The accused, Nerville Ferdinand, was charged with aggravated assault.
During his jury trial, the Crown sought to advance an alternative theory of liability based on transferred intent, arguing that Ferdinand intended to shoot a third person ("Jimbo") but accidentally hit the victim, Tristan Kelly.
The defence objected, arguing there was no evidentiary basis for this theory.
The court applied the "air of reality" test for theories of liability, similar to that for defences, which requires a limited weighing of evidence to determine if a properly instructed jury could reasonably convict based on the theory.
The court found no direct evidence of intent to shoot Jimbo and concluded that the circumstantial evidence, even viewed most favorably to the Crown, did not reasonably support an inference of transferred intent, as it would require speculation and contradiction of witness testimony regarding aiming direction.
The Crown was therefore prohibited from advancing this alternative theory to the jury.