Court of Appeal for Ontario
Judges: Simmons, van Rensburg and Miller JJ.A.
Between
Her Majesty the Queen Appellant
and
Aasif Patel Respondent
Counsel:
Lisa Joyal, for the appellant
Nader Hasan and Stephen Aylward, for the respondent
Heard: December 9, 2016
On appeal from the acquittal entered by Justice W. Brian Trafford of the Superior Court of Justice, dated May 29, 2014, sitting with a jury.
van Rensburg J.A.:
I. Overview
1This is a Crown appeal of an acquittal.
2Aasif Patel, his co-accused Wariskhan Pathan, and Suhail Shaikh were involved in a dispute in a stairwell of an apartment building with Lodian Samuels, a resident of the building. The three left the building after the confrontation, returning around 20 minutes later. Within one minute of their return, Lorenzo Martinez, a close friend of Samuels, was shot dead by Pathan in the front lobby of the building. Pathan and Patel were charged with first degree murder.
3The Crown's primary theory was that Pathan, as principal, and Patel, as aider and abettor, carried out a planned and deliberate murder of Martinez – they returned to the building to kill Samuels and any of his associates, and they recognized Martinez as one of Samuels' associates. The trial judge instructed the jury on first degree murder, second degree murder and manslaughter, with Pathan as principal, and Patel as an aider or abettor. However, the trial judge refused to put to the jury an alternative theory in support of a verdict of second degree murder or manslaughter for Patel: that he and Pathan were engaged in some other common unlawful purpose at the time Pathan shot and killed Martinez (namely a plan to assault Samuels and his associates with guns); that they did not recognize Martinez as an associate of Samuels; but that a killing, or an inherently dangerous act creating a risk of bodily harm, was a known probable outcome of carrying out the common purpose. After an eight week jury trial, Pathan was convicted of second degree murder. Patel was acquitted.
4The Crown argues that there were errors in the jury charge that warrant a new trial for Patel on second degree murder and the included offence of manslaughter. First, the Crown asserts that the trial judge erred in refusing to instruct the jury on common unlawful purpose liability under s. 21(2) of the Criminal Code. The Crown also contends that the trial judge erred in his instructions respecting Patel's liability as an aider and abettor of Pathan under s. 21(1) of the Criminal Code in telling the jury that Patel must have caused Martinez's death and that they could only find Patel guilty of the same offence as Pathan.
5For the reasons that follow, I would dismiss the appeal.
6In respect of Patel's liability as a party under s. 21(2), the Crown advanced different theories at trial and on appeal as to how common unlawful purpose liability could apply.
7At trial, Crown counsel requested that the trial judge instruct the jury on s. 21(2), as he said, to "fill the gap" in the event the jury failed to find that Pathan and Patel planned to kill Samuels and his associates and recognized Martinez as one of Samuels' associates. As I have said, according to the Crown's trial theory, Patel could have been found liable for second murder or manslaughter if the jury found that he and Pathan returned to the building to assault Samuels and his associates with guns but did not recognize Martinez as one of Samuel's associates. The Crown asserted that Patel would be liable for Pathan's killing of a stranger, Martinez, during an unexpected encounter, because the two were engaged in another unlawful plan – namely, a plan to assault Samuels or his associates with guns.
8The trial judge refused to instruct the jury on common unlawful purpose liability for Patel because he concluded, among other things, that there was no air of reality to the Crown's theory of s. 21(2) liability for Patel.
9On appeal, the Crown did not ask this court to find that the trial judge should have instructed the jury on liability under s. 21(2) on the basis the Crown advanced at trial. Indeed, leaving aside the air of reality issue, I am skeptical that s. 21(2) could extend liability to Patel where Pathan killed a stranger while the two were en route to commit a different crime. However, it is unnecessary that I decide this issue as the Crown did not rely on its trial theory of liability under s. 21(2) on appeal.
10Rather, the Crown advanced a different scenario for the operation of s. 21(2) – premised on the jury accepting that Pathan and Patel planned to assault Samuels and anyone associated with him with guns, that they assaulted Martinez because they recognized him as an associate of Samuels, and that they were engaged in their original plan when Pathan shot Martinez.
11The respondent submits there is no air of reality to this new alternative theory.
12However, even assuming an air of reality, to allow the appeal on this basis would require this court to accept a version of the facts and argument that were not advanced at trial. The Crown's argument on appeal reflects a material change in the Crown's position between trial and appeal. In these circumstances it would be unfair to Patel and offend double jeopardy principles to allow the appeal and to direct a new trial on this basis.
13In any event, in relation to second degree murder, I am not satisfied that the result would have been different had the trial judge instructed the jury under s. 21(2) in the circumstances of this case. The evidence and inferences on which the Crown relies to support its theory of liability for second degree murder under s. 21(2) on appeal are substantially the same as the evidence and inferences it relied on at trial to support liability for second degree murder under s. 21(1). In the circumstances of this case, I conclude there is no practical difference between the mens rea requirements under ss. 21(1) and 21(2) that could have led to a different verdict for second degree murder.
14As for the alleged errors with respect to the instructions on s. 21(1), when the instructions are considered as a whole, the jury would not have been misled as to the elements required to find Patel guilty as a party to an offence, and it was clear that the liability of each accused was to be separately determined and that Patel and Pathan could be found guilty of different offences.
II. Evidence at Trial
15The fatal shooting of Lorenzo Martinez took place on February 11, 2011 in the front lobby of an apartment building at 70 Stevenvale Drive in Toronto.
16Samuels testified that Martinez had been at Samuels' apartment to hang out, something he did each day, and that they would usually smoke weed together. After Martinez arrived, Samuels left the apartment to speak with a friend in the lobby. Samuels smelled marijuana in the hallway outside of his apartment and, on entering the south stairwell, he saw Patel, Pathan, and Shaikh smoking. He knew Patel by his nickname "Iceman", and had seen Pathan around the neighbourhood. Samuels testified that he confronted Patel and blamed him for being the reason the police were coming to the building. He knew that the three men did not live in the building, so he wanted to know what they were doing in his building and why they were smoking marijuana there. According to Samuels, Patel responded aggressively, and implied that some people were watching his apartment. To Samuels, Patel was claiming he knew something about him and this annoyed him. Pathan did not participate in the disagreement.
17Samuels returned to his apartment and told Martinez what happened. Martinez got upset and threatened to punch in the face whoever it was who confronted Samuels. Samuels then went to the lobby to speak to his other friend, using the south stairwell. Samuels noticed the three had left the stairwell. On his way back to his apartment, Samuels encountered Martinez and they returned together. From his balcony, Samuels saw Patel, Pathan and Shaikh leaving a nearby apartment building, 45 Greencrest Circuit, and approaching the north or main entrance of his building. He pointed them out to Martinez. Samuels told Martinez not to leave the apartment and went to the bathroom to get changed. When he came out of the bathroom, Martinez was gone.
18Both accused testified at trial. Patel testified that he had been visiting a friend's apartment at 70 Stevenvale on the night of February 11, 2011. He, Pathan and Shaikh decided to smoke kush, a potent form of marijuana, and went to the stairwell, where they were confronted by Samuels. Patel did not think the confrontation was a big deal, although he knew they were in the wrong by smoking in the stairwell and wanted to avoid further trouble. Patel, Pathan and Shaikh left the building, without going back to their friend's apartment to retrieve their belongings, and went to 45 Greencrest. About 20 minutes later, they returned to 70 Stevenvale to retrieve their coats, cell phones and keys from their friend's apartment. According to Patel, they entered through the main door on the north side of the building to avoid running into Samuels in the south stairway. This was largely consistent with the account provided by Pathan in his trial testimony.
19What occurred next is captured on CCTV security videos. A DVD of the composite security video footage was entered as an exhibit at trial, as was an enhanced version of the security videos introduced by a defence expert witness. The parties agreed that the security videos were fair and accurate representations of their content, subject to limitations inherent in the video recording technology. The interpretation of what was depicted in the security videos in the 60 seconds between 19:44:27, when the three entered the building and 19:45:27, when Martinez was shot, was the centrepiece of the trial.
20The security videos showed Patel, Pathan and Shaikh entering the outer lobby of the building. Patel attempted to open the door to the inner lobby by pulling it firmly with two hands, but was unable to open it. Patel gestured to Shaikh, who left. Both Pathan and Patel testified that Shaikh was dispatched to the south entrance of the building, which was usually unlocked, to let Patel and Pathan in from inside the building. Another security camera recorded Shaikh entering the building through the south entrance.
21While Patel and Pathan waited in the outer lobby, Martinez, approaching from inside the building, walked to the door separating the outer and inner lobby, opened it and admitted Patel. Patel entered, moved toward the elevator past Martinez and turned around, as Martinez closed the door, keeping Pathan in the outer lobby area. Patel reached into his pants or waistband and drew what he testified was an inoperable pellet gun. Patel and Martinez then appeared to engage in a verbal and physical altercation. Patel testified that Martinez said, "Do you think you're tough?" The video depicts Patel and Martinez struggling over control of Patel's gun.
22Seconds after Patel reached for his gun, Pathan drew his gun, placing both hands on the weapon. As Martinez and Patel were engaged in the physical altercation, Pathan raised his gun and pointed it at the two men in the inner lobby. Patel then maneuvered around Martinez, and opened the glass door dividing the outer and inner lobby. Pathan shot Martinez once through the glass door. Martinez fell face-first on the floor separating the outer and inner lobby. Pathan fired two more times at Martinez after he was on the ground. Patel and Pathan then ran off.
23Patel testified that the kush he had smoked made him feel paranoid and anxious, and that he was panicked during the encounter with Martinez, who was a stranger to him. He had said "thank you" to Martinez when Martinez opened the door for him, but was surprised when Martinez shut the door on Pathan. Patel admitted to drawing his pellet gun but denied pointing it at Martinez. He was frightened and was trying to get around Martinez so that he could get out of the building. He testified that he was not good friends with Pathan, he did not know that Pathan had a firearm, he did not see Pathan draw his gun, and he did not expect Pathan to shoot Martinez.
24Pathan testified that he was a cocaine dealer and routinely armed with a loaded firearm, ready to fire. He asserted that, although Patel had seen Pathan's gun one or two times before, no one knew Pathan had a gun on him that day. Patel was one of his closest friends, and he had seen Patel with a real gun in the past. However, Pathan did not know that Patel had a gun in his possession that evening until Patel pulled it out in the lobby. He admitted that he checked his gun before seeing Martinez, but said he did so to keep it from falling down his pants. When Patel and Martinez began struggling, and he saw Martinez try to take Patel's gun, Pathan pulled out his own gun to protect himself and Pathan, and it went off by accident. He claimed to have no memory of firing the second and third shots.
25There was no real issue at trial about the identity of the person who fired the fatal shot. Although the Crown initially argued that Patel may have discharged his weapon, the Crown conceded that, based on the ballistics evidence, post-mortem evidence and security videos, it was "extremely unlikely" that more than three shots were fired. What was left with the jury was that no more than three shots were fired, all of which came from Pathan's gun and, accordingly, that Pathan fired the fatal shot. The first shot entered Martinez's neck, lodging in his spine, and one of the other two shots was to Martinez's back, piercing his heart.
26The Crown asserted that Pathan and Patel committed a planned and deliberate murder of Martinez. Angered by their earlier confrontation with Samuels, they returned to the building planning to kill Samuels or anyone associated with him who got in their way.
27A factual issue at trial was whether Pathan and Patel recognized Martinez as one of Samuels' associates or whether he was a "stranger" to them. Samuels testified that he pointed out Patel, Pathan and Shaikh to Martinez from the balcony as the three returned to the building and, when he did so, Martinez gave no indication that he had seen them before. Patel and Pathan denied that they recognized or knew Martinez, and testified that they did not know he was connected to Samuels. There was only indirect evidence suggesting they may have seen Martinez in Samuels' company.
28The Crown argued that the events captured by the security cameras supported its theory of a planned and deliberate murder – the shooting was unprovoked, and occurred within seconds of Martinez appearing in the lobby. The Crown asserted that the actions of Patel and Pathan were synchronized, that Patel reached for his weapon within 2.5 seconds of encountering Martinez with Pathan reaching for his gun only 2.5 seconds after Patel, and that Patel maneuvered Martinez into Pathan's line of fire. The very speed of events, the Crown urged, suggested that Patel and Pathan knew Martinez was connected to Samuels and that they were carrying out a plan to murder Samuels or one of his associates. The Crown argued that this conclusion was also supported by Pathan's gun being loaded and ready to fire before they entered the lobby. While they were smoking kush earlier, their actions showed that their ability to form the requisite intent was not impaired. The killing was not an accident nor was it an act of self-defence.
29The Crown argued that, if the two were not guilty of first degree murder, then they were guilty of second degree murder or manslaughter.
30The trial judge dismissed a defence motion for a directed verdict of acquittal on first degree murder brought at the close of the Crown's case. He also refused the Crown's request to instruct the jury that Patel could be found guilty under s. 21(2) based on a common unlawful purpose with Pathan to threaten, rob or assault Samuels or his associates. The jury was instructed that Patel's liability was under s. 21(1) as having aided or abetted Pathan in Martinez's killing. It is from Patel's acquittal that the Crown appeals.
III. Grounds of Appeal
31A jury verdict of acquittal is entitled to substantial deference and may only be set aside where there is an error or are errors, considered cumulatively, that might reasonably and "in the concrete reality of the case" have had a material bearing on the acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 250. The appeal should only be allowed if the Crown satisfies the court "that the verdict would not necessarily have been the same if the trial judge had properly directed the jury": R. v. Vézeau, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277, at pp. 291-292. The Crown says there were such errors here and that it has met the Vézeau test.
32As its first ground of appeal, the Crown contends that the trial judge erred in refusing to instruct the jury under s. 21(2) when there was an "air of reality" to this basis of liability for Patel for second degree murder or manslaughter. Second, the Crown says the trial judge made two significant errors in his jury instruction under s. 21(1). I will deal with these issues in turn.
IV. Analysis
A. Ground 1: Did the Trial Judge Err in Refusing to Instruct the Jury under Section 21(2) of the Criminal Code?
33The Crown contends that the trial judge erred in law in refusing to instruct the jury with respect to Patel's potential liability as a party to the killing of Martinez under the doctrine of common unlawful purpose, pursuant to s. 21(2) of the Criminal Code.
34As I have explained, the Crown advanced a different theory on appeal than at trial for asserting that s. 21(2) should have been left with the jury. In my view, the Crown's argument and the inferences from the evidence relied on in the appeal reflect a material change in the Crown's position between trial and appeal. In these circumstances it would be unfair to Patel and offend double jeopardy principles to allow the appeal and to direct a new trial on this basis.
35In any event, in relation to second degree murder, I am not satisfied that the result would have been different had the trial judge instructed the jury under s. 21(2).
36In addressing this ground of appeal I will first set out the relevant legal principles with respect to s. 21(2). I will then outline the Crown's argument for leaving this ground of liability with the jury at trial and the trial judge's reasons for refusing to do so. Next, I will address the Crown's argument on appeal and explain why I would not give effect to it.
(1) The Legal Principles: Section 21(2)
37Section 21(2) of the Criminal Code provides for the liability of a participant in a common unlawful purpose for an incidental crime committed by another participant. Section 21(2) states:
Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
38The scope of s. 21(2) is broader than s. 21(1), extending liability to persons who would not be found liable as aiders or abettors. It also extends responsibility for offences other than the offence the accused was carrying out, provided the accused had the required degree of foresight of the incidental offence: R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at para. 52.
39In relying on s. 21(2), the Crown must prove (i) the party's participation with the principal in the original unlawful purpose (the "agreement"), (ii) the commission of the incidental crime by the principal in the course of carrying out the common unlawful purpose (the "offence") and (iii) the required degree of foresight of the likelihood that the incidental crime would be committed ("knowledge"): R. v. Simon, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43.
40The "agreement" element requires that "the accused and the other participant(s) agreed to carry out a common unlawful purpose and to help each other to do so": Cadeddu, at para. 58. The "unlawful purpose" must be different from the offence ultimately committed: Cadeddu, at paras. 54, 56; R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 15.
41The "offence" must be committed as the participants are carrying out their original agreement or plan: Cadeddu, at para. 60. The incidental offence, although not intended by the accused, must nonetheless be related to the original unlawful purpose: Cadeddu, at para. 59. As V. Gordon Rose notes in Parties to an Offence (Toronto: Carswell, 1982), at p. 72:
Section 21(2) requires that the consequential offence have been committed "in carrying out the common purpose", and implicitly that it be in some way related to it…. [The jury must] find that the action of the principal was a consequence of the prosecution of the original common unlawful purpose, and not the result of any "supervening causative event wholly outside the agreed plan." [Citations omitted.]
42As for the "knowledge" requirement, to convict a secondary party of murder under s. 21(2), the Crown must prove that the party in fact foresaw that murder was a probable consequence of carrying out the original unlawful purpose: R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573, at p. 587; Cadeddu, at para. 62; R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 731, at pp. 744-745. To convict a party of manslaughter relying on s. 21(2), the Crown must prove that a reasonable person in all the circumstances would have foreseen that a probable consequence of carrying out the original common purpose was perpetration of an inherently dangerous act creating a risk of bodily harm to the deceased that was neither trivial nor transitory: Jackson, at pp. 573 and 587; Portillo, at para. 73.
43Each of the three essential elements must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. The submission of an alternative basis of liability is controlled by the air of reality standard: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 119, at para. 141. What is required is "some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation": Simon, at para. 43. An instruction on a theory of liability that does not have an air of reality will constitute reversible error: R. v. Ranger, 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1, at para. 132.
44Finally, if satisfied there is an air of reality to each element of s. 21(2) liability, the trial judge must, in charging the jury, set out the three elements of that basis of liability, explain what the Crown must prove in relation to each of those elements, and review the evidence the jury may consider in relation to the elements in determining whether that route to liability has been established: Cadeddu, at para. 64.
(2) Section 21(2): At Trial
45At the beginning of the pre-charge conference, the trial judge indicated that he intended to charge the jury in respect of Patel's liability as an aider or abettor under s. 21(1). At first, the Crown agreed that this would be the most straightforward approach. Later, however, Crown counsel requested a charge under s. 21(2) as well. This was opposed by Patel.
46The Crown acknowledged that its primary position was that Patel aided and abetted Pathan, as principal, in the planned and deliberate killing of an associate of Samuels (Martinez), and that s. 21(2) was irrelevant to this theory. The Crown contended that, as an alternative, if the jury found that the killing of Martinez was spontaneous, i.e., that it was not part of a planned murder, they should have resort to s. 21(2). Crown counsel submitted that s. 21(2) should be an available route to party liability for Patel should the jury find that the accused did not recognize Martinez as an associate of Samuels – that is, if Martinez was a "stranger" they encountered in the lobby. The Crown also submitted that s. 21(2) was the only possible route to convict Patel of second degree murder or manslaughter.
47Crown counsel submitted that the possible "common unlawful purposes" were to assault, threaten, rob or intimidate, with guns, Samuels and any of his associates who got in the way. The Crown argued that Patel would be guilty of second degree murder if he knew murder was a probable consequence of carrying out that common unlawful purpose and that, for manslaughter he would be liable for the actions of his co-accused that he knew were a probable consequence of their common purpose. Crown counsel did not take the trial judge to any of the evidence in support of liability under s. 21(2), but stated repeatedly that s. 21(2) would operate if Patel and Pathan did not recognize Martinez.
48The trial judge queried how, on the evidence in this case, there could be an unlawful purpose distinct from the murder, but with murder as a known probable consequence. The trial judge disagreed with the Crown's contention that s. 21(2) would be the only available route to a second degree murder or manslaughter conviction for Patel.
49The trial judge also expressed concern about making the jury charge unnecessarily complex; he said that, if a reasonable doubt on the primary route of culpability (under s. 21(1)) would mean a reasonable doubt on the secondary route of culpability (under s. 21(2)), then the second route should not go to the jury.
50The trial judge summarized his reasons for refusing to put s. 21(2) to the jury as follows:
[T]his is not a Section 21(2) case. It's being prosecuted correctly as a planned and [deliberate] killing. [T]o make second degree murder somehow a known and probable consequence of another unlawful object which is not apparent on the evidence in my view would be fundamentally incorrect as a matter of law. I will not charge the jury on Section 21(2).
(3) Section 21(2): On Appeal
51On appeal, the Crown asserts that the trial judge erred in refusing to put s. 21(2) to the jury when there was an evidentiary foundation for this basis of liability.
52In this court, the Crown argues that the security video, together with the prior confrontation in the stairwell, provides a sufficient evidentiary foundation for each element of s. 21(2) – that Pathan and Patel agreed to return to 70 Stevenvale to assault with guns Samuels or his associates who got in their way; that they were in the course of committing that offence when Martinez was shot and killed; and that Patel knew the killing was a probable consequence of carrying out the assault with guns (for murder) or that a reasonable person would have known there was a risk of harm (for manslaughter).
53In argument of the appeal, the Crown pointed to the following aspects of the security video as supportive of Patel's liability under s. 21(2): Patel and Pathan arriving at the building, both armed with guns, with Pathan's weapon ready to shoot; the speed with which the altercation began and then unfolded, with Patel reaching for his weapon immediately after Martinez allowed him into the lobby and in the absence of any aggression from Martinez; the movements of the two in a coordinated fashion, with Pathan reaching for his gun within seconds of Patel drawing his, and Patel looking over Martinez's shoulder, seeing Pathan with his gun drawn and maneuvering Martinez into Pathan's line of fire; Patel's apparent lack of surprise when Pathan shoots Martinez; and the two of them running off together following the shooting.
54The Crown asserts that these features support the inference that the accused recognized Martinez as an associate of Samuels, and that they were therefore acting together in carrying out their common unlawful purpose of assaulting Martinez with guns when Pathan shot and killed him. The Crown also argues that, based on this evidence, the jury could have found that Patel knew or foresaw that an intentional killing was probable, or at least that a reasonable person would have foreseen the risk of harm as a result of carrying out the common unlawful purpose, namely the assault with guns.
55The respondent contends that there is no air of reality to s. 21(2) even on the Crown's new theory – that Patel and Pathan were engaged together in an assault with guns of an associate of Samuels, when Martinez was killed.
(4) The Effect of the Change in Theory
56Leaving aside the issue of air of reality, I would not give effect to the Crown's argument on appeal.
57As I have already noted, the Crown's argument on appeal differs from the position taken at trial with respect to the basis for s. 21(2). At trial, the Crown submitted that s. 21(2) would apply if Pathan and Patel did not recognize Martinez as an associate of Samuels. On appeal, the Crown contends that s. 21(2) applies because Pathan and Patel were in the course of carrying out an assault with guns of Martinez whom they recognized as an associate of Samuels. Indeed, Crown counsel submits on appeal that the notion the accused would draw their guns on a complete stranger within a couple of seconds of encountering him "makes no sense."
58Appeal courts are, for very good reason, reluctant to entertain new arguments from the Crown on an appeal from acquittal, due to concerns about double jeopardy and an accused person's s. 7 right to a fair trial and to make a full answer and defence: R. v. Varga, 1994 CanLII 8727 (ON CA), 72 O.A.C. 141, 90 C.C.C. (3d) 484, at paras. 26-27; R. v. Suarez-Noa, 2017 ONCA 627, at paras. 30-35; R. v. Wexler, 1939 CanLII 41 (SCC), [1939] S.C.R. 350, 72 C.C.C. 1.
59In Suarez-Noa, Doherty J.A. considered a Crown appeal from acquittal. On appeal, the Crown argued that the trial judge erred in leaving provocation with the jury because there was no air of reality to the defence, even though at trial the Crown agreed that provocation was available on the evidence. The Crown argued that its position at trial, while a factor to be considered in determining whether there was an air of reality to the defence, could not foreclose the ground of appeal it now advanced. The Crown relied on a line of cases in which the Crown, in responding to an appeal from conviction, had taken a different position than at trial in support of a submission that the error relied on by the accused caused no substantial wrong or miscarriage of justice. Doherty J.A. distinguished these cases. They were not Crown appeals from acquittal; therefore, in making a new argument and changing its position, the Crown was not seeking to put the accused in jeopardy a second time: para. 29. Doherty J.A. then reviewed what he characterized as "a substantial body of case law dealing with Crown appeals that argues strongly against the Crown being allowed to advance [a new] ground of appeal": para. 30.
60Among the cases cited by Doherty J.A. was the Supreme Court of Canada's decision in R. v. Wexler, a Crown appeal from acquittal in a murder case. On appeal, the Crown argued that the trial judge should have instructed the jury on an alternative theory, which would support a verdict for manslaughter, even though the Crown at trial had not sought to have this theory put to the jury. In three concurring judgments, the court held that the Crown could not seek a retrial based on a new theory. Duff C.J. held, at p. 353:
To set aside a verdict of acquittal in such circumstances, merely because the case for the Crown might, on a possible view of the evidence, have been put upon another footing would, it appears to me, introduce a most dangerous practice; a practice not, I think, sanctioned by the statute.
In his concurring judgment, Crocket J. expressed a similar concern at pp. 357-358:
There can be no doubt that the jury believed the accused's explanation and acquitted him for that reason. To subject him now, after he had been put in jeopardy, taken the stand in his own behalf and been acquitted on that indictment, to a new trial thereon on the ground that he might have been convicted of manslaughter if the Crown counsel had not failed to put this feature of the case forward on the trial would, it seems to me with all respect, be such a manifest injustice as Parliament could not well be deemed to have intended when it enacted this drastic amendment to the Criminal Code [referring to the section creating the Crown right of appeal from an acquittal].
61I recognize that this is not a situation where the Crown has raised, for the first time on appeal, an entirely new ground of liability. In this case, the Crown requested an instruction under s. 21(2), which was rejected by the trial judge. On appeal to this court, the Crown however asserts a new basis to support its theory under s. 21(2). The concerns about fairness and double jeopardy also apply where the Crown, on appeal, raises a new argument to support the position for which it unsuccessfully advocated at trial: R. v. Penno, 1990 CanLII 88 (SCC), [1990] 2 S.C.R. 865, at p. 895; R. v. Nguyen, 2008 SKCA 160, 240 C.C.C. (3d) 39, at paras. 40-42. As this court stated in R. v. Tran, 2016 ONCA 48, at para. 4:
The trial judge's reasons were responsive to the Crown's legal submissions. It would be unfair to the trial judge and, importantly, to the respondent to allow the appeal and enter convictions against the respondent or order a new trial on the basis of a factual scenario and legal submissions not advanced by the Crown at trial.
62The Crown's change in position in this case is significant. At trial, the Crown argued forcefully that Martinez's killing was planned and deliberate. The Crown relied on inferences it urged the jury to draw from the security video – specifically the speed with which events unfolded and the alleged synchronized movements of the accused, who were both armed and drew their weapons. The Crown asserted that the accused set out to kill Samuels or any associate of his who got in their way, and that this was exactly what they did upon encountering Martinez. The Crown acknowledged that the accused recognizing Martinez as an associate of Samuels was essential to its theory of a planned and deliberate murder.
63A central issue at trial was whether the accused recognized Martinez or whether, as they claimed, he was a stranger who surprised them as they were entering the building. It was in the context of the latter scenario – that the accused did not recognize Martinez as an associate of Samuels – that trial Crown counsel sought to have s. 21(2) "fill the gap" in its case. However, the Crown does not seek to have this court uphold that theory on appeal.
64The Crown did not advance at trial the theory it now advances on appeal: that Martinez was killed while the accused were carrying out a lesser plan to assault him because they recognized him as an associate of Samuels. This may have been an oversight, or it may have been strategic. Perhaps the Crown sought to connect s. 21(2)'s application to the accused not recognizing Martinez because the Crown did not wish to highlight an alternative theory that could have weakened and undermined the Crown's main theory of first degree murder. More specifically, the Crown did not want the jury to be invited to consider that, even though the accused recognized Martinez, they were carrying out a lesser purpose than planned and deliberate murder at the time Martinez was killed. In any event, having failed to secure a conviction against Patel based on how its case was presented at trial, the Crown cannot be permitted to use its right of appeal to seek a new trial based on a new factual and legal theory it did not advance at trial. I repeat, the Crown is not asking this court to uphold on appeal the theory of liability under s. 21(2) on which it relied at trial. It would be fundamentally unfair to allow the Crown to secure a retrial and put Patel in jeopardy a second time based on a different legal and factual basis for conviction than was advanced at trial: Suarez-Noa, at para. 34.
65Although this is not necessary to dispose of this ground of appeal, in my view, the trial judge was correct in rejecting the Crown's assertion that without s. 21(2) there would be no route to a conviction of Patel for second degree murder or manslaughter. If the jury were not satisfied that the killing of Martinez was planned and deliberate, but occurred spontaneously (whether or not Martinez was recognized as an associate of Samuels) Patel would have been guilty of second degree murder or manslaughter as a party if he aided or abetted Pathan with the requisite mental state.
66Finally, given Patel's acquittal for second degree murder under s. 21(1), I am not satisfied that the Crown has demonstrated "that the verdict would not necessarily have been the same" had the trial judge instructed the jury on its appeal theory for liability under s. 21(2). This is because the Crown relied on the same evidence and the same inferences at trial, in support of Patel's liability for aiding and abetting Pathan in the killing of Martinez as it does on appeal for liability under s. 21(2) and also because of the functional similarity, on the facts of this case, of the mens rea requirements under ss. 21(1) and 21(2) for Patel's party liability for second degree murder.
67The Crown asserts on appeal that it would have been open to the jury to draw the inference that Pathan and Patel recognized Martinez and were carrying out their plan to assault him, as an associate of Samuels, when Pathan shot and killed Samuels – something Patel knew was likely to occur.
68At trial, to prove Patel was guilty of aiding or abetting Pathan in committing second degree murder, the Crown had to show Patel knew Pathan was going to kill Samuels and intended to assist him or encourage him in doing so.
69Given the evidence in this case, it is implausible that the jury could have been satisfied Patel was participating with Pathan in a plan to assault Martinez with guns, knowing Pathan was likely to shoot Martinez, without also concluding that Patel aided or abetted Pathan in shooting Martinez. The jury's rejection of liability under s. 21(1) would have resulted in the same verdict under s. 21(2).
70For these reasons, I would reject this ground of appeal.
B. Ground 2: Did the Trial Judge Err in His Section 21(1) Instruction?
71The Crown's second ground of appeal is that the trial judge erred in his charge on party liability under s. 21(1): first, in instructing the jury that they must be satisfied that Patel caused Martinez's death to find him liable as a party, and second, in instructing the jury that they had to convict Patel and Pathan of the same offence.
72I will deal with each alleged error in turn.
(1) The Causation Instruction
73The Crown contends that the trial judge erred in instructing the jury that they must be satisfied that Patel caused Martinez's death before they could convict him as a party to the offence. The trial judge directed the jury to determine the issue of causation for each defendant as a preliminary issue and instructed that, if they were not satisfied beyond a reasonable doubt "that the conduct of a defendant, each considered separately but in the context of the conduct of the other defendant and of Lorenzo Martinez, caused the death of Lorenzo Martinez, you must find that defendant not guilty." The Crown asserts that this was wrong because a party can aid or abet by acting in a way that furthers, facilitates, promotes, assists or encourages the principal, and be found liable "irrespective of any causative role in the commission of the crime": R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 123, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 179, [2010] S.C.C.A. No. 83. Therefore, although the Crown had to prove that Pathan caused Martinez's death for the jury to find him guilty of culpable homicide as a principal, the trial judge ought not to have imposed such a requirement on the Crown in relation to Patel for the purpose of party liability under s. 21(1). The Crown says that the trial judge's instruction may have led the jury to conclude that only Pathan's act in shooting Martinez caused Martinez's death, and to acquit Patel before considering whether he was a party to Pathan's offence.
74The respondent contends that, when read in context, the trial judge's instructions were accurate and appropriate. Whether Pathan's shooting of Martinez was foreseeable to Patel, irrespective of Patel's actions, was an issue at trial. The instructions on causation with respect to Patel related to the issue of a supervening event. By charging the jury on this issue, the trial judge ensured that Patel would be acquitted, without needing to consider further issues, if the jury found that Pathan's shooting of Martinez was a spontaneous, unexpected and unforeseen act. In any event, it is not an error for a trial judge to instruct on causation in a party liability case, where the acts relied on for aiding or abetting, as here, had a causal nexus to the crime that was committed.
75I would not give effect to this ground of appeal. In the circumstances of this case, the trial judge did not err in the instruction he provided to the jury on the issue of causation in respect of Patel's liability.
76I begin with a brief comment on Dooley, which was relied on by the Crown in support of this ground of appeal. Dooley was a defence appeal, where the appellants argued, unsuccessfully, that causation is required as an element of aiding and abetting. Doherty J.A. noted that the difference between the accessorial act and the substantive crime renders a description of accessorial liability in terms of causation difficult and unhelpful, and that referring to causation in two different ways in a jury charge (in respect of the perpetrator's liability and in respect of aiding and abetting) could lead to confusion.
77In Dooley, the court rejected the argument that causation is an element of party liability because, although there must be a connection between the offence and the alleged accessorial acts, the connection required in the context of accessorial liability varies and some kinds of culpable assistance have no causative link to the crime committed (at para. 121). The court did not, however, preclude an instruction on causation in all cases where a party may be liable under s. 21(1). In this case, the causation instruction was appropriate and would not have misled the jury. It was intended to address an issue at trial – whether Patel was aiding or abetting Pathan in Martinez's killing, or whether Pathan's actions were spontaneous, unexpected and unforeseen by Patel.
78In the pre-charge conference, the trial judge explained his perspective in referring to causation for Patel. If Pathan was "on a frolic of his own" – if Patel did not know Pathan had a gun and if there was no discussion about using it – Patel's altercation with Martinez would not have been a significant contributing cause of Martinez's death and Pathan's firing of the gun would not have been reasonably foreseeable to Patel. Trial counsel for the Crown said he thought this was correct as a matter of law, and that it was a live issue for Patel, particularly with respect to second degree murder.
79The instruction did not raise the threshold for causation as a party but instructed the jury that, if they found that "Pathan did something between Patel's conduct and the death that reduced Patel's conduct to less than a significant contributing cause, Patel did not cause the death as a matter of law."
80Unlike other cases where aiding and abetting has some connection but does not have a causal nexus to the principal offence, Patel's actions that were relied on by the Crown, if accepted by the jury, would have had a causal link to Martinez's death. Thus, the requirement that Patel's actions be a "significant contributing cause of death, one that is more than minor in its contributory nature" did not elevate what was required for aiding and abetting, but underlined the need for a factual nexus between Patel's acts of alleged assistance or encouragement, and the offence. The jury was properly instructed:
The defendant's conduct does not need to be the only cause of death but must be a significant contributing cause, that is, a significant factor in the events leading to death. It need not be a direct cause of death. It must be an important, or integral, part of such events.
81On the Crown's theory at trial, this standard of causation was met in respect of Patel's conduct. In these circumstances, the reference to causation, followed by a summary of the Crown's case and Patel's case on this issue, served to underline the requirement that the jury find that Patel aided and abetted Pathan, and addressed the potential for Pathan's shooting of Martinez to have been unexpected and unforeseen and therefore not connected to anything Patel did.
82Finally, as Watt J.A. noted in Simon at para. 45, "[a]n important, but not dispositive factor in determining whether appellate intervention is warranted is the failure of counsel to object to what is later advanced as prejudicial error." Not only was there no objection by the Crown to this aspect of the charge at trial, Crown counsel specifically endorsed this instruction. Although the failure to object is not determinative on appeal, it supports the view that the trial judge's instruction was appropriate in the circumstances of the case: Dooley, at para. 131.
(2) Whether Patel Could Only Be Found Guilty of the Same Offence as Pathan
83The Crown asserts that the trial judge erred in charging the jury that Patel could only be convicted of the same crime as Pathan. The Crown refers to excerpts from the charge where the trial judge stated: "Patel, as a matter of law, cannot be convicted as an aider or abettor of Pathan in the commission of first degree murder, second degree murder or manslaughter, as the case may be, unless you are satisfied beyond a reasonable doubt that Pathan committed such an offence", and "[I]n this case, a defendant, Patel, cannot be convicted of a crime as an aider or abettor of a principal offender, Pathan, unless the principal offender was convicted of the crime."
84According to the Crown, in finding Pathan guilty of second degree murder, the jury would have understood from these instructions that Patel could only have been found guilty of second degree murder, and not of the lesser offence of manslaughter. This is an error of law. Principals and parties may be found guilty of different offences where the party aided or abetted the principal for the purpose of committing a lesser offence and the principal committed a greater offence.
85The respondent contends that, in the circumstances of this case, the trial judge was correct in instructing the jury that it could not find Patel liable for a more serious offence than that for which Pathan was convicted. The trial judge referred to this as the "cap" on Patel's potential liability as an aider or abettor. The two passages relied on by the Crown are taken out of context. Read as a whole, no juror would have understood the instruction to mean that Patel could only be found guilty of the same offence as Pathan.
86Again, I would not give effect to this ground of appeal. A fair reading of the charge reveals that the jury was properly instructed that they were to consider the liability of Pathan and Patel separately, that different verdicts for each of the accused were available, and that Patel could be convicted of a lesser offence than Pathan. The failure of the Crown to object at trial, while not determinative, reinforces the conclusion that the jury would not have been left with the impression, as the Crown advances on appeal, that they could only find Patel guilty of the same offence as Pathan.
87The first impugned passage appears in the portion of the charge dealing with "First Degree Murder, Second Degree Murder and Manslaughter by Aiders or Abettors". The trial judge stated:
There is one important limitation on the potential culpability of Patel as an aider or abettor of Pathan as a principal offender who committed the offence of first degree murder, second-degree murder or manslaughter, as the case may be. In a case like this one Patel, as a matter of law, cannot be convicted as an aider or abettor of Pathan in the commission of first degree murder, second degree murder or manslaughter, as the case may be, unless you are satisfied beyond a reasonable doubt that Pathan committed such an offence.
At the end of that section, however, the trial judge went on to state that "[t]he proven culpability of the principal offender, Pathan, puts a cap on the potential culpability of an aider or abettor of the principal offender, Patel, in this case." This made clear that the offence for which the jury could find Patel guilty could not be greater than the offence for which they find Pathan guilty.
88The second impugned passage is found before the trial judge's concluding remarks to the jury. He said:
[A] verdict of Not Guilty in favour of a defendant is not, itself, evidence that may exculpate the other defendant, with one exception. The circumstances underlying any such verdict may, or may not, exculpate the other defendant. The exception is that, in this case, a defendant, Patel, cannot be convicted of a crime as an aider or abettor of a principal offender, Pathan, unless the principal offender was convicted of the crime.
Again, the Crown argues that this left the jury with the mistaken impression that they could only find Patel guilty of the same offence for which Pathan was convicted. I disagree.
89Repeatedly throughout the charge, the trial judge told the jury that they were to consider and determine the liability of the two accused separately, that they were required to return separate verdicts for each, and that the verdicts could be the same or different. One caveat was that Patel could not be found guilty of aiding and abetting Pathan in an offence unless Pathan had committed that offence. For second degree murder, the trial judge stated, "[r]ecall, as well, that, if you are not satisfied beyond a reasonable doubt that Pathan committed the offence of second degree murder, as a principal offender you may not convict Patel of aiding or abetting Pathan in the commission of the offence of second degree murder." He gave similar instructions in respect of first degree murder and manslaughter, which he described as an included offence. Given these instructions, the trial judge's comment in his concluding remarks to the jury that "Patel, cannot be convicted of a crime as an aider or abettor of a principal offender, Pathan, unless the principal offender was convicted of a crime" was clearly a reminder that Patel could not be convicted unless Pathan was also convicted of a crime.
90Further, the passage the Crown takes issue with does not refer to the level of culpability, but rather culpability in general. This interpretation is supported by the context, as the trial judge went on to instruct the jury that a verdict of not guilty with respect to one defendant cannot be used to exculpate the other. The exception that the trial judge sets out – and the appellant takes issue with – is an instruction that if Pathan is found not guilty, Patel would also be found not guilty. This is a correct statement of the law.
91Again, there was no objection to this part of the charge at trial, which, although not determinative, supports the conclusion that the jury would not have understood the instruction the way the Crown now proposes.
V. Disposition
92For these reasons I would dismiss the Crown's appeal.
"K. van Rensburg J.A.
I agree Janet Simmons J.A."
"I agree B.W. Miller J.A."
Released: September 12, 2017
