Court of Appeal for Ontario

Citation: R. v. Young, 2009 ONCA 549

Date: 2009-07-06

Docket: C45875

Between:

Her Majesty The Queen (Respondent)

and

Dirk Young (Appellant)

Counsel:

James C. Fleming, for the appellant

Michael Bernstein, for the respondent

Heard: June 17, 2009

On appeal from the conviction entered by Justice C. Stephen Glithero of the Superior Court of Justice on March 29, 2006.

Reasons for Decision

Sharpe J.A.:

[1] The appellant was convicted of second degree murder following a trial before a judge and jury in the Superior Court. The sole issue raised on this appeal is whether the trial judge erred by leaving s. 21(2) of the Criminal Code with the jury as a basis for liability for murder.

[2] The appellant and several friends had formed a group or gang, the members of which became embroiled in a series of altercations with the deceased and several of his friends. On the day of the murder, the appellant organized and lead a coordinated attack on the deceased in a public park. The victim died of a stab wound inflicted during the attack by one of the appellant’s associates. The Crown’s position at trial was that the appellant was guilty of first degree murder as he was a party to a planned and deliberate murder. The appellant admitted that he had participated in a planned and deliberate assault but argued that he lacked the mens rea for either first or second degree murder and that he should be found guilty only of manslaughter.

[3] The Crown asked the trial judge to leave both s. 21(1) and s. 21(2) with the jury. The appellant disputed the applicability of s. 21(2) and the issue was fully argued prior to the trial judge’s instructions to the jury. Section 21(2) provides:

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.

[4] Relying on R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, the appellant argued that, given his admission that he was an aider and abettor to the assault that led to the death, he could not be a party to murder based on s. 21(2). This submission was premised on the argument that liability is either under s. 21(1), which deals with aiding and abetting, or under s. 21(2), and that s. 21(2) is only applicable if the conduct of the accused cannot constitute aiding or abetting.

[5] Before instructing the jury, the trial judge gave a considered ruling on this point and found, essentially on the basis of this court's decision in R. v. Rochon (2003), 2003 9600 (ON CA), 173 C.C.C. (3d) 321, that s. 21(2) was applicable. The appellant had admitted a common unlawful purpose with the actual killer to assault the victim. The trial judge ruled that it was open to the Crown to prove that the appellant knew that the commission of murder would be a probable consequence of carrying out that common unlawful purpose, and thereby render the appellant guilty of second degree murder.

[6] I pause to observe that when s. 21(2) is engaged and the charged offence is murder, the Supreme Court of Canada has held that s. 7 of the Charter requires that the accused must have actual knowledge that murder would be a probable consequence of the unlawful purpose. A conviction for murder cannot be based on the ground that the accused ought to have known that murder would be a probable consequence: see R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731, holding that when s. 21(2) is applied to murder, the words “or ought to have known” are of no force and effect.

[7] The trial judge was alive to this constitutional requirement. He instructed the jury that to convict the appellant of murder under s. 21(2) on the basis of a common intention to carry out an unlawful purpose, the Crown must prove that the appellant actually knew that one of the participants in the assault would probably kill the victim. He explained to the jury that a finding that the appellant knew that the victim would probably be killed meant actual knowledge, and not that the appellant “ought to have known” that the victim would probably be killed.

[8] I agree with the appellant that as this was a planned attack, and given the appellant’s admission of his involvement, had the jury convicted him under s. 21(1) as an aider or abettor, the verdict would almost certainly have been guilty of first degree murder. It follows that s. 21(2) likely was the route taken by the jury to arrive at the verdict of guilty of second degree murder.

[9] However, I do not agree with the appellant that the trial judge erred in leaving s. 21(2) with the jury.

[10] In Rochon, at paras 62-3, MacPherson J.A., writing for the court, held:

[The appellant] submits that liability as a party pursuant to s. 21(2) of the Code should not have been left with the jury because the circumstances relating to the alleged unlawful purpose (to kill [the victim]) were indistinguishable from the offence charged (first degree murder): see R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3 at 15, 38 C.C.C. (3d) 481.

I disagree. The trial judge instructed the jury that the unlawful common purpose was to assault [the victim] whereas the offence [the other party] committed while carrying out the assault was murder. Although there is an overlap in the conduct comprehended by the two offences, that does not detract from the fact that they are separate offences: see R. v. Vang (1999), 1999 2310 (ON CA), 132 C.C.C. (3d) 32 (Ont. C.A.) at 39-41; and R. v. Light (1993), 1993 1023 (BC CA), 78 C.C.C. (3d) 221 (B.C.C.A.) at 253-54. Moreover, it is important to note that the trial judge instructed on s. 21(2) only with respect to possible verdicts of second degree murder and manslaughter. [The appellant] was convicted of first degree murder. Accordingly, even if the judge erred by deciding to include s. 21(2) in his charge (and I conclude he did not), the error is of no moment.

[11] Prior to the oral hearing of this appeal, counsel for the appellant took the position that Rochon was wrongly decided and requested a five judge panel to reconsider that decision. That request was refused by the Chief Justice. Despite the denial of a five judge panel, in his factum the appellant essentially conceded that Rochon was dispositive of the issue and maintained the argument that it was wrongly decided. For the first time in oral argument, counsel for the appellant advanced the submissions that either Rochon was distinguishable or that the statement as to the application of s. 21(2) in that case was obiter and not binding upon us. Needless to say, this was a highly irregular manner of proceeding, potentially unfair to the Crown and awkward for the court. Very often, in such a situation, we would either refuse to entertain such a late blooming submission or adjourn the appeal. However, as the argument is without merit, I view it to be in the interests of justice that we deal with it now.

[12] In my view, the point at issue on this appeal was decided in Rochon and that decision is binding upon us. As I read the above quoted passage, MacPherson J.A. clearly decided that s. 21(2) is applicable to render a party guilty of second degree murder where the common unlawful purpose is assault and the accused knew that murder would be a probable consequence of carrying out that assault. While MacPherson J.A. added that, in the circumstances of the case before him, even if the trial judge had erred in leaving s. 21(2) with the jury, no substantial wrong or miscarriage of justice had occurred, that alternate ground for dismissing the appeal does not subtract from the primary holding that s. 21(2) was applicable in the circumstances.

[13] Moreover, and quite apart from Rochon and stare decisis, I see no merit in the appellant’s submission. In my view, the decisions relied on by the appellant, Simpson and R. v. Jackson (1991), 1991 11739 (ON CA), 68 C.C.C. (3d) 385 (Ont. C.A.), are readily distinguishable from this case. Those cases point out that there is a fundamental difference between liability as an aider or abettor under s. 21(1), which is premised upon actual participation in the crime charged, and liability under s. 21(2), which is premised upon the knowledge (in the case of murder) that the crime charged would probably be committed by another person with whom the accused had an intention in common to carry out a different unlawful purpose. Where the common intention is to commit the very crime charged, s. 21(2) has no application. As pointed out in Simpson, it would simply make no sense to instruct the jury that “when two or more form an intention to murder the deceased and, in murdering the deceased, one of them murders the deceased, each of them who knew that murdering the deceased would be a probable consequence of carrying out the murder of the deceased is guilty of murder.”

[14] On the facts of this case, however, we encounter no such logical difficulty. The crime charged, second degree murder, is distinct from the common unlawful purpose to carry out an assault. I see no merit in the submission that s. 21(2) cannot apply because the assault was a lesser included offence of the crime charged. We were not referred to any authority to support that proposition and it would seem to fly in the face of the very purpose of s. 21(2). If an accused forms a common intention with others to commit a less serious included offence, such as assault, knowing that one of them will probably commit a more serious offence, such as murder, both the letter and the spirit of s. 21(2) support a conviction for murder.

[15] Accordingly, I would dismiss the appeal.

“Robert J. Sharpe J.A.”

“I agree S.T. Goudge J.A.”

“I agree G.J. Epstein J.A.”

RELEASED: July 6, 2009```