: see Savard and Lizotte v. The King (1945), 85 C.C.C.
254 at p. 262, [1946] 3 D.L.R. 468, [1946] S.C.R. 20 at p. 29.
Where, at this stage, the “evidence fit to go to a jury” does not satisfy the trier of fact
according to the criminal standard of proof that the conspiracy existed, it need go no
further for no conspiracy has been shown. The remaining steps, as outlined in Carter,
follow only where the trier of fact has reached its first determination – that the conspiracy
exists.
(At 741–742.)

[122] Justice McIntyre held that Guimond had rejected the notion that, where two individuals
are charged with conspiracy, they must both be convicted or acquitted:
In argument it was suggested that the Carter approach could not apply to an allegation of
a conspiracy between two people. Indeed, this seemed to be at the root of the argument
advanced on this issue. It was formerly considered, where there were two conspirators
only (and no others), that both must be convicted or both acquitted. This was to avoid an
inconsistency in verdicts, to avoid a finding that A was guilty of conspiring with B but
that, on the same occasion, B was not guilty of conspiring with A. This problem would
not, of course, arise at bar where three accused conspirators were involved but, in any
event, in the present state of our law it could not prevail. The former view has been
authoritatively rejected in the judgment of the majority of this Court in Guimond v. The
Queen, [1979] 1 S.C.R. 960. It is not necessary for me to discuss in any detail the
majority judgment of Ritchie J. in that case in which he reviewed and distinguished the
earlier authorities and made special reference to Director of Public Prosecutions v.
Shannon, [1975] A.C. 717. He said, at p. 977 [S.C.R.]:
I think it can be taken, that where only two persons are charged with
conspiracy and they are separately tried whether or not they are
separately indicted, the conviction of one is not necessarily invalidated
by the acquittal of the other.
In my view, these words are equally applicable to a case where the two conspirators were
jointly charged and jointly tried.
In my view, there is no inconsistency in this position. The apparently inconsistent verdict
does not result from the impossible conclusion that A conspired with B to commit a given
crime and that B did not conspire with A on the same occasion to commit the same crime,
but rather from the fact that there was evidence admissible against A to establish his guilt
but no sufficient evidence admissible against B to prove his participation. The fact that
upon arrest Mr. A says to the police “Yes, B and I agreed to murder X” will not be
admissible against B does not deprive it of its evidentiary force against A.
(Emphasis added, at 742–743.)

While McIntyre J. said Guimond applies to jointly-tried co-conspirators, it remains to determine

the limits of this proposition.
 Page 46

[123] Since Guimond and Barrow, the following have been the only few decisions where an
appellate court has had to consider whether inconsistent verdicts are possible in the context of a
two-person conspiracy, where the accused are jointly tried: R v Viandante (1995), 102 Man R
(2d) 126 (CA) at para 45, leave to appeal to SCC denied, [1996] SCCA No 243 (QL)
[Viandante]; and R v Solleveld, 2014 ONCA 418 at para 27, 311 CCC (3d) 387 [Solleveld]. The
special position of two-person conspiracies has also been discussed in other appellate decisions,
of which this list is representative: R c Comeau (1991), 44 QAC 93 (WL) (CA) [Comeau],
affirmed R v Comeau, [1992] 3 SCR 473 [Comeau SCC]; R v Bogiatzis, 2010 ONCA 902, 285
CCC (3d) 437 [Bogiatzis]; and R v Puddicombe, 2013 ONCA 506, 299 CCC (3d) 534
[Puddicombe], leave to appeal to SCC denied, 2014 CanLII 9502. In all of these decisions, the
primary issue is the use of the co-conspirator’s exception to the hearsay rule in the context of a
two-person conspiracy.

[124] From my review of these decisions, I find myself in agreement with the opinions of
Beauregard and LeBel JJ.A. in Comeau and with Viandante, Bogiatzis, Puddicombe and
Solleveld, holding that Carter may be applied to two-person conspiracies, where the co-
conspirators’ exception to the hearsay rule is invoked.

[125] In Comeau, only one of two co-conspirators was tried and convicted. The other was a
Crown witness. Justice Tyndale dismissed the appeal, but nonetheless opined that where the
conspiracy involves two persons only, the three-step process from Carter does not apply:
[40] In my view, the Carter approach does not apply to a conspiracy involving only two
people, because in such a case, step one answers all the questions, and steps two and
three become irrelevant. There cannot be a conspiracy of one person; two is the
minimum; so if at step one the jury is satisfied beyond reasonable doubt that the alleged
conspiracy in fact existed, they must have found that the accused was a member, because
he was one of the two members necessary to create the conspiracy. In other words, if the
only possible conspiracy was between the accused and X, the only conspiracy the jury
could find involved the accused as a member. In a conspiracy of three or more people the
jury, at step one, can indeed find a conspiracy without finding the accused a member, but
they cannot do that in a conspiracy of only two of which the accused is one.

[126] Justice Tyndale went on to say that in a two-person conspiracy, the jury must be satisfied
beyond a reasonable doubt that the alleged conspiracy, necessarily involving the accused as a
member, in fact existed, by means of regularly admitted evidence, excluding hearsay:
[43] If I am right, it follows that the trial judge’s instructions were, with respect, wrong.
In case of a conspiracy limited to two (in our case Ferro and Comeau), the jury must be
 Page 47

satisfied beyond a reasonable doubt that the alleged conspiracy, necessarily involving the
accused as a member, in fact existed, by means of regularly admitted evidence excluding
hearsay; any reference to the probable or prima facie membership of the accused in the
proven conspiracy and any reference to acts and declarations of his co-conspirator
(singular) as evidence of his membership, are superfluous, confusing, and wrong.
(Emphasis added.)

[127] He would nonetheless have dismissed the appeal on this point because there had been no
improper use of hearsay evidence. Justices Beauregard and LeBel were not prepared to go as far
as Tyndale J.A. Justice Beauregard criticized the trial judge’s wording used to describe the
Carter process, but also found the error to be of no consequence. Justice LeBel would have
ordered a new trial for three reasons, including the improper charge using Carter. Like
Beauregard J.A., he did not say Carter could not be used, but he noted the following: « Encore
faut-il, cependant, à cette étape, que cette participation soit établie suivant les règles
fondamentales de la preuve pénale, par une preuve hors de tout doute raisonnable, pertinente,
légalement admissible » (at para 96; TRANS: “However, it is necessary at this stage, to say that
participation must be established according to the basic rules of criminal evidence – by proof
beyond reasonable doubt using relevant, legally admissible evidence”).

[128] The Supreme Court, in dismissing the Comeau appeal, affirmed the result of the appeal
court. Justice Cory said the following:
We are substantially in agreement with the majority of the Court of Appeal. The most
difficult issue is the first one raised by the appellant, namely the one concerning the
validity of the trial judge’s charge to the jury regarding the evidence of conspiracy.
We all agree that this charge was erroneous. This error did not cause any prejudice to the
appellant, however. The essential evidence of the conspiracy was direct, and not hearsay,
and it was given by the co-conspirator Bernard Ferro. The trial judge adequately
instructed the jury as to the weaknesses and dangers inherent in his testimony. The jury
could have convicted the appellant only if it was satisfied beyond a reasonable doubt with
the evidence given by Ferro.
In these circumstances the verdict would necessarily have been the same, even if the trial
judge had not erred in his charge to the jury.
(Comeau SCC at 473–474.)

[129] In Viandante, the Manitoba Court of Appeal ordered a new trial for Mr. Viandante (a
jointly-tried co-conspirator) on the basis that the trial judge had not properly instructed the jury
on the use of the Carter test, which was described as “a guideline to be used in appropriate cases
to ensure that an accused is not implicated in an illegal conspiracy solely on the hearsay
 Page 48

testimony of others” (at para 51). According to the Court, the trial judge should have dealt with
the first stage of the Carter test “more summarily, and then proceeded directly, and with detailed
reference to the evidence, to the more difficult question raised at the second stage, namely,
whether on the direct evidence against him Lebras was a probable member of the conspiracy
with Viandante”. The Court was concerned that “Viandante might have been convicted because,
at the first stage of the Carter process the jury had already concluded that he was a member of a
two-person conspiracy with Lebras, based upon hearsay evidence as to Viandante’s
participation” (at para 52). Comeau was distinguished on the basis that the trial judge in that case
need not consider the culpability of the other accused.

[130] Bogiatzis concerned a two-person conspiracy where one of the alleged conspirators had
already pleaded guilty. On appeal from his conviction, the Court of Appeal ordered a new trial
on the basis that the directions on the first step of Carter were prejudicial to the appellant. In that
regard, the Court agreed with what the “Manitoba Court of Appeal said in Viandante at para. 53:
‘The jury may well have been confused by the application of the Carter three-step process
without appropriate modifications to fit a two-person conspiracy’” (Bogiatzis at para 61). The
trial judge had erred by not tailoring directions given to the jury on how to apply the co-
conspirators’ exception to the hearsay rule to the particular fact scenario. One suggested
modification was “to draw a clear distinction between the elements of the offence as charged in
the indictment and the conspiracy allegation for the purpose” of the co-conspirators’ exception to
the hearsay rule (at para 55).

[131] Puddicombe parallels Comeau in that only one of two co-conspirators was tried and
convicted. The other was a Crown witness who denied that she had been part of the conspiracy.
Sitting a panel of five, the Ontario Court of Appeal was asked to reverse its holding in Bogiatzis
and declare that the Carter instruction should not be given “where the Crown alleges a two-
person agreement to commit the crime” of conspiracy because it “creates the very real risk that
the jury will use evidence of the acts and declarations of the other alleged party to the agreement
to convict an accused even where those acts and declarations are not properly admissible against
the accused” (Puddicombe at para 3). The Court held that Bogiatzis was correctly decided: the
Carter instruction may be used to make hearsay evidence admissible against a co-conspirator as
part of the proof of the actus reus of agreement in a two-person conspiracy.
 Page 49

[132] Justice Doherty, writing for the Court of Appeal in Puddicombe, also observed that only
Tyndale J.A. in Comeau had taken the view that the Carter approach does not apply to two-
person conspiracies and the Supreme Court, in its brief reasons, did not sustain his opinion on
that point. Further, Doherty J.A. declined to follow Tyndale J.A.’s comment in Comeau, saying
“there is no justification for excluding what is otherwise reliable hearsay evidence in the form of
a co-conspirator’s acts and declarations simply because the criminal agreement involved only
two members” (at para 89).

[133] Finally, in this review of decisions, I will mention Solleveld, largely because it is one of
only a few cases where co-conspirators in a two-person conspiracy were jointly tried. The Court
of Appeal ordered a new trial for two reasons: (a) the trial judge had instructed the jury that
conspiracy was an all or nothing proposition and (b) the trial judge had instructed the jury that
membership at the second stage of Carter was to be based on all of the evidence.

[134] It remains to situate these decisions in the framework created by O’Brien, as well as
Guimond and Barrow, and apply them to the issues that the appellants raise in this case, namely,
whether the trial judge erred by leaving the possibility of inconsistent verdicts with the jury and
by not charging using the Carter formulation (or some modification of it).

2. The submissions of the parties leading to the development of the

charge and the relevant parts of the Jury Charge

[135] In this case, on the question of whether the charge should be presented to the jury in
terms of “all or nothing” or so as to permit “inconsistent or unequal verdicts”, Crown counsel
asked the trial judge to charge the jury “regarding each accused individually” (trial transcript at
T271). During the charge conference, she made it clear she was not relying on the third step in
Carter, but that the first two steps, as to whether there was a conspiracy and, if so, whether both
individuals were part of it, would be helpful (at T524). (In fairness to Crown counsel, I take her
as saying that the jury would have to find, on the basis of proof beyond a reasonable doubt, both
the existence of an agreement and the participation of both accused in that agreement.)

[136] Early in the trial, the trial judge had invited all counsel to give him submissions on the
question of how to charge a jury in a two-person conspiracy, specifically asking whether it was
“an all or nothing” proposition. As I have indicated, the appellants’ lawyers filed written
 Page 50

submissions relying on O’Brien, requesting that the trial judge charge on an all or nothing basis.
Citing Guimond, the trial judge disagreed. He then proceeded to charge the jury, leaving open the
possibility of inconsistent verdicts. He did not charge in accordance with Carter, but rather he
charged with respect to each accused individually: as to the elements, the counts and the
evidence.

[137] His charge instructed the jury as follows (and I repeat):

[94] In this case, as you will know by now, we have two people charged with two counts
of conspiracy to commit murder. Broken down, or “compartmentalized”, this results in
four separate questions for you to answer. They are:
(1) Did Angela Nicholson conspire to murder Jim Taylor?
(2) Did Angela Nicholson conspire to murder Brigitte Vey?
(3) Did Curtis Vey conspire to murder Jim Taylor?
(4) Did Curtis Vey conspire to murder Brigitte Vey?
[95] I have broken the charges down this way because it is theoretically possible for you
to have different answers to each of the above questions.

[138] The following aspects of the charge are also important to consider at this point
(reproduced again for ease of reference):
[98] Also, it would be possible for you to conclude that the Crown has established
beyond a reasonable doubt that Angela Nicholson is guilty of one or both counts of
conspiracy, but have failed to establish beyond a reasonable doubt that Curtis Vey is
guilty of one or both counts.
[99] Similarly, it would be possible for you to conclude that the Crown has established
beyond a reasonable doubt that Curtis Vey is guilty of one or both counts of conspiracy,
but have failed to establish beyond a reasonable doubt that Angela Nicholson is guilty of
one or both counts.
[100] As you well know, the indictment alleges that Angela Nicholson and Curtis Vey
conspired with each other to murder both Jim Taylor and Brigitte Vey. It might occur to
you that logic would say that if you are satisfied beyond a reasonable doubt that an
agreement to murder existed, it follows that both Angela Nicholson and Curtis Vey
entered into that agreement.
[101] Whatever logic might say to you on this point, that is not the law. It is not the law
because, as I have already explained to you, the evidence that you are entitled to consider
against Angela Nicholson is different than the evidence that you are entitled to consider
against Curtis Vey, and the evidence that you are entitled to consider against Curtis Vey
is different than the evidence that you are entitled to consider against Angela Nicholson.
 Page 51

3. The sub-issues

[139] The appellants submit that the above excerpts of the Jury Charge give rise to three
separate issues:

(a) Did the trial judge err by charging the jury so as to leave open the possibility of
inconsistent verdicts?

(b) Was the trial judge required to give a Carter instruction?

(c) Did the trial judge err by not advising counsel before they closed their cases that
he was not going to charge on an all or nothing basis?

I will address each of these issues.

a. Did the trial judge err by charging the jury so as to leave open
the possibility of inconsistent verdicts?

[140] In answering this question, it is important to reiterate that O’Brien, Dynar and Déry set
out the elements of the offence of conspiracy only. As such, they do not address how to prove
those elements. Decisions like Carter and Barrow, on the other hand, are concerned with how to
prove membership in an agreement that is found to exist on all admissible evidence and beyond a
reasonable doubt. Carter and Barrow, it should be noted, do not refer to O’Brien. Nor does
Guimond.

[141] In the instances of Barrow and Guimond, where the accused were tried at the same time,
the initial trier of fact did not have to decide whether an inconsistent verdict was conceptually
possible in a two-person conspiracy. In Guimond, the verdicts were made inconsistent by a later
acquittal of one of the accused after the Quebec Court of Appeal had ordered a new trial for one
of only two alleged co-conspirators. On the other hand, in Barrow, there were three alleged
conspirators. Thus, it was not necessary to consider the elements of conspiracy in either of those
two cases from the perspective that arises in this case where the trier of fact must find that the
two persons presently before the Court have agreed.

[142] Simply because Carter and Barrow do not mention the elements of the offence of
conspiracy does not mean that they need not be proven. Indeed, they provide the means by which
 Page 52

the elements are proven, but, in most cases, the question of intention to carry out the common
purpose is not the central issue. In most conspiracies, there is evidence, often in the form of the
commission of the offence or other acts in furtherance of the conspiracy, from which the
agreement can be inferred. Once the agreement is inferred, the Crown can usually rely on the
common sense inference to find the necessary intention, i.e., a person intends the natural
consequence of their acts.

[143] Even though Guimond, Carter and Barrow were released in 1979, 1982 and 1987,
respectively, the Supreme Court has consistently referred to O’Brien (1954) and reinforced its
statement of the mental elements for the offence of conspiracy. Further, in Dynar, released in
1997, the Supreme Court indicated that both Guimond and O’Brien remain good law:
[88] A conspiracy must involve more than one person, even though all the conspirators
may not either be identified, or be capable of being convicted. See for example O’Brien,
supra; Guimond v. The Queen, [1979] 1 S.C.R. 960. Further, each of the conspirators
must have a genuine intention to participate in the agreement. A person cannot be a
conspirator if he or she merely pretends to agree. In O’Brien, Rand J. held at p. 670 that
a conspiracy requires an actual intention in both parties at the moment of
exchanging the words of agreement to participate in the act proposed;
mere words purporting agreement without an assenting mind to the act
proposed are not sufficient.
Where one member of a so-called conspiracy is a police informant who never intends to
carry out the common design, there can be no conspiracy involving that person.
Nonetheless, a conspiracy can still exist between other parties to the same agreement. It is
for this reason that the conspiracy in this case is alleged to involve Mr. Dynar and
Mr. Cohen, and not the confidential informant “Anthony”.
(Emphasis added.)

I also note Déry, issued in 2006, confirms the Supreme Court has rejected the American
approach, which accepts unilateral conspiracies (at para 35). 5

[144] At first blush, it may seem that O’Brien and Guimond contradict each other, but it must
be remembered that O’Brien sets out the mental elements of the offence of conspiracy and
Guimond considers the circumstances when it is acceptable to convict one person in a two-
5
At the appellate level, reference may be made to R v Miller (1984), 12 CCC (3d) 54 (BCCA) at paras 111 and 112,
where Lambert J.A. stated that the lack of intention of two of the co-conspirators, even if established, would not
afford any defence to the other conspirators who have the requisite intent, unless the number of conspirators who
have the requisite intent is reduced to one person, in which case “he cannot agree with himself and would be
acquitted” (at para 112): see also R v Lowry (1992), 100 Sask R 261 (CA); and R v Hamilton (1994), 125 Sask R 8
(CA) at para 63, where, in both cases, the Crown had alleged a conspiracy between the two co-conspirators who
were being tried by the court and others.
 Page 53

person conspiracy and not the other – on the face of the record. In that regard, Dynar indicates
how the two can be read together. In Dynar, the Court refers to both decisions and affirms that a
“conspiracy must involve more than one person, even though all the conspirators may not either
be identified, or be capable of being convicted” (at para 88). This statement applies to all two-
person conspiracies, whether the accused are tried separately or together. In all cases, the trier of
fact must be able to find a meeting of the minds of at least two persons.

[145] Where the Crown alleges a two-person agreement to commit the crime of conspiracy, and
the two individuals are not tried together, the trier of fact may find that the person, who is not
before the Court, did or did not conspire to commit the crime in question. If the trier of fact finds
that the person not being tried did so conspire, the person being tried may be convicted, but, for a
variety of reasons, the one who is not before the Court may not ultimately be convicted – or even
charged. The point is that, if the person before the Court is convicted, the trier of fact must be
able to find that the “conspiracy involved more than one person” on the basis that the Crown has
proven all of the elements of the offence as they pertain to both conspirators. If the two alleged
conspirators are tried together, and there is no other conspirator, and the trier of fact cannot find
that the Crown has proven both persons conspired together to commit the crime, both must be
acquitted, because to do otherwise would offend the rule from Dynar that a “conspiracy must
involve more than one person”.

[146] Having regard for the ratio of Guimond (and Barrow), it is not difficult to support the
conviction of one of only two alleged co-conspirators in a variety of circumstances, including the
following: (a) a conspiracy between one person charged and an unindicted and unknown or dead
co-conspirator or a co-conspirator who had been found not criminally responsible or who has
absconded; (b) a conspiracy where one person pleads guilty and one is acquitted; or (c) a
conspiracy where both are found guilty and an appellate court orders a new trial for one and that
person is subsequently found not guilty. At the trial of the one co-conspirator in each of these
scenarios, the trier of fact can be instructed that there must be a meeting of the minds and then
proceed to find that such is or is not the case. Similarly, where an appeal court orders a new trial
for one convicted person and not the other, it is still open to the trier of fact, at the new trial, to
consider whether the Crown has proven an agreement. In the case of two co-conspirators who are
tried at different trials, the second verdict may be difficult to reconcile with the earlier verdict,
 Page 54

but the trier of fact is free nonetheless to find or not to find that such an agreement exists.
Importantly, the trier of fact is able to decide whether an agreement between two persons has
been proven before proceeding to convict the accused who is before the Court.

[147] Puddicombe demonstrates the application of this principle. In Puddicombe, the Crown
witness, who was one of only two possible persons in the alleged conspiracy, testified that she
did not agree to conspire. In such a case, it is open to the jury to disbelieve the co-conspirator so
as to satisfy the trier of fact that there is a conspiracy of two. Justice Doherty noted this aspect of
the case when he said there was “ample other evidence from which the jury could conclude that
[the Crown witness] was a participant in the plan” (at para 108).

[148] The criminal law has not yet had to confront a case where a jury, in the context of a two-
person conspiracy, convicts one and not the other, after having been properly instructed that a
conspiracy requires a meeting of the minds of at least two people. That issue is not before the
Court on this occasion either, but rather the issue of how to charge a jury in light of Guimond is.
The issue is whether a trial judge can instruct a jury so as to suggest the possibility of
inconsistent verdicts if to do so would leave the impression that an agreement between two
persons is not required in order for the Crown to prove beyond a reasonable doubt that the crime
of conspiracy has been committed.

[149] I note on page 976 of Guimond that Ritchie J. shared the view of Viscount Dilhorne in
Director of Public Prosecutions v Shannon, [1975] AC 717 at 761:
Ordinarily where two persons are tried together when charged with conspiring together
and with no one else and there is no material difference in the evidence admissible
against each, the result will be that either both will be convicted or both acquitted. In such
cases there is really no need for, and no need to question, the long-established rule.

Granted, Ritchie J., at page 977, also shared the view expressed by Viscount Dilhorne that “a
jury would think the law was anything but a nonsense if after they have been told that they must
consider the evidence against each of the accused separately, they must, even though satisfied of
A’s guilt, acquit him if they think that the evidence is insufficient to convict B” (at 761). From
this, Ritchie J. wrote, “I think it can be taken, that where only two persons are charged with
conspiracy and they are separately tried whether or not they are separately indicted, the
 Page 55

conviction of one is not necessarily invalidated by the acquittal of the other” (emphasis added,
Guimond at 977).

[150] Of course, all of this plays out against the forceful suggestion in Guimond to the Crown
that, where the evidence is substantially stronger against one of the co-conspirators, separate
trials may be in order:
I have already expressed the opinion that when two alleged co-conspirators are tried
separately the acquittal of one does not necessarily invalidate the conviction of the other.
I am of the opinion also that, whenever it is apparent that the evidence at the joint trial of
two alleged co-conspirators is substantially stronger against one than the other, the safer
course is to direct the separate trial of each and this is particularly the case when the
prosecution is tendering in evidence a damaging statement made by one under
circumstances which made it inadmissible against the other.
(Emphasis added, at 981.)

[151] I also note that the majority in Guimond saw nothing wrong with the conclusion in R v
Baron and Wertman (1976), 73 DLR (3d) 213 (Ont CA), where the Court of Appeal had ordered
a new trial for both convicted co-conspirators (in a two-person conspiracy) on the basis that the
statement of one of them would be admissible for a limited purpose against the other – thus
leaving open the possibility of the acquittal of both accused even though the Court believed that
the evidence was considerably stronger against one of them. The majority’s affirmation of the
result in Baron affirms at least one circumstance when inconsistent verdicts would not be
acceptable when only two persons are tried – hence the order for a new trial for both. The extent
to which the system can tolerate inconsistent verdicts beyond what occurred in this case remains
to be determined.

[152] The issue at this point is how to charge a jury to convey properly the principle that a
conspiracy “must involve more than one person” when there is evidence that at least one of the
alleged co-conspirators did not have a genuine intention to carry out the common unlawful
purpose. In that regard, it should be noted that none of the charging precedents presently
available address this issue. All seek to prove the agreement, and the co-conspirator’s
participation in it, using the Carter formulation. Here, the very existence of the agreement is
contested.
 Page 56

[153] Even when a jury is charged using the Carter formulation, they still are charged on the
basis that they must find an agreement between at least two persons or the person that they are
considering must be acquitted: see, for example, the instruction found in David Watt, Manual of
Criminal Jury Instructions, 2d ed (Toronto: Carswell, 2015) [Jury Instructions]. In Jury
Instructions, the author suggests words to the following effect: “If you are not satisfied beyond a
reasonable doubt that there was a conspiracy between at least two persons to commit murder,
you must find the particular accused, who is charged as a member of the conspiracy, not guilty,
and your deliberations will be over” (see page 1091 of Jury Instructions for a more
individualized version). 6 This formula is directed to a case where a Carter instruction is given,
but the same principle applies where Carter is not used.

[154] It must be noted, notwithstanding the lack of any precedent on point, the trial judge’s
approach to the issues – to consider the elements of the offence on an individual basis – was
appropriate. On the question of inconsistent verdicts, however, he erred by saying, “it is
theoretically possible for you to have different answers to each of the above questions” (Jury
Charge at para 95). The use of the word “theoretically” seems to downplay the pretending to
agree defence. He also erred by directing the jury that it was possible to have different answers to
the questions he had posed in paragraphs 98 to 101, without explaining the consequence of
arriving at different answers. This invited the jury to find one person had agreed but the other did
not – which could be taken as an invitation to convict one and not the other. Just as in Solleveld,
where the Court of Appeal found the trial judge erred by instructing the jury that they must
acquit both accused or convict both, it is an error for a trial judge, in a two-person conspiracy in
a joint trial, to invite a jury to consider acquitting one and not the other. The jury must be left in
no doubt that a conspiracy requires an agreement of two persons.

[155] However, I would not have ordered a new trial with respect to the above errors as the jury
does not appear to have been confused by this instruction. Nonetheless, I would offer some
suggestions for a next trial.

[156] According to the case law (e.g., Dynar), the four elements of the offence of conspiracy to
commit murder are these:
6
The Watt instructions use “conspiracy” instead of agreement, while pointing out that some judges charge in terms
of an “agreement”.
 Page 57

(a) an intention to agree;

(b) a common unlawful purpose of committing murder;

(c) an intention to put the common unlawful purpose into effect; and

(d) the completion of an agreement.

In this case, the trial judge easily concluded that murder as a common purpose is unlawful such
that little time need be spent on that aspect.

[157] As the trial judge did in this case, the jury should be fully and specifically charged:

(a) with respect to each element;

(b) with respect to each intended victim; and

(c) to consider only the evidence admissible against each of the accused individually.

[158] The jury’s consideration of the order of the elements is not material, but, given the very
real issue regarding the proof of the mental elements in this case, a trial judge must explain to the
jury that, if they find in relation to a particular count, the Crown has not proven beyond a
reasonable doubt that both Ms. Nicholson and Mr. Vey intended to agree and intended to carry
out the common purpose, then their deliberations would be at an end.

[159] If the Crown asks the trial judge to apply the co-conspirator’s exception for the purposes
of admitting hearsay at the next trial, and the trial judge agrees to charge the jury using Carter, I
am attracted to what Rosenberg J.A. stated in Bogiatzis about setting out the elements of proof,
making sure the elements are not intertwined with any consideration of how to prove the mens
rea or the actus reus (see paragraph 55).

[160] Since I am ordering a new trial, it will be for the judge in that trial to determine, based on
the evidence adduced, whether in all of the circumstances, including submissions received, how
best to charge the jury, considering these comments as guidelines only.
 Page 58

b. Was the trial judge required to give a Carter instruction?

[161] Counsel for Mr. Vey argues that the trial judge erred by not charging the jury in
accordance with the first two steps of the Carter formulation – stating that both steps had to be
proven beyond a reasonable doubt, with an appropriate Villaroman introduction regarding the
drawing of inferences. He stresses it was not brought home to the jury that they could only
convict if they were satisfied beyond a reasonable doubt that the alleged conspiracy between his
client and Ms. Nicholson, in fact, existed.

[162] The elements of the offence need not be proven using Carter unless it is necessary to rely
on the co-conspirator’s exception: Viandante at para 51; R v Chenier (2006), 207 OAC 104 (CA)
at para 72; R v Hall, 2010 ONCA 421 at para 21, 267 OAC 35; Puddicombe at para 83; R v Luu,
2015 SKCA 128 at para 32, 472 Sask R 56; and R v Correia, 2016 BCCA 330 at paras 59 and
61, 339 CCC (3d) 321. Since the Crown was not relying on the co-conspirator’s exception to the
hearsay rule, there was no need for a charge using Carter.

[163] Thus, the trial judge made no error by not charging the jury using the Carter formulation.

c. Did the trial judge err by not advising counsel before they
closed their cases that he was not going to charge on an all or
nothing basis?

[164] The point the appellants raise here is that the trial judge caught them off guard by
advising them after they had closed their cases, and after they had addressed the jury, that he
would be leaving open the possibility that one might be acquitted and the other convicted on
either of the two counts, thereby, in their submission, occasioning a miscarriage of justice.

[165] I agree with Crown counsel that, apart from filing written submissions on their approach
to defences mentioned earlier, at no time did the appellants raise concerns that the trial judge’s
decision, as to whether he would charge as though one could be acquitted and one convicted,
would determine their conduct of the trial. For example, neither defence counsel indicated that
one or the other of their clients had intended to testify and had decided not to do so based on a
comment or supposed decision made by the trial judge. To my mind, the best view of what
transpired is that the trial judge sought submissions when he did but he made no decision as to
how he would proceed as he wanted to see how the trial would play out first.
 Page 59

[166] Accordingly, I would give no effect to the argument that the trial judge’s decision to
charge the jury, leaving open the possibility that one of them may be acquitted and the other
convicted, amounted to a miscarriage of justice.

D. Unsuccessful Grounds of Appeal

1. Did the trial judge err by not instructing the jury that they should not
draw an adverse inference from the fact that the appellants did not
testify?

[167] Neither appellant testified. On appeal, they argue that the trial judge should have stressed
with the jury that they had no obligation to do so.

[168] I would not give effect to this ground of appeal. The law is settled on this issue. A trial
judge may or may not instruct the jury about an accused person’s right to silence in a case where
the accused does not testify. Where there is a realistic concern that the jury may place evidential
value on an accused’s decision not to testify, it will be for the trial judge, in the exercise of his or
her discretion, to provide such an instruction: see R v Prokofiew, 2012 SCC 49 at para 3, [2012]
2 SCR 639.

[169] I am not certain that such a concern existed in this case. Commenting on the appellants’
failure to testify may have actually drawn undue and unwelcome attention to the fact. Further,
neither defence counsel sought such an instruction.

2. Did the trial judge err by not putting to the jury that it was open to
them to find either or both of the appellants guilty of the lesser
included offences of conspiracy to administer a noxious substance or
arson?

[170] The appellants submit that the trial judge should have left to the jury two possible
included offences: (a) conspiracy to administer a noxious substance and (b) conspiracy to
commit arson.

[171] The short answer to the appellants’ claim that the “lesser and included” offences should
have been left with the jury is that there are no such offences included in the offence with which
the appellants were charged. The indictment charged the appellants under s. 465(l)(a) of the
Criminal Code, which deals exclusively with conspiracy to commit murder. The indictment does
 Page 60

not describe any of those other offences nor does that section make reference to the elements of
noxious substances or arson. Finally, there are no provisions in the Criminal Code that explicitly
provide for their inclusion in the conspiracy offence with which they were charged.

[172] Section 662(1) of the Criminal Code provides that there are three circumstances under
which an offence is included in another; it can be included in the offence “as described in the
enactment creating it”, “as charged in the count”, or if it is expressly stated to be an included
offence in the Criminal Code itself: see R v G.R., 2005 SCC 45 at para 25, [2005] 2 SCR 371.
None of these circumstances apply here.

3. Was there a miscarriage of justice because the recordings of the

various conversations tendered in evidence by the Crown could not be
heard by people sitting in the gallery of the courtroom?

[173] Mr. Vey applies to adduce fresh evidence demonstrating that some individuals sitting in
the body of the courtroom could not hear parts of the recorded statements. Assuming, without
deciding, that this evidence constitutes fresh evidence, I am not satisfied that if it were admitted,
it would result in an order for a new trial on the basis of a miscarriage of justice.

[174] The premise of this argument is that every person sitting in a courtroom must hear every
bit of evidence for it to be a public trial. I agree with Crown counsel that this argument confuses
the importance of public access to a court with a right to be physically present in the courtroom
and to hear the witnesses firsthand.

[175] Here, there was no prohibition on who could sit in the courtroom and listen to the
proceedings. Public access was not denied and nor could the trial be considered closed to the
public on the basis that a member of the public could not hear the taped recordings. Mr. Vey
likens this to a situation where the public was excluded, but it was nothing of the sort.

[176] In this case, the recordings are difficult to understand at times. However, the jury were
provided with transcripts and could follow along with the recording. The Court provided these
same transcripts to the media, along with the recordings to allow for full reporting.

[177] I would not give effect to this ground of appeal. The application to adduce fresh evidence
is refused.
 Page 61

4. Did the trial judge err by failing to make inquiries when issues about
possible jury interference were raised?
[178] On September 2, 2016, the sentencing date, Mr. Vey’s counsel filed a letter, dated August
17, 2016, stating he had received an email from a person who said he heard a juror ask the
bailiff, on the day the verdict was rendered, where he could go to talk to someone about concerns
regarding the verdict and if there were a procedure to voice “their concerns”. Counsel advised
the Court that this person had mentioned this to Mr. Vey, but Mr. Vey did not communicate it to
him until August of 2016. Counsel said he asked Mr. Vey to have the person advise him of the
details of what he had overheard. Counsel asked that inquiries be made of the sheriff’s office to
determine whether such a conversation occurred and, if so, what the bailiff said to the juror.

[179] Counsel for Ms. Nicholson sent a letter to the court on August 29, 2016, raising a
different concern. He said Ms. Nicholson told him that two people had told her they saw a
relative of Mr. Taylor speaking with one of the jurors and actually walking outside with the same
juror. Counsel also advised the trial judge that this same individual had approached his student
and asked how they could represent someone like Angela Nicholson.

a. Alleged conversation with the sheriff’s official

[180] The judge determined that no inquiries needed to be made because any alleged
conversation between a juror and a court official after the verdict had been rendered was of no
consequence in the circumstances of this case. He said the foreperson delivered the verdict and
each juror was polled, each uttering the word “guilty” four times. The judge referred to the
codification of the principle respecting jury secrecy, making it an offence for a juror to disclose
any part of the deliberations. He said the mere fact that there was a conversation between a juror
and court official after the jury had been discharged did not justify an inquiry by the court to
determine whether there was any irregularity in the deliberations.

[181] The trial judge stated the law correctly. Section 649 of the Criminal Code prohibits a
juror from disclosing any of their deliberations, except in relation to a charge of obstruction of
justice. This provision and the common law protection afforded to jury secrecy preclude
questioning jurors on their deliberations: see R v Perras (1974), 48 DLR (3d) 145 (Sask CA); or
R v Frebold, 2001 BCCA 205, 152 CCC (3d) 449, leave to appeal to the SCC refused, [2001]
SCCA No 342 (QL).
 Page 62

[182] In R v Pan (R v Sawyer), 2001 SCC 42, [2001] 2 SCR 344 [Pan–Sawyer], the Supreme
Court re-formulated the common law rule of secrecy to allow, in exceptional circumstances, for
matters to be raised that cast a doubt on the integrity of the verdict. The proper interpretation of
the rule is as follows:
[77] … statements made, opinions expressed, arguments advanced and votes cast by
members of a jury in the course of their deliberations are inadmissible in any legal
proceedings. In particular, jurors may not testify about the effect of anything on their or
other jurors’ minds, emotions or ultimate decision. On the other hand, the common law
rule does not render inadmissible evidence of facts, statements or events extrinsic to the
deliberation process, whether originating from a juror or from a third party, that may have
tainted the verdict.
(Emphasis added.)

[183] In Pan–Sawyer, the Supreme Court heard two appeals dealing with the same issue. For
example, Mr. Sawyer had received a call from a juror telling him she felt “bullied”. The trial
judge refused to admit this as fresh evidence on the basis it was inadmissible and the Ontario
Court of Appeal agreed. The Supreme Court, in applying the common law rule of secrecy,
agreed that the evidence was clearly inadmissible.

[184] Here, the person claimed he had heard a juror speaking to a sheriff’s official, asking
whether he could talk to someone about the verdict and whether there was a process to voice his
concerns. On the face of it, this amounts to concerns about the jury’s deliberations or the
pathway to the verdict. Further inquiries of the person would not have been fruitful because he
disclosed all that he had heard. More importantly, inquiries could not have been made of the
juror involved without breaching the secrecy rule imposed upon jurors.

[185] As Crown counsel pointed out in argument, it is not uncommon for jurors to have
“second thoughts” about the verdict rendered after the trial is over. Although a jury has
expressed unanimity at the time the verdict was delivered, they may become concerned
afterwards. These second thoughts may have arisen from outside information obtained following
the trial or even from the reactions of the accused or their supporters on hearing the verdict.
Whatever the source for these misgivings – to the extent the juror may have had any – they fall
within the rule of jury secrecy and are not admissible to impeach the jury’s verdict: see Pan–
Sawyer at para 75; R v Ferguson, 2006 ABCA 36 at para 50, 207 CCC (3d) 157, leave to appeal
to the SCC denied, 2006 CanLII 29069.
 Page 63

[186] Polling the jury is one of the safeguards that helps to ensure the jury system functions
properly. Its purpose is to ascertain the unanimity of the jury’s verdict. As the trial judge said, the
jurors in this case were each polled – at the insistence of both defence counsel – and each said
“guilty” four times. The verdict was clear and unequivocal.

[187] After considering all the facts that had been presented to him, the judge exercised his
discretion and found that an inquiry was not justified. Based on settled principles of law, the
judge obviously did not err.

b. Alleged conversation between a relative of Mr. Taylor and a

juror

[188] The judge noted it is possible, in very limited circumstances, to lead evidence in
furtherance of the impeachment of the jury’s verdict. Specifically, such evidence is generally
admissible where it establishes the jury has been exposed to outside information or influence.
The judge found that the suggestion that a relative of Mr. Taylor held negative views about
Ms. Nicholson did not give rise to any concerns about improper extrinsic evidence flowing to the
juror or the jury. There was no allegation that she spoke to the juror about the case; rather, the
claim rests in speculation.

[189] Furthermore, the judge noted that he instructed the jury on more than one occasion to
disregard anything they may have heard outside the courtroom and not to speak to anyone about
the case. During the course of the trial, and up until they were charged, the jury was not
sequestered but were told if anyone wanted to discuss the case with them they were not to do so.
He also had advised the jury that if a person persisted in wanting to have such a discussion, they
were to tell him and he would deal with it. No juror advised the judge of any unwarranted
contact. The judge concluded that the allegation the relative of Mr. Taylor expressed negative
views about Ms. Nicholson was insufficient to cause him to make inquiries.

[190] The judge spoke about the presumption that the jury had performed their duties in
accordance with their solemn oath and affirmation. Jurors are also entitled to the same strong
presumption of impartiality as judges and the onus is heavy on a party that seeks to unseat it: see
R v Farinacci, 2015 ONCA 392, 328 CCC (3d) 101; or R v Zvolensky, 2017 ONCA 273 at
para 203, 352 CCC (3d) 217, leave to appeal to the SCC denied, 2018 CanLII 40811.
 Page 64

[191] Nothing raised by Ms. Nicholson’s counsel displaced that presumption. The judge said
that at no time had he been informed that any contact between members of the public and the
jury was inappropriate. Specifically, there was nothing to suggest that the contact between the
juror and the woman had been questionable or would lead to a reasonable apprehension of bias.
Without more, and there was nothing more, there simply was no basis to embark upon an
inquiry. The judge did not err in refusing to do so.

V. Conclusion

[192] I have found that the trial judge erred in two ways that merit a new trial. Accordingly, the
appeals are allowed. The jury’s convictions of Ms. Nicholson and of Mr. Vey are set aside and a
new trial is ordered. The application to adduce fresh evidence (in relation to the dismissed
ground of appeal about the inability to hear the recorded conversations) is refused.

“Jackson J.A.”
Jackson J.A.

I concur. “Herauf J.A.”

Herauf J.A.

I concur. “Schwann J.A.”

Schwann J.A.