WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

CITATION: R. v. J.S.R., 2008 ONCA 544

DATE: 20080707

DOCKET: C48472 C48493

COURT OF APPEAL FOR ONTARIO

DOHERTY, MOLDAVER and WATT JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant/Respondent

and

J.S.R. (a young person)

Respondent/Appellant

Lucy Cecchetto, Toni Skarica and Andreea Baiasu for the appellant/respondent

Mara Greene and Gary Grill for the respondent/appellant

Heard: June 18, 2008

On appeal from the order of Justice Ian Nordheimer of the Superior Court of Justice, dated February 13, 2008, quashing a committal for trial on the charge of second degree murder and remitting the matter to the preliminary inquiry judge for reconsideration.*

BY THE COURT:

I. INTRODUCTION

[1] J.S.R., a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1, was charged with second degree murder, six counts of attempted murder and several gun charges. After a lengthy preliminary inquiry, Young J. (the preliminary inquiry judge) of the Ontario Court of Justice (Youth Justice Court) committed J.S.R. for trial on all counts. J.S.R. moved to quash only the committal on the murder charge. On February 13, 2008, Nordheimer J. of the Superior Court of Justice (the motion judge) granted the motion. He held that there was no evidence upon which a reasonable jury, properly instructed, could convict J.S.R. of murder. The motion judge was satisfied, however, that there was evidence upon which a jury could convict on the charge of manslaughter. He quashed the committal on the murder charge and remitted the matter to Young J. for reconsideration in light of his reasons.

[2] J.S.R. appeals the order of the motion judge. His counsel contends that the motion judge erred in holding that the preliminary inquiry judge correctly concluded that there was evidence upon which a reasonable jury, properly instructed, could conclude that J.S.R. caused the victim’s death. Counsel submits that absent a proper evidentiary basis for a finding of causation, J.S.R. cannot be ordered to stand trial on either a murder or manslaughter charge.

[3] The Crown also appeals the order of the motion judge. The Crown argues that both the motion judge and the preliminary inquiry judge correctly found that there was evidence from which a jury could infer that J.S.R. caused the victim’s death. The Crown submits, however, that the motion judge erred in holding that there was no evidence upon which the preliminary inquiry judge could be satisfied that a reasonable jury, properly instructed, could convict J.S.R. of murder. The Crown contends that the evidence is reasonably capable of supporting a conviction on the charge of murder as defined in sections 229(b) and 229(c) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown also relies on the party provisions in s. 21 as imposing accessorial liability on J.S.R. for the murder actually committed by another.

[4] J.S.R.’s appeal fails and the Crown’s appeal succeeds. We are satisfied that there is an evidentiary basis upon which a reasonable jury, properly instructed, could conclude that J.S.R. caused the victim’s death. We are also satisfied that the preliminary inquiry judge did not err in holding that the evidence could reasonably support a conviction of J.S.R. on a charge of murder as defined in s. 229(c) of the Criminal Code. We would restore the order committing J.S.R. for trial on the murder charge.

[5] After a brief review of the evidence, we address first the causation question – the central issue on J.S.R.’s appeal – and then the issues relating to J.S.R.’s potential liability for murder – the issue raised by the Crown’s appeal.

II. AN OVERVIEW OF THE EVIDENCE

[6] Before turning to the evidence, it is important to bear in mind that this matter is at the preliminary inquiry stage. There have been no findings of fact, much less determinations of liability made. The defence or the defences are unknown; J.S.R. has yet to have an opportunity to present his defence. He is presumed innocent of all charges. Nothing we say in these reasons should be taken as any indication of what will or should be the ultimate findings of fact or the ultimate outcome in this case. Any reference in these reasons identifying J.S.R. as a shooter or to any other factual findings are intended to refer only to findings that are reasonably available on the evidence heard at the preliminary inquiry.

[7] In the late afternoon of December 26, 2005, Jane Creba, a fifteen year old girl, joined thousands of other holidayers on Yonge Street, one of Toronto’s main thoroughfares. Like many others, Ms. Creba was looking for Boxing Day bargains. Suddenly, a full blown gun battle broke out on the sidewalk on the west side of Yonge Street just north of Dundas Street. At least three, and perhaps as many as five, shooters exchanged multiple shots over the course of several seconds.

[8] As one would expect, pandemonium ensued after the shooting started. By the time the gun battle had ended, three innocent bystanders had been shot and wounded; as well, three of the individuals alleged to have played some role in the gun battle had been shot and wounded. Jane Creba lay on the ground, the victim of a single fatal gunshot wound.

[9] J.S.R. was at the scene of the shootout. He was part of a gang of young people standing on the sidewalk on the west side of Yonge Street just north of the entrance to a store known as the Foot Locker. He was in possession of a loaded, nine millimetre Ruger handgun. J.S.R., sometimes referred to as the southbound shooter, while looking southward on Yonge Street, fired his weapon several times striking at least six people. J.S.R. was firing southward at a person referred to in the evidence as the “northbound shooter”. That person had exited the Foot Locker shortly after J.S.R. and his cohorts had exited that store. J.S.R. and the others were standing on the sidewalk near the entrance to the Foot Locker when the northbound shooter exited that store.

[10] The northbound shooter was standing on the sidewalk south of where J.S.R. was standing and looking north towards J.S.R. The northbound shooter made a comment to the group of people who included J.S.R. As he made the comment, he lifted his sleeve to reveal a .357 Magnum pistol in his hand. A rapid exchange of gunfire followed. Ms. Creba and several other bystanders had the misfortune to find themselves between the northbound shooter and J.S.R. when the gun fight started.

[11] The northbound shooter was standing on the sidewalk on the west side of Yonge Street facing north. He fired the .357 Magnum northward toward J.S.R. at least three times. One of those shots struck and killed Ms. Creba. There was no way of knowing whether Ms. Creba was struck by the first shot fired by the northbound shooter or one of the subsequent shots. None of the shots fired by J.S.R. struck Ms. Creba.

[12] All of the shots were fired in a short timeframe. The Crown argues that there was evidence from which it could be inferred either that J.S.R. fired first or that he took steps to pull out his gun, thereby causing the northbound shooter to open fire. Counsel for J.S.R. submits that there was no evidence capable of supporting either inference. Counsel for J.S.R. contends that, on the totality of the evidence, the only reasonable inference is that the northbound shooter fired first and that J.S.R., if in fact he was the southbound shooter, returned fire. On the view we take, it is irrelevant for the purposes of committal who fired first.

III. THE CAUSTION ISSUE

[13] We agree with counsel’s submission that the determination of whether J.S.R. is properly committed to stand trial on any charge relating to Ms. Creba’s death must begin with the issue of causation. If there is no reasonable basis upon which a jury could find that J.S.R.’s actions caused Ms. Creba’s death, and setting aside for the moment potential liability under s. 21, then J.S.R. could not be committed for trial on either murder or manslaughter.

[14] J.S.R. did not shoot Ms. Creba. His actions were not the immediate and direct cause of her death. Causation for the purpose of determining criminal liability for homicide is not, however, limited to the direct and immediate cause. Section 222(1) of the Criminal Code provides:

A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

[15] Apart from making it clear that death may be caused “indirectly” and “by any means”, s. 222(1) provides little guidance as to the meaning of causation. The case law fills the statutory silence. Counsel referred to the leading authorities, as did the motion judge. These authorities make it clear that the same causation analysis applies to manslaughter and murder charges: R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 at para. 66 (S.C.C.); R. v. Meiler (1999), 1999 CanLII 3728 (ON CA), 136 C.C.C. (3d) 11 at para. 45 (Ont. C.A.).[^1] Causation has both a factual and legal component: R. v. Nette at paras. 44-45.

[16] We see no need to enter upon an abstract discussion of causation. The general principles are not in dispute; rather, counsel raised two particular causation issues relevant to this appeal:

• Could the jury reasonably conclude that J.S.R.’s actions were a contributing cause, beyond de minimis, to the death of Ms. Creba?

• Did the act of the northbound shooter in firing his gun and inflicting the fatal wound on Ms. Creba constitute an intervening cause that severed any causal link that may have existed between the actions of J.S.R. and Ms. Creba’s death?

[17] The first of these two issues addresses factual causation and is generally resolved by a “but for” analysis of the factual chain of events culminating in the death of the victim. The second issue is concerned with the legal component of causation. The legal component of the causation inquiry asks whether J.S.R., even if there was a “but for” link between his actions and Ms. Creba’s death, should be held responsible in the eyes of the law for her death given the actions of the northbound shooter.

(i) Was There Evidence that J.S.R.’s Actions Contributed Beyond de Minimis to Ms. Creba’s Death?

[18] The question as posed above begs a preliminary question – what is meant by the actions of J.S.R.? The preliminary inquiry judge and the motion judge characterized J.S.R.’s actions for the purposes of the causation inquiry in two different ways. In committing J.S.R. for trial on the charge of second degree murder, the preliminary inquiry judge held that the totality of the evidence could support a finding that J.S.R. chose to participate in a mutual shootout with the northbound shooter on a crowded downtown street, that both J.S.R. and the northbound shooter fired their weapons into the crowd in furtherance of their decisions, and that Ms. Creba died in the shootout. He concluded:

In my opinion there is evidence for the jury to reasonably conclude that the accused’s participation in the shootout was a “significant contributing cause” of the death of Jane Creba.

[19] The motion judge did not consider whether the evidence was capable of supporting the preliminary inquiry judge’s characterization of J.S.R.’s conduct. Instead, he conducted his own examination of the evidence. The motion judge found (at paras. 19-21) that there was no evidence from which a jury could infer that J.S.R. fired the first shot. He further found that there was ample evidence from which a jury could find that J.S.R. returned fire after the northbound shooter’s initial volley and that a mutual exchange of shots followed. The motion judge also noted that it was agreed that no one could say whether it was the northbound shooter’s first shot or a later shot that killed Ms. Creba.

[20] Having established what he saw as the necessary evidentiary backdrop to the causation question, the motion judge then said at para. 22:

The issue then becomes whether the act of shooter #2 [J.S.R.] firing back could be a contributing cause of the death of the victim on the basis that, but for shooter #2 [J.S.R.] firing back, shooter #1 [the northbound shooter] might not have fired any further shots which, in turn, raises the possibility that the fatal shot might not have been fired.

[21] After reviewing the applicable law, the motion judge concluded at para. 27:

[T]here is some evidence upon which a jury might conclude that shooter #1 [the northbound shooter] would not have continued to shoot but for shooter #2 [J.S.R.] returning fire. In other words, the jury might conclude that had shooter #2 [J.S.R.] not pulled out a gun and fired at shooter #1 [the northbound shooter], only one shot would ever have been fired. Whether that was the fatal shot is, of course, a separate factual question that the jury will have to determine.

[22] Both counsel for J.S.R. and the Crown take issue with aspects of the motion judge’s causation analysis. Counsel for J.S.R. submits that the motion judge correctly identified the only reasonable interpretation of the evidence insofar as it relates to J.S.R.’s conduct for the purposes of the causation inquiry. Counsel contends that on the evidence a reasonable jury could only conclude that J.S.R. fired at the northbound shooter in retaliation after the northbound shooter had fired at least one shot in his direction. Counsel characterizes J.S.R.’s conduct as returning the gunfire initiated by the northbound shooter.

[23] Counsel for J.S.R. submits that although the motion judge properly identified the nature of J.S.R.’s conduct, he erred in concluding that it could reasonably support the conclusion that J.S.R. caused Ms. Creba’s death. Counsel stresses that it was common ground that there was no way of knowing which shot fired by the northbound shooter killed Ms. Creba. Consequently, a reasonable jury could not exclude the possibility that Ms. Creba was hit by the first shot fired by the northbound shooter and, therefore, fatally wounded before J.S.R. retaliated by firing his weapon. On that scenario, counsel submits that J.S.R.’s retaliatory return of fire could not have contributed to Ms. Creba’s death. As the jury could not exclude this scenario, it could not reasonably be satisfied beyond a reasonable doubt that J.S.R. had caused the death of Ms. Creba.

[24] The Crown submits that the motion judge erred by going beyond his limited supervisory role on a motion to quash and choosing one factual scenario available on the evidence from among the various factual scenarios that are reasonably available on the evidence. The Crown contends that the motion judge’s interpretation of the evidence, particularly his conclusion that J.S.R. did not shoot first, is not the only reasonable interpretation available on the totality of the evidence.

[25] Crown counsel submits that another available reasonable scenario is the mutual gun fight scenario referred to by the preliminary inquiry judge in committing J.S.R. for trial on the murder charge. The Crown contends that on the entirety of the evidence a reasonable jury could infer that the gun fight, during which Ms. Creba was caught in the crossfire and killed, was a joint endeavour between two rival groups, both armed with loaded guns, both unwilling to retreat and both prepared to open fire on a sidewalk crowded with innocent bystanders. On this view of the evidence, J.S.R. and the northbound shooter, as well as others in their groups, had decided to shoot it out on Yonge Street before the first shot was fired.

[26] The Crown’s characterization of J.S.R.’s conduct was reasonably open on the totality of the evidence. A reasonable jury could infer that all of the shooters, including J.S.R., the northbound shooter and their associates, had decided before the shots were fired to engage in a gun battle on a public street outside the Foot Locker. On this view, J.S.R. and the northbound shooter were shooting at each other; J.S.R. was not merely returning the fire initiated by the northbound shooter. The order in which the shots were fired is not important to the causation analysis on this factual scenario.

[27] The evidence reasonably capable of supporting the mutual gun fight scenario, included the following:

• J.S.R. was armed with a loaded gun;

• J.S.R. was part of a large group of young men making their way north on Yonge Street. This group was aggressive, violent and had committed at least two brazen crimes of violence in full public view shortly before the gun fight;

• A reasonable jury could infer that J.S.R. and his group had assaulted the person who later became the northbound shooter based on an incident further south on Yonge Street shortly before the gun fight;

• A reasonable jury could infer that J.S.R. and his group were looking for trouble and would not back away if they met with any resistance;

• J.S.R. and his group were in the Foot Locker at the same time as the northbound shooter;

• A reasonable jury could infer that one or more people in J.S.R.’s gang had some form of interaction with the northbound shooter inside the Foot Locker;

• J.S.R. and his gang left the Foot Locker before the northbound shooter and congregated on the sidewalk close to the door of the Foot Locker as if waiting for someone to exit the store;

• The northbound shooter made certain comments to J.S.R.’s group immediately after he exited the Foot Locker. The northbound shooter also displayed his .357 Magnum when he made these comments;

• A reasonable jury could conclude, based on the northern shooter’s conduct, that the northbound shooter expected J.S.R.’s group to be outside the store and was issuing or accepting a challenge to engage in a gun battle right then and there;

• J.S.R. and others in his gang did not run when the northbound shooter flashed his gun; rather, they stood their ground and quickly opened fire.

[28] A reasonable jury could infer from this reaction that J.S.R. and his cohorts anticipated the gun battle and had decided to remain and participate in the gun battle. On this interpretation of the evidence, the firing of the first shot was simply a product of which shooter had the quicker reactions.

[29] Having concluded that the evidence is reasonably capable of supporting the mutual gun fight scenario, the causation issue in respect of Ms. Creba’s death is analogous to causation questions in the car racing cases where one of the participants in the car race hits a bystander and causes injury or death. In such cases, both drivers may be held to have caused that injury or death: see R. v. Rotundo (1993), 47 M.V.R. (2d) 90 (Ont. C.A.); and R. v. Menzes (2002), 2002 CanLII 49654 (ON SC), 23 M.V.R. (4th) 185 (S.C.J.). In Menzes at para. 105, Hill J. described the causal responsibility of the participants in the car race in these terms:

Those at risk from the unreasonable and unjustified danger of an escapade of competitive driving, whether a spontaneous or planned event, include the occupants of other vehicles, cyclists, pedestrians, passengers in the racers’ autos, and the co-participants themselves. There is one danger. Each driver bears equal responsibility for its continued life span subject to withdrawal or [an] intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created. [Emphasis added.]

[30] Borrowing the words of Hill J. and applying them to this case, a reasonable jury could find that each shooter induced the other to engage in a gun fight on a crowded street. “But for” the decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms. Creba would not have been killed.

(ii) Does the Fact that the Northbound Shooter Shot and Killed Ms. Creba Amount to an Intervening Act Eliminating J.S.R.’s Causal Responsibility for the Death?

[31] An intervening, independent act by a third party that is a more direct cause of a victim’s death than the prior act of an accused may sever the legal causal connection between that victim’s death and the prior act of the accused even though the prior act remains a factual or “but for” cause of the victim’s death. In these circumstances, despite the existence of factual causation, it is said to be unfair to impute legal liability for the death to a person whose actions have been effectively overtaken by the more immediate causal action of another party acting independently: see G. Williams, Textbook of Criminal Law, 2d ed. (London: Stevens & Sons, 1983) at 390-91; R. v. Shilon (11 December 2006) Ontario C43273 (C.A.) (unreported).

[32] Acts by a third party who is not acting independently but is acting in furtherance of a joint activity undertaken by the accused and that third party will not sever the legal causal connection. For example, in the racing cases, Driver A and Driver B may be racing together along crowded streets each driving recklessly trying to beat the other. If Driver A strikes a pedestrian, thereby directly causing her death, Driver B, as a participant in the race, may also be held to have caused her death. Driver A’s striking of the pedestrian can be seen not as an independent act but as a part of the joint action (racing on a public street) that resulted in the death of the pedestrian. A similar causation analysis has been applied in American “gun battle” cases which are distressingly factually similar to this case: e.g. see Roy v. U.S., 871 A.2d 498, 507-509 (D.C. 2005) leave to appeal to U.S. Supreme Court refused 2006 U.S. Lexis 4167.

[33] It must be borne in mind that legal causation is essentially about determining who among those who have factually contributed to an event should be held legally responsible for that event. Legal responsibility involves normative and moral judgments. It is entirely appropriate that all who participate in inherently very dangerous conduct should be said to have caused the foreseeable results of their conduct.

[34] Causation is ultimately a question for a jury. For the reasons outlined above, there was an evidentiary basis upon which the preliminary inquiry judge could conclude that a reasonable jury could find that Ms. Creba’s death was caused by the mutual gun fight engaged in by J.S.R., the northbound shooter and others. On this view, the northbound shooter’s firing of the fatal shot was not an intervening act but was part of the joint conduct that caused Ms. Creba’s death.

IV. SHOULD J.S.R. BE COMMITTED ON A CHARGE OF MURDER OR MANSLAUGHTER?

[35] With the issue of causation as it relates to committal for trial, having been determined against J.S.R., it follows that he must be committed for trial at least on the charge of manslaughter. The Crown maintains that J.S.R. should stand trial for second degree murder and that the motion judge erred in quashing the preliminary inquiry judge’s order to that effect.

[36] We think the Crown’s appeal must succeed and the committal for trial on the charge of murder restored. We will address J.S.R.’s potential liability, first, under s. 229(b); second, under the party/common intention provisions in s. 21; and finally, under s. 229(c). On the evidence heard at the preliminary inquiry, we think only the last of these provisions provides a basis upon which a reasonable jury, properly instructed, could convict J.S.R. of murder as a perpetrator and not a party.

(i) The Potential Applicability of Section 229(b) to J.S.R.

[37] The preliminary inquiry judge found that J.S.R.’s committal for second degree murder was justified under four sections of the Criminal Code, namely: s. 21(1)(b), s. 21(2), s. 229(b) and s. 229(c). By contrast, the motion judge found that none of those sections applied. In fairness, Crown counsel on the motion (not Ms. Cecchetto, Ms. Baiasu or Mr. Skarica) did not seek to justify the committal order under ss. 21(1)(b), 21(2) or 229(c) – rather, the Crown relied exclusively on s. 229(b), the applicability of which the motion judge considered and rejected. That provision reads as follows:

s. 229. Culpable homicide is murder

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; [Emphasis added.]

[38] We agree with the motion judge that s. 229(b) is not engaged on the existing record. We would, however, limit our analysis to the observation that J.S.R. did nothing “by accident or mistake” that caused or materially contributed to Ms. Creba’s death. On the Crown’s theory, J.S.R. caused Ms. Creba’s death by engaging in a mutual gun battle on a crowded street. That is exactly what he set out to do. On this view of J.S.R.’s causal responsibility, there was nothing he did “by accident or mistake” that materially contributed to Ms. Creba’s death.

(ii) J.S.R.’s Potential Liability as a Party to a Murder

[39] We are likewise of the view that the party provisions in ss. 21(1)(b) and 21(2) of the Code, to which the preliminary inquiry judge resorted, have no application on this record. Those provisions, and s. 21(1)(c),[^2] read as follows:

s. 21.(1) Every one is a party to an offence who

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(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 … that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [Emphasis added.]

[40] Accessorial liability under s. 21(1)(b) and s. 21(1)(c) must attach to a specific crime committed by someone other than the alleged aider or abetter. The aider or abetter must assist, help in or encourage the commission of the specific crime by the perpetrator. Furthermore, the aider or abetter must act with the specific intention of bringing about the commission of the crime committed by the perpetrator: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825; R. v. Shilon, supra; R. v. Popen (1981) 1981 CanLII 3345 (ON CA), 60 C.C.C. (2d) 232 at 237 (Ont. C.A.).

[41] On the Crown’s theory of J.S.R.’s accessorial liability, the northbound shooter is the perpetrator of the murder of Ms. Creba. The northbound shooter’s liability for that murder rests on s. 229(b). According to the Crown, the northbound shooter shot and killed Ms. Creba, intending to shoot and kill J.S.R. To establish the northbound shooter’s liability for murder under that section, the Crown will have to show that the northbound shooter fired his gun intending to kill J.S.R. It seems strange that J.S.R. could somehow be said to have aided and abetted a murder the mens rea of which was the intention to kill J.S.R.

[42] We repeat, both aiding and abetting require proof that the alleged accessory intended to assist the perpetrator in the crime committed by the perpetrator. There is no evidence that J.S.R. did anything with the intention of helping or encouraging the northbound shooter to murder J.S.R.

[43] For the reasons already explained, the joint actions of J.S.R. and the northbound shooter could be found to have caused Ms. Creba’s death. The inquiry which fixes causal responsibility for joint actions is, however, distinct from the inquiry which fixes accessorial liability for a crime committed by another. The Crown’s interpretation of ss. 21(1)(b) and (c) invites a tortured reading of those provisions and conflates causation questions with those relevant to accessorial liability.

[44] The Crown’s reliance on s. 21(2) is also misplaced on the evidence as adduced at the preliminary inquiry. That section expressly requires a common intention between the person who actually commits the crime and the person who is rendered liable for that crime under s. 21(2). The common intention must be “to carry out an unlawful purpose” and “to assist each other therein”. Section 21(2) speaks to situations in which two individuals pursue a common unlawful object together and one of them commits an offence other than the common unlawful object in the course of pursuing that common purpose. In such circumstances, the party to the initial common unlawful purpose will sometimes be held criminally responsible for the crime committed by his joint venturer in pursuit of their shared common purpose: see R. v. Popen, supra.

[45] There was evidence that J.S.R. and the northbound shooter were engaged in a joint activity. Joint activity cannot necessarily be equated with common intention. On the Crown’s case, J.S.R.’s purpose was to kill the northbound shooter and the northbound shooter’s purpose was to kill J.S.R. – hardly a common intention! Nor does the evidence provide any support for a finding that J.S.R. and the northbound shooter shared an intention to assist each other in the achievement of some unlawful purpose. Their conduct suggests the antithesis of mutual assistance.

[46] As with the Crown’s attempt to apply the aiding or abetting provisions to the facts of this case, imposing liability on J.S.R. through s. 21(2) is not supported by a plain reading of the section and is contrary to common sense. On the present state of the evidence, if s. 21(2) were left with a jury, the jury could well be confused and distracted by instructions suggesting it could find a common intention to pursue a joint object between two individuals who were trying to kill each other.

(iii) J.S.R.’s Potential Liability Under s. 229(c) of the Criminal Code

[47] We decline to give effect to J.S.R.’s submission that we should not entertain the Crown’s arguments in respect of s. 229(c) of the Code because the Crown did not rely on that provision to support J.S.R.’s committal for second degree murder in the courts below.

[48] It is debatable whether the Crown raised s. 229(c) at the preliminary hearing. And while we accept J.S.R.’s counsel’s submission that he did not argue the provision in that forum, the preliminary inquiry judge found that J.S.R. “might also be found guilty” of murder under s. 229(c). In so concluding, he relied on R. v. Meiler, supra, a decision of this court in which O’Connor J.A. reviewed in detail the principles that govern s. 229(c)’s availability.

[49] To the extent that s. 229(c) may not have been pursued below, it has been fully argued before us. As well, J.S.R. does not contend that he has been prejudiced by reason of the Crown’s failure to raise it below. No submission has been made that the evidence called at the preliminary hearing or the strategy adopted by J.S.R. would have been different had J.S.R. known that s. 229(c) was in play. And since the issue at hand relates to preliminary inquiry judge’s jurisdiction to commit J.S.R. for murder, it seems to us that if J.S.R.’s committal for murder is warranted under s. 229(c), absent prejudice, it would not serve the ends of justice if we were to accede to J.S.R.’s request and refuse to hear legal submissions directed at its availability. Accordingly, we propose to consider the provision and determine whether it is applicable on this record.

[50] Section 229(c) provides as follows:

s. 229. Culpable homicide is murder

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

[51] R. v. Meiler is one of this court’s more recent pronouncements on s. 229(c). Meiler was charged with murdering a man named Biuk. On the evening in question, Meiler attended at a home where his estranged wife and others were preparing for a backyard barbeque. Meiler believed that his wife was seeing a man named Roach and that Roach would be at the barbeque.

[52] Motivated by jealousy, Meiler armed himself with a loaded, sawed-off shotgun and drove to the barbeque. As he entered the backyard, he cocked the gun and put his hand on the trigger. After that, according to Meiler, he was tackled from behind and went flying into Biuk, a guest at the party who was approaching him at the time. A brief struggle ensued, during which Meiler’s gun accidentally discharged, killing Biuk. While acknowledging that he entered the backyard with the intention of killing Roach (and, according to the Crown at trial, possibly his estranged wife), Meiler maintained that he meant no harm to Biuk and that Biuk’s death was the result of a tragic accident.

[53] Against that backdrop, the trial judge instructed the jury on s. 229(c) and the manner by which Meiler could be found guilty of murder under that provision.

[54] Meiler was convicted of murder. On appeal, he argued that the trial judge had misinstructed the jury on the application of s. 229(c). O’Connor J.A., writing for the court, disagreed. His reasons include a helpful discussion of the section’s component elements and the principles that govern its application.

[55] Commencing with the actus reus, O’Connor J.A. stated at para. 41 that:

[T]he actus reus requirement is that the offender “does anything … and thereby causes the death of a human being.” The language of the section does not require that the act of the offender be itself unlawful although because it causes death it will almost inevitably be a dangerous act and will usually be unlawful. [Citation omitted.]

[56] Turning to the mens rea component, O’Connor J.A. observed that the provision required two mental elements. He identified the first of these elements at paras. 48-49 as follows:

First, the acts of the offender that caused the death must have been done for the purpose of an “unlawful object”. It is well established that s. 229(c) contemplates some act or conduct by the offender done to bring about some further unlawful object other than the injury that causes the death. Put another way, the unlawful object must be a different object than the assault upon the deceased that gives rise to the charge under s. 229(c).

Further, the unlawful object must be an object of conduct that, if prosecuted fully, would amount to a serious crime, that is an indictable offence requiring mens rea. [Citations omitted.]

[57] O’Connor J.A. then defined the second mental element at para. 53:

The second mens rea requirement in s. 229(c) is that the offender knows that the act or acts that are done for the purpose of the unlawful object are likely to cause death, notwithstanding he desires to effect his object without causing death or bodily harm to any human being. This creates a requirement for the subjective foresight of death by the offender. [Endnotes omitted.]

[58] In an endnote at p. 30, O’Connor J.A. pointed out that the “human being” referred to in the concluding “notwithstanding” clause does not include any person who may be the subject of the intended unlawful object. He further observed, at para. 58, that in order to attract liability under this section, an offender need not “foresee the precise situation or all of the events that result in the death”; rather, the offender must foresee “that the acts done for the unlawful object are likely to cause death and those acts are sufficiently linked to the death to have caused the death within the meaning of the section”. As he explained at para. 61, no greater precision was needed to render an offender sufficiently “morally blameworthy” to attract the stigma and punishment flowing from a murder conviction.

[59] Applying those principles to the facts in R. v. Meiler, O’Connor J.A. found that the instructions given by the trial judge on the applicability of s. 229(c) were proper. Those instructions, in their essence, are reproduced at para. 38 of R. v. Meiler as follows:

The appellant would be guilty of murder under s. 229(c) if the jury found that the appellant:

(a) for an unlawful object (killing Roach or his wife);

(b) did anything (carrying a loaded, cocked gun with his finger on the trigger);

(c) that he knew was likely to cause the death of a human being;

(d) caused the death of Biuk;

(e) whether or not the gun was accidentally discharged. [Endnotes omitted.]

[60] Applying the principles from R. v. Meiler to the case at hand, we are satisfied that the record supports J.S.R.’s committal for murder under s. 229(c). In so concluding, we have considered the evidence for the Crown at its highest, as we must, and excluded from our consideration any possible defences that might be available to J.S.R.

[61] Viewed from the Crown’s perspective, the picture that emerges is that of two rival factions engaging in a frenzied shootout on a downtown Toronto street teeming with people – culminating in the tragic death of Ms. Creba. With that as the scenario upon which the applicability of s. 229(c) must be considered, we believe that J.S.R. could be convicted of murder under that provision if a jury was satisfied that he:

• For a unlawful object – killing the northbound shooter;

• Did anything – willingly engaged in a frenzied shootout, discharging his firearm numerous times into a busy street teeming with people;

• That he knew was likely to cause the death of a human being (other than his intended target) – discharging his firearm numerous times into a street filled with people;

• Caused the death of a human being – substantially contributed to Ms. Creba’s death by engaging in a mutual gunfight.

[62] That analysis, in our view, brings J.S.R. within the four corners of s. 229(c). Contrary to J.S.R.’s submission, we do not see it as running afoul of the long-established principle, identified by this court in R. v. Tennant and Naccarato (1975), 1975 CanLII 605 (ON CA), 23 C.C.C. (2d) 80, that where death is caused by an assault, s. 229(c) will not come into play unless it can be shown that the assault was committed for the purpose of achieving some further or other unlawful object. As the court in that case explained at p. 94, the principle was meant to avoid:

[A]n interpretation which permits foreseeability under s. 212(c) [now 229(c)] to be substituted for the intent required under s. 212(a)(i) and (ii) [now 229(a)(i) and (ii)] in cases where personal injury is not inflicted for a further unlawful object. To hold otherwise would largely nullify the provisions of the section with respect to the necessity for proof of the requisite intent to kill or to inflict bodily harm which the offender knows is likely to cause death in order to constitute murder… [Emphasis in original.]

[63] With the advent of the Charter, the harm sought to be avoided has largely been attenuated by the removal of objective foresight as a basis for finding liability under s. 229(c): see R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633 at 648-649. In other words, there is no risk today that someone who assaults another will be found guilty of murder under s. 229(c) on the basis that he or she ought to have known that the assault was likely to cause a death.

[64] Be that as it may, here, as in R. v. Meiler, the proposed victim of the unlawful object was someone different than the eventual victim of the dangerous act. That feature distinguishes this case from cases such as R. v. Tennant and Naccarato, supra, and Graves et al. v. The King (1913), 1913 CanLII 657 (SCC), 47 S.C.R. 568, where, in an effort to distinguish the unlawful object from the dangerous act that resulted in death, the courts engaged in reasoning that some might view as strained.

[65] In the case at hand, J.S.R. intended no harm to Ms. Creba. She was not the target of his unlawful object – the northbound shooter was. In carrying out his unlawful object, J.S.R. engaged in a dangerous act – a frenzied shootout in which he fired his gun numerous times into a crowded street teeming with people. Leaving aside any defences that might be available to him, by engaging in the shootout, J.S.R. had to know that someone other than the northbound shooter was likely to die.

[66] On those facts, we are satisfied that J.S.R. comes within the parameters of s. 229(c). Manifestly, in our view, if proved, his conduct would meet the high degree of moral blameworthiness needed to justify the stigma of a murder conviction and the consequences flowing from it.

V. CONCLUSION

[67] For the reasons set out above, we would restore the committal of J.S.R. on the charge of second degree murder. We repeat that these reasons speak to the existence of evidence at the preliminary inquiry upon which a reasonable trier of fact could make certain findings. Nothing in the reasons is intended to exclude other possible views of the facts or to dictate how the issues should be approached at trial. There are no doubt other factual scenarios open on this evidence, including perhaps the one favoured by the motion judge. Furthermore, the evidence adduced at trial may well give rise to factual scenarios that are different than those reasonably available on the evidence adduced at the preliminary inquiry. It is the evidence heard at trial that must ultimately determine the legal issues and theories of liability upon which the trial judge must instruct the jury.

[68] The appeal brought by J.S.R. is dismissed. The Crown appeal is allowed and the committal for trial on the charge of second degree murder is restored.

RELEASED: “DD” JUL 07 2008”

“Doherty J.A.”

“M.J. Moldaver J.A.”

“David Watt J.A.”

* A non-publication order made under s. 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 remains in effect.

[^1]: We note, however, that the causation test for first degree murder under s. 231(5) of the Criminal Code is different: see R. v. Harbottle (1993), 1993 CanLII 71 (SCC), 84 C.C.C. (3d) 1 (S.C.C.).

[^2]: The preliminary inquiry judge did not refer to s. 21(1)(c), the abetting section. The Crown in its written material referred to both aiding, s. 21(1)(b), and abetting, s. 21(1)(c). For present purposes, the analysis of J.S.R.’s potential liability as a party to a murder is the same under the two sections.