COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Modeste, 2015 ONCA 398

DATE: 20150608

DOCKET: C55821

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edwin Modeste

Appellant

Delmar Doucette, for the appellant

Roger Shallow and Michael Bernstein, for the respondent

Heard: December 1, 2, 3, 2014

On appeal from the conviction entered by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury, on April 28, 2012, and from the sentence imposed on July 30, 2012, with reasons reported at 2012 ONSC 4463, [2012] O.J. No. 3694.

Tulloch J.A.:

Overview

[1] The appellant, Edwin Modeste was convicted as a party to manslaughter in the stabbing death of Brandon Ramdeen. His co-appellant, Kimron Bengy, stabbed Ramdeen during the course of a fight between two opposing groups of men in the early morning hours of June 21, 2009, following their attendance on a boat cruise in the Toronto harbour.

[2] The Crown’s theory at trial was that Modeste was liable as a party to the offence under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown alleged Modeste and Bengy had formed an intention in common to assault the deceased, and that Modeste ought to have foreseen the harm that Bengy inflicted which resulted in Ramdeen’s death. Following a trial composed of judge and jury, Modeste was convicted of manslaughter and sentenced to the equivalent of five years in prison, subject to pre-trial custody.

[3] He appeals his conviction and sentence, and raises the following grounds on the appeal from conviction:

• The trial judge erred in leaving s. 21(2) liability with the jury, and this error led to an unreasonable verdict;

• In the alternative, this court’s decision in R. v. Vang (1999), 1999 2310 (ON CA), 132 C.C.C. (3d) 32, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 203, the case relied on by trial judge in order to leave s. 21(2) liability with the jury, should be reconsidered in the light of this court’s decision in R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 270;

• The trial judge erred by improperly instructing the jury in regard to self-defence and consent;

• In the alternative, the new self-defence provision which came into force on March 11, 2013 should be applied retrospectively to this appeal; and

• The trial judge erred by improperly instructing the jury on the use it could make of a prior statement of a witness, Kitson Robertson.

[4] Two of the appellant’s grounds of appeal can be briefly rejected.

[5] First, with respect to the appellant’s request for this panel to re-consider this court’s earlier decision in R. v. Vang, the appellant’s request for a five-judge panel was denied. As such, I will not give any further consideration to the appellant’s argument in this regard. With respect to his argument that Vang should be distinguished, it is my view that the differences in the facts raised by the appellant do not mean there was no basis for liability under s. 21(2) in this case.

[6] Second, this appeal is one of four separate appeals which were heard together, in which all the appellants advanced similar arguments regarding the retrospectivity of the new self-defence provision. On this issue, I concur with the reasons and analysis of my colleague Hourigan J.A., in R. v. Bengy, 2015 ONCA 397. In my view, the new self-defence provisions must be applied prospectively. I would not give effect to this ground of appeal.

[7] I would, however, allow the appeal.

[8] First, I would allow the appeal on the basis that the trial judge misdirected the jury on the defence of consent. Second, although it is not strictly necessary to the determination of this appeal, I would note that in the circumstances, the trial judge should have given a more complete charge to the jury on the use of Kitson Robertson’s prior inconsistent statement to the police.

[9] I would not give effect to the other grounds of appeal.

Factual Background

[10] Over the course of the evening of June 20, 2009, and the early morning hours of June 21, two fights took place, and two men died: Andy James and Brandon Ramdeen. Both had been stabbed. There were essentially two sides to both confrontations. James and Ramdeen belonged to the same side, which also included at least Dexter Regis and Collins George. The other side included Kimron Bengy, Edwin Modeste, Leon Alexander, Edmund Benjamin and Anski Julien. The extent of each individual’s presence at and participation in each fight was highly contested at trial.

[11] On the evening of June 20, 2009, these men attended a boat cruise in Toronto. The boat returned to dock at about 2:05AM. The passengers began disembarking and headed into a parking lot. While still on the boat, James and Alexander got into a heated argument over the way Alexander had been treating James’s girlfriend. The two were separated by other men, and Alexander was escorted to the parking lot, where he met up with Anski Julien and Modeste.

[12] Alexander was angry. He wanted to find James and “box” him. His friends attempted to calm him down, but he broke away from them and ran back towards James. Modeste chased after him. Bengy followed.

The First Fight

[13] Alexander caught up with James in the parking lot and a fight began. Several others were involved. Modeste acted as a peacemaker and ran into the fight to pull Alexander out.

[14] Over the course of this fight, Andy James was stabbed. He died in hospital shortly afterwards. While there were several witnesses to the fight, no one witnessed the actual stabbing. Before James was driven to hospital, James’s friends and others at the scene asked him who stabbed him. According to the testimony at trial, James variously identified his stabber as Alexander, Modeste and the other men with him, and the short man who was with Anski Julien.

[15] As a result, a number of James’s friends wrongly believed Modeste was responsible for the stabbing, and went in search of him. This group included at least Ramdeen, Dexter Regis and Collins George, and may have included three other men.

The Second Fight

[16] Modeste was still in the parking lot when James’s friends caught up with him. Dexter Regis led the group. He carried a metal baseball bat. He asked Modeste why he stabbed James. Modeste responded, “I don’t know what you’re talking about.” Ramdeen also confronted Modeste about the stabbing.

[17] A fight quickly broke out. Either Modeste or Ramdeen, or both of them, fell against a nearby car, and then to the ground. At the end of the fight, Ramdeen attempted to stand but fell to the ground. He had also been stabbed, and died as a result of his wounds.

[18] The evidence at trial on what happened during the second fight varied widely. Many of the witnesses had credibility or reliability problems, and several had given inconsistent versions of the fight over the almost three years between the fights and trial. The fight was variously described as five-on-four, five-on-one, three-on-four, three-on-one, five-on-five, eight-on-one, and two-on-one. Many of the witnesses gave different versions of how the fight began, including that Ramdeen initiated the physical contact. Others said he was rushed by Modeste or the men standing with him.

[19] Police arrived at the scene at 2:24AM. The entire sequence of events took place over about 20 minutes.

The Evidence of Kitson Robertson

[20] Kitson Robertson was friends with some of the men involved in the altercations, and observed both fights. He gave a statement to police and testified at trial.

[21] In chief, Robertson testified that after the first fight, he observed James from across the parking lot. James had blood on his shirt. Robertson went to James and James told him that the “short black guy that be with Anski and them” stabbed him. Robertson believed this man to be Bengy.

[22] Robertson testified that he then went to talk to Bengy. He asked Bengy why he stabbed James. Bengy responded, “He doesn’t know it was me”. Robertson stated that after speaking to Bengy, he told Modeste that James had been stabbed and how James described his attacker. He testified that Modeste then went to speak to Bengy to find out if Bengy had stabbed James. The second fight began shortly afterwards.

[23] Just before the second fight started, Robertson saw Modeste, Alexander, Benjamin, Julien and Bengy in the parking lot. They were approached by a man with a baseball bat, who had a lot of people behind him approaching at the same time. The man with the bat asked Modeste why he stabbed James. Someone grabbed at the bat, and a fight broke out. The man with the bat pushed Modeste, and then ran away.

[24] Ramdeen jumped on Modeste. They both fell back onto a vehicle and then to the ground. Ramdeen had his hands around Modeste’s neck, and Modeste was trying to get away. Alexander, Benjamin and three or four men who were with Ramdeen became involved.

[25] Robertson testified that after the second fight ended, he, Modeste, Alexander, and another man and a woman, got into a car and drove away. He then told Modeste that Bengy stabbed James. Modeste then called Bengy to ask him if he stabbed James. When he hung up the phone, Modeste was upset. He expressed disbelief and said that this was “not supposed to happen”.

[26] In cross-examination, counsel for Modeste reminded Robertson that in his statement to police he made no mention of speaking to Modeste in between the two fights. Robertson agreed with counsel for Modeste that his testimony in chief was a result of a mistake in his memory, and that his statement to police was more accurate. The relevant exchange was as follows:

Q. [T]he question that comes to my mind is that, on your evidence at trial you had said that you had told Andre and Edwin [that Bengy said he stabbed James], in the parking lot, and I guess the question would be, if you told them in the parking lot, it really doesn’t make sense to me – and maybe you could explain it – why you would tell them again in the car.

Do you understand how – the difficulty there?

A. Yes.

Q. Okay. Now, we talked a little bit earlier about how, when you spoke to the police in June, your recollection was better then than it is today. Right?

A. Yes.

Q. And I’m not suggesting, Mr. Robertson, that you’re lying, but we had – we had discussed that sometimes memories are imperfect, or fade over time. Remember that?

A. Yes.

Q. So in your police statement you had described how – well, you failed to make any note of telling Mr. Modeste, or Mr. – Andre Julien, about hearing about the stabbing in the parking lot, but you did relate it – you made the only mention of it when you were saying in the car.

Now we can agree that that’s different than what you testified to at trial; would you agree with that?

A. Yes.

Q. All right. So again, we’ve already established that you were trying to be truthful with the police in June of 2009. Correct?

A. Yes.

Q. And you would agree with me that telling or not telling the police about having told Edwin and Andre in the parking lot, as you testified to here, that’s a pretty big point, isn’t it; that’s a pretty important detail; would you agree?

A. Yes.

Q. So given that you told or related a different narrative, as it would be, in June of 2009, compared to what you testified to at trial, if I were to suggest to you that what you told the police there was more accurate, that in fact the first time you spoke of having received this information from Mr. Bengy was when you guys were all in the car and you were leaving, that was the first time you spoke about it, would you agree that that’s –

A. Yes.

Q. All right. So what you had testified to during the trial, that was just a mistake based on flawed memory. Would you agree?

A. Yes.

Discussion

[27] As stated above, for the reasons that follow, I would reject the appellant’s grounds of appeal relating to s. 21(2) liability and the instruction on self-defence. I would allow the appeal on the basis that the trial judge erred in her instruction to the jury on consent. Below, I address first the s. 21(2) issue, and I go on to address the various grounds relating to the trial judge’s instructions to the jury.

(1) Did the trial judge err in leaving liability under s. 21(2) of the Criminal Code with the jury?

[28] The appellant argues the trial judge erred by leaving liability under s. 21(2) with the jury, and says this error resulted in an unreasonable verdict. In my view, there was evidence to support the Crown’s theory of liability under s. 21(2), and the trial judge’s decision to leave it to the jury did not result in an unreasonable verdict.

[29] Section 21(2) extends liability for an offence beyond the primary offender to other individuals involved in a separate shared unlawful purpose. It 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.

[30] The Crown must prove three elements, sometimes referred to as “agreement”, “offence”, and “knowledge”, as follows:

1. A common intention or agreement existed between two or more persons to carry out an unlawful purpose and to assist each other in doing so;

2. One of the persons, in the course of carrying out the common purpose, committed a different offence; and

3. The other person knew or ought to have known that the commission of that offence would be a probable consequence of carrying out the common unlawful purpose: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 43, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 459; R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at paras. 53, 56-62.

[31] The unlawful purpose must be different from the offence committed by the principal in carrying out the common purpose: R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, at p. 15.

[32] Here, the trial judge put the essential elements to the jury as follows:

1. Bengy and Modeste agreed to carry out a common unlawful purpose during the second fight, to assault Ramdeen and to help each other with the assault;

2. In the course of carrying out the purpose of assault, Bengy caused Ramdeen’s death by committing a different unlawful act which was objectively dangerous, the stabbing; and

3. Modeste knew or ought to have known that a probable consequence of carrying out the original agreement to assault was that Bengy would commit an act that was unlawful, and which a reasonable person would think likely put another person at risk of harm or injury that was more than brief and minor in nature.

[33] In my view, there was evidence to support the Crown’s theory of liability under s. 21(2); as such, the trial judge did not err in leaving this theory to the jury. Indeed, Modeste’s counsel at trial apparently accepted that there was sufficient evidence to support the Crown’s theory under s. 21(2). The evidence relevant to the Crown’s theory on each of the elements, as summarized by the trial judge in her charge, was in part as follows.

[34] The Crown relied on the actions of the men in jointly assaulting Ramdeen to prove the first element, the existence of the agreement or common purpose to do so. The evidence on this element included that Bengy and Modeste were both part of the second fight, the men attacked Ramdeen at the same time, Bengy joined the second fight after Modeste was involved, and all the men on Modeste’s side jumped in after Ramdeen punched or grabbed Modeste.

[35] The evidence on the second element, that Bengy caused Ramdeen’s death by a further unlawful act in the course of carrying out the agreement to assault him, included that Bengy was present at the fight, he carried a knife and had a knife on him that night, and he was seen running away after Ramdeen fell.

[36] The evidence on the third element, that Modeste ought to have known that Bengy would probably carry out a different objectively dangerous unlawful act, included that Modeste was asked whether he stabbed James shortly before the second fight began, and the evidence surrounding the first fight and Modeste’s participation in it. It also included the evidence that up to five men assaulted Ramdeen at once, and the evidence that shortly before the second fight, Robertson told Modeste that Bengy had stabbed James.

[37] On the first element, a jury could have accepted the evidence that Modeste and Bengy assaulted Ramdeen together. The jury could have inferred from this evidence that they shared a common intention or purpose to assault him. On the second element, the jury could have concluded that Bengy committed a further offence in the course of carrying out the unlawful purpose when he stabbed Ramdeen. Finally, the jury could have accepted Robertson’s evidence that he told Modeste before the second fight that Bengy had admitted to stabbing James. The jury could have concluded that a reasonable person, believing that Bengy had already stabbed one person in a fight that night, ought to have foreseen that it was probable that he would commit a further offence in the course of carrying out the assault.

[38] Accordingly, the verdict was not unreasonable. There was evidence upon which a properly instructed jury, acting reasonably, could have convicted. The appellant argues that some of the witnesses whose testimony supported the Crown’s theory were not credible or reliable. It was for the jury to decide whether to accept the above evidence or not, and if it accepted it, to determine what inferences it was prepared to draw.

[39] For the reasons outlined above, I would reject this ground of appeal.

(2) Did the trial judge err in her instructions to the jury on self-defence, consent or the permissible uses of the prior inconsistent statement of Kitson Robertson?

[40] When assessing alleged errors in a trial judge’s instruction to the jury, appellate courts must examine the alleged errors in the context of the entire charge, and of the trial as a whole. Trial judges have an important obligation to ensure juries are adequately prepared for deliberations, but they are not held to a standard of perfection. On appeal, courts “should not examine minute details of a jury instruction in isolation” but must take a “functional and contextual approach” and determine the overall effect of the charge: R. v. Araya, 2015 SCC 11, [2015] S.C.J. No. 11, at paras. 39-40.

[41] Taking the above approach, I would conclude that the trial judge did not err in her instructions on self-defence. However, her charge on consent did not adequately prepare the jury for its deliberations on that issue. I would allow the appeal on this ground. Finally, although it is not necessary for the purpose of deciding this appeal, I note that it would have been beneficial for the trial judge to have provided the jury with more guidance on the use of Kitson Robertson’s prior inconsistent statement.

(a) Did the trial judge err by improperly instructing the jury in regard to self-defence?

[42] The appellant submits that the trial judge erred by instructing the jury that it could consider the force used by Modeste’s friends in deciding whether Modeste used excessive force. In my view, when the instruction on self-defence is considered as a whole, it would have been clear to the jury that it was being asked to determine whether the force used by Modeste alone was excessive.

[43] The trial judge put self-defence to the jury under s. 37 of the Criminal Code, which at the time, provided that a person would be “justified in using force to defend himself or anyone under his protection if he [used] no more force than is necessary to prevent the assault or the repetition of it.” She instructed the jury that the issue of self-defence was relevant to the first element of liability under s. 21(2), namely, whether Modeste had a common unlawful purpose with Bengy: “Self-defence is relevant, because if the goal of Mr. Modeste was to defend himself, then he would not have been pursuing a common unlawful goal with Mr. Bengy of assaulting Brandon Ramdeen.”

[44] The trial judge instructed the jury as follows on the issue of excessive force:

Did Edwin Modeste use more force than was necessary to prevent Mr. Ramdeen’s assault or stop it from continuing or being repeated?

This question requires you to consider the relationship between the unlawful assault by Mr. Ramdeen and the force used by Edwin Modeste to prevent Mr. Ramdeen’s assault or to stop Mr. Ramdeen from continuing or repeating it.

Anyone defending himself cannot be expected to know exactly how much force is necessary. What a reasonable person would believe or do in similar circumstances to prevent Mr. Ramdeen’s assault, or to stop Mr. Ramdeen from continuing or repeating it is one of the factors that you should consider in deciding whether the force used by Edwin Modeste was necessary to prevent Mr. Ramdeen’s assault, or to stop Mr. Ramdeen from continuing or repeating it.

Your answer to this question will depend on your view of the evidence. Consider all of the circumstances. Use your common sense, experience, knowledge of human nature, and your assessment of what actually happened.

If Edwin Modeste did nothing more than a reasonable person would consider necessary to prevent the assault, or to stop Mr. Ramdeen from continuing or repeating it, in the circumstances known to Mr. Modeste he acted in lawful self-defence.

Even if Mr. Modeste was genuinely mistaken about the facts, as long as he did no more than a reasonable person would have considered necessary to prevent the assault in the circumstances as he believed them to be, Mr. Modeste acted in lawful self-defence.

The evidence of the actions of Brandon Ramdeen and Dexter Regis, and the response by Mr. Modeste and his friends, is relevant to your determination of this issue.

You may consider the evidence that Mr. Modeste and Mr. Bengy had no visible injuries when they were seen later, on June 21^st, 2009. You may consider the injuries to Brandon Ramdeen. You must consider all of the evidence.

If you have a reasonable doubt about whether Mr. Modeste used more force than was necessary to prevent the assault, or the continuation or repetition by Mr. Ramdeen, you must find Mr. Modeste not guilty. Your deliberations on this count would be at an end. [Emphasis added.]

[45] The appellant takes issue with the instruction to consider “the response by Mr. Modeste and his friends”, as well as the instruction that the jury could consider “the injuries to Brandon Ramdeen.” The appellant argues that only his response was relevant, not the response by his friends, and that the trial judge should have instructed the jury instead to consider the injuries to Ramdeen caused by Modeste.

[46] I agree that these passages – read in isolation – could suggest that the inquiry into excessive force relates to the force used by the group, rather than the force used by Modeste. However, when read in context, the above passages would not have misled the jury. The trial judge indicated multiple times that the issue was whether Modeste used more force than was necessary to prevent an assault by Ramdeen or to prevent such an assault from continuing or being repeated. It would have been clear to the jury that its inquiry relates to the force used by Modeste and not the force used by the group.

[47] Further, the actions of the group – in other words, the surrounding circumstances – were relevant to the issue of what level of force a reasonable person in those circumstances would consider necessary. This part of the instruction amounts to no more than a direction to consider the circumstances.

[48] I would reject this ground of appeal.

(b) Did the trial judge err by improperly instructing the jury in regard to consent?

[49] The appellant submits that the trial judge erred in her instruction the jury on consent by telling the jury to consider the stab wounds suffered by Ramdeen. In my view, given that consent was only relevant to whether Bengy and Modeste had agreed to carry out a common unlawful purpose, the jury was not permitted to consider whether Ramdeen consented to the “different offence” constituting the second element of liability under s. 21(2). The jury instruction was confusing as to whether lack of consent could be established if Ramdeen consented to the fight, but not to the stabbing. The trial judge erred in this regard. This instruction could have effectively removed consent from the jury’s consideration.

[50] Consent was relevant here to the first element of liability under s. 21(2): common unlawful purpose. The Crown alleged that Modeste and Bengy’s common unlawful purpose was to assault Ramdeen. If Ramdeen had consented to the fight, and his consent was legally valid, the common purpose could not have been unlawful, because where force is applied with consent, there is no assault. The trial judge correctly explained how consent fit into s. 21(2), stating:

In order to be satisfied that there was a common unlawful purpose between Edwin Modeste and Kimron Bengy, you must be satisfied beyond a reasonable doubt that Edwin Modeste agreed with Kimron Bengy to apply force to Brandon Ramdeen, without the consent of Brandon Ramdeen, knowing that Brandon Ramdeen was not consenting.

[51] The trial judge then instructed the jury that if it was satisfied beyond a reasonable doubt that Modeste and Bengy agreed to apply force to Ramdeen, it must then consider the question of consent, as follows:

Has the Crown proven that Brandon Ramdeen did not consent to the application of force, and that Edwin Modeste knew that he was not consenting?

Lack of consent must be proven by the Crown. In this case, there is some evidence that Mr. Ramdeen approached Mr. Modeste, with some other men, in a confrontational manner. The issue of consent is therefore raised and must be determined by you.

A person can consent to the application of force. For example, if two persons agreed to arm-wrestle, they agreed to the application of force.

Of course, there is a limit to the consent. If one of the two persons were to punch the other person, the consent would not apply to that conduct of punching.

Consent never applies to a case where a defendant intends to cause serious bodily harm, and does cause serious bodily harm, to the other person.

Serious bodily harm in this context means any hurt or injury to the deceased that interferes with his health or comfort, and it is more than merely transient or trifling in nature. The consent of the deceased to fight a defendant is not a defence in those circumstances.

Where, as in this case, there is some evidence that Mr. Ramdeen intended to fight Mr. Modeste, the Crown must prove beyond a reasonable doubt that Mr. Modeste did not reasonably believe that Brandon Ramdeen was consenting to the fight, or that Mr. Modeste intended to cause serious bodily harm.

In determining the honesty of any such belief, you must consider the evidence as a whole, including the reasonableness of any such belief.

Evidence that may support an inference that Mr. Ramdeen was consenting to a fight includes the evidence that it was Brandon Ramdeen that approached Mr. Modeste, the evidence of the various witnesses who saw the fight as to what Mr. Ramdeen did, the evidence of Collins George and Dexter Regis that the men in the group were angry, the evidence that there was a discussion and possibly agreement between the group to look for Edwin, the evidence that they were prepared for a fight and looking for revenge.

However, you must also consider the evidence of witnesses that Mr. Ramdeen was jumped, outnumbered, and kicked and punched while he was down. This evidence might lead you to infer that even if there was initial consent, the consent did not remain, because the force that was applied was intended to cause serious bodily harm, or because it is unlikely that Mr. Ramdeen was consenting to fight five men on his own.

You should consider the injuries to Mr. Ramdeen – the stab wounds and the other injuries to his face and hands. You should remember that a person can consent to one type of fight – for example, a one-on-one fight – and not to another type – for example, a fight where the person is outnumbered.

What is relevant is whether Brandon Ramdeen was consenting to the type of force that you have found that Mr. Modeste and Mr. Bengy agreed to apply to him.

[52] Based on the above instruction, the jury could have been left with the impression that it could determine the consent issue against the appellant based on a finding that Ramdeen did not – or could not legally – consent to being stabbed. In the context of party liability under s. 21(2), Ramdeen’s consent to the stabbing was not relevant. Below, I set out the appropriate approach to consent in the context of liability under s. 21(2), and then I discuss the error in the trial judge’s instruction on consent.

(i) The appropriate approach to consent in the context of liability under s. 21(2)

[53] For the reasons I set out below, in my view, the issue of consent in the context of liability under s. 21(2) requires an assessment only of whether the victim validly consented to the force relating to the common purpose. When determining whether consent was vitiated, a trier of fact should consider only the bodily harm intended as part of that purpose, and the bodily harm caused in pursuit of that purpose. Whether the victim consented to the force forming part of the different, further offence, is not relevant and should not be considered.

[54] Consent played a very particular role in Modeste’s liability under s. 21(2). If Bengy had argued consent, for example, the stab wounds would certainly have been relevant to whether any consent to fight on Ramdeen’s part was vitiated. However, the context with respect to Modeste differs because of the way consent interacts with the elements of liability under s. 21(2) of the Criminal Code. It is helpful first to briefly review the elements of liability under s. 21(2), and the elements of consent.

[55] As stated by this court in Cadeddu, at para. 53, citing Simon, at para. 43, there are three elements to party liability under s. 21(2):

(a) agreement: participation of the party in a common unlawful purpose;

(b) offence: commission of an incidental and different crime by another participant; and

(c) knowledge: foreseeability of the likelihood of the incidental crime being committed. [Emphasis in original.]

Under s. 21(2), the common unlawful purpose must be “different from the offence which is actually charged”: Simpson, at p. 15.

[56] A person can consent to the application of force that without consent, would amount to an assault. However, for public policy reasons, the law vitiates or refuses to recognize consent in certain circumstances. For consent to be vitiated, serious bodily harm must be both: (1) intended; and (2) caused: R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, at paras. 11-12, 18.

[57] To determine whether Modeste was liable as a party to manslaughter under s. 21(2), the jury here was first required to decide whether Modeste and Bengy agreed to apply force to Ramdeen and to assist each other in doing so. Consent was relevant to this issue because if the jury concluded that the appellant and Bengy agreed to apply force to Ramdeen, but Ramdeen validly consented to the application of this force, Modeste and Bengy’s common purpose would not be unlawful, and there would be no basis to find Modeste liable as a party to manslaughter.

[58] The issue of consent, therefore, turned on whether Ramdeen validly consented to the force that Modeste and Bengy agreed to apply; the issue was not whether Ramdeen consented to or was capable of consenting to the force forming the subject of the entire fight. As the stabbing played no part in the agreement between Modeste and Bengy, whether Ramdeen consented to the stabbing was entirely irrelevant.

[59] This approach to the analysis is consistent with the requirement that the unlawful purpose be distinct from the incidental offence for liability to be made out under s. 21(2). In cases like this, where both offences arise out of one fight, the distinction between the common purpose and the incidental offence is often tenuous already. If it were open to a trier of fact to consider the effects of the incidental offence when determining whether the common purpose was unlawful, this could further confuse the two.

[60] In certain factual scenarios, it would likely be obvious to a jury that the incidental offence is not relevant to the lawfulness of a common purpose. For example, imagine an accused is alleged to be party to an aggravated assault under s. 21(2) because she shared a common unlawful purpose to break and enter the victim’s home with the principal offender. The accused might argue that the victim invited her in to his home; she had no common unlawful purpose of breaking and entering. Whether the victim validly consented to the subsequent aggravated assault is obviously, in this case, irrelevant to whether the victim invited the accused in. Putting the assault first, suppose a theft is committed incidental to an alleged assault. Consent to the assault does not turn on whether the victim agreed to give away his property. The two are completely separate offences, and are treated as such.

[61] In my view, the same approach should apply here. Where both offences arise out of one fight, the common unlawful purpose is likely to blend into the incidental offence as the fight escalates. For this reason, trial judges must be cautious to remind juries in any instruction on consent that the offences are distinct. While a jury is entitled to find that a victim withdrew consent partway through the execution of the common unlawful purpose, or that consent was vitiated because serious bodily harm was intended and caused, this analysis must be restricted to the force applied in the execution of the common unlawful purpose. The party did not commit the physical act of the incidental offence. Where the two offences are similar in nature, the trial judge must take special care to ensure the jury does not find lack of consent for the common unlawful purpose based on lack of consent to the incidental offence.

(ii) The error in the trial judge’s instruction on consent

[62] Under the analysis I have outlined above, on the facts of this case, the jury could consider whether Bengy and Modeste intended to cause serious bodily harm as part of their agreement, and whether they caused such harm in relation to that agreement, thereby vitiating any consent by Ramdeen. It could not, however, consider the stab wounds as part of the bodily harm intended and caused in deciding whether Ramdeen consented to the fight.

[63] The trial judge conveyed two concepts to the jury in her instruction on consent. First, she explained that consent to one type of force will not apply if another type of force is subsequently used. She provided the example that consent to arm wrestle does not apply when one arm-wrestler punches the other. She then gave the more pertinent example that consent to a one-on-one fight would not apply to a five-on-one fight. Second, she explained that one cannot consent to the intentional infliction of serious bodily harm.

[64] In the midst of explaining these limits on consent, she expressly instructed the jury to consider the stab wounds to Ramdeen. She then reiterated that a person cannot consent to certain types of force.

[65] It would have been logical for the jury to put these instructions together, and reason that even if Ramdeen initially consented a fist fight, he did not consent to being stabbed, and in any event, could not legally consent to the bodily harm caused by the stabbing. Based on this reasoning, the jury could have concluded that consent was unavailable in the circumstances. While the trial judge referred to the force Bengy and Modeste agreed to apply in the instruction, the reference to the stab wounds in the context in which it was made likely confused the jury.

[66] Because the reference to the stab wounds occurred in the context of the trial judge’s comments on how consent may be vitiated, it would have been reasonable for the jury to conclude, erroneously, that it should consider the stab wounds in determining whether Ramdeen’s consent was vitiated. The stab wounds constituted serious bodily harm caused to Ramdeen. If the jury believed the stab wounds were relevant, and relied on the stab wounds, it could have concluded that because Ramdeen was stabbed serious bodily harm must have been both intended and caused. This factor could have dictated its conclusions on the consent issue.

[67] The trial judge’s instruction was the jury’s only source of information on whether the stabbing was relevant to consent. The trial judge did not correct her instruction or instruct the jury that it was not to consider whether Ramdeen consented to the stabbing. Modeste’s trial counsel simply stated in closing submissions that people cannot consent to “a fight that involves the infliction of serious bodily harm”. The Crown did not address the issue of consent in great detail in closing submissions. As far as the jury was concerned, the stabbing and resulting bodily harm were relevant to the issue of whether Ramdeen consented or could have consented to the fight.

In my opinion, looking at the charge on consent as a whole, the instruction was inadequate. The explicit instruction to consider the stab wounds in this particular context was an error which necessitates this court allowing the appeal.

[68] I would note as well that the “harmless error” branch of the curative proviso in s. 686(1)(b)(iii) does not apply. The Crown here did not argue this court should apply the proviso. An appellate court cannot apply the curative proviso on its own initiative: R. v. Bisson, 2010 ONCA 556, 258 C.C.C. (3d) 338, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 400; R. v. Pétel, 1994 133 (SCC), [1994] 1 S.C.R. 3, at p. 17. Furthermore, even if this court could apply the proviso, in my opinion, it would be unfair to do so without giving the appellant the opportunity to make submissions.

[69] In any event, in the particular circumstances of this case, I would conclude the trial judge’s error was not harmless. For the reasons I have outlined above, the error likely misled the jury about the relevance of the stab wounds to its inquiry into consent. If the jury believed the stab wounds were relevant to consent, this belief could have had the effect of depriving the appellant of the benefit of the defence of consent.

[70] While I would not wish to be taken as saying that consent is generally applicable in cases of fist fights, on the evidence led in this case, there was an air of reality to consent. The evidence on the second fight varied widely, and some of it provided an adequate foundation for this defence.

[71] A defence will have an “air of reality” if there is evidence on each element on which a properly instructed jury acting reasonably could acquit if it believed the evidence. The court must assume that the evidence most favourable to the accused is true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53. The air of reality test is not designed “to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day”: Cinous, at para. 54. Where there is any doubt as to whether the threshold is met, trial judges should resolve that doubt in favour of leaving the defence to the jury: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 410, at para. 22.

[72] In this case, there was evidence on which a properly instructed jury could conclude that Ramdeen sought out and consented to the fight, namely that:

• Ramdeen approached Modeste angrily, accusing him of stabbing James; and

• Ramdeen initiated the physical contact with Modeste either by jumping on him or grabbing him.

[73] There is also an air of reality to the proposition that Ramdeen consent’s was not vitiated. As stated above, consent is vitiated where serious bodily harm is (1) intended, and (2) caused. There are therefore two issues: (1) whether there was an air of reality to the proposition that Modeste did not intend to cause serious bodily harm as part of the common purpose; and (2) whether there was an air of reality to the proposition that serious bodily harm was not caused in relation to the common purpose.

[74] Because the stabbing was not relevant to whether Ramdeen consented to the force forming part of the agreement, there was evidence on which a jury could conclude serious bodily harm was not in fact caused. The expert evidence tended to suggest that most of the remaining injuries to Ramdeen either were not serious or could have been caused when he fell to the ground after being stabbed. A properly instructed jury could have concluded serious bodily harm was not caused as part of the offence for which Modeste and Bengy had formed a common purpose.

[75] Assuming the evidence most favourable to Modeste was true, there was also an air of reality to the suggestion that Modeste did not intend to cause serious bodily harm, based on the evidence of his knowledge and behaviour.

[76] There was evidence on which a jury could conclude that before the second fight started, Modeste believed the first fight had ended without injury and was not aware of James’s stabbing until he was accused of it. This evidence included that he reacted with shock when, after the second fight, Kitson Robertson told him Bengy had stabbed James. If he believed the first fight concluded without any serious bodily harm, this belief could support an inference that he might not have intended or anticipated serious bodily harm in the second fight.

[77] Modeste’s behaviour in the first fight – acting as a peacemaker – combined with the evidence that Ramdeen and the other men approached him, could support an inference that Modeste was not looking for a fight. Taking the evidence most favourable to Modeste, Modeste’s behaviour during the second fight also could have indicated he did not intend to cause serious bodily harm. Some of the witnesses testified that Modeste and Ramdeen were “wrestling” on the hood of a car and did not kick or punch each other, and that Modeste simply pulled at Ramdeem’s hands to get Ramdeen to let go of him. This evidence tended to suggest Modeste was not trying to cause serious bodily harm.

[78] There was also evidence on which the jury could conclude that at the time the second fight began, the circumstances did not indicate serious bodily harm was likely to occur. Dexter Regis, the only person openly carrying a weapon, testified that he walked away from the confrontation after Modeste told him he did not stab James. Collins George testified that while he approached Modeste, he did not get involved in the fight except to separate the fighters.

[79] Courts should be cautious in allowing the defence of consent to go to the jury in cases of fist fights with serious consequences. However, in this case, while the evidence supporting consent was not strong, assuming the evidence most favourable to Modeste to be true, there was enough evidence at least to give rise to a doubt as to whether the defence should go to the jury. As stated above, such doubt should be resolved in favour of the accused.

[80] As there was an air of reality to consent, the error in the trial judge’s instruction could have had an impact on the verdict. Accordingly, I would allow the appeal and order a new trial on this basis.

(c) Did the trial judge err in her instruction to the jury on the use it could make of Kitson Robertson’s prior inconsistent statement?

[81] The appellant argues that the trial judge erred because her instruction on Robertson’s police statement could have led the jury to believe that it was not entitled to rely on the statement for the truth of its contents, even if it concluded Robertson adopted it. In my view, while the appellant’s complaint does not amount to a stand-alone error, it would have been helpful for the trial judge to have given a more comprehensive instruction on the consequences of a finding that Robertson adopted part of his statement.

[82] The trial judge began her instruction on prior inconsistent statements by telling the jury that these instructions would inform how it could use the statements to assess credibility. She then continued:

An out-of-court statement made by a witness which is inconsistent with his or her testimony given under oath at trial may be admitted for the purpose of testing the credibility of the witness. You can only use an out-of-court statement made by a witness to assess his or her credibility, and not for the truth of what was said or written on that previous occasion, except to the extent that it was adopted by the witness as true when he or she gave his evidence at trial.

It is for you to decide whether or not the out-of-court statements are inconsistent with the testimony given by the witnesses here in the courtroom. It is also for you to decide whether or not a witness adopted all or part of the statement when he or she testified before you. [Emphasis added.]

[83] She went on to explain what is required for a witness to adopt a statement, and she gave examples of potentially inconsistent parts of Robertson’s testimony. She concluded her instruction on this point as follows:

[I]t is up to you, members of the jury, to decide whether a prior statement is either inconsistent or is adopted by the witness as true. If you decide that any out-of-court statement is consistent with what the witness said in the courtroom, then you should ignore the statement and simply consider the witness’ evidence as you would the evidence of any other witness. However, if you decide that the out-of-court statement is inconsistent with what the witness said here under oath, then you may use the statement to decide whether or not you believe the evidence of the witness.

Once you decide whether or not you believe the sworn testimony of the witness given in this courtroom, then you must not make any further use of the out-of-court statement, because it is not evidence which proves the matters contained within it.

[84] In my view, the trial judge’s instruction to the jury did not clearly set out that if the jury concluded a witness adopted a prior inconsistent statement, or a portion thereof, the adopted portion of the statement would become part of the witness’s evidence. It would then be for the jury to assess the evidence as a whole, inconsistencies and all. Her instruction suggested instead that statements could be either inconsistent, or adopted. A more thorough instruction would have been helpful here, given the importance of Kitson Robertson’s evidence to the defence and defence counsel’s concern about the instruction in this regard.

[85] When a witness adopts a prior inconsistent statement, the statement becomes part of the witness’s evidence at trial to the extent it is adopted: R. v. McCarroll, 2008 ONCA 715, 238 C.C.C. (3d) 404, at para. 39. The inconsistencies do not disappear when the statement is adopted. It remains for the trier of fact to assess the witness’s evidence as a whole, and to decide what weight to give the evidence in light of the inconsistencies.

[86] The trial judge’s instruction did not give the jury any guidance on this point. As stated above, the trial judge informed the jury, correctly, that it was not entitled to use a prior inconsistent statement for its truth, except to the extent that a witness has adopted it. The trial judge, however, did not go on to explain that once a witness adopts a prior inconsistent statement, that statement becomes part of the witness’s evidence to the extent it is adopted. It could then be relied on for the truth of its contents, just like the rest of the witness’s evidence. The trial judge should have explained that at that point, it would be for the jury to decide how to address the inconsistency, any reasons for the inconsistency, and what weight to give his evidence as a result.

[87] Modeste’s counsel expressed concern after the trial judge read out this part of the charge that the charge did not make it sufficiently clear that the jury could conclude Roberson adopted his police statement on this point, and if it did so, the statement would become part of his evidence.

[88] This evidence was crucial to the defence. Robertson’s evidence was the main evidence on the foreseeability element of liability under s. 21(2). If the jury accepted that as he said in his police statement, Robertson did not tell Modeste that Bengy stabbed James until they were in the car, there was no direct evidence that showed that before the second fight, Modeste knew Bengy had a knife. Similarly, there was no direct evidence showing that he knew James had been stabbed until immediately before the second fight. The absence of this evidence, combined with the evidence of Modeste’s shock upon learning of James’s stabbing, was an important part of the defence case.

Conclusion

[89] In all the circumstances, and for the reasons stated, I would allow the appeal and order a new trial.

“M. Tulloch J.A.”

“I agree. C.W. Hourigan J.A.”

Strathy C.J.O. (Dissenting):

Introduction

[90] I agree with my colleague’s disposition of all grounds of appeal, other than the trial judge’s instruction on consent in relation to s. 21(2) of the Code. As I see no error in that instruction, I would dismiss the appeal.

[91] To explain my reasons, I will: (1) review the Crown and defence theories on s. 21(2) liability; (2) review the trial judge’s instructions on s. 21(2); and (3) summarize the parties’ submissions on this issue. I will then (4) explain why, in my view, the trial judge’s instruction was correct.

(1) The Crown and Defence theories

(a) Crown Theory

[92] The Crown theory, as summarized by the trial judge, was that Modeste, together with Bengy and others, engaged in a common assault on Ramdeen, in which Ramdeen was unlawfully killed in circumstances where Modeste should have foreseen that Ramdeen’s death would be a probable consequence of the assault.

[93] On this theory, Ramdeen approached Modeste and Alexander, accused them of stabbing James, and in response to this accusation, Modeste, Alexander, Julien, Benjamin and Bengy engaged in a five-on-one beating of Ramdeen. At the moment the beating commenced, Modeste and the others formed a common intention to assault Ramdeen. Bengy was part of the group and had a knife that he used to stab Ramdeen in the chest.

[94] Ramdeen’s other injuries, so the Crown theory went, could not be explained by falling on his face, but were the result of being kicked, beaten and punched, as observed by as many as seven witnesses.

[95] Ramdeen did not consent to a fight with five men. Modeste was not acting in self-defence, had not been assaulted by Ramdeen and a five-on-one beating was not a proportionate response to Ramdeen’s actions.

[96] It was reasonably foreseeable that Ramdeen would be unlawfully killed as a result of a five-on-one beating. Ramdeen had accused Modeste and/or Alexander of stabbing James. As Modeste had already assisted in breaking up the fight involving Alexander and James, he ought to have foreseen these consequences.

(b) Defence theory

[97] The defence theory was that the evidence raised a reasonable doubt about how the fight began and whether it was the Ramdeen group that confronted Modeste in a threatening manner to exact retribution for the stabbing of James. This group had the motive, the numbers and the weapons to start a fight. Once the Ramdeen group started the fight, everyone joined in the brief melee. That melee erupted after Ramdeen and his group assaulted Modeste and not the other way around. The absence of injuries below Ramdeen’s neck confirmed that the beating, kicking and punching described by the Crown had simply not occurred.

[98] The defence theory was that even if the jury found that Modeste struck Ramdeen, the evidence raised a reasonable doubt about whether Ramdeen had consented to the fist fight. Even in the absence of consent, the evidence raised a reasonable doubt that Modeste acted in self-defence.

[99] Finally, the defence argued, there was no basis to conclude that Modeste knew or ought to have known that Bengy would fatally stab Ramdeen. His conduct after the fact showed that he was confused, shocked and angry about what happened and this evidence could be used to determine his knowledge and state of mind during the fight.

(2) The trial judge’s instructions on s. 21(2)

[100] As it is my view that the trial judge’s instructions were correct, and provide a complete answer to the appellant’s submissions, it is necessary that I set them out at some length.

[101] The trial judge gave the jury a detailed instruction on the count of manslaughter of Ramdeen under s. 21(2) in relation to the appellant. She provided them with a decision tree concerning this count, as she did with the counts against Bengy. She also provided them with a copy of her instructions. Her draft instructions were reviewed with counsel in advance of the charge and her final instructions incorporated some of the comments made by counsel.

[102] The trial judge began by explaining the basis of liability under s. 21(2), describing the requirements of agreement, offence and knowledge, and referred the jury to the decision tree. She identified the common unlawful purpose as the assault of Ramdeen and explained that the Crown was required to prove that in pursuing the common unlawful purpose, Bengy had committed a different offence, namely unlawfully causing Ramdeen’s death. She explained that the Crown was also required to prove that the appellant knew or ought to have known that a probable consequence of carrying out the assault was that Bengy would unlawfully cause Ramdeen’s death.

[103] I note, parenthetically, that in instructing the jury that the appellant was required to foresee that death would ensue, the trial judge overstated the Crown’s burden on this element, which is foresight of non-trivial bodily harm, not death: R. v. Jackson, 1993 53 (SCC), [1993] 4 S.C.R. 573, at pp. 586-87. This error, corrected later in the instruction, enured to the appellant’s benefit.

[104] The judge then gave a detailed review of each of the three elements of s. 21(2) liability.

[105] She again identified the first element as an agreement to assault Ramdeen and to help each other to do so. She explained that the agreement could arise on the spur of the moment and at the time the offence was committed. She reviewed the circumstances they could consider in determining whether there was an agreement and cautioned them they should consider whether Bengy was on an enterprise of his own, unrelated to any agreement. She told them that in determining whether there was an agreement between the appellant and Bengy, and what it involved, they could consider all the evidence, including their conduct before, at the time of, and after the offence charged was committed.

[106] The trial judge then explained that it is not enough that there be a common goal, the goal must be unlawful. She repeated the definition of assault, which she had given earlier, as meaning “the application of force, directly or indirectly, to another person without their consent.” She explained that force can be justified, and not unlawful, if it is applied with consent, or if it is applied in self-defence.

[107] She then told the jury:

In order to be satisfied that there was a common unlawful purpose between Edwin Modeste and Kimron Bengy, you must be satisfied beyond a reasonable doubt that Edwin Modeste agreed with Kimron Bengy to apply force to Brandon Ramdeen, without the consent of Brandon Ramdeen, knowing that Brandon Ramdeen was not consenting. You must also be satisfied beyond a reasonable doubt that Mr. Modeste was not acting in self-defence.

[108] Summarising the components of the first element of s. 21(2) liability, common unlawful purpose, she told the jury that they must be satisfied: (1) that Modeste and Bengy agreed to apply force intentionally to Ramdeen and to help each other to do so; (2) that Modeste knew that Ramdeen did not consent to the application of force, or that Modeste intended to cause serious bodily harm; and (3) that Modeste was not justified in using force to defend himself.

[109] The trial judge then instructed the jury that they were required to determine each of these elements separately to decide whether there was an agreement to pursue a common unlawful purpose.

[110] She then broke down the three components of the “agreement” element and gave the jury a further explanation of each. She reviewed in detail the evidence relevant to each element.

[111] First, she repeated the Crown’s obligation to prove that the appellant and Bengy agreed to intentionally apply force to Ramdeen and reviewed the evidence they were to consider, including the evidence of the seven witnesses to the brawl, as well as the evidence of the appellant’s words and demeanour after he learned of the stabbing. In the context of this review, the trial judge reminded the jury that “the issue is whether there was an agreement to do something other than the stabbing”.

[112] She then told the jury that if they found the Crown had not proven an agreement to apply force to Ramdeen and to assist each other to do so, they must find the appellant not guilty. If they were so satisfied beyond a reasonable doubt, they would consider the next question: “Has the Crown proven that Brandon Ramdeen did not consent to the application of force, and that Edwin Modeste knew that he was not consenting?”

[113] The trial judge explained that lack of consent must be proven by the Crown. She added that because there was evidence that Ramdeen, along with others, had approached the appellant in a confrontational manner, the issue of consent had been raised.

[114] She explained that a person can consent to the application of force, and used the example of arm wrestling. As this particular part of the instruction is impugned by the appellant, I will quote verbatim:

A person can consent to the application of force. For example, if two persons agreed to arm-wrestle, they agreed to the application of force.

Of course, there is a limit to the consent. If one of the two persons were to punch the other person, the consent would not apply to that conduct of punching.

Consent never applies to a case where a defendant intends to cause serious bodily harm, and does cause serious bodily harm, to the other person.

Serious bodily harm in this context means any hurt or injury to the deceased that interferes with his health or comfort, and that is more than merely transient or trifling in nature. The consent of the deceased to fight a defendant is not a defence in those circumstances.

Where, as in this case, there is some evidence that Mr. Ramdeen intended to fight Mr. Modeste, the Crown must prove beyond a reasonable doubt that Mr. Modeste did not reasonably believe that Brandon Ramdeen was consenting to the fight, or that Mr. Modeste intended to cause serious bodily harm.

In determining the honesty of any such belief, you must consider the evidence as a whole, including the reasonableness of any such belief.

[115] The trial judge then reviewed the evidence that might support the inference that Ramdeen was consenting to a fight. She instructed the jury:

Evidence that may support an inference that Mr. Ramdeen was consenting to a fight includes the evidence that it was Brandon Ramdeen that approached Mr. Modeste, the evidence of the various witnesses who saw the fight as to what Mr. Ramdeen did, the evidence of Collins George and Dexter Regis that the men in the group were angry, the evidence that there was a discussion and possibly agreement between the group to look for Edwin, the evidence that they were prepared for a fight and looking for revenge.

However, you must also consider the evidence of witnesses that Mr. Ramdeen was jumped, outnumbered, and kicked and punched while he was down. This evidence might lead you to infer that even if there was initial consent, the consent did not remain, because the force that was applied was intended to cause serious bodily harm, or because it is unlikely that Mr. Ramdeen was consenting to fight five men on his own.

You should consider the injuries to Mr. Ramdeen – the stab wounds and the other injuries to his face and hands. You should remember that a person can consent to one type of fight – for example, a one-on-one fight – and not to another type – for example, a fight where the person is outnumbered.

What is relevant is whether Brandon Ramdeen was consenting to the type of force that you have found that Mr. Modeste and Mr. Bengy agreed to apply to him.

You should consider all of the evidence with respect to the start of the fight, the timing of Mr. Ramdeen’s involvement, the timing of Mr. Modeste’s involvement, and the level of violence.

Remember that you may accept, some, none or all of any witness’ evidence in deciding this issue.

If the Crown has not proven beyond a reasonable doubt that Mr. Ramdeen was not consenting, and that Mr. Modeste knew that Mr. Ramdeen was not consenting to the force that Mr. Modeste and Mr. Bengy agreed to apply, you must find Mr. Modeste not guilty. Your deliberations on this count would be at an end.

If the Crown has proven beyond a reasonable doubt that Mr. Ramdeen did not consent to the type of force that Mr. Modeste and Mr. Bengy agreed to apply to him, that Mr. Modeste knew that he was not consenting, or if the Crown has proven that Mr. Modeste intended to cause serious bodily harm to Mr. Ramdeen and did, alone or with others, cause serious bodily harm, there can be no consent in law. You would then move on to consider the next question.

[116] After dealing with consent in relation to s. 21(2), the trial judge instructed the jury on the second way in which the application of force could be justified, namely if the force was applied in self-defence. She told them that self-defence would only arise if they had concluded that Modeste intentionally applied force to Ramdeen without his consent. If Modeste’s goal in applying force was to defend himself, he would not have been pursuing a common unlawful goal. She then proceeded to instruct the jury on self-defence in relation to the s. 21(2) count.

[117] Following this instruction, the trial judge turned to the second element of liability under s. 21(2), which she explained “requires proof that Kimron Bengy, but not Edwin Modeste, caused the death of Brandon Ramdeen by an unlawful act, and did so in carrying out the original agreement.” She explained again that party liability under s. 21(2) is based on “two or more persons agreeing to one unlawful purpose, where one of the participants commits a different offence”, which she explained in this case was either murder or manslaughter. She added:

The offence that is committed must be a crime other than the one that those involved agreed on in the first place. The offence committed, in other words, must be one that the members of the original agreement did not set out to commit, but one that still took place in the course of carrying out their original agreement or plan.

[118] The trial judge then reviewed the evidence on this issue, concluding that if the jury was satisfied beyond a reasonable doubt that Bengy unlawfully caused Ramdeen’s death, they were required to determine whether he did so in the course of pursuing the common goal of assaulting Ramdeen.

[119] Finally, the trial judge told them that they must consider the last element, whether Modeste knew or ought to have known that Bengy, in carrying out the original agreement to assault, would carry out an act that was unlawful and which a reasonable person would think likely to put another person at risk of harm or injury that is more than brief or minor. After explaining this requirement, and reviewing some of the evidence they might consider, the trial judge told the jury that if they were satisfied beyond a reasonable doubt that the appellant knew or ought to have known that the commission of the offence of murder or manslaughter by an unlawful killing of Ramdeen by Bengy would be a probable consequence of carrying out the original agreement to assault Ramdeen, they were required to find the appellant guilty of manslaughter.

(3) The parties’ submissions on appeal

[120] The appellant asserts two errors in the instruction on consent.

[121] His first submission is that the trial judge effectively told the jury that there could be no consent to punching by saying:

A person can consent to the application of force. For example, if two persons agreed to arm-wrestle, they agreed to the application of force.

Of course, there is a limit to the consent. If one of the two persons were to punch another person, the consent would not apply to that conduct of punching.

[122] The appellant submits that by saying “the consent would not apply to that conduct of punching” the trial judge was telling the jury that someone cannot consent to a fistfight.

[123] The appellant’s second submission was that by telling the jury they could consider the stab wounds and other injuries Ramdeen suffered, the trial judge took consent away from the jury, because Ramdeen could not consent to being stabbed.

[124] The Crown submission was that the trial judge had to focus the jury’s attention on all the evidence, including the stabbing, because the evidence was all over the map as to who entered the fray, when they did so and when and how the victim’s injuries were sustained. There was even a suggestion that the stabbing took place before the other injuries. The trial judge was required to craft an instruction that focused the jury’s attention on all the evidence.

(4) Analysis

[125] An accused is guilty of assault under s. 265(1)(a) of the Code if “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”.

[126] Therefore, in order to prove that Modeste and Bengy’s common purpose was unlawful (i.e. contrary to s. 265 of the Code), the Crown had to establish that the force applied in pursuing the common purpose was applied without Ramdeen’s consent. If Ramdeen had consented to the force that Modeste and Bengy agreed to apply, and his consent was not vitiated, then the common purpose would not be unlawful, as it would not constitute an assault.

[127] The unlawful purpose must be different from the offence that is actually charged: R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, at p. 15; R. v. Young, 2009 ONCA 549, 251 O.A.C. 18. This distinction is required because of the “fundamental difference” between party liability under s. 21(2) and liability as an aider or abettor under s. 21(1):Young, at para. 13. In my view, the jury instruction was clear in this respect.

[128] Although my colleague’s reasons do not address the appellant’s first submission, I will deal with it briefly.

[129] While it would have been an error to instruct the jury that there could be no consent to a punch, the trial judge did not give that instruction. The example of arm wrestling was used in the context of telling the jury that while a person could consent to the application of some force, it did not mean that they were consenting to a greater amount of force. In the context of the detailed instructions they were given, I do not see how the jury could have understood that the judge was telling them there could be no consent to a fistfight. The example was simply used to illustrate what she later told the jury – a person can consent to one type of fight – a one-on-one fight, for example – but it did not mean that they were consenting to a five-on-one fight. This instruction was apt, because there was evidence that the fight might have been as many as five-on-one against Ramdeen. The appellant conceded that if this was the meaning of her instruction, there was no error. In my view, that was the meaning of the instruction and I see no error.

[130] I now turn to the appellant’s second submission – that the trial judge took consent away from the jury by telling them they could consider the stab wounds.

[131] I do not agree that because the trial judge told the jury to consider the stab wounds they could have found that Ramdeen did not consent to being stabbed and could have understood this to be a sufficient basis to determine the consent issue against the appellant. Nor could they have concluded that because Ramdeen was stabbed serious bodily harm must have been intended and caused by Modeste, thereby removing consent from their consideration.

[132] In my view, the trial judge kept the jury firmly focused on the distinction between the common unlawful purpose and the “different offence”, making it clear to them that the defence of consent applied to the common unlawful purpose. Her instructions on consent were, both structurally and contextually, part of her instruction on the common unlawful purpose and the jury could not have been confused into thinking that the discussion of consent was in relation to the stabbing by Bengy.

[133] The trial judge told the jury that “[w]hat is relevant is whether Brandon Ramdeen was consenting to the type of force that you have found that Mr. Modeste and Mr. Bengy agreed to apply to him” (emphasis added). She did not suggest the stabbing was force that Modeste and Bengy agreed to apply. The instruction on consent was directed only to the first element of s. 21(2) liability and the jury would have understood this.

[134] The trial judge properly instructed the jury that consent would not be a defence if the force applied (a fight where the person is outnumbered) exceeded the force that Ramdeen consented to (a one-on-one fight). She also properly instructed them that consent never applies to the application of force that is intended to cause, and does cause, serious bodily harm: R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, at paras. 11-12; R. v. McDonald, 2012 ONCA 379, 292 O.A.C. 188, at paras. 26-28, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 359. She made this clear to the jury when she told them:

If the Crown has proven beyond a reasonable doubt that Mr. Ramdeen did not consent to the type of force that Mr. Modeste and Mr. Bengy agreed to apply to him, that Mr. Modeste knew that he was not consenting, or if the Crown has proven that Mr. Modeste intended to cause serious bodily harm to Mr. Ramdeen and did, alone or with others, cause serious bodily harm, there can be no consent in law.

[135] In determining whether the force applied exceeded the consent given, or whether the appellant intended to cause and did cause serious bodily harm, the jury was properly instructed to consider all the evidence. Indeed, in the pre-charge discussions, counsel for the appellant suggested that the jury could be instructed to consider the timing of Ramdeen’s injuries and whether Modeste participated in the fight after the stab wounds were inflicted.

[136] It was in this context that the trial judge instructed them that they could consider: (a) the evidence that Ramdeen was “jumped, outnumbered, and kicked and punched while he was down”; (b) the “stab wounds and the other injuries to his face and hands”; and (c) “all of the evidence with respect to the start of the fight, the timing of Mr. Ramdeen’s involvement, the timing of Mr. Modeste’s involvement and the level of violence.”

[137] This evidence was relevant to determine whether the force agreed to be applied exceeded the force to which Ramdeen consented and to determine whether Modeste intended to cause serious bodily harm and whether serious bodily harm was in fact caused. The stabbing, when taken together with all the evidence referred to by the trial judge, including the evidence of Ramdeen’s other injuries, was part of the evidence that the jury was entitled to use to decide how the fight unfolded. Their determination of how the fight unfolded is the basis for their determination of whether the force that the appellant and Bengy agreed to apply exceeded what Ramdeen consented to and whether the appellant intended to cause serious bodily harm.

[138] The jury would have understood that the issue was not whether Ramdeen consented to the stabbing (which the instruction made clear he could not), but whether the level of violence of the assault, as evidenced by the stab wounds and Ramdeen’s other injuries, exceeded what he had consented to or evidenced a common intention shared by the appellant and Bengy to cause serious bodily harm.

[139] For these reasons, it is my view that the trial judge made no error and I would dismiss the appeal.

Released: “GRS” JUNE 8, 2015

“G.R. Strathy C.J.O.”