Murder. Accused was convicted of two counts of sexual assault causing bodily harm and single counts of breach of recognizance and counselling murder, offence that was not committed. Accused allegedly solicited fellow jail inmate to kill complainant in sexual assault and breach of recognizance counts so that she could not testify against him, but parties did not conclude agreement about how killing was to be carried out at that time. Putative killer, career criminal, testified that accused’s plan was for complainant to die of apparent accidental drug overdose while accused was in jail. Accused appealed conviction for counselling murder. Appeal dismissed. Trial judge did not err in finding that accused “proactively” engaged in conversation about killing complainant in jail yard, or in erroneously relying on evidence of later discussions to confirm evidence of unsavoury prosecution witness. Counselling commission of offence that is not committed is inchoate or preliminary crime complete when solicitation occurs, even if person incited rejects solicitation or merely feigns assent. Trial judge’s findings respecting unrecorded discussion in jail yard established essential elements of counselling offence. Those findings were open to trial judge to make on evidence of principal Crown witness. Trial judge did not misapprehend or err in considering as confirmatory of evidence of putative killer portions of conversations surreptitiously recorded later in jail. He found, as he was entitled to do, that offence was complete when accused and putative killer met, at accused’s invitation, in jail yard.
R. v. Devitt (2016), 2016 CarswellOnt 18092, 2016 ONCA 871, J.C. MacPherson J.A., R.A. Blair J.A., and David Watt J.A. (Ont. C.A.).