Court of Appeal for Ontario
Date: June 1, 2018
Docket: C59638 and C60493
Judges: Doherty, Rouleau and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Kristopher McLellan and Kyle Mullen Appellants
Counsel
Brian Greenspan and Naomi Lutes, for the appellant Kyle Mullen
Matthew R. Gourlay, for the appellant Kristopher McLellan
Jamie Klukach and Karen Shai, for the respondent Her Majesty the Queen
Heard: March 20, 2018
On appeal from the conviction entered on October 25, 2013 by Justice G.P. Smith of the Superior Court of Justice, sitting with a jury.
Rouleau J.A.:
Overview
[1] The appellants, Kristopher McLellan and Kyle Mullen, robbed the residence of a drug dealer in Barrhaven with their friend Dylon Barnett. McLellan and Barnett were armed with guns. McLellan shot and killed one of the residents. On his account, the gun went off accidentally. A jury convicted McLellan of first degree murder. Mullen was acquitted of first degree murder but convicted of second degree murder.
[2] For the reasons that follow, I would dismiss McLellan's appeal. However, I would allow Mullen's appeal. The trial judge erred in his jury instruction on the mens rea for party liability to murder under s. 21(2) of the Criminal Code. I would therefore set aside Mullen's conviction and order a new trial on the charge of second degree murder.
Facts
[3] Around Christmas 2009, Sam Tsega, who lived in Barrhaven, was visiting his friend Dylon Barnett in Toronto. They were socializing at Barnett's house along with Barnett's friend, the appellant McLellan. Tsega mentioned that another resident of Barrhaven, Michael Swan, was a marijuana dealer who regularly had significant sums of money and amounts of marijuana in his residence and did not own a gun. In fact, Swan had recently been robbed of his inventory of marijuana and about $20,000. He did not report the theft to the police. They agreed that he was an easy target.
[4] Over the next few weeks, this informal exchange morphed into a plan. McLellan and Barnett began to make plans to travel to Barrhaven and rob Swan.
[5] Barnett had a gun but it was decided that they needed a second gun and another person to commit the robbery. McLellan testified that in early February, they recruited his friend Kyle Mullen and asked Mullen if he could obtain a gun. Mullen arranged to obtain a nine-millimeter Sig Sauer P-226 handgun.
[6] On February 21, 2010, armed with two loaded handguns, the three drove from Toronto to Ottawa. Tsega directed them to where Swan lived but did not go with them.
[7] McLellan was the only accused who testified at trial. He said that before entering the house, Mullen told him that he did not want to carry through with the robbery. Urged on by McLellan and Barnett, Mullen agreed to follow through but only on the basis that he would not carry the gun. He therefore handed the Sig Sauer to McLellan. The evidence was that the gun was racked at some point before the home was entered.
[8] Swan was home in his bedroom watching the Olympics with his girlfriend Kaitlyn Scott and his friend Tyler Tanguay. Two other residents of the home, Tyler Vergette and Russel Smith, were in their respective bedrooms.
[9] Shortly after midnight, the three robbers entered the home wearing black balaclavas and burst into Swan's bedroom. McLellan entered the room first, brandishing a gun. The robbers yelled for everyone to get down on the floor and to throw away their cell phones. Everyone complied.
[10] The robbers demanded to know where the drugs and money were hidden. According to Scott, although McLellan seemed to be the leader, all three robbers were making demands. Swan said something to the effect of "I don't know".
[11] Within seconds, McLellan shot him. Scott testified that this occurred after Swan had made some kind of a downward or crouching movement. According to Tanguay however, Swan had simply been lying on his side between the bed and coffee table when the shot went off. He thought that Swan may have been in motion when he was shot but he could not be sure. Scott and Tanguay testified that the sequence of events leading up to the shot happened very quickly.
[12] According to McLellan, however, Swan made a sudden movement towards him and bumped the gun. In a reflexive action, McLellan says that he gripped the handle to avoid dropping the gun and the gun accidentally discharged. He testified that he was in complete shock and did not realize the trigger had been pulled. Everyone remained quiet for a moment and he backed up telling everyone not to move.
[13] The bullet entered Swan's body through the back of his right shoulder passing diagonally across his torso. It pierced several of his vital organs and exited the front of his body above the left hip. Although Scott and Tanguay said the gun was one or two feet away from Swan when it was discharged, the pathologist testified that it was a contact wound. The imprint of the gun on Swan's shoulder indicated that the gun barrel had been pressed firmly into his shoulder when it was discharged.
[14] According to Scott and Tanguay, the robbers said nothing to one another and were expressionless immediately after the shooting. Tanguay described them as "nonchalant". They simply continued to ask questions about the location of the drugs and money, hounding Scott in particular as they knew she was Swan's girlfriend.
[15] When Scott tried to touch Swan as he lay motionless on the floor, McLellan told her not to move and that he would be fine.
[16] Barnett asked if anyone else was in the house. He was told that there were two other residents, Smith and Vergette. McLellan went to Vergette's room, forced the door open and ordered him into Swan's room. The group was then directed to a spare bedroom where the robbers told them to sit on the ground against the wall with their hands up. Barnett located Smith and ordered him into the spare bedroom as well. One of the robbers stood guard while the other two searched the house for drugs, money and valuables.
[17] At one point, one of the robbers entered the room and said "we've got what we need" and flashed a wad of cash. According to Vergette, one of the intruders entered the spare room with a box and a bag of marijuana saying "I thought you didn't know where the marijuana was."
[18] Scott testified that McLellan asked her if there were any videogames because he had a child. In response, she led him to where they were kept in Swan's room. McLellan testified that Swan was still lying on the floor.
[19] According to McLellan, at some point Barnett took the Sig Sauer from him and removed the bullet from the chamber so that it would not fire accidentally again.
[20] The robbers then directed everyone down to the sauna in the basement. Vergette testified that Scott asked about calling an ambulance. McLellan responded that Swan would be fine.
[21] McLellan left and got the car. The group was told that they were to wait in the sauna for five to ten minutes or risk being killed. The robbers then left.
[22] After a few minutes, Scott and the others went upstairs to check on Swan who by then was dead. They called 911. When the police arrived, Scott told them that the robbers had taken her cellphone. The police tracked the signal of the phone and identified the vehicle driving along Highway 401 toward Toronto. They effected a high-risk takedown and arrested McLellan, Mullen and Barnett. Mullen was in possession of the Sig Sauer. The magazine did not contain any bullets. Barnett was in possession of the second handgun.
[23] McLellan's defence at trial was that the gun had gone off accidentally. The Crown called Jacques Rioux, a firearms expert, who had examined the Sig Sauer that shot Swan. He testified that the force required to pull the trigger and discharge the cartridge is 7.6 pounds in single action mode (where the hammer is cocked) and 18 pounds in double action mode (where the hammer has not been cocked). In addition, Rioux testified that he performed several tests on the weapon and determined that the gun would not discharge when dropped or from blows to the surface of the gun. In fact, he testified that he had never seen a Sig Sauer discharge in these scenarios. The jury was permitted to handle the gun and pull the trigger in both the single and double action mode.
[24] Mullen did not testify. Mullen's trial counsel focused on his minimal involvement in the planning and execution of the robbery and emphasized that he intended only to commit a robbery, and did not intend or expect a killing to take place.
[25] Part way through the trial, it was discovered that contrary to the trial judge's instructions, a juror had brought law books with him into the jury room and had been carrying out his own research on the internet. He had accessed Wikipedia and the Department of Justice website.
[26] After interviewing the juror and receiving submissions from counsel, all parties agreed that the juror should be discharged. He was excused and told not to inform the other jurors of what had happened or why he was being excused. The other jurors were simply told that he had been excused.
[27] The jury returned a verdict of first degree murder with respect to McLellan. Mullen was acquitted of first degree murder but convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 15 years.
Issues
[28] The appellants raise several grounds of appeal:
Both appellants submit that the trial judge erred in his instruction on post-offence conduct;
McLellan argues that:
- (a) the trial judge responded inappropriately to the jury's request to rehear a portion of McLellan's cross-examination; and
- (b) the verdict for first degree murder was unreasonable;
Mullen maintains that the trial judge:
- (a) erred in his instructions on the mens rea required for party liability to murder;
- (b) gave an unbalanced and inadequate charge;
- (c) erred in his instruction on reasonable doubt;
- (d) erred in his instruction on the use the jury could make of McLellan's evidence when considering Mullen's liability;
- (e) after discharging the juror for carrying out independent inquiries, erred in failing to take adequate steps to ensure that the other jurors had not been contaminated; and
- (f) erred in his approach to the Gladue principles by requiring a causal link between Mullen's aboriginal heritage and the offence, resulting in an excessively long period of parole ineligibility.
Analysis
(1) The Post-Offence Conduct Issue
[29] In light of McLellan's admission that he shot Swan and planned and executed the robbery, the only real issue at trial was whether he shot Swan accidentally or on purpose. If he was shot on purpose, the jury then had to determine whether McLellan was forcibly confining Swan when he shot him, which, pursuant to s. 231(5)(e), elevates the killing to first degree murder.
[30] To prove the intent for murder, the Crown relied on several elements of the evidence led. This included the fact that the robbery was planned, that a decision was made to bring two guns to the robbery, the unlikelihood that the Sig Sauer would discharge accidentally, the location and trajectory of the bullet wound, as well as Tanguay and Scott's evidence describing how the shooting occurred and its aftermath.
[31] However, the Crown also relied on the robbers' post-offence conduct in support of its thesis that the shooting was intentional. This consisted of three elements: the robbers' failure to display any noticeable reaction to the shooting; the fact that they continued with their demands and pursued the robbery without hesitation after the shooting; and the fact that they did not assist the victim and prevented anyone else from assisting.
[32] All three of these elements of post-offence conduct were left with the jury together with appropriate cautions being given by the judge as to how this evidence could and could not be used.
[33] On appeal, the appellants raise two issues with respect to the post-offence conduct. First, they argue that this evidence was not probative as circumstantial evidence going to the state of mind of McLellan or Mullen when the victim was shot. The trial judge should have given a "no probative value" instruction in respect of all or at least parts of that evidence.
[34] Alternatively, they submit that the caution given by the trial judge with respect to the permissible uses of the post-offence conduct was inadequate. I will consider these two issues in turn.
(a) Was the Post-Offence Conduct Probative of Intent?
[35] At trial and again on appeal, McLellan and Mullen argue that all three elements of the post-offence conduct were highly susceptible to error and moral prejudice such that a no probative value instruction to the jury was required. The failure to do so constitutes, in their submission, reversible error.
[36] As for the first element, the appellants submit that the testimony of Tanguay and Scott to the effect that there was no noticeable reaction to the shooting and that the perpetrators seemed "nonchalant" is of no probative value. McLellan highlights that the robbers all wore balaclavas and the witnesses could not, therefore, see facial expressions. In his view, there was little evidence one way or the other of how they reacted to the shooting. Drawing inferences from facial expressions and demeanour is fraught with difficulty at the best of times. To do so without the benefit of facial expressions is therefore highly dangerous. In addition, McLellan argues that even if it is accepted that there was a failure to react, this is consistent with his testimony to the effect that after the gun went off accidentally, he was in a state of shock.
[37] With respect to the second component of the post-offence conduct, that the perpetrators continued with their demands and followed through with the robbery despite the shooting, the appellants maintain that this evidence is of no assistance in determining the state of mind of either McLellan or Mullen. In their submission, this is because, on all accounts, the robbery is what they had come from Toronto to do. That they followed through with the robbery is of no evidentiary value either way.
[38] Finally, the appellants argue that leaving the jury with the robbers' failure to check on Swan's condition and having prevented others from doing so was highly prejudicial and had the potential to poison the jury against them. In McLellan's submission, the failure to check on Swan provided little or no insight into the central issue of his intent at the moment he pulled the trigger. Mullen points out that the only evidence as to the appellants' understanding of Swan's condition was that they thought he was "fine". In the submission of both appellants, jurisprudence such as R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 58, clearly establishes that the failure to assist a dying victim is not probative of intent.
[39] Mullen's position is that the post-offence conduct was even less relevant to his intent given his peripheral role. The evidence established that McLellan was the shooter and, by all appearances, was the leader who took charge after the shot was fired and directed the other two perpetrators. Mullen therefore submits that he should simply be seen as having complied with the directions of the shooter. His purported lack of reaction could support at least two other equally rational inferences: first, that Mullen was in shock and merely continued to follow McLellan's plan without thinking, or second, that Mullen was scared and upset because at that point he realized that he should have known that someone would get hurt.
[40] I would reject this ground of appeal. In my view the post-offence conduct was highly probative. As I will explain, the force and significance of the post-offence conduct is most clear when the three elements are viewed as a whole.
[41] I turn first to the evidence of McLellan and Mullen's failure to react when Swan was shot. In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, Rothstein J. speaking for the plurality dealt with the probative value of a shooter's reaction to a shooting. He explained at para. 70 that:
[L]ogic and human experience suggest that people are more likely to show some outward sign, such as hesitation, before continuing on with their actions, when they do something accidentally than when they do it on purpose. This is all the more so when the accident involves a sharp physical effect on the person (the discharge of a gun in one's hand) and results in a terrible consequence, such as having killed another person.
Later, at para. 79, he concluded:
I have no doubt that had there been evidence of hesitation, defence counsel would have submitted it as probative of an accident. Divergence from this norm, though not determinative, is more consistent with an intentional shooting than with an accident. It would therefore have been wrong for the trial judge to instruct the jury that this evidence had no probative value in determining intent, as Mr. White suggests he should have. It was not irrelevant.
[42] The force of this logic was confirmed by Charron J. in separate reasons in White, with which Deschamps J. concurred. While Charron J. was of the view that there was no evidence available as to the shooter's demeanour when he fled the scene, in her view, had there been evidence to that effect, there was no reason to exclude it from the jury's consideration. She provided the following illustration, at para. 126:
Consider, for example, if the witnesses had indeed described the shooter looking surprised or shocked at the time the last shot went off, or stooping down to check on Mr. Matasi's condition and hesitated for a few seconds before taking off. The jury would be entitled to the benefit of these observations. Indeed, given the defence's strategy in this case, such evidence would have played a central role in the case for the defence. In my view, when considered in context, the Crown's comment that there was "no hesitation here, no shock, no uncertainty" could only have been understood by everyone present as a rhetorical observation that there was no evidence of this nature and hence that the defence theory that the gun had gone off accidentally should not be given any credence. [Emphasis in original.]
[43] On the facts of the present case, the inference that can be drawn is strengthened by the second element of the post-offence conduct, which involves a key distinction from the facts in White. In White, the shooter immediately fled, and only the relevance of his lack of a reaction prior to flight was at issue. Here, not only was there a lack of reaction or surprise, but also the immediate continuance of demands as to the location of the drugs and money. This evidence of the robbery being pursued without missing a beat served to rebut McLellan's claim that he was in shock after Swan was shot. It also suggested that Mullen was not, as his counsel suggested, reluctantly continuing with a robbery gone wrong. Rather, it showed both McLellan and Mullen as being unfazed by the occurrence of a shooting during the execution of their planned robbery.
[44] I also view the third aspect of the post-offence conduct, the failure to assist Swan and preventing others from assisting him, to be probative. It is simply a matter of common sense. As Charron J. observed in White, the evidence of a shooter stooping down to check on a victim's condition would surely be properly left with the jury, and furthermore, would likely be relied upon by the defence to suggest that the shooting was accidental: see White, at para. 126. The failure to show any concern is likewise, in my view, capable of supporting the opposite inference that the shooting was intentional.
[45] The appellants' reliance on Angelis to suggest that no such inference can be drawn is misplaced. That case turned on specific facts. In Angelis, the accused was aware that he had killed his wife in the course of a physical altercation. Here, McLellan testified that he did not think Swan was dead. More significantly, the appellants not only failed to provide assistance to Swan, but they also prevented the other victims from doing so.
[46] What Angelis also makes clear is that post-offence conduct is not subject to "blanket rules", and that its probative value "depends on the nature of the evidence, the issues at trial and the positions of the parties": see para. 55. There is no per se rule declaring post-offence conduct irrelevant to the perpetrator's state of mind: see R. v. Jackson, 2016 ONCA 736, [2016] O.J. No. 6777, at para. 21; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 20-21.
[47] In my view, the proper approach is to view the post-offence conduct as a whole. It should not be considered in a piecemeal fashion: see R. v. Moffit, 2015 ONCA 412, 326 C.C.C. (3d) 66, at para. 37, leave to appeal refused, [2015] S.C.C.A. No. 465.
[48] Consider a modified version of the sequence of post-offence conduct in this case. What if the shooter had shown concern for Swan's condition, and then resumed the robbery? What if the robbers had immediately abandoned the robbery and escaped after the shooting?
[49] These examples illustrate that post-offence conduct is best assessed cumulatively and not in isolation. It is only when the components of the conduct at issue are viewed together that the strength and cogency of the inference sought can be measured. The three elements of the conduct in this case, taken together, leave little doubt that the post-offence conduct had significant probative value with respect to the issue of intent.
(b) Were the Trial Judge's Instructions on Post-Offence Conduct Adequate?
[50] The appellants' alternate submission is that even if the post-offence conduct evidence was probative, the trial judge did not properly caution the jury about the limited use they could make of it in assessing whether the mens rea for murder was made out.
[51] I disagree. The trial judge gave comprehensive and careful instructions that mitigated against any potential misuse of the post-offence conduct evidence. The trial judge's charge and recharge included the following:
(a) the post-offence conduct was to be considered along with all of the other evidence;
(b) the jury should "[k]eep in mind that post-offence conduct has only an indirect bearing on the issue of the accused's guilt" and "must be careful about inferring the accused's guilt from this evidence because there might be other explanations for this conduct";
(c) it was important for the jury to consider "alternate explanations for the conduct that do not support an inference [of] the state of mind required for murder";
(d) the jury should bear in mind that the intruders were masked "such that facial expressions could not be seen"; and
(e) the jury should not infer from the evidence that the appellants did not assist Swan that they "were men of bad character and therefore likely to commit the offence with which they are charged."
[52] Tracking Justice Watt's model instructions, the trial judge made it clear that the jurors should be cautious in drawing inferences from post-offence conduct and should carefully consider alternative inferences. The trial judge also reviewed the evidence at some length and, in a recharge, gave all of the additional instructions on the permissible use of post-offence conduct sought by the appellants' counsel.
[53] Mullen also argues that the trial judge's instruction on post-offence conduct was unbalanced. Specifically, he argues that the trial judge failed to fairly contrast the prejudicial post-offence conduct evidence with McLellan's evidence that he fired by accident and that nobody said anything after because they were shocked. Highlighting this evidence as well as other evidence, such as the testimony of Scott and Smith that the robbers appeared nervous, would have served to balance the instruction.
[54] I disagree. At trial, counsel for the appellants referred to some of this evidence in their closing to the jury. The level of detail a judge is required to go into to assist the jury in linking evidence to the issues will vary depending on the context: Rodgerson, at para. 30. Here, the inference being sought by the Crown was a straightforward matter of common sense and human experience. The trial judge did not need to list all of the evidence related to the inferences being sought either by the Crown or the defence.
[55] At trial Mullen did not take the position that the charge was deficient in this manner. This case is different from Rodgerson, upon which the appellants rely. Rodgerson is an example of a case where the inferences to be drawn from the conduct were somewhat complicated. The evidence could only be permissibly used with respect to some issues at trial, and not with others. The varying degrees of relevance of the post-offence conduct would not have been readily apparent to the jury. In short, the probative value of the evidence in Rodgerson was "more than a matter of common sense": para. 31. It is in such cases that the trial judge has been found to have a duty to make sure that the jury understands how the evidence can be used if it is to have the probative effect argued by the Crown.
[56] In the present case, however, the inference that could be drawn from the post-offence conduct was straightforward: the appellants carried on as if nothing unexpected had happened because nothing unexpected had, in fact, happened. This evidence was capable of supporting the inference that the shooting was not accidental, and that Mullen knew that murder as defined by s. 229(a) was a probable consequence of the robbery.
[57] As a result, I have concluded that the charge on post-offence conduct, viewed as a whole, was thorough and balanced.
2(a) The Trial Judge's Response to the Jury's Request to Rehear a Portion of McLellan's Cross-Examination
[58] In the morning on the first full day of its deliberations, the jury asked the judge to clarify the definition of intent for murder in relation to the portion of the charge addressing McLellan's state of mind. The trial judge clarified that "meant to", the language used in the charge, meant the same thing as "intended to".
[59] Later that afternoon, the jury asked to review a transcript of McLellan's cross-examination. The jury was told there was no transcript but that they could hear an audio playback. The judge asked whether it would assist to also hear McLellan's evidence in chief and the jury agreed.
[60] The next day, the jury sent a note explaining that they were only interested in the first day of McLellan's cross-examination. At the suggestion of McLellan's counsel, the jurors were asked whether they were interested in a particular issue or portion of the cross-examination. The jury responded by limiting its request to the portion of the cross-examination regarding the number of bullets that were in Barnett's gun.
[61] In McLellan's submission, it should have been obvious from this question, and the fact that several hours earlier the jury had asked about the meaning of intent for murder, that the jury was struggling with the question of McLellan's intent. The Crown's cross-examination on the issue of how many bullets were in Barnett's gun was, in McLellan's submission, meant to show that he must also have known that Mullen's gun was also loaded and ready to fire.
[62] In these circumstances, according to McLellan, it was crucial that the trial judge's response to the playback request be accurate and complete. By limiting the playback to the portion of the cross-examination relating to the number of bullets in Barnett's gun, the trial judge risked confusing the question of what McLellan knew or should have known about Mullen's gun with the question of whether or not he intended to pull the trigger in the instant before he shot Swan.
[63] In R. v. D.D., 129 C.C.C. (3d) 506 (Ont. C.A.), at para. 7, aff'd on other grounds, 2000 SCC 43, [2000] 2 S.C.R. 275, this court summarized the duty of a trial judge when responding to a jury request to play back the evidence of a witness as follows:
It is well recognised that there is a duty on a trial judge to ensure that any evidence read back to the jury as a result of a jury question should be read back together with any other portions of the evidence that qualify or contextualize it.
[64] In McLellan's submission, the trial judge ought to have ensured that the jury also reviewed relevant portions of McLellan's evidence in chief, including his explanation of his state of mind when he took the gun into the house. In addition, the trial judge ought to have directed the jury that McLellan's recklessness in respect of the loaded gun was not to be conflated with the question of intent to kill.
[65] I disagree. Ultimately, it became clear that the jury only wanted to hear a specific portion of McLellan's cross-examination on one point, a point that did not arise during his evidence in chief. There was no qualifying evidence required on the issue.
[66] McLellan's suggestion that the playback request signalled jury confusion on the legal issue of intent raised in a much earlier question is speculative and flawed. There was no temporal or logical basis for a link between the jury's question about intent and the later request to rehear a portion of the cross-examination of McLellan. The jury's question on the issue of intent had already been answered correctly earlier that morning. It was not the function of the trial judge to speculate as to why they now wanted to rehear the limited portion of McLellan's cross-examination. It was his role to be responsive to the jury's request to rehear certain evidence.
[67] Significantly, defence counsel did not object and did not suggest that qualifying evidence be played to the jury.
2(b) Was the Verdict of First Degree Murder Reasonable?
[68] Section 231(5) of the Criminal Code provides that a second degree murder committed in connection with certain enumerated crimes of domination can be elevated to first degree murder: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195. Robbery is not an enumerated offence. In order to elevate McLellan's conviction to first degree murder, the Crown therefore had to rely on unlawful confinement, the offence enumerated in s. 231(5)(e). Unlawful confinement involves coercive restraint or direction of the victim contrary to his or her wishes for "any significant period of time".
[69] In Pritchard, at para. 26, the court explained that not all robberies involve domination of the victim, and therefore not all robberies will satisfy s. 231(5)(e). What is required is a finding that the accused "confined the victim and then exploited that domination by an act of killing": para. 29 (emphasis in original). The unlawful confinement must be distinct from the act of killing, but both must be "part of the same single 'transaction' of coercion" and the domination must represent an "exploitation of the position of power created by the underlying crime": R. v. Magoon, 2018 SCC 14, [2017] S.C.J. No. 101, at para. 73.
[70] In McLellan's submission it is an error to interpret the offence of unlawful confinement so broadly as to take into account virtually every robbery during which a death occurs. He argues that to satisfy the domination criterion of s. 231(5)(e), the robbery must involve something more than the degree of coercion involved in any killing occurring in the course of a robbery. This, he maintains, is what Pritchard provides.
[71] McLellan's position is that this was nothing more than a robbery gone awry. The fleeting confinement that took place prior to Swan's shooting cannot reasonably constitute a separate and distinct act elevating the killing to first degree murder. On the evidence, it was only a matter of seconds between McLellan's entry into the room and the shooting. Swan was shot almost immediately after the occupants of the room were told to get on the ground and throw out their cellphones.
[72] I see no basis to interfere with the jury's verdict. There was no complaint regarding the jury's instruction on this issue. It was open to the jury on this record to find that McLellan had forcibly confined Swan prior to the shooting and that the confinement went beyond what can be considered integral to the particular act of killing. The court's reference in Pritchard to "a significant period of time" should not be read as imposing a minimum temporal requirement: R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 59-61.
[73] The appellant seems to suggest that the "separate act" requirement should be interpreted more restrictively in cases of robbery and murder. I also reject this suggestion. As McLellan acknowledges, it is only if the robbery involves the requisite degree of domination that there will be a route to liability for first degree murder. To artificially restrict the availability of unlawful confinement within the meaning of s. 231(5)(e) when a killing occurs in the course of a robbery would lead to an absurd result, and could put the accused who confines, robs and kills his victim in a better position than if he had just confined and killed the victim.
[74] In the present case, there was evidence from which the jury could conclude that McLellan illegally confined Swan for the purpose of robbing him before exploiting this position of dominance to kill him. There is no basis to interfere.
3(a) Did the Trial Judge Err in His Instruction on the Mens Rea Requirement for Party Liability to Murder?
[75] There was no suggestion that Mullen either perpetrated or aided and abetted Swan's killing. The issue was whether he was guilty of murder as a party to that offence pursuant to s. 21(2) of the Criminal Code. That section provides:
21(2) 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.
Section 21(2) extends criminal liability for crimes committed in furtherance of an unlawful purpose, in this case the robbery, if the participant in the robbery knew that the commission of the further offence, here murder, was a probable consequence of carrying out the robbery.
[76] As Mullen admitted his participation in the robbery, the common unlawful purpose, his liability under s. 21(2) turned on his mental state. Mullen did not testify. The crucial issue for the jury was therefore whether it could be inferred that Mullen had the necessary mens rea for party liability to murder. That is, could the jury conclude that Mullen knew that one of the participants would probably commit murder as defined in s. 229(a) during the course of the robbery? This involved determining whether Mullen knew that one of the participants in the robbery would probably cause the victim's death with one of the intents listed in s. 229(a) of the Code – namely, either the intent to cause death, or the intent to cause bodily harm that the participant knew would likely cause death and recklessness as to whether death ensued or not.
[77] Mullen submits that the trial judge repeatedly erred in telling the jury that, in order to find him guilty of murder, they needed only to conclude that he knew or was willfully blind to the fact that McLellan would probably cause someone's death in carrying out the unlawful common purpose. The trial judge left out the requirement that the jury had to find that Mullen knew that McLellan would probably commit murder – that is, kill Swan with the necessary intent.
[78] This, in Mullen's view, left open the possibility that the jury mistakenly believed that Mullen could be convicted of murder under s. 21(2) if he knew that it was likely that someone would die during the robbery. Mullen argues that this is insufficient to ground a conviction for murder, because it encompasses foresight of an accidental killing, which would only support a conviction for manslaughter.
[79] The Crown maintains that this ground of appeal should be dismissed. In the Crown's view, neither s. 21(2) nor the case law interpreting that provision requires a party to murder to have knowledge that murder will be committed; in fact, in the Crown's submission, giving this instruction risks blurring the distinction between s. 21(1) (aiding and abetting) and s. 21(2) liability for murder. The Crown also notes that the language used in the charge, of "foresight of death in the course of a robbery", meets the minimum mens rea requirement for murder as outlined in R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, at paras. 160-169, leave to appeal refused, [2011] S.C.C.A. No. 270.
[80] However, the Crown also submits that, read as a whole, the charge would have made it clear to the jury that Mullen had to know that a murder would probably occur.
[81] As already explained, s. 21(2) clearly requires that the party to the offence have the foresight of the offence itself, including the mens rea element of that offence. Case law has made it clear that to convict a party to the offence of murder pursuant to s. 21(2), the Crown needs to show that the accused knew not only that death would probably occur, but that the death would probably be caused with the requisite intent: see R. v. Jackson, [1993] 4 S.C.R. 573, at pp. 9-10 and 14-15; R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 61; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 43 and 53, leave to appeal refused, [2010] S.C.C.A. No. 459; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 42 and R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 244-245.
[82] Mullen acknowledges that the trial judge gave the correct instruction in one, or arguably two, instances. In my view, if these had been the only instructions given to the jury on party liability, Mullen would have no complaint. The difficulty, however, is that in some twelve instances, both before and after the correct portion of the charge and in some cases in close succession, the jury was misdirected in the manner already described.
[83] These repeated erroneous instructions, together with the inclusion of the same error in the decision tree, raise the very real possibility that one or more jurors may have convicted Mullen believing that he only needed to have foresight of death, rather than foresight that death would be caused by another participant with one of the intents listed in s. 229(a).
[84] I am not prepared to accept that, because the charge contains in one section a clear and correct statement of the law, coupled with a correct illustration of the elements of the offence that need to be proven, the jury would have given no weight to the twelve instances of misdirection in the balance of the charge. Nor am I prepared to accept that there is no reasonable possibility that the jury was confused as to the mens rea requirement. A new trial is therefore required.
[85] In reaching this conclusion, I have considered the whole of the charge, the submissions made to the jury by the parties at trial as well as Mullen's failure to object to the charge. Although Mullen's trial counsel failed to object, in the precharge discussions he asked the judge to charge the jury in accordance with the principles articulated in Ferrari, at para. 61. That passage in Ferrari contains a clear and accurate expression of the law, specifically that, in order to ground a murder conviction under s. 21(2):
[The Crown has] to prove that the other person (the participant or non-shooter) knew that the principal offender would probably commit murder in carrying out the unlawful purpose. … In the context of this case, the non-shooter had to know that the shooter would probably cause the death of the deceased with … either the intent to cause death, or the intent to cause bodily harm that the principal knew would likely cause death, being reckless whether death ensued or not.
The failure of Mullen's trial counsel to restate his position by way of an objection is not a bar to an appeal; it is simply a factor to be taken into account: R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 37-38.
[86] An accused is entitled to a properly instructed jury. When the charge is viewed as a whole in the context of the evidence led at trial, it is certainly possible that the jurors understood the need to find that Mullen knew or was willfully blind to the likelihood of a murder. The real possibility of error or confusion by one or more of the jurors, however, remains. The concern is heightened by the fact that the decision tree that was left with the jury contained the same error that was made twelve times in the jury instruction: see Phillips, at para. 245; R. v. Peters, 23 C.C.C. (3d) 171 (B.C.C.A.), at para. 12.
[87] I would also reject the Crown's suggestion that the charge was adequate because it met the minimum mens rea requirements for murder as outlined in Shand. Shand dealt with murder pursuant to s. 229(c) and the intent required for murder pursuant to that section. Section 229(c) makes a person liable for murder where, for an unlawful object, the person does anything that he or she knows or ought to know is likely to cause death and thereby causes death to a human being.
[88] The present case was concerned with murder as defined in s. 229(a). There was no mention or reference at trial or in the charge to s. 229(c). The elements required to be proven in order to convict someone of murder under that section were never at issue. In these circumstances, s. 229(c) is simply not at play and it is pure speculation as to whether Mullen could have been convicted as a party to a s. 229(c) murder under s. 21(2). These reasons should not be taken as commenting in any way on the possible interplay between those provisions.
The Balance of the Grounds of Appeal
[89] We did not call on the Crown to respond to the balance of Mullen's grounds of appeal. Because of the conclusion I have reached with respect to Mullen's s. 21(2) ground of appeal, I do not propose to deal with these grounds. In my view they are without merit.
Conclusion
[90] I would dismiss McLellan's appeal. I would however allow Mullen's appeal, set aside his conviction for second degree murder and order a new trial on the charge of second degree murder.
Paul Rouleau J.A.
I agree Doherty J.A.
I agree B.W. Miller J.A.
Released: June 1, 2018
