Court of Appeal for Ontario

DATE: 20230405 DOCKET: C69647

Doherty, Feldman and Brown JJ.A.

BETWEEN

His Majesty the King Respondent

and

Xue Mao Gong Appellant

Counsel: Jeff Marshman, for the appellant Samuel G. Walker, for the respondent

Heard: March 3, 2023

On appeal from the conviction entered by Justice Jonathan Dawe of the Superior Court of Justice on January 29, 2021, with reasons reported at 2021 ONSC 619.

Feldman J.A.:

[1] The appellant was convicted of manslaughter as a party to a common unlawful purpose under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] He participated in the planning and attempted execution of a robbery of an illegal gambling club. [1] His role in the robbery included planning, recruitment, dropping off a participant, surveillance, and phone contact with the participants prior to the attempted break-in. However, after dropping off the “break-in man” and leaving the gambling club, he stopped responding to attempts to contact him by cell phone. The appellant was later found sleeping in his car. The robbery attempt was a failure, and eventually one of the participants shot and killed one of the owners of the gambling club after he exited the club.

[3] The appellant was charged as a party to first degree murder and kidnapping. Following a judge alone trial, he was acquitted of first degree murder and the included offence of second degree murder. He was also acquitted of kidnapping. However, he was convicted of manslaughter as a party and sentenced to six years’ imprisonment.

[4] He appeals his conviction based on the submission that his conviction stretches the extent of party liability under s. 21(2) beyond its reach in circumstances where the trial judge commented that the shooter possibly acted out of frustration or anger. I do not agree with that submission. For the following reasons I would dismiss the appeal.

Factual Background

[5] The appellant was a regular customer of an illegal gambling club in Scarborough, Ontario known as the “113”. The owners were Kongwu Wang and Hao Chen.

[6] The offence took place on the evening of November 6, 2016 and early morning of November 7, 2016. In the weeks leading up to that night, the appellant took a number of steps in preparation for carrying out the robbery of the 113. He purchased two prepaid SIM cards, registered under a fictitious name and address, for use during the robbery as “burner” phones. He also helped to pick up an old Ford Freestar van (“the crime van”), obtained for $1000 and which could be abandoned afterward if necessary.

[7] The appellant was in regular contact with the other perpetrators, Qin Long Xue and Qiao Xi Zeng, in the weeks leading up to the offence as well as on the night of the offence, and he alone was in contact with one of the co-perpetrators, Jessy Hardwick, who brought in two other unknown men. It was Mr. Hardwick and the others he brought in who appeared to be responsible for the kidnapping of Mr. Chen and the shooting and killing of Mr. Wang. The trial judge concluded that the appellant recruited Mr. Hardwick for the robbery.

[8] At 10:46 p.m. on November 6, the appellant went to the 113 gambling club. He stayed until 11:18 p.m., but did not gamble. He was driving a black Volkswagen sedan. At 12:00 a.m., the crime van arrived and parked in the lot outside the club. It did not move for 5 hours, and the security videos do not record anyone getting in or out of it. The trial judge concluded that it was Mr. Hardwick and his two recruits who were inside the crime van. Over the 5 hour period, Mr. Hardwick’s cell phone was in nearly continuous contact with the appellant, using one of the SIM cards he had purchased for a burner phone.

[9] At 12:19 a.m. the appellant returned in his black Volkswagen sedan and parked near a fence, watching the 113 gambling club until he left at about 3:00 a.m. when Mr. Xue took over observation. The robbery plan was set in motion shortly after 5:00 a.m. The appellant pulled up in his black Volkswagen sedan allowing the “break-in” man to exit the passenger side with a long screwdriver or prybar and approach the 113 gambling club. The appellant then drove away, while three men wearing masks and hoods got out of the crime van and joined the break-in man approaching the club. After the break-in man forced open the outer door of the 113 gambling club and saw the inner door closed, the four men all retreated. The break-in man was picked up by Mr. Xue, while the others got back into the crime van and drove away, returning 13 minutes later at 5:23 a.m.

[10] Beginning at 5:11 a.m., the appellant stopped responding to phone calls from members of the perpetrator group. A local resident noticed the black Volkswagen sedan parked outside a house at around 6:00 a.m. At 8:30 a.m., after noticing the appellant slumped over the steering wheel, the resident called 911. The appellant was woken by the paramedics who attended in response to the 911 call. The trial judge found that the appellant was not aware of what occurred after he drove away from the 113 gambling club.

[11] What happened was that Mr. Chen was called back to the club by Mr. Wang who told him about the attempted break-in. When Mr. Chen arrived and approached the club, two men came out of the crime van, one brandishing a handgun. When Mr. Chen tried to run away, the crime van followed him. He soon stopped and surrendered. He testified that the driver was pointing a handgun at him out the window of the crime van, and that the men chasing him took his cell phone, keys, and some cash, then forced him into the crime van and handcuffed him.

[12] At the same time as Mr. Chen was being kidnapped, Mr. Wang and a man with a meat cleaver came out of the 113 gambling club, looked around for about a minute, when the crime van returned. The shooter jumped out of the crime van and ran toward them holding a handgun. The trial judge commented that the shooter may have been hoping to follow the men back into the club or he may have acted spontaneously.

[13] Mr. Wang and the man with the meat cleaver ran in different directions. The shooter first followed the man with the meat cleaver and shot at him but missed. He then turned to Mr. Wang and may have told him to “get the f… down”, but Mr. Wang continued running and the shooter shot him in the lower abdomen. The crime van pulled up next to Mr. Wang and he was bundled inside. At the same time Mr. Chen was able to get out and run away. The men in the crime van, one of whom was Mr. Hardwick, dumped Mr. Wang on the road a few kilometres away then drove to the Scarborough Bluffs area of Toronto, Ontario where they set the crime van on fire. Mr. Wang’s body was found a few minutes later by a passer-by. Paramedics who attended the scene determined that Mr. Wang was dead.

Findings by the trial judge

[14] The trial judge gave lengthy, detailed reasons (63 pages) describing the evidence and making findings of fact and law. The evidence was largely circumstantial, consisting in large part of cell phone records and security video recordings.

[15] The trial judge made the following findings with respect to the appellant’s knowledge of and involvement in the criminal enterprise of robbery that was planned and attempted by the perpetrators:

(1) The appellant knew what specific crime was being planned and, in fact, instructed Mr. Hardwick on the details;

(2) The appellant knew, or ought to have known, that his confederates would be carrying weapons;

(3) The appellant knew, or ought to have known, that the group expected to encounter at least some token resistance and were prepared to use force likely to cause more than trivial or transitory bodily harm to overcome it;

(4) The appellant took preparatory steps for the criminal enterprise, including purchasing two burner SIM cards, picking up the crime van, and enlisting and instructing Mr. Hardwick; and

(5) The appellant assisted the criminal enterprise as it was being carried out, including by surveilling the 113 gambling club for several hours while maintaining a lengthy phone communication with Mr. Hardwick and delivering the break-in man to the front of the club.

[16] In the course of making his findings of what occurred, the trial judge commented that it was reasonably possible that “the shooter fired indiscriminately at both Mr. Wang and the other man simply out of frustration or anger over the failure of the robbery plan”.

[17] At trial, the defence did not dispute that the appellant was a knowing participant in the robbery. The dispute was whether the appellant had any criminal responsibility for the killing or the kidnapping, as a party under s. 21(2) of the Criminal Code.

[18] The trial judge rejected the Crown’s position that the appellant was guilty of first degree murder. He also rejected a conviction for the included offence of second degree murder on the basis that there was insufficient evidence that the appellant had subjective knowledge that the commission of murder would be a probable consequence of carrying out the common unlawful purpose. In addition, the Crown at trial conceded that the appellant should be acquitted of kidnapping.

[19] The trial judge next considered whether the appellant was guilty of manslaughter as a party under s. 21(2) of the Criminal Code. He set out that to be guilty of manslaughter under s. 21(2), where one perpetrator kills someone while attempting to carry out the common unlawful purpose, it is sufficient if the party “‘knew or ought to have known’ that it would be ‘a probable consequence of carrying out the common purpose’ that someone would suffer bodily harm that was ‘more than trivial or transitory’.”

[20] Therefore, he continued, the burden of proof on the Crown was to establish “beyond a reasonable doubt that a reasonable person in [the appellant’s] position would have foreseen that it was probable that someone would suffer a non-trivial bodily injury as a consequence of the commission or attempted commission of the common unlawful purpose.”

[21] The trial judge rejected the appellant’s first argument that the evidence did not rule out the possibility that the common unlawful purpose was merely theft, not robbery, to be committed after the 113 gambling club was closed and everyone had left. On that argument, it would follow that if that had been the case, it would not have been objectively reasonable to foresee bodily harm.

[22] The trial judge gave four reasons for rejecting that argument. First, it was not reasonable for the appellant and his co-perpetrators to expect Mr. Chen and Mr. Wang to leave large sums of money in the club after they left at the end of a night of business, particularly since the club had been broken into after hours only a few days earlier. Therefore, the plan contemplated robbery of the owners as opposed to just burglary.

[23] Second, the reasonable explanation for bringing in the outsiders, Mr. Hardwick and his two confederates, would have been because they were not known by the owners, whom they expected to confront in a robbery.

[24] Third, the fact that handguns and handcuffs were brought by Mr. Hardwick and his crew, who were recruited by the appellant, indicates that they anticipated a confrontation with the people inside the 113 gambling club. The trial judge concluded that the appellant must have known that the participants would be armed with weapons of some sort, but it was possible that he was not aware that at least one of the participants carried a loaded handgun.

[25] Fourth, the security video from 5:09 a.m. – when the appellant dropped off the break-in man then drove away – showed that he saw the break-in man and the men from the crime van heading towards the club and that Mr. Wang’s car was still parked outside. Therefore, the appellant would have known that there was at least one person in the club. As a result, it was objectively foreseeable that someone would probably suffer bodily harm when the attempt to commit the offence was carried out, because they would probably use force that was likely to cause more than trivial harm if they were to encounter resistance.

[26] The appellant’s second argument was that once the original break-in plan failed after the appellant drove away and was not answering his phone, when the perpetrators regrouped and came back that constituted a new and different plan to which the appellant was not a party.

[27] The trial judge rejected that argument as well. He found that the co-perpetrators’ actions after they regrouped and returned to the club supported the conclusion that they were pursuing the original objective and not a new or different one.

[28] The trial judge therefore found the appellant guilty of manslaughter as a party under s. 21(2) of the Criminal Code.

Issue on Appeal

[29] The core issue on the appeal is whether the trial judge erred in law and stretched the ambit of s. 21(2) of the Criminal Code beyond its reasonable limits by finding the appellant guilty as a party for the actions of the shooter, when the trial judge could not rule out that the shooter possibly acted out of frustration or anger that the common purpose had been foiled.

Analysis

[30] Section 21(2) of the Criminal Code 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.

[31] In interpreting and applying s. 21(2), courts have recognized that this section extends liability beyond the party liability described in s. 21(1), where a person may be liable for participating in an offence either as a principal, an aider, or an abettor. Section 21(2) expands party liability for a person who forms an intention together with another to carry out an unlawful purpose, to liability for another offence that is perpetrated by the other person while carrying out the planned unlawful purpose, where the first person knew or should have known that the other person would likely commit the second offence in pursuing the common purpose: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 39-42; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at paras. 60-61. Liability for the offence committed in pursuit of the unlawful purpose may thus be extended to persons whose participation in the offence would not be captured by s. 21(1).

[32] There are three components to party liability under s. 21(2) that must be proved by the Crown: 1) agreement – by the party to participate in a common unlawful purpose; 2) offence – another participant commits a different offence while carrying out the original unlawful purpose; 3) knowledge – reasonable foreseeability of the probability of the incidental crime being committed: R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at paras. 53, 61; Simon, at para. 43; Srun, at paras. 61-64.

[33] For manslaughter, as opposed to first or second degree murder, the words “or ought to have known” in s. 21(2) are operative and signify that the objective test for the knowledge requirement for party liability applies. The Crown’s burden is to demonstrate that a reasonable person in all the circumstances knew or ought to have known that a probable consequence of pursuing the common purpose was that bodily harm that is neither trivial nor transitory would be caused to another. A conviction for manslaughter under s. 21(2) does not require foreseeability of death, but only foreseeability of harm that is not trivial or transient: R. v. Jackson, [1993] 4 S.C.R. 573, at paras. 32-33; R. v. Creighton, [1993] 3 S.C.R. 3, at para. 12.

[34] The appellant agreed that the first component of the test, the agreement to carry out an unlawful purpose, likely robbery, was met. He argues that s. 21(2) could not be applied to him in this case, however, because the shooting of Mr. Wang was an independent act of the shooter that bore no rational connection with the common purpose that he had agreed to.

[35] Looked at in that way, the appellant submits that the trial judge made two errors in his application of the other two components of s. 21(2). First, he erred in finding that the shooting death of Mr. Wang was a reasonably foreseeable probable consequence of the common purpose (the “knowledge” requirement). Second, he erred in implicitly finding that the shooting of Mr. Wang was committed in carrying out the common purpose (the “offence” requirement).

(a) The knowledge requirement

[36] For the knowledge requirement, the appellant submits that what had to be reasonably foreseeable was not the probability of non-trivial bodily harm in general, but of the particular offence that occurred. He analogized to the case of R. v. Koroma, 2012 ONSC 4397, where Code J. rejected party liability under s. 21(2), stating:

There is a reasonable possibility that Cox decided to shoot Berkedle on the spur of the moment and that he and Koroma had reasonably anticipated committing nothing more than an armed robbery without actual violence. I agree with Ms. Israel that a deliberate shooting in the crowded mall was extraordinarily risky and perhaps, not foreseeable. These reasonable possibilities are a proper basis for reasonable doubt. See: R. v Finlay and Grellette (1985), 23 C.C.C. (3d) 48 at p. 58 (Ont. C.A.).

[37] The issue in Finlay and Grellette was not the extent of party liability, but the fact that a jury charge should make clear that reasonable possibilities (not just probabilities) in favour of the accused can give rise to a reasonable doubt. Applying the “possibility” standard from Finlay and Grellette, on the particular facts of the Koroma case, Code J. was not satisfied beyond a reasonable doubt of the knowledge requirement under s. 21(2), that the harm that occurred was reasonably foreseeable. He found that “a deliberate shooting in the crowded mall was extraordinarily risky and, perhaps, not foreseeable”.

[38] The appellant argues that the shooting of Mr. Wang was even more remote and less foreseeable than the shooting in Koroma, based on the following factors: there was no direct evidence that the appellant knew that any of the others had a firearm (in addition there was no evidence that he believed that the other perpetrators were particularly violent); there was no evidence of any grievance between the parties; the appellant’s physical involvement in pursuing the common purpose ended before the others executed the plan; unbeknownst to the appellant, the common purpose was initially foiled causing the perpetrators to leave, regroup, and return, then commit the kidnapping and shooting, which he characterizes as unforeseeable. And like in Koroma, the trial judge found that it was reasonably possible that the shooter may have acted for no reason or out of frustration that the common purpose had failed.

[39] I would not give effect to the submission that the trial judge erred by finding that the shooting of Mr. Wang was a reasonably foreseeable, probable consequence of carrying out the common purpose of robbing the gambling club. The trial judge specifically found that the appellant knew that the co-perpetrators would be entering the club when others were inside, and he knew they were armed. On that basis, it was reasonably foreseeable that resistance to the robbery would be met with the violence necessary to complete the common purpose.

[40] The fact that the shooting took place outside the club rather than inside and the trial judge’s comment that shooter may have acted out of frustration or anger also do not detract from the foreseeability of the bodily harm. The circumstances that robbers encounter can be a surprise – they are unpredictable, as are the reactions to those unexpected circumstances: R. v. Reid (1975), 62 Cr. App. R. 109 (C.A.), at p. 112, quoted in R. v. Jackson (1991), 9 C.R. (4th) 57 (Ont. C.A.), at para. 127, aff’d [1993] 4 S.C.R. 573. In this way, s. 21(2) can impose liability on co-perpetrators for crimes which occur when something goes wrong in the carrying out of the common unlawful purpose – as is often the case with robberies. The requirement is not that the unplanned offence occurs in a particular or expected way, but that the probability of it occurring in some way while the planned offence was being carried out, was reasonably foreseeable.

[41] In Jackson, McLachlin J. concluded at para. 33 that a person could be found guilty of manslaughter under s. 21(2) where “a reasonable person in all the circumstances would have foreseen at least a risk of harm to another as a result of carrying out the common intention”. In brief concurring reasons, Lamer C.J., put it this way at para. 47: “[A]n accused can be convicted of manslaughter under s. 21(2) of the Criminal Code, if the accused, having formed an intention in common to carry out an unlawful purpose and to assist the perpetrator therein, knew or ought to have known that a probable consequence of carrying out the common purpose was the carrying out by the perpetrator of a dangerous act which a reasonable person could recognize as creating the risk of bodily harm which is neither trivial nor transitory.”

[42] I accept the submission of the Crown that the Supreme Court in Jackson does not suggest that the foreseen risk must be of the specific dangerous act that actually occurred and constituted the unplanned offence.

[43] In that regard, I agree with the Saskatchewan Court of Appeal, affirmed by the Supreme Court for the reasons of Richards C.J., in R. v. Natewayes, 2015 SKCA 120, 467 Sask. R. 308, at paras. 20-21, aff’d 2017 SCC 5, [2017] 1 S.C.R. 91, that the application of s. 21(2) does not require the harm to “be foreseeable in relation to a specific identifiable individual.” Nor does the specific mode of harm have to be foreseen: R. v. Vang (1999), 21 C.R. (5th) 260 (Ont. C.A.), at paras. 16-18.

[44] Applying these principles, the trial judge made no error in finding that by agreeing to participate in the robbery of the gambling club, it was reasonably foreseeable that someone would probably suffer bodily harm that was more than trivial or transitory, and that the knowledge requirement under s. 21(2) was met.

(b) The offence requirement

[45] The appellant also challenges the applicability of s. 21(2) on the basis that the offence of manslaughter was not committed in carrying out the common unlawful purpose, but was instead an independent act of the shooter that was beyond the scope of the plan. This argument encompasses both the “offence” component of s. 21(2) party liability and in addition, the foreseeability component. If the offence occurred beyond the carrying out of the unlawful purpose, it was also not a foreseeable consequence of carrying out that purpose.

[46] The appellant focuses in particular on the discussion by the trial judge of the fact that he could not discern the motive of the shooter and that it may have been out of frustration or anger over the failure of the plan. The appellant effectively submits that these comments amount to findings of fact that the shooter acted independently and outside the scope of the common purpose and its potential sequalae.

[47] I do not view this discussion by the trial judge of what may have been going through the shooter’s mind as a finding of fact. At most it forms part of the narrative of the judge’s consideration of the evidence of the events and their potential significance. The trial judge ends up concluding and therefore finding that, whatever the shooter’s motive, his actions were a foreseeable consequence of carrying out the common unlawful purpose to which the appellant was a party:

However, I am satisfied on the evidence here that when the remaining plotters returned to 113 after the abortive 5:09 a.m. break-in attempt, they were still intending to carry out their original objective, whatever it was: that is, either robbing the 113 gambling club or kidnapping Mr. Wang. I do not think the evidence here reasonably supports the possibility that they came back to the plaza planning to do something fundamentally different, such as robbing bystanders at random. To the contrary, I think the plotters’ actions after returning to the plaza support the conclusion that they were still pursuing their original objective, even though they had been forced to improvise new and different ways of actually trying to achieve it. Having already invested many hours devising and carrying out an elaborate plan to do something connected to 113, I do not think they would have contented themselves with merely robbing bystanders, none of whom could reasonably be expected to have much on them.

In these circumstances, the remaining plotters’ actions after Mr. Gong left the scene can properly be viewed as falling within the scope of the original common enterprise, and he can properly be held criminally liable under s. 21(2) for the objectively foreseeable consequences of their actions when these consequences materialized, even if Mr. Gong could not have reasonably foreseen exactly how events would transpire after he left.

[48] In R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 41, van Rensburg J.A. explained the offence component of s. 21(2) party liability as an “incidental offence” which “although not intended by the accused, must nonetheless be related to the original unlawful purpose.” She also quotes with approval the suggestion by V. Gordon Rose in Parties to an Offence (Toronto: Carswell, 1982), at p. 72, that the action by the offender would be outside the ambit of the section if it was the result of a “supervening causative event wholly outside the agreed plan”: Patel, at para. 41.

[49] Because there are a number of ways that one could define the relationship between the unplanned offence and the planned unlawful purpose, the definitional choice may have the effect of broadening or narrowing the necessary connection between the two. In my view, it is clear that in this case, no matter the degree or nature of the connection between the planned offence and the incidental offence that occurred while carrying out the planned offence, the shooting of Mr. Wang occurred in carrying out the original criminal enterprise.

[50] Mr. Wang and Mr. Chen were the owners of the 113 gambling club. Once the perpetrators returned to the scene after facing what they believed was a locked inner door, they attacked both men after they emerged from the club. Those attacks were connected to the original intended purpose of robbery. Once both men were removed as obstacles to the robbery, and using the keys they had obtained from Mr. Chen, they could have proceeded to complete the plan. They were prevented from doing so by how the events unfolded: Mr. Chen escaped and Mr. Wang was dying.

[51] On the facts as found by the trial judge, the shooting was situationally and temporally very closely connected to the carrying out of the common unlawful purpose. There is simply no evidence to suggest that, although the shooter shot the victim in the course of carrying out the common unlawful purpose of the robbery, he did so for some purpose or reason, which could take the shooting outside of the scope of the non-shooter’s liability as described in s. 21(2) of the Criminal Code.

[52] I would therefore not give effect to this submission.

Conclusion

[53] I would dismiss the appeal.

Released: April 5, 2023 “D.D.” “K. Feldman J.A.” “I agree. Doherty J.A.” “I agree. David Brown J.A.”

[1] The exact nature of the common purpose involving the appellant and his confederates was not determined by the trial judge. The trial judge identified the common purpose as being “most likely” the robbery of the illegal gambling club. However, the trial judge noted that the common purpose could also have been to kidnap an owner of the club. For convenience, the common purpose will be referred to as the robbery of the illegal gambling club throughout these reasons.