COURT OF APPEAL FOR ONTARIO
Hoy A.C.J.O., Laskin and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Tyrone Chambers and Joshua Warner
Appellants
Richard Litkowski, for the appellant Tyrone Chambers
Delmar Doucette, for the appellant Joshua Warner
Christine Bartlett-Hughes, for the respondent
Heard: June 14, 2016
On appeal from the convictions entered by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, on November 15, 2013, and the sentence imposed on December 29, 2013.
- OVERVIEW
1The appellants, Joshua Warner and Tyrone Chambers, attended a house party each armed with a loaded handgun. During a confrontation with other guests, Chambers and then Warner drew his gun. Three people were shot. Tragically, Brandon Musgrave was killed by a shot to his head. Ted Tsibu-Darkoh and Kauner Chinambu were wounded.
2The appellants were charged with second degree murder and two counts of aggravated assault. Warner, through counsel, admitted that he shot and wounded Tsibu-Darkoh and thus was guilty of aggravated assault of him. The key issues at trial were which of Warner and Chambers had actually shot Musgrave and Chinambu, and whether the non-shooter was also guilty as an aider or abettor.
3The jury found both Warner and Chambers guilty of second degree murder of Musgrave and aggravated assaults of Tsibu-Darkoh and Chinambu.
4Warner appeals his convictions for the murder of Musgrave and aggravated assault of Chinambu. Chambers appeals his convictions on all counts. The appellants have raised a number of issues on their appeal. I would give effect to the following grounds:
I. The trial judge misdirected the jury on the mens rea for aiding and abetting murder.
II. The trial judge erred by failing to leave manslaughter as a lesser included offence to the murder charges in the case of the aider or abettor.
III. The trial judge improperly instructed the jury on the use of the appellants’ post-offence conduct.
5It is not necessary to address the remaining issues raised by the appellants.
2. BACKGROUND
6As I would order a new trial, I will provide only a brief summary of the pertinent evidence.
7The shooting happened at a cover-charge house party, which began during the evening of March 12, 2010, in Hamilton, Ontario. The party was hosted by several students at Columbia International College (“CIC”) and most of the guests were CIC students. However, the party had been advertised on Facebook and was open to the public.
8Warner and Chambers went to the party together. They were not students at CIC. Chambers testified that he had known Warner for almost ten years but said that they were not close friends.
9Both Chambers and Warner were carrying loaded handguns. Both were subject to firearms prohibitions.
10Around 1:00 a.m. on March 13, Chambers got into an argument with Wesley Adi, who was playing music from his iPod into the speaker system. Chambers asked Adi to change the music but Adi declined. The argument escalated and Chambers suggested that they “take it outside”.
11One of the hosts, Yussuf Yanni, testified that he intervened in the argument and tried to make Chambers leave the house. Chambers told Yanni to “shut up”, which caused him to challenge Chambers as to his authority to tell Yanni what to do.
12Chambers pulled out something covered in a black sock which, according to several witnesses, he gripped like a gun. Some witnesses described Chambers saying “I could end this fucking party right now”. Adi testified that Yanni then challenged Chambers to shoot him.
13Tsibu-Darkoh testified that Warner was standing beside Chambers as this was unfolding. Another witness said that Warner moved over to Chambers’ side during the argument.
14Warner pulled out his gun shortly after Chambers.
15By then, Chambers, Warner, Musgrave, Tsibu-Darkoh, Chinambu, and several other guests were in or at the threshold of the kitchen. Chambers gave Chinambu a harsh look and, in response, Chinambu challenged Chambers verbally. Chinambu leaned off the kitchen counter, planning to make a move.
16Three shots were fired in the kitchen. Chinambu was shot in the chest and Musgrave in the head. The shot that hit Musgrave was fatal. The third shot hit Tsibu-Darkoh in the arm.
17The forensic evidence confirmed that all three victims were shot by .22-calibre Sniper Subsonic bullets. A firearms expert who testified at trial could not say if all three bullets had been fired from the same gun. Chambers claimed that he was carrying a .380-calibre weapon on the night of the party. He also testified that Warner had a .22-calibre weapon and that Chambers had given him bullets for that weapon a couple of weeks before the shooting.
18Chambers and Warner fled together. Chambers testified that he hid his gun in a bush at the side of a house on the south side of Canada Street. He did not know what Warner did with his gun.
19Chambers and Warner parted ways at a GO Station.
20Chambers’ brother picked him up in a cab and they went to Chambers’ brother’s “hang out spot”, where Chambers spent the night. According to Chambers, he told his brother that he had gotten into an argument at a party and that Warner had “just turned around and started shooting everybody.”
21Chambers spent the next two nights at the residence he shared with his girlfriend. During that period, he learned from Warner that one of the persons shot was unlikely to survive. According to Chambers, during that period he also spoke to a lawyer in Toronto, whom he found on the Internet but whose name he could not remember. Chambers testified that the lawyer told him that he would not be able to clear his name even though Chambers told him that he had not done anything. Chambers fled to Halifax, where he was arrested in April 2010.
22After parting ways with Chambers, Warner left the GO Station and waited for his regular cabbie to pick him up and take him to his grandmother’s house. He lay in the back seat of the cab. At first he told the cabbie that he was tired but later he said to the cabbie that he did not want the police to see him. The cabbie had heard about the shooting at the party and asked Warner if he had been involved. Warner told the cabbie that Chambers was the shooter but that he was worried because he had been with Chambers at the time.
23Warner fled to Guyana. He was arrested there and returned to Canada in April 2011.
24About a month after the shooting, someone found a .22-calibre revolver near a house on Canada Street. Chambers testified that this was not the handgun he was carrying. He also claimed that the gun recovered from Canada Street looked like a gun Warner owned and had shown him a few weeks before the shooting.
3. THE TRIAL
25Warner and Chambers were charged with second degree murder of Musgrave and aggravated assaults on Tsibu-Darkoh and Chinambu. They were tried together. The trial lasted 24 days.
26Most of the witnesses were not able to say who shot the three victims. However, Chambers testified and said that he did not fire any shots and did not know that Warner had a gun with him. Chambers said he drew his gun to defend himself against a crowd of people aggressively gathering around him.
27Warner did not testify. However, in his closing address to the jury, Warner’s counsel conceded that Warner had shot Tsibu-Darkoh.
28The jury deliberated for approximately 16 hours over two days before returning a verdict. Both appellants were found guilty on all counts.
4. INSTRUCTIONS ON MENS REA FOR AIDING AND ABETTING
29The appellants argue that the trial judge failed to properly instruct the jury with respect to the essential elements for aiding and abetting in an offence. In particular, they submit that he failed to instruct the jury that the appellants had to know that the principal offender intended to murder Musgrave to be found guilty as an aider or abettor on the murder charge.
30During oral submissions, counsel for Warner and Chambers also submitted that the trial judge misdirected the jury on the essential elements of liability as an aider or abettor to an aggravated assault.
31The Crown rejects these submissions and argues that the trial judge’s instructions were sufficient when considered in light of the evidence in this case. However, the Crown concedes that if the trial judge’s instructions on the knowledge requirement were deficient then the curative proviso cannot be applied.
32I agree with the appellants that the trial judge misdirected the jury on the knowledge component of aiding and abetting the commission of a murder. However, I conclude that the instructions were sufficient in respect of aiding and abetting aggravated assault.
33To explain my conclusions, I will first discuss the elements of aiding and abetting the commission of an offence. Then I will summarize the relevant portions of the trial judge’s charge. Finally I will provide my reasons for concluding that the instructions were insufficient for the murder charges but were adequate for the aggravated assault charges.
4.1. Elements of Aiding and Abetting an Offence
34Under s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46, a person may be found guilty as a party to an offence if he or she (a) actually committed it; (b) did or omitted to do anything for the purpose of aiding any person to commit it; or (c) abetted any person in committing it. An aider or abettor is just as culpable as a principal offender for purposes of imposing criminal liability: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 85.
35However, the actus reus and mens rea for aiding and abetting are distinct from those of the principal offence. The elements for aiding and abetting were defined by the Supreme Court in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, and by this court in Maciel and R. v. Helsdon, 2007 ONCA 54, 84 O.R. (3d) 544.
36The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence: Briscoe, at para. 14.
37The mens rea of aiding and abetting has two elements: intent and knowledge. To be found liable as an aider or abettor, an accused must have intended to assist or encourage the perpetrator to commit the crime: Briscoe, at para. 16; Maciel, at para. 87; Helsdon, at para. 43.
38An accused can only intend to assist or encourage in the commission of a crime if she knows which crime the perpetrator intends to commit. Therefore, the Crown must prove that an alleged aider or abettor knew that the perpetrator intended to commit the crime, although she need not know precisely how it will be committed: Briscoe, at para. 17; Maciel, at para. 89.
39Where an accused has been charged with having aided or abetted in the commission of a murder, the Crown must prove that she knew that the perpetrator had the intent required for murder: Maciel, at para. 88. In Briscoe, at para. 18, the Supreme Court clarified that an aider or abettor does not need to have the mens rea for murder personally.
4.2. The Trial Judge’s Charge on Aiding and Abetting
40It was not disputed that whoever shot Musgrave was guilty of murder, and the trial judge instructed the jury accordingly.
41The trial judge initially agreed with counsel for Warner and Chambers that there was no basis for leaving with the jury the possibility of finding whoever of Warner or Chambers did not shoot liable as an aider or abettor. However, the afternoon before he delivered his charge, he advised counsel that he had changed his mind. In a brief exchange, Chambers’ counsel reminded the trial judge that the aider or abettor must have knowledge of the principal’s intention, and that there were two separate intentions in play: to commit murder and to commit an aggravated assault.
42It is unclear whether the trial judge provided a copy of his charge to counsel in advance of charging the jury.
43The trial judge first addressed the elements of aiding an offence. He explained that an aider must do something for the purpose of helping another commit the specific offence and must do so meaning to help the principal offender. Then he turned to the knowledge requirement:
The aider would have to know that the shooter intended to shoot. In addition, to be guilty of murder as an aider, he would have to have the required state of mind for murder that I have already told you about. If he was only intending to help the shooter keep the crowd at bay, not knowing that the shooter would actually shoot, the other accused would not be guilty as an aider.
44The abetting portion of the charge focused on Chambers. The trial judge explained that an abettor must do something for the purpose of encouraging another to commit the specific offence charged. Then he added the following:
For anyone to be guilty of murder as an abetter he must in addition have the state of mind required for murder which I have set out already. His act must be meant to encourage, and it must be meant to encourage the specific offence. If you find that Mr. Chambers pulled out his gun and said “I can end this party right now,” and that he intended by that to encourage Mr. Warner to shoot anybody who makes a move, and Mr. Warner did just that, Chambers would be guilty as an abetter. If he did not mean to convey that message, or he did not know that Warner would actually shoot, Chambers would not be guilty as an abetter.
45After the trial judge completed his charge to the jury, counsel for Chambers and Warner objected to the charge on aiding and abetting. Among other things, Chambers’ counsel argued that there was no evidence that Chambers shared Warner’s intent to kill Musgrave or knew of that intent. Warner’s counsel adopted Chambers’ counsel’s submissions and requested that clarification “be given to the jury with respect to what is constituted by a shared intention for murder”.
46The trial judge recalled the jury and instructed them as follows:
I just want to make it clear, I’ve told you that a person can commit an offence in one of three ways: one, as a principal, I didn’t use that word, the person who shot someone and hit some one is guilty as a principal; or, a person can guilty as an aider; or, a person could be guilty as an abetter, which means that on, there could be more than one person guilty on any count, but there could only be one person guilty as a principal on any count, right? Okay? All right.
47He declined to otherwise clarify his charge on aiding and abetting.
4.3. Trial Judge Misdirected the Jury on the Knowledge Component of Aiding or Abetting Murder
48I agree with the appellants that the trial judge misdirected the jury on the knowledge component of the mens rea for aiding or abetting murder.
49In the case of aiding, the trial judge directed only that “the aider would have to know that the shooter intended to shoot. In addition, to be guilty of murder as an aider, he would have to have the required state of mind for murder that I have already told you about”.
50Similarly, in the abetting portion of the charge, the trial judge instructed the jury that if Chambers’ actions were intended to encourage Warner to shoot and Chambers knew that Warner would actually shoot anybody who made a move then Chambers would be guilty as an abettor. The trial judge did not direct the jury that Chambers must have known that Warner had the intent required for murder.
51Telling the jury that an aider or abettor needed to know that the principal offender intended to shoot was not enough. As noted above, in the case of murder, the Crown must prove that the aider or abettor knew that the perpetrator had the intent required for murder.
52The trial judge compounded this error by telling the jury that any aider or abettor must himself have the intent required for murder. However, that set the jury down the wrong path. The jury would have understood that they were to consider whether the aider or abettor himself had the intent required for murder, and not whether the aider or abettor knew that the principal had the intent required for murder.
53The Crown argues that the charge was functionally sufficient. It submits that, in this case, any aider or abettor must at least have been wilfully blind to the principal’s intent to commit murder if he knew that the principal intended to shoot.
54I would reject this assertion.
55The doctrine of wilful blindness will impute knowledge to an accused whose suspicions are aroused to the point where she sees the need for further inquiries, but deliberately chooses not to make those inquiries: Briscoe, at para. 21. Wilful blindness requires more than a failure to inquire and is closer to “deliberate ignorance”: Briscoe, at para. 24.
56On these facts, it is not a given that an aider or abettor who knew that the accused was going to shoot should be imputed with knowledge that the shooter had the intent to commit murder. The evidence suggests that the altercation leading up to the shooting happened over a short period of time. There was no direct evidence suggesting that either accused knew what the other was going to do. On these facts, a jury could have had a reasonable doubt on whether either accused knew of the other’s intent to commit murder, even if that accused knew of the other’s intent to shoot.
57In my view, these errors require that Warner and Chambers’ convictions for the murder of Musgrave be quashed.
4.4. Instructions on Aiding and Abetting Aggravated Assault were Sufficient
58While the trial judge’s instructions were not sufficient for the murder charges, I conclude that they adequately conveyed the requirements for aiding or abetting an aggravated assault.
59The essential elements of aggravated assault are well established. Watt’s Manual of Criminal Jury Instructions, 2d ed. (Toronto: Thomson Carswell, 2015) provides a helpful summary at pp. 816-17. The Crown is required to prove the following: (i) the accused intentionally applied force to the complainant; (ii) the complainant did not consent to the force applied by the accused; (iii) the accused knew that the complainant did not consent to the force being applied; and (iv) the force applied wounded, maimed, disfigured, or endangered the life of the complainant.
60In this case, the undisputed evidence was that Chinambu had been wounded by a shot fired by Warner or Chambers. Furthermore, Warner, through his counsel, admitted that he had shot Tsibu-Darkoh.
61Read in context, the jury was directed that anyone aiding or abetting an aggravated assault must know that the shooter intended to shoot someone and would actually shoot, and the aider or abettor did something for the purpose of helping the shooter do so. Concluding that either accused knew of the other’s intent to shoot is to conclude that he knew of the other’s intent to apply force. In the circumstances here, there was no question that the two victims did not consent to the application of force and were wounded as a result of the application of force.
62Therefore, while knowledge that the principal offender intended to shoot is not knowledge that the principal had the intent required for murder, in my view, in these circumstances it is knowledge that the principal intended to commit the offence of aggravated assault.
5. FAILURE TO LEAVE MANSLAUGHTER AS A LESSER INCLUDED OFFENCE FOR AIDING AND ABETTING MURDER
63The appellants concede that the shooter was guilty of murder because his actions entailed at least the secondary intent for murder, namely that he meant to cause Musgrave bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. However, they submit that it does not follow that the non-shooter was necessarily aware of the shooter’s murderous intent. Therefore, they submit, the trial judge should have instructed the jury that they could convict the appellants on the lesser included offence of aiding and abetting manslaughter instead.
64The Crown rejects this submission. It argues that there was no air of reality to a verdict of manslaughter. The Crown notes that trial counsel did not request an instruction including manslaughter as an available verdict. Even if failing to instruct the jury on this verdict was an error, the Crown submits that it did not result in a substantial wrong or miscarriage of justice and so the curative proviso should be applied.
65I agree with the appellants that the trial judge erred by failing to leave manslaughter with the jury as a lesser included offence to the murder charges in the case of the aider or abettor.
66A party to an offence may be found guilty of either a more or a less serious offence than the principal. It is open to a jury to find an accused guilty of the lesser included offence of manslaughter where she aided or abetted a principal who is found guilty of murder: R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74, at pp. 88 and 96-97; R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573, at pp. 581-83. A person who aids or abets another person in the offence of murder may be convicted of manslaughter where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act that was being undertaken by the murderer: Jackson, at p. 583.1
67In a murder case, a trial judge must instruct a jury on the possibility of a conviction on the included offence of manslaughter if, on all the evidence, there is an air of reality to a finding that the Crown has not proven beyond a reasonable doubt that the killer had either of the requisite intents required for murder: R. v. Babinski (2005), 2005 CanLII 789 (ON CA), 193 C.C.C. (3d) 172 (Ont. C.A.), at para. 45; R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482, at p. 504.
68Similarly, where the Crown argues that an accused aided or abetted a murder and there is an air of reality to a finding that the Crown has not proven beyond a reasonable doubt that the aider or abettor knew that the killer had the requisite intent for murder, the trial judge must instruct the jury on the possibility of a conviction of the aider or abettor on the included offence of manslaughter.
69There was no direct evidence as to whether the aider or abettor knew that the perpetrator had the intent for murder. The shootings followed an argument, and there was no suggestion that they were planned. It is possible that Warner pulled out his gun to help out Chambers, not knowing that Chambers had a murderous intent. Similarly, it is possible that by pulling out his gun and saying “I can end this party right now,” Chambers encouraged Warner to shoot without knowing that Warner had a murderous intent. Therefore, there was an air of reality to a finding that the Crown had not proven beyond a reasonable doubt that the aider or abettor, as the case may be, knew that the principal had the intent for murder.
70As noted, the Crown relies on the fact that the appellants’ counsel did not request that the jury be instructed on the possibility that the appellants could be convicted of manslaughter instead of murder. Although counsel’s position at trial is a relevant consideration for an appellate court reviewing a jury charge, trial counsel’s failure to object or request a particular instruction is not determinative. A legal error remains a legal error irrespective of trial counsel’s position: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97. Therefore, even though the appellants’ counsel did not ask for the instruction, the failure to instruct the jury on this lesser included offence was an error.
71As I would set aside the murder convictions on other grounds, it is not necessary to address in detail the Crown’s submission that the curative proviso should be applied. However, I note that failing to instruct a jury on the possibility of conviction on a lesser included offence will in most circumstances constitute reversible error: R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 31. In my view, this is not one of those rare cases where the curative proviso could be applied despite a failure to leave a verdict on a lesser included offence with the jury.
6. ERROR IN JURY INSTRUCTIONS REGARDING THE USE OF EVIDENCE OF POST-OFFENCE CONDUCT
72Both appellants attack the trial judge’s instructions to the jury on how it could use evidence of the appellants’ conduct after the shooting. Warner’s primary argument is that, because he had admitted to assaulting Tsibu-Darkoh, the trial judge should have instructed the jury that it could not use Warner’s post-offence conduct to draw an inference that he was guilty of committing an aggravated assault on Chinambu or murdering Musgrave.
73Chambers similarly argues that the jury should have been instructed that it could not use his post-offence conduct to draw an inference of guilt because his conduct was explained by the fact that he knew that he had violated his firearms prohibition order. In the alternative, he argues that the trial judge erred in the manner in which he instructed the jury with respect to post-offence conduct.
74The Crown rejects these submissions. It argues that the trial judge’s instructions told the jury to consider the post-offence conduct to determine if the appellants’ conduct was consistent with the state of mind of a person who had “taken part in a shooting”. If the jury had followed the instructions given, then it would not have used the evidence against Warner as he had already admitted to having taken part in a shooting by assaulting Tsibu-Darkoh. Furthermore, as Chambers had not admitted to any of the offences he was charged with, the inferences left with the jury were permissible ones in the case of Chambers. Therefore, the Crown argues that the trial judge’s instructions do not justify appellate intervention. The Crown does not argue that the curative proviso could be applied if the trial judge committed the errors alleged by the appellants.
75As I will explain, I agree with Warner that the trial judge was required to instruct the jury that some of the evidence of Warner’s post-offence conduct –namely, the evidence of his flight to Guyana – had “no probative value”. I also agree that the trial judge’s instructions to the jury regarding post-offence conduct were otherwise inadequate. In my view, the curative proviso cannot be applied to these errors.
6.1. The Law Regarding Post-Offence Conduct Evidence
76The term post-offence conduct evidence, which is sometimes called after-the-fact conduct evidence, refers to evidence of acts or omissions of the accused occurring after the commission of an alleged offence. It is circumstantial evidence that a jury may use, when considering the charges against an accused, if and to the extent that it is relevant to a live issue: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72 (“White #1”), at para. 21; see also R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (“White #2”), at paras. 22 and 31.
77At the same time, the jurisprudence recognizes that post-offence conduct evidence “is a special brand of circumstantial evidence that carries a heightened risk of misapplication and prejudice” and that the relevance and available uses of such evidence are not always matters of common sense: David M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016) 63 C.L.Q. 275, at p. 277; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 31. In some cases, trial judges will be obliged to deliver “cautions” and “limiting instructions” that are not generally required for other forms of circumstantial evidence: Paciocco, at p. 277.
78In White #2, at para. 31, Rothstein J. explained that the rules governing the need for and scope of limiting instructions are those that govern the admissibility of circumstantial evidence in general: is the evidence relevant to a live issue; is the evidence subject to any specific exclusionary rules (for example, the hearsay rule); and should the evidence be excluded under a recognized judicial discretion?
79Laskin J.A. explained how to determine the relevance and permissible use, if any, of post-offence conduct evidence in R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 55:
Post-offence conduct, therefore, is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issue at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J. in [White #2], the overriding question is this: what do “logic and human experience” suggest that a jury can legitimately or rationally infer from the accused’s post-offence conduct?
80In some cases, the post-offence conduct will have no probative value because it is not relevant to any live issue; in such cases, a trial judge must deliver a blanket “no probative value” instruction informing the jury that they should not consider the post-offence conduct. For instance, in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, the accused was charged with aggravated assault for having allegedly stabbed someone. He admitted to having punched the victim several times before he fled from the scene. The trial judge permitted the jury to consider the post-offence conduct of flight as evidence on the aggravated assault charge, but the Supreme Court concluded that was an error. Because the accused had admitted culpability in respect of one offence (assault) and the evidence could not logically support an inference of guilt with respect to another offence he was charged with, the evidence of the appellant’s flight had no probative value and the jury could make no use of it.
81In some instances, however, evidence of post-offence conduct can logically support an inference of guilt with respect to one offence rather than another. As the Supreme Court explains in White #1, at para. 32:
It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to more consistent with the offence charged.
82And post-offence conduct may be probative of one live issue, but not of another. For example, flight per se may be relevant in determining the identity of the assailant, but may not be relevant in determining the assailant’s level of culpability, as between manslaughter and murder. In that circumstance, the judge must give a limiting instruction as to the appropriate and inappropriate inferences to be drawn from the evidence: White #2, at para. 39. A trial judge’s failure to instruct a jury on the limited use of or inferences available from the post-offence conduct evidence may constitute reversible error: see, for example, Rodgerson.
6.2. The Trial Judge’s Charge Regarding Post-Offence Conduct
83The trial judge recounted some of the evidence of Warner and Chambers’ conduct after the shooting. In particular, he noted the following:
- Warner and Chambers left right after the shooting.
- According to A.B., the first man out dropped a gun and told the other one to pick it up, which the second person did.
- Nicole Hamilton testified that “after the popping noises the man who didn’t like the music dropped a gun and then picked it up.” Chambers agreed that he dropped the gun and picked it up. He testified that his .380 was dull silver. Nicole said that the gun that was dropped was silver with black.
- After he was picked up by his regular cabbie, Warner lay down on the back seat. He was concerned about the incident at the party. After reading a report about the incident, he told the cabbie that he was upset not because he was involved, but because he was with Chambers, who was involved.
- Warner was arrested in Guyana.
- Chambers walked to the residence he shared with his girlfriend and stayed there a few nights. Then he went to Halifax.
- Neither appellant called the police to say that he had witnessed a shooting and that he knew who did it, nor to tell them that there were firearms lying around in people’s gardens on Canada Street.
- Neither appellant stayed to get medical help for Musgrave.
84Then the trial judge instructed the jury on how they could use this post-offence conduct:
You can take this conduct after the fact into account as a piece of circumstantial evidence of the respective states of mind of each accused if you think that it is more consistent with the way someone would act who had taken part in a shooting. You must also consider any explanation for this conduct. The conduct can only be circumstantial evidence of guilt if you reject the explanation.
85Finally, the trial judge summarized the appellants’ explanations for their conduct, as follows:
Mr. Chambers’ explanation is that he spoke to a lawyer that he found on Google and the lawyer told him that he would be arrested if he went to the police. With his previous conviction and prohibition order, he thought he was looking at several years in prison just for having had a gun. He was told that he could not clear his name without being arrested. He did not think about clearing his name by giving the police his .380 to prove that he was not the person who shot these people with a .22, although he thought about going to the police because his heart dropped when Mr. Warner told him that one of the men was not expected to make it. In the end he thought it best to lie low until Mr. Warner got caught.
Mr. Warner’s explanation, as given to [his cabbie], is that he thought he was in trouble for being with the person who committed the offence.
6.3. Some Inferences Were Available from Certain Aspects of the Post-Offence Conduct
86Before explaining how the trial judge erred in his instruction to the jury regarding the use of evidence of post-offence conduct, I wish to make clear that some inferences could legitimately and rationally be drawn from certain aspects of Warner’s and Chamber’s post-offence conduct. Some of the evidence of post-offence conduct was relevant to some of the issues before the jury.
87In my view, “logic and human experience” suggest that a jury could legitimately and reasonably infer from the fact that Warner and Chambers fled the party together, and remained together until they parted company at the GO Station, that Warner and Chambers participated together in the shootings. And this, in turn, is relevant to whether Warner or Chambers was liable as an aider or abettor to aggravated assault or murder. However, it would have had to have been made clear to the jury that other inferences were also available to them from this evidence. Both Warner and Chambers were subject to firearms prohibitions and had openly brandished firearms. A jury could also conclude that they fled together, immediately after the shots were fired, simply because they were friends who came to the party together and both were in trouble, although to different degrees.
88Also, if the jury accepted A.B.’s evidence that the “the first man out dropped a gun and told the other one to pick it up” then that evidence may be probative of whether the non-shooter aided or abetted the shooter. And it may be that, if accepted by the jury, Hamilton’s evidence of who dropped the gun and what that gun looked like was relevant to the identity of the shooter.
89I reject Chambers’ argument that a jury could not legitimately and rationally infer that Chambers had participated in one or more of the shootings because of his flight to Halifax. Unlike Warner, Chambers did not admit to any of the offences he was charged with. He relied on the fact that he was subject to a firearms prohibition at the time of the offences to explain his flight. It is not necessarily true that Chambers’ post-offence flight to Halifax is equally consistent with someone fleeing because he had violated a firearms prohibition and someone fleeing because he had participated in a shooting. On this record, it may be open to the jury to conclude as a matter of logic and human experience that Chambers’ post-offence flight to Halifax is consistent with someone participating in a shooting and not just someone fleeing because he had violated his firearms prohibition. It is for the jury to decide- on a proper instruction- which available inference to accept.
6.4 How the Trial Judge Erred in His Instruction to the Jury
90As indicated above, the trial judge simply instructed the jury that they could take Warner’s and Chambers’ post-offence conduct “into account as a piece of circumstantial evidence of the respective states of mind of each accused if you think that is more consistent with the way someone would act who had taken part in a shooting.” Then he said that the conduct could be “circumstantial evidence of guilt”.
91The trial judge treated the evidence of post-offence conduct as an amorphous whole. He failed to instruct the jury as to what inferences were (and were not) available from the various portions of the evidence of the post-offence conduct and how that evidence related to specific live issues before the jury. He erroneously left the impression that Warner’s and Chamber’s post-offence conduct was relevant to all of the offences with which they were charged and could assist them in establishing the “respective states of mind of each accused”.
6.4.1 The Trial Judge Should Have Delivered a “No Probative Value” Instruction in Respect of Warner’s flight to Guyana
92An inference that Warner had shot, aided Chambers in shooting, or abetted Chambers to shoot Musgrave and/or Chinambu, was not available from Warner’s post-offence flight to Guyana. The trial judge’s failure to instruct the jury that this was not an available inference is an error.
93Through counsel, Warner admitted the serious offence of committing aggravated assault on Tsibu-Darkoh, with which he had been charged. This, and not the explanation given to his cabbie recounted in the trial judge’s charge, was Warner’s explanation for his flight to Guyana.
94Warner’s post-offence flight to Guyana is as consistent with having committed the admitted offence of aggravated assault of Tsibu-Darkoh as with having committed that offence and the aggravated assault of Chinambu, as principal offender or as an aider or abettor. Therefore, his post-offence flight to Guyana is not probative of who shot Chinambu or whether he aided or abetted Chambers to shoot Chinambu.
95While the offence of murder is more serious than that of aggravated assault, and fleeing the country is perhaps a relatively extreme instance of post-offence conduct, it cannot be said that Warner’s flight to Guyana was out of all proportion to the admitted offence of wounding Tsibu-Darkoh. Accordingly, in my view, the trial judge should have directed the jury that Warner’s post-offence flight to Guyana could not be used to infer guilt of Musgrave’s murder either.
96I reject the Crown’s argument that the jury would have understood that it was not to use evidence of Warner’s post-offence flight to Guyana in determining his guilt. The trial judge instructed the jury that the post-offence conduct was “circumstantial evidence of guilt” and, therefore, the jury would have believed that it could use the all of the evidence of post-offence conduct – including the evidence of Warner’s flight to Guyana – as evidence against Warner on all three counts.
97Because the failure to instruct the jury that it could not consider the evidence of Warner’s flight to Guyana is dispositive of the ground of appeal arising out of the trial judge’s charge regarding post-offence conduct in the case of Warner, I principally focus the balance of my analysis through the lens of Chambers.
6.4.2 The Trial Judge Failed to Relate the Evidence to Specific Live Issues before the Jury
98This case involves more than one accused and more than one offence. There were several live issues before the jury: did Chambers shoot and kill Musgrave; did he assist or encourage Warner in murdering Musgrave knowing that Warner had the intent to murder Musgrave; did he shoot Chinambu; did he assist or encourage Warner in committing an aggravated assault on Chinambu knowing that Warner intended to shoot and would shoot Chinambu; and did he assist or encourage Warner to shoot Tsibu-Darkoh, knowing that Warner intended to shoot and would shoot Tsibu-Darkoh? All of these, in turn, raised a number of sub-issues.
99By saying that the post-offence conduct could be “circumstantial evidence of guilt”, the trial judge suggested that the jury could use all of the evidence of post-offence conduct to help resolve all of the issues before them. In essence, the trial judge improperly invited the jury to consider all of the evidence of post-offence conduct as evidence of guilt on all three charges. He failed to explain what inferences were and were not available from the evidence of post-offence conduct. In so doing, he erred.
100By way of illustration, Chambers’ post-offence flight is not probative of whether he shot Musgrave as opposed to, for example, whether he shot Chinambu. The limited available inference from his flight is simply that he had participated in one or more of the shootings.
101As I have explained, some of the evidence of post-offence conduct is relevant to some of the live issues that were before the jury. However, the trial judge did not explain this to the jury. Rather, he treated the evidence of post-offence conduct as an amorphous whole and failed to relate it to specific, live issues before the jury.
102In my view, the effect of his error was to leave the jury with the impression that all of the evidence of post-offence conduct was relevant to all counts and encourage a leap from that evidence to a conclusion of guilt in relation to the shootings of Musgrave, Tsibu-Darkoh, and Chinambu.
6.4.3 Mens Rea
103There is a further flaw in the trial judge’s charge relating to post-offence conduct. By indicating that Warner’s and Chambers’ post-offence conduct could be considered as evidence of their “respective states of mind”, the trial judge erroneously left the impression that their post-offence conduct could assist in establishing the mens rea element of the offences with which they were charged. Normally, post-offence conduct cannot help to determine the state of mind of an accused, and it could not do so in this case.
104It could not assist the jury in determining whether the aider or abettor knew that the principal offender intended to murder Musgrave or shoot Tsibu-Darkoh or Chinambu. Further, I conclude above that another issue should have been before the jury: if Warner had murdered Musgrave, was Chambers guilty as an aider or abettor of murder or manslaughter? Chambers’ post-offence conduct was equally consistent with either verdict, and similarly could not assist the jury to determine Chambers’ level of culpability for the murder of Musgrave.
7. DISPOSITION
105I would allow the appeals, quash Warner and Chambers’ convictions for the murder of Musgrave and aggravated assault of Chinambu and Chambers’ conviction for the aggravated assault of Tsibu-Darkoh, and order a new trial.
Released: “AH” “SEP 16 2016”
“Alexandra Hoy A.C.J.O.”
“I agree John I. Laskin J.A.”
“I agree C. William Hourigan J.A.”
Footnotes
- Although the decision in Jackson was rendered before the Supreme Court clarified the law on aiding and abetting murder in Briscoe, in R. v. M.R., 2011 ONCA 190, 275 C.C.C. (3d) 45, at paras. 47-48, O’ Connor A.C.J.O. explained that the Jackson remains good law despite that clarification.
