Carter instruction in two-person conspiracies upheld

The Ontario Court of Appeal has rejected suggestions that the standard instruction to juries about the use of co-conspirator acts and declarations is unfair when an alleged criminal conspiracy involves only two people.

A special five-judge panel upheld the use of the R. v. Carter instruction and dismissed the appeal of Nicola Puddicombe. She was convicted in 2009 of first-degree murder in the death of her boyfriend who was struck six times on the head with the blunt end of an axe while sleeping.

“Some rules governing criminal trials are of necessity complicated,” wrote Justice David Doherty on behalf of the panel in R. v. Puddicombe on Aug. 7.

“Our system of trial by jury, however, presumes that juries can and do understand and apply instructions given to them by trial judges,” Doherty explained.

“If those instructions are plainly put, I do not think that one should assume a jury cannot follow them simply because they may seem illogical to the jury.”

Puddicombe was accused of formulating a plan to kill her long-time boyfriend, Dennis Hoy, in 2006 with her then-girlfriend, Ashleigh Pechaluk. The two women were tried separately in two highly publicized trials in Toronto. Pechaluk, accused of wielding the axe, testified on her own behalf and was acquitted by a jury.

She was then called as a Crown witness at Puddicombe’s trial. Pechaluk denied killing Hoy but testified that Puddicombe wanted Hoy dead and intended to blame it on an intruder. The jury also heard evidence from co-workers of Pechaluk about comments she made on plans to kill Hoy.

The Carter instruction requires the trial judge to tell a jury it must be satisfied beyond a reasonable doubt that there is a plan. Then, it must decide if the accused was probably a participant in a plan based on all of the direct evidence that is admissible. Finally, if step two has been satisfied, the jury can use evidence of the acts and declarations of the other member of the conspiracy against the accused to decide if the person is guilty beyond a reasonable doubt.

David E. Harris, who represented Puddicombe in her appeal, expresses concern that a Carter instruction can lead to inadmissible hearsay being used when a two-person conspiracy is alleged. “The difficulty is that after a jury finds step one satisfied, it is sorely tempting not to stop there and simply convict, foregoing steps two and three,” he tells Law Times.

The Criminal Lawyers’ Association joined in support as an intervener in the Puddicombe appeal. The Public Prosecution Service of Canada was also an intervener in support of the Crown and in upholding the Carter instructions.

Deciding whether there’s a plan in step one “requires the jury to consider the very evidence the admissibility of which is in question in the Carter analysis,” argued Toronto defence lawyer Peter Copeland, who acted for the CLA in the appeal.

In the Puddicombe hearing, the panel was required to determine if its decision in R. v. Bogiatzis should be reversed. In that case, the Court of Appeal concluded that obiter dicta from the Supreme Court’s decision in R. v. Barrow was binding and that the Carter instruction did apply to a two-person conspiracy.

The obiter dicta in Barrow was “integral to the analysis” related to Carter instructions and, as such, is still binding on lower courts, wrote Doherty on behalf of justices Marc Rosenberg, Janet Simmons, and Michael Tulloch. (justice Robert Armstrong sat on the panel during oral arguments in January but didn’t participate in the decision as he has since retired from the Court of Appeal).

Despite finding that the issue was decided in Barrow, the Court of Appeal addressed “the merits” of whether a Carter instruction can be applied fairly to a two-party conspiracy “for the sake of completeness,” explained Doherty.

“The rationale driving the formulation of the three-step approach in Carter applies equally to a two-person conspiracy. The jury must understand that the existence of the agreement and membership in the agreement are discrete issues. The Carter instruction is a uniquely Canadian response to the conundrum posed by the application of the co-conspirator exception to the hearsay rule.”

The Court of Appeal stressed that the instruction can still be “appropriately tailored” to each case with a “clear caution” against assuming membership based on the existence of an agreement. A draft jury instruction was also provided by the Court of Appeal at the end of its ruling.

Despite its ultimate findings, the Court of Appeal agreed that it’s “challenging for a jury to comprehend and apply” the Carter instructions, says Harris.

“The real debate is being premised on two questions: Do we believe that the jury is up to the job of applying Carter scrupulously and is there a viable alternative instruction?” he adds. Harris says no final decision has yet been made on whether to seek leave from the Supreme Court.

John North, a senior federal Crown who represented the Public Prosecution Service of Canada, says the Court of Appeal has reinforced an important principle.

“Jurors can and do follow clear and correct instructions,” he says. The Carter instruction is important in drug prosecutions where allegations of two-party conspiracies aren’t uncommon. “Fundamentally, it is a matter of making the instructions clear for jurors,” says North, who adds he believes the draft instructions provided by the Court of Appeal will make this task easier for trial judges.

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