WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY —(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Johnson, 2019 ONCJ 93

DATE: 2019 02 15

COURT FILE No.: Barrie 177215

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAHMYLE JOHNSON

Before Justice N. Dawson

Heard on January 3, 4, 11, 2019

Reasons for Judgment released on February 15, 2019

Mary Anne Alexander and Kristin Smyth..................................... counsel for the Crown

Alison Craig................................................... counsel for the accused Jahmyle Johnson

Dawson J.:

[1] On April 10^th, 2017 two men entered Mr. Hal Hake’s home. Mr. Hake discovered this when his bedroom was entered by one of the men. This man was wearing a mask and had a gun. The other man who stood outside the bedroom door was not masked. Mr. Hake, who owns a jewelry store, was accosted in his room by the individual with the gun. A demand was made for jewelry. A gun was produced. Mr. Hake was hit. Mr. Hake called out to his stepdaughter, Madelyn Garvey, to call the police or call 911. Ms. Garvey was in her bedroom next to Mr. Hake’s room. The second non-masked man who was observed by Mr. Hake in the hallway outside his room went to Madelyn Garvey’s room. Evidence was presented that the unmasked man commanded her to crouch down and grabbed her cell phone from her hand. Mr. Hake and the gunman entered her room and there was a struggle. There was evidence presented that the struggle involved both men. Mr. Hake managed to push the two men out of his stepdaughter’s room, down a hall, and down a set of stairs to the foyer level of the split level house. Mr. Hake was at the top of the stairs when the gunman turned and shot him in the abdomen. Mr. Hake, in his statement to the police entered under s. 540(7) of the Criminal Code, told the police that the unmasked man was next to the shooter at the time.

[2] A bullet cartridge was left behind in the hallway of the home. It was an agreed statement of fact that the cartridge case from the bullet that was fired into Mr. Hake was found in the foyer at the front door of the home. This was sent to the Centre of Forensic Sciences.

[3] The bullet cartridge was examined by Toni Brinck, an expert forensic scientist in firearm and tool marks examination. It was compared to a bullet cartridge left at an earlier robbery of Canna Clinic Marijuana Dispensary in Toronto that occurred on March 2, 2017. The expert’s opinion is that “the two cartridges were identified within the limits of practical certainty as being fired by the same firearm.” They were shot by the same firearm within the limits of practical certainty based on class and individual characteristics. Toni Brinck’s Statement of Qualifications and Firearms Report were filed as exhibits on the preliminary inquiry.

[4] It was part of the agreed statement of fact that, “On March 2, 2017, Mr. Johnson, along with two unknown males, entered the Canna Clinic Marijuana Dispensary on Broadview Avenue in Toronto in order to rob it. In the course of this robbery at least one handgun was produced and fired one time. The bullet was lodged in a wall at the scene and recovered. The cartridge case from the bullet was also recovered from the scene…”

[5] It was part of the agreed statement of fact that, “On November 8, 2017, Mr. Johnson plead guilty for his role in this offence.”

[6] The transcript of Mr. Johnson’s plea to the robbery in Toronto was tendered as an exhibit with the agreed statement of fact. The guilty plea was entered on November 8, 2017. The plea was to an amended count of robbery simpliciter. The facts acknowledge his involvement in the robbery of March 2, 2017 where a gun was discharged however the facts were that he was not the shooter. The facts were that Mr. Johnson and two other unknown males entered the clinic while there were customers and employees in the store. Mr. Johnson was not armed. One or two of the unknown males produced weapons one of which was later determined to be a handgun. All three were barking orders at customers and employees in the store. One of the individuals ordered everyone to lay on the ground. Mr. Johnson and the two others gathered up property, drugs, products and money. One of the others attempted to jump over the counter to get to the cash register. As he jumped his arms flew up in the air and a firearm discharged lodging a projectile in the upper part of the wall. It was not alleged that any of the weapons were pointed at anyone.

[7] A cell phone had been seized from Mr. Johnson on another matter on April 27, 2017. Also filed as exhibits were the results of a search of a phone that had been seized from Mr. Johnson. This showed a number of searches had been made on the phone for different items including “canna clinic robbery”, “barrie shooting” as well as searches for the name of Jahmyle Johnson made in close conjunction with the offence searches. There are also records of SMS messaging with a “Kate” and a web history showing access to news articles.

[8] A marijuana butt was seized from the main floor hallway of the Hake residence. DNA was located on this marijuana butt. The expert opinion is that this cannot be excluded as being from Jahmyle Johnson. The Statement of Qualifications of Heather Shacker, Forensic Scientist Biology, and Nicole Vachon, Forensic Scientist Biology section both of the Centre of Forensic Science were filed as exhibits. The report of Ms. Shacker indicates that marijuana cigarette butt from the scene had sufficient DNA to amplify. This was a hit to the convicted offender Mr. Jahmyle Marvin Johnson DOB 1991-xx-xx on the National DNA data base. Nicole Vachone’s report was filed regarding the examination of the comparison sample from Jahmyle Johnson to the DNA profiles previously generated on this case. The conclusion was “Jahmyle Johnson/CDW-1 (item 11-1) cannot be excluded as the source of a male DNA profile previously determined from a marijuana cigarette butt (item 1-1) from the scene. The probability that a randomly selected individual unrelated to Jahmyle Johnson would coincidentally share the observed STR DNA profile is estimated to be one in greater that one trillion.” (CFS item # 011 is identified as CFS Seal #2X01001 DNA warrant sample from CDW-1.)

[9] During her testimony at the preliminary inquiry, Ms. Garvey did an in dock identification of Mr. Johnson as being the unmasked individual involved in this incident. Mr. Hake said the shooter was taller than himself and the unmasked individual was shorter. Mr. Hake is 5’11”. It was an agreed statement of fact on the preliminary inquiry that Mr. Johnson is 5’6’ - 5’7’.

[10] The Information alleged offences of attempt murder of Mr. Hake while using a prohibited firearm, and two counts of use of a prohibited firearm in robbing Ms. Garvey of an iPhone and Mr. Hake of a set of keys. Ms. Garvey testified to the cell phone being taken from her by the unmasked man. Mr. Hake spoke of his keys having been taken.

[11] The Crown indicated at the commencement of the preliminary inquiry that the Crown would be seeking committal for trial on additional offences arising out of the same transaction. Those offences being break and enter s. 348 Criminal Code of Canada (C.C.C.), aggravated assault s. 268 C.C.C., discharge firearm with intent s. 244 C.C.C., unauthorized possession of a prohibited firearm s. 91 C.C.C.

[12] There is no issue with respect to committal for trial on the break and enter, the two counts of robbery with a prohibited firearm and the unauthorized possession of a prohibited firearm. At issue is committal for trial on the offences of attempt murder, aggravated assault and discharge firearm with intent.

[13] The Crown takes the position the evidence supports various routes to conviction, that when the evidence supports various modes of participation under s. 21 of the Criminal Code of Canada they should be left even if the precise part by each is uncertain and the other person is unknown: R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127 (C.A.). The Crown points to the question of whether Mr. Johnson is the man actually wielding the gun or the second man in possession of the firearm. The Crown’s position is that there are four modes of participation.

[14] The Crown relies on s. 21(1)(a) Criminal Code of Mr. Johnson being a principal as a result of being the gun wielding shooter, s. 21(1)(a) that Mr. Johnson is a joint principal with the actual shooter, s 21(1)(b) that he aided the shooter, and s. 21(2) common purpose of agreeing to rob a home with a loaded firearm and the subjective requisite knowledge for the attempt murder and the objective requisite knowledge for the other offences. The Crown asserts that the robbery was still in progress at the time that Mr. Hake was shot.

[15] The defence takes the position that there is no evidence upon which a reasonable jury properly instructed could find that Mr. Johnson was the actual shooter. The reliance on the Canna robbery is misguided to support he is the shooter in this case as he was not the shooter then. The defence notes the height discrepancy, it is the taller of the two men who is the shooter and Ms. Garvey’s evidence that Mr. Johnson is the unmasked man. The defence position is that there is no evidence on which the mens rea of knowing the intent to kill of the shooter can be founded. Most of the actions of Mr. Johnson were in furtherance of aiding the robbery and cannot be used to find common intent of aiding a separate distinct offence. The taking of the phone is to aid the robber and no inference can be drawn that he aided any other action or intention. The defence also takes the position that it is wrong in fact and in law to suggest the firing of the gun without more is a probable consequence of the robbery. The defence argues that the gun was pulled out in the bedroom and Mr. Johnson did not engage in the confrontation with Mr. Hake. He was not aggressive to Ms. Garvey. He said nothing of the gun or shooting. There is not a reasonableness of foreseeability of bodily harm. The defence submits the joint purpose was to commit robbery. The defence also argues that the firing of the gun was not in furtherance of the robbery which had been completed at that point as the perpetrators had given up their robbery and were leaving. The only acts committed by the unmasked individual were in furtherance of the robbery, not the aggravated assault, attempt murder or discharging of the firearm. There were no acts in furtherance of the commission of attempt murder, aggravated assault or discharge firearm as opposed to the robbery itself. The defence submits that on the aggravated assault and discharge firearm offences there is no evidence that these were objectively foreseeable consequences of the robbery. It was not in furtherance of the robbery as they were making their escape. Mr. Johnson fled right out the door and had nothing to do with the shooting. The defence submits there is no evidence this was anything but a robbery and there was no evidence of objectively foreseeable bodily harm.

Test for Committal for trial

[16] The test for committal for trial is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: U.S.A. v. Sheppard (1976), 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.); R. v. Monteleone (1987), 1987 16 (SCC), 35 C.C.C. (3d) 193 (S.C.C.). In making this determination the preliminary inquiry judge is not to consider matters of credibility and is not concerned with the weighing of evidence: R. v. Paul (1975), 1975 185 (SCC), 27 C.C.C. (2d) 1 (S.C.C.); R. v. Monteleone, supra. This is subject to the limited weighing function where there is circumstantial evidence: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21. There is not to be a testing of the quality or reliability of the evidence as this is a function for the trier of fact: R. v. Monteleone; Mezzo v. The Queen (1986), 1986 16 (SCC), 27 C.C.C. (3d) 97 (S.C.C.); R. v. McIIwain (1988), 1988 9870 (ON SC), 67 C.R. (3d) 393 (Ont. H.C.), R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74. Even evidence that is manifestly unreliable or dubious cannot be weighed as it is a matter for the jury so long as it is evidence that if believed could sustain a conviction: R. v. Collins (1993), 1993 8632 (ON CA), 79 C.C.C. (3d) 204 (Ont. C.A.); R. v. Mezzo, supra.

[17] The preliminary inquiry is not the forum to weigh competing inferences or to select among them: R. v. McIlwain, supra; R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.); R. v. Montour, [2002] O.J. No. 141, R. v. Dubois (1986), 1986 60 (SCC), 25 C.C.C. (3d) 221 (S.C.C.), R. v. Sazant, supra.

As stated by Major J. in R. v. Sazant speaking for the court, at para 23,

[23] In R. v. Campbell (1999), 1999 2372 (ON CA), 155 O.A.C. 143, a panel of the Ontario Court of Appeal consisting of Weiler, Abella, and Goudge JJ.A. in a per curiam opinion noted at para. 7:

As Campbell, J., said in R. v. McIlwain (1988), 67 C.R. (3d) 397 (Ont. H.C.), at 399, the preliminary hearing is not the forum for weighing competing inferences or for selecting from among them. That is the province of the trier of fact at trial. In R. v. Dubois, 1986 60 (SCC), [1986] 1 S.C.R. 366 ..., Estey, J., made it clear that it is jurisdictional error for a preliminary hearing judge to enter upon this province. He put it this way at [380]:

"In applying the wrong test for sufficiency, a preliminary inquiry judge does not commit jurisdictional error. In deciding an issue reserved to another forum, however, he does."

[18] If the Crown presents direct evidence of all elements of the offence, the case must proceed to trial whether accused calls evidence or not. R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.)

[19] The Supreme Court of Canada has held that there is a limited weighing function provided by the preliminary inquiry judge where the evidence is circumstantial as opposed to direct: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.). This is the limited weighing of the evidence to see if it is reasonably capable of supporting the inferences sought by the Crown as proof of an element of the case. This must be done to determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. There must be a limited weighing of the whole of the evidence to assess the reasonableness of the inferences to be drawn from the circumstantial evidence to make this determination. In performing this function the judge is neither to draw the inferences nor to assess credibility. The question is, if the Crown’s evidence is believed could it reasonably support an inference of guilt? As stated by McLachlin C.J.C. at para 1,

I reaffirm the well-settled rule that the preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.

At para 23,

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

At para. 30,

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crowns evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

At para. 34

My second reservation is with Lampkin Prov. J.'s statement at para. 96 that "if 'there is admissible evidence which could, if it were believed, result in a conviction', ... there must be a committal notwithstanding the presence of exculpatory evidence". Again, the statement is too broad. If the Crown's case is direct, it is true that the matter is always one for the jury; as by definition there is no inferential gap between direct evidence and the fact to be proved, there is no inference whose reasonableness the preliminary inquiry justice must assess. If, however, the Crown relies on circumstantial evidence, then the preliminary inquiry justice must engage in the limited weighing of the whole of the evidence (i.e. including the defence evidence) to assess whether a reasonable jury properly instructed could return a finding of guilt.

[20] McLachlin C.J.C. speaking for the court in Arcuri, supra, affirmed the task of the preliminary inquiry judge is to assess whether guilt could reasonably be inferred by the trier of fact. She indicated that, “there was no disagreement between the majority and dissent as to the test that the preliminary inquiry judge must apply.” She adopted the wording of the minority stating at para 28,

In Charemski, supra the dissenting justices discussed at some length the limited nature of the weighing that a preliminary inquiry justice must perform, reaffirming the “time hallowed and universally accepted” rule that the judge “must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably to convict, with the implied correlative that the trial judge must weigh the evidence in the limited sense of determining whether it is capable of supporting essential inferences the Crown seeks to have the jury draw.”

[21] The Supreme Court further considered the issue in R. v. Fontaine, 2004 SCC 27, [2004] S.C.J. No. 23. In discussing the test on an evidential burden, which determines if an issue should be left to the trier of fact, Fish J. speaking for the court on the question of a judge deciding whether the evidential issue has been met stated, para 12-14,

... In answering that question, the judge does not evaluate the quality, weight, or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue.

This evidential standard, unaltered in substance for at least a century, appears in the case law variously attired: “a reasonable jury acting judicially”, a “properly instructed jury acting judicially” and “a properly instructed jury acting reasonably” (Cinous at para 62); “the jury, properly instructed and acting honestly and reasonably” (R. v. Capson, 1952 50 (SCC), [1953] 1 S.C.R. 44 at p 48, 105 CCC 1); “a reasonable jury acting judicially and properly instructed” (R. v. Thibert, 1996 249 (SCC), [1996] 1 S.C.R. 37, 104 C.C.C. 3d 1 , 131 DLR (4^th) 675, at para 1.

These are only some of the phrases, equivalent in substance though different in form, that appear in the governing cases. I intend no departure from the venerable and unbroken line of authority in saying that the evidential burden is discharged if the is some evidence upon which a properly instructed jury could reasonably decide the issue. Similar expressions that appear throughout are likewise meant to describe a single concept, the “evidential burden” in a criminal trial.

[22] Fish J. at para 53 of R. v. Fontaine, supra, stated,

On the ultimate issue of guilt, the Crown bears both burdens. The Crown’s persuasive burden can only be discharged by proof beyond a reasonable doubt. Accordingly, as McLachlin J. explained in Charemski, supra, the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.

[23] Any doubt at the preliminary inquiry stage as to the interpretation or inference to be drawn from the evidence should be resolved in favour of the Crown: Ex Parte Hill, 1969 491 (ON SC), [1970] 2 C.C.C. 264 (Ont. H.C.). “Any doubt as to the sufficiency of the evidence is to be resolved in favour of the committal”: R. v. Munroe (1990), 1990 2483 (NS CA), 59 C.C.C. (3d) 444 (N.S.C.A.) at page 445, leave to appeal refused (1991), 61 C.C.C. (3d) vi. “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered”: R. v. Sazant at para 18

[24] In R. v. Masterson, 2008 ONCA 481, [2008] O.J. No. 2382 (C.A.) The court in examining the issue of the direction verdict motion held at para 6 that,

In deciding that issue, the trial judge was to take the case for the Crown at its highest and in doing so, it was incumbent upon him to resolve competing permissible inferences in favour of the Crown. That he did not do. On the contrary, he addressed the evidence on a piecemeal basis, weighed the various inferences individually and ultimately resolved them in favour of the respondent as opposed to the Crown.

[25] In R. v. Coke, [1996] O.J. No. 808 (Ont. Ct. Gen. Div.) Hill J. stated,

Judicial consideration of the committal authority reflects some consensus as to the existence of a subset of interpretative guidelines governing the exercise of the authority including the following:

(1) Credibility assessment and related factors affecting weight are not to be resolved short of trial. In effect, the court considers the prosecution case in its best light could the evidence if believed provide proof of the essential elements.

(2) Any reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution. Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements.

(3) The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence.

[26] Hill J.’s observation in R. v. Coke, supra, as to inferences being resolved in favour of the Crown was approved in R. v. Ghazzi, 2006 34260 (ON CA), [2006] O.J. No. 4052 (C.A.) at para 2 where the court stated,

[2] We note at the outset that the scope for review of the committal decision of a preliminary inquiry judge is very limited. As observed by Hill J. of the Superior Court of Justice in R. v. Coke, [1996] O.J. No. 808 (Gen. Div.), any reasonable interpretation or permissible inference from the evidence adduced at a preliminary inquiry, if properly admissible against the accused, must be resolved in favour of the prosecution. However, there must be some evidence regarding the constituent elements of the offence charged. In this case, therefore, this requirement applies to the elements of the offence charged relied upon by the Crown as establishing a planned and deliberate murder and/or a homicide committed while the victim was unlawfully confined.

Legal requirement for mens rea and party liability.

[27] In R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225 the Supreme Court of Canada made it clear that proof of a specific intent to kill is required for a conviction for attempted murder. No lesser mens rea will suffice. McIntyre J. speaking for the majority indicated that,

The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.

The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder.

[28] Party liability can be established through the operation of s. 21 of the Criminal Code:

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

(a) actually commits it;

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

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[29] In R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731 (S.C.C.), the court considered the constitutionality of s 21(2) of the Criminal Code on convictions of attempted murder. The court agreed on the result that it was unconstitutional for an attempt murder to have the objective intent of “or ought to have known” in section 21(2) but there was disagreement on the analysis of how that decision was reached. Those words are to be deleted in the cases of attempt murder as it requires subjective foresight. In the majority decision of Lamer C.J. he stated in his conclusion at para 34,

[34] I would, therefore, as did the Court of Appeal, declare inoperative the words "or ought to have known" when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder. Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose.

[30] This required intent is also required for parties alleged to have aided or abetted any persons in attempt murder under s 21(1) of the Criminal Code: R. v. Adams, 1989 7161 (ON CA), [1989] O.J. No. 747 (O.C.A.). It is not enough to know of an act of violence, there has to be knowledge of the intent to kill. In R. v. Adams, supra, Lacourciere J. stated,

While the wording with respect to s-s. 21(2) is different from that under s-s. 21(1), there is no reason why a party who is alleged to have aided or abetted any person in the commission of an attempted murder should be convicted of that offence unless he or she knew that the principal accused had formed the requisite intention to kill.

[31] This is a subjective as opposed to objective knowledge of intent.

[32] As indicated in R. v. Kawal, supra, Harris J. at para 35 stated,

[35] There are several elements to the operation of this subsection: 1. An intention in common must be shown to exist and the party must be part of it; 2. The principal must commit an offence--in this case attempted murder- outside the common intention; 3. The consequential offence must be committed while carrying out the common purpose; 4. The offence must be a probable consequence of carrying out the common purpose; and 5. In the context of attempt murder or murder, the party must know the offence of attempt murder is a probable consequence of the carrying out of the common purpose: see Justice Wilson, dissenting in the result, in R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74, [1990] S.C.J. No. 119 at pp. 109-110

[33] The Crown does not have to specify the nature of an accused’s participation as either a principal or an aider or abettor. If there is evidence upon which a jury could find one or the other they do not have to be unanimous on the nature of the participation so long as they find it proven beyond a reasonable doubt. It follows that alternatives can be left to the jury if there is evidential support for the alternatives. R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652.

[34] In R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127, (C.A.) Watt J. for the court stated,

[184] Where evidence admitted at trial properly supports an alternate mode of participation under s. 21 of the Criminal Code, an instruction on that provision should be left to the jury, even though the identity of the other participant or participants is unknown, and even though the precise part played by each may be uncertain: Pickton, at para. 58. In these cases, the jury need not be unanimous on the nature of an accused's participation in an offence, provided all are satisfied that the accused committed the offence in one way or another: Pickton, at para. 58; R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, page 694.

[35] To convict Mr. Johnson of attempt murder the Crown must prove either he was the shooter, or that he was acting as a joint principal with the shooter and intended to kill or that he knew of the intent to kill by the shooter and he must have intended to have aided or encouraged the shooter in committing the offence. The Crown is not relying on 21(1)(c) abetting.

[36] In R. v. Maciel, 2007 ONCA 196, [2007] O.J. No. 1034 leave to S.C.C. dismissed [2007] 3 S.C.R. xi, Doherty J. stated at para 87 and 88,

[86] Section 21(1)(b) renders an accused a party to a crime as an aider if that accused:

• does (or omits) to do something that aids the perpetrator in the commission of the offence [the conduct requirement]; and

• renders that assistance for the purpose of aiding the perpetrator to commit the crime [the fault requirement].

[87] The conduct requirement of liability as an aider is not in issue on this appeal. There are two components to the fault requirement: an intention to assist the perpetrator, and knowledge of the perpetrator's intention. The intention requirement is reflected in the phrase "for the purpose of aiding" found in s. 21(1)(a). The aider must provide the assistance with the intention of helping the perpetrator commit the crime: R. v. Hibbert (1995), 1995 110 (SCC), 99 C.C.C. (3d) 193 at paras. 36-37 (S.C.C.). In this sense, it can be said that the aider must intend that the offence will be committed.

[88] The knowledge component of the fault requirement flows from the intention component. An aider can only intend to assist the perpetrator in the commission of the crime if the aider knows the crime that the perpetrator intends to commit. While the aider must know the crime the perpetrator intends to commit, the aider need not know the details of that crime: Dunlop and Sylvester v. The Queen (1979), 1979 20 (SCC), 47 C.C.C. (2d) 93 at 110 (S.C.C.); Regina v. Yanover and Gerol (1985), 1985 3619 (ON CA), 20 C.C.C. (3d) 300 at 329-30 (Ont. C.A.); V. Gordon Rose, Parties to an Offence (Toronto: Carswell, 1982) at 11. Consequently, a person who is said to have aided another in the commission of an attempted murder must know that the perpetrator intended to kill the victim: R. v. Adams (1989), 1989 7161 (ON CA), 49 C.C.C. (3d) 100 at 110 (Ont. C.A.). Similarly, a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990), 1990 57 (SCC), 60 C.C.C. (3d) 97 at 127 (S.C.C.).

[37] The defence notes the offences in issue are the attempt murder, aggravated assault, and discharge firearm with intent not the robbery and questions what assistance Mr. Johnson provided to assist the shooter with those offences. The defence also notes that an intention to shoot is not sufficient to establish liability as an abettor to attempt murder. For an aggravated assault he must know the shooter intended to shoot someone, would actual shoot and aid for the purpose of this. The defence argues there was no evidence Mr. Johnson did anything with the intention of shooting anyone.

[38] In R. v. Chambers, 2016 ONCA 684, [2016] O.J. No. 4802 (C.A.) Hoy, A.C.J.O. summarized the principles as follows, para 34-39

[34] Under s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46, a person may be found guilty as a party to an offence if he or she (a) actually committed it; (b) did or omitted to do anything for the purpose of aiding any person to commit it; or (c) abetted any person in committing it. An aider or abettor is just as culpable as a principal offender for purposes of imposing criminal liability: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 85.

[35] However, the actus reus and mens rea for aiding and abetting are distinct from those of the principal offence. The elements for aiding and abetting were defined by the Supreme Court in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, and by this court in Maciel and R. v. Helsdon, 2007 ONCA 54, 84 O.R. (3d) 544.

[36] The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence: Briscoe, at para. 14.

[37] The mens rea of aiding and abetting has two elements: intent and knowledge. To be found liable as an aider or abettor, an accused must have intended to assist or encourage the perpetrator to commit the crime: Briscoe, at para. 16; Maciel, at para. 87; Helsdon, at para. 43.

[38] An accused can only intend to assist or encourage in the commission of a crime if she knows which crime the perpetrator intends to commit. Therefore, the Crown must prove that an alleged aider or abettor knew that the perpetrator intended to commit the crime, although she need not know precisely how it will be committed: Briscoe, at para. 17; Maciel, at para. 89.

[39] Where an accused has been charged with having aided or abetted in the commission of a murder, the Crown must prove that she knew that the perpetrator had the intent required for murder: Maciel, at para. 88. In Briscoe, at para. 18, the Supreme Court clarified that an aider or abettor does not need to have the mens rea for murder personally.

[39] In R. v. Amarales, 2008 ONCA 692, [2008] O.J. No. 3937 (C.A.), the court considered an appeal of first degree murder conviction on the party basis. A new trial was ordered as the charge was flawed. Watt J. considered that “a person may commit a crime as a principal or a secondary party” stating para 65 to 66,

[65] Secondary participation by aiding or abetting includes both conduct and fault requirements. Conduct may include acts, omissions (where there is a legal duty to act), words and gestures. The fault element has to do with the aider's or abettor's state of mind when engaged in the conduct.

[66] Section 21(1)(b) applies to aiders. A person is a party to a crime as an aider if that person:

• Does (or, in the case of a legal duty, omits to do) something that helps the (or a) principal to commit the offence [the conduct requirement]; and

• Provides the assistance with the intention of helping the (or, a) principal to commit the offence [the fault requirement].

R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.) at para. 86, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 258, 220 C.C.C. (3d) vi; R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193 at paras. 36-37.

[40] Did Mr. Johnson do something to aid the shooter in the attempt murder? Did he know of the intent of the shooter to kill? Did he intend to aid the shooter in that offence? On the attempt murder count it must be a subjective intent to kill on the part of the principal or principal or the knowledge by the party of the subjective intent on the part of the shooter to kill.

[41] The defence argues that there was nothing that Mr. Johnson did to help the shooter commit the offences of aggravated assault, attempted murder or discharging a firearm let alone with intent to help with such.

[42] Watt J. in R. v. Almarales supra, further considered section 21(1)(b), in the context of first degree murder in aiding and abetting a planned and deliberate murder, stating at para 70, 74,

[70] The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal's intention. Maciel at para. 87. An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. Maciel at para. 89.

[74] A person may also be found guilty of attempted murder as a secondary participant. The knowledge element of the fault requirement demands proof of the aider's or abettor's knowledge of the principal's intention to kill the victim. Maciel at para. 88; R. v. Adams (1989), 1989 7161 (ON CA), 49 C.C.C. (3d) 100 (Ont. C.A.) at 110.

[43] Knowing that the principal was going to shoot was not sufficient on the facts in R. v. Chambers, [2016] ONCA 684, to impute the aider or abettor with knowledge that the shooter had the intent to kill. The court noted at para 51 “Telling the jury that an aider or abettor needed to know that the principal offender intended to shoot was not enough. As noted above, in the case of murder, the Crown must prove that the aider or abettor knew that the perpetrator had the intent required for murder.”

[44] The defence argues there was no evidence Mr. Johnson could have known in advance the shooter would do what he did as in the case of R. v. Forbes and Vanderwyk, 2017 ONSC 7232 (S.C.J.).

[45] In R. v. Forbes and Vanderwyk, supra, Di Luca J, considered whether Ms. Vanderwyk would have been subjectively aware of the intent of the second suspect’s intent to kill and was not satisfied beyond a reasonable doubt that this was the case. He said, para 47,

[47] In my view, given the brief duration and fluid unfolding of the event, it would have been virtually impossible for Ms. Vanderwyk to observe, assess and interpret the signs that suggest an intent to kill on the part of the second suspect. The more reasonable inference is that Ms. Vanderwyk was helping the second suspect by holding P.S. so that she could be threatened and intimidated into unlocking the front door of the jewellery store. On this basis, even if I were to find that the second suspect had the intent to kill, I am not satisfied beyond a reasonable doubt that Ms. Vanderwyk would have been subjectively aware of that intent and would have undertaken her acts of restraining P.S. with the intent of aiding the second suspect

[46] Di Luca J. noted at para 33-34

[32] In relation to the elements of the offence of attempt murder, I note that an "attempt" is defined in s. 24(1) of the Criminal Code as follows:

o 24(1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

[33] In accordance with R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225, nothing short of a subjective intent to kill will suffice as the mens rea for attempt murder. Proof of some lesser intent is not sufficient.

[34] Where the allegation is that a person is a party to an offence under s. 21(1)(b) of the Criminal Code, the person must know or be wilfully blind to the mens rea of the principal of the offence. While the person does not need to adopt the principal's intent as his or her own, the person must do something with the intent of assisting the principal in the commission of the offence; see R. v. Briscoe, 2010 SCC 13, at paras. 17 and 18.

[35] The actus reus of attempt murder can encompass a very wide range of acts. Indeed, by definition "anything" done for the purpose of carrying out an intention meets the actus reus component of the offence. The only qualification is that the act committed must be one that is beyond a mere act of preparation; see R. v. Cline, 1956 150 (ON CA), [1956] O.R. 539 (Ont. C.A.). In this regard I note that the mere pointing of a firearm at someone, which is its own offence can, when coupled with an intent to kill, satisfy the actus reus of attempt murder. The firing of a shot is not required; see R. v. Boudreau, 2005 NSCA 40, where an accused was convicted of attempt murder for confronting his wife in close proximity with a loaded rifle which he pointed at her while he had one hand on the trigger, and see also R. v. Goldberg, 2014 BCCA 313, where the accused was convicted of attempt murder in circumstances where he made extensive efforts to find the victim and upon finding her pointed a gun at her and threatened to shoot her. In both of these cases, the key issue was the intent. Once a finding was made that the accused had the requisite intent, there was little difficulty in finding that the pointing of a loaded firearm was an act in furtherance of the intent and beyond an act of mere preparation.

[47] The defence takes the position that even if Mr. Johnson knew that the gun wielder had the gun and intended to scare or commit some act of violence, that is not sufficient for conviction of attempt murder: R. v. Barron, [2004] O.J. No. 794 (S.C.J.) at para 74. Violence and threats of violence do not equal an intent to kill: R. v. Kowal, [2018] O.J. No. 4087 (S.C.J.) at para 53.

[48] The mens rea for aggravated assault is objective foresight of bodily harm: R v Godin, 1994 97 (SCC), [1994] 2 S.C.R. 484. Cory J. held at para 1 ,

The mens rea required for s. 268(1) of the Criminal Code, R.S.C., 1985, c. C-46, is objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring. This result flows from the decisions of the Court in R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, and R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3.

[49] In R. v. Vang, 1999 2310 (ON CA), [1999] O.J. No. 91 (C.A.), Morden A.C.J.O . at paras 18 and 24 stated,

[18] I do not think that this reasoning is applicable to s. 21(2). This provision's application does not turn on the scope of the joint venture but, rather (except for offences which are constitutionally mandated to require subjective mens rea) on objective foreseeability of the probability that one party to the common purpose would commit the consequent offence in the course of pursuing the parties' common intention. In this regard, I would think that the method of infliction of the bodily harm, i.e., what weapon, if any, was used to inflict bodily harm, would not be of fundamental concern. It could be significant in evidential terms. See Clarkson, "Complicity, Powell and Manslaughter", [1998] Crim. L.R. 556 at 558-59.

[24] Further, as far as the intention in common is concerned, this phrase means no more than that two (or more) persons must have in mind the same unlawful purpose. The common intention may not be formed or articulated in advance of the action, but may arise at the instant of the offence being committed, the mutual intention to pursue unlawful purpose and to assist each other therein being formed at the very moment of carrying it out. See Rose, Parties to an Offence (1982) at pp. 67-68.

[50] In R. v. Amador, [2001] O.J. No. 4672 (S.C.J.), Then J. held there was insufficient evidence to ground an attempt murder conviction under s. 21(2) of the Criminal Code and quashed committal for trial on that count. There was only evidence of mere presence. There was no evidence they knew of the stabbing, the knife or the intent to kill of the other perpetrator. There was no evidence of intent to kill or knowledge of the stabber’s intent to kill. There was evidence to support the aggravated assault and assault with a weapon counts and the application relating to those counts was dismissed. There was evidence to support an aggravated assault. The accused was armed with a crowbar and the co-perpetrator with a knife and entered the fray of assault. There was objectively foreseeable bodily harm. Then J. at para 43 stated,

[43] In my view the law as to the mens rea for aggravated assault necessary for liability as a party, and which is particularly apt to the circumstances of this case, has been outlined in R. v. Cuadra (1998), 1998 15001 (BC CA), 125 C.C.C. (3d) 289 (B.C.C.A.) where at pp. 296-7, Cumming J.A. stated the following:

Counsel for the appellant further asserts that to be liable as an aider for the offence of aggravated assault in the circumstances of this case, the Crown had to prove that Cuadra had a subjective awareness that Aburto had a knife or intended to use one during the course of the incident, and thus, the trial judge erred in his comments highlighted above. Counsel argued that the charge to the jury was too broad and should have included a direction that the specific harm that resulted must have been objectively foreseeable and must have been a natural consequence of assisting in the fight. This is a novel proposition, but is one without authority.

[20] It is now well-settled law that the mens rea requirement for the offence of aggravated assault is an objective foresight of bodily harm. This test was clearly articulated by Sopinka J. at p. 137 in Regina v. DeSousa (1992), 1992 80 (SCC), 76 C.C.C. (3d) 124 (S.C.C.), and confirmed by Cory J. in Regina v. Godin (1994), 1994 97 (SCC), 89 C.C.C. (3d) 574 (S.C.C.). (See also: Regina v. Creighton (1993), 1993 61 (SCC), 83 C.C.C. (3d) 346 (S.C.C.)). Counsel for the appellant asserted, however, that the test set out in DeSousa and in Godin of the need for an "objective foresight of bodily harm" requires a causal connection to the actual harm that resulted. Counsel asserted that the resulting harm must in and of itself be objectively foreseeable and therefore the appellant, in order to have been guilty as a party to aggravated assault, would have had to have known that Aburto had a knife. He argued that Cuadra assisted in a fist fight, not a knife fight, and therefore the resulting harm was not objectively foreseeable.

[21] I am unable to agree with this proposition as it is clear to me that an objective foresight of the specific wounds resulting from an assault is not the threshold test; the test is simply an objective foresight of bodily harm. ...

[22] When Cuadra entered the fray he did so with a weapon, his weapon of choice was a baseball bat, he was assisting Aburto in a fight that went beyond a mere "fist fight". The harm that resulted from the escalation of the fight may not have been specifically foreseeable but it is undeniable that bodily harm was objectively foreseeable and that, as has been articulated, is the mens rea requirement for the offence of aggravated assault. I find it illogical that a party to an aggravated assault would require any greater degree of mens rea than the actual perpetrator. As a result, I would not give effect to the first ground of appeal.

[51] In R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284, the majority agreed with the proposition set out by the Court of Appeal who stated,

We are all of the view that it was open to the trial Judge to conclude that these accused entered into a common purpose to commit the offence of armed robbery and that each of them knew or ought to have known that the use of a firearm was a probable consequence of the carrying out of that unlawful purpose. This was not a case where the firearm in question was a small hand-gun capable of being concealed upon the person of one of the accused in circumstances where the others might not know that he was in possession of a gun. Here, the firearm was a shot-gun belonging to one of the accused, carried by another accused and transported in a car driven by the third accused and in which shot-gun shells were found. Not only do we think it was open to the trial Judge to draw a conclusion that each of the accused had entered into a common purpose to rob and that each knew or ought to have known that the use of the gun was a probable consequence of carrying out the robbery, but we think it was not open to him on the facts proved or admitted to come to any other conclusion.

[52] To found liability on 21(1) the Crown must prove that Mr. Johnson aided the shooter for the purpose of assaulting Mr. Hake, for the purpose of the robbery or break and enter and the bodily harm was objectively foreseeable. The elements of the offence itself must be made out for the principal or the party liability. In R. v. Chambers, the court did however find that the knowledge that the principal offender intended to shoot in these circumstances was knowledge that the principal intended to commit the offence of aggravated assault. (At para 62.)

[53] As indicated in R. v. Chambers, supra at para 59-61,

[59] The essential elements of aggravated assault are well established. Watt's Manual of Criminal Jury Instructions, 2d ed. (Toronto: Thomson Carswell, 2015) provides a helpful summary at pp. 816-17. The Crown is required to prove the following: (i) the accused intentionally applied force to the complainant; (ii) the complainant did not consent to the force applied by the accused; (iii) the accused knew that the complainant did not consent to the force being applied; and (iv) the force applied wounded, maimed, disfigured, or endangered the life of the complainant.

[60] In this case, the undisputed evidence was that Chinambu had been wounded by a shot fired by Warner or Chambers. Furthermore, Warner, through his counsel, admitted that he had shot Tsibu-Darkoh.

[61] Read in context, the jury was directed that anyone aiding or abetting an aggravated assault must know that the shooter intended to shoot someone and would actually shoot, and the aider or abettor did something for the purpose of helping the shooter do so. Concluding that either accused knew of the other's intent to shoot is to conclude that he knew of the other's intent to apply force. In the circumstances here, there was no question that the two victims did not consent to the application of force and were wounded as a result of the application of force.

[62] Therefore, while knowledge that the principal offender intended to shoot is not knowledge that the principal had the intent required for murder, in my view, in these circumstances it is knowledge that the principal intended to commit the offence of aggravated assault.

[54] The defence notes that the knowledge of intention is dependent on when that intention was formed: R. v. McIntyre at para 27. The defence argues the gun was not used in the robbery but rather the flight.

[55] The Crown doesn’t need to establish Mr. Johnson intended to enter the home to wound maim or endanger the lives of the occupants. All the Crown need establish 21(2) is whether there is objective foreseeability of bodily harm. The specific harm caused does not have to have been foreseeable but bodily harm must be objectively foreseeable as a probable consequence.

[56] In R. v. Vang, 1999 2310 (ON CA), [1999] O.J. No. 91 (O.C.A.), the accused joined in an attack on the victim where a co-attacker stabbed the victim. Mr. Vang and Mr. Chanthaboury were found guilty of aggravated assault. The appeal was as to whether they could be found guilty as parties to the offence under s. 21(2) of the Criminal Code. They engaged in the common purpose to assault the victim and it was held that the trial judge did not err in finding that “objective foreseeability of bodily harm was sufficient to found a conviction as a party to aggravated assault”. It was apparent that at least one weapon, a beer bottle, was being used. The co-attacker used a knife of which there was no evidence the other parties were aware. There was no requirement of objective foreseeability of endangerment of life, just of bodily harm. This objective foreseeability was made out by the three-on-one attack and the use of a beer bottle. Morden J. indicated at paras 16 and 18,

[16] I accept the respondent's submission that the appellants assisted the stabber, Nguyen, and each other, three on one, in a fight that went beyond a mere "fist fight". The specific harm that resulted may not have been foreseeable, but it is clear that, as the trial judge found, bodily harm was objectively foreseeable as a probable consequence of engaging in the fight….

[57] R. v. Vang, supra, also stands for the proposition that the common intent may occur at the time that the offence is being committed, Morden A.C.J.O. at para 24 indicated,

[58] In R. v. Kelly, 2017 ONCA 920, [2017] O.J. No. 6203 (C.A.), the Crown’s appeal of a directed verdict on a manslaughter charge was granted and a new trial ordered. The accused had formed a common intention to rob a poker tournament. During the course of the robbery a man was shot and killed. Doherty J., at paras 24-29 stated,

[24] As my colleague, Watt J.A., has explained with admirable clarity in R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 39-43, s. 21(1) refers to parties who participate in the offence charged as perpetrators, aiders, or abettors. To aid in the commission of an offence, an accused must do something "for the purpose" of aiding another in the commission of that offence. Liability under s. 21(2) rests on an entirely different basis. Section 21(2) imposes party liability for offences that are incidental to the carrying out of a common unlawful design. Liability under s. 21(2) requires the Crown to prove that an accused formed an intention with others to engage in an unlawful purpose and that one or more of the others, in carrying out that unlawful purpose, committed a different offence that the accused knew or ought to have known was a probable consequence of carrying out the common unlawful purpose.

[25] On the Crown's case, the respondent was an aider in the robbery and a party to the common unlawful purpose of committing a robbery. There was no evidence that he did anything for the purpose of aiding the robbers in harming any of the victims of the robbery. The respondent's role in planning or executing the robbery could not make him an aider in the homicide that occurred during the robbery.

[26] I think this was quintessentially a case for the application of s. 21(2). The respondent, having allegedly agreed to the commission of one crime, the robbery, was alleged by the Crown to be responsible for the commission of a second crime committed by one of the parties to the robbery in the course of carrying out the common unlawful purpose. Section 21(2) addresses exactly that kind of criminal culpability.

[27] The Crown alleged that the respondent and others, including the two robbers, had entered into a common design to rob people attending the poker tournament (the common unlawful purpose). The Crown further alleged that one of the robbers, in the course of carrying out that common unlawful purpose, had shot and killed the victim. If the Crown could prove that the respondent, as a party to the common unlawful purpose to rob, knew or ought to have known that one of the robbers would probably cause harm of more than a trivial nature to someone in the course of committing the robbery, the respondent was guilty of manslaughter pursuant to s. 21(2), if that harm actually caused death: see R. v. Jackson, 1993 53 (SCC), [1993] 4 S.C.R. 573, at 586-87; R. v. Modeste, 2015 ONCA 398, 326 C.C.C. (3d) 93, per Strathy C.J.O., in dissent on another issue, at para. 103. The respondent's potential liability under s. 21(2) did not turn on the specific role he played in the robbery plan.

[28] Setting aside for the moment the trial judge's finding that the Crown could only rely on the allegation that the respondent was the getaway driver, there was ample evidence upon which a reasonable jury could find that the respondent formed a common intention to rob the poker tournament. The evidence connecting the #8019 cell phone to the robbery and to the respondent, combined with the evidence connecting the respondent to the getaway car, provided a basis upon which a reasonable jury could infer that he was a party to the plan to rob the poker tournament.

[29] Given the nature of the robbery planned, and the number of people in attendance at the tournament, it would be reasonable for a jury to infer that the respondent knew that the robbers would be armed and prepared to overcome resistance in effecting the robbery. It flows from that inference that the jury could infer that the respondent knew or ought to have known that it was probable that one of the robbers would cause non-trivial harm to someone in the course of committing the robbery.

[59] On the discharge firearm count the Crown must establish Mr. Johnson was the shooter and intended to discharge the firearm at a person or that Mr. Johnson aided the shooter knowing this intent with intent to aid or that the offence is made out under s. 21(2) and was objectively foreseeable under s. 21(2). Reference R. v. McGuigan, supra. To prove party liability, unless Mr. Johnson is the shooter, the Crown must have evidence that he knew the other had the gun for offences that specify the gun as an element of the offence: R. v. Kennedy, 2016 ONCA 879, [2016] O.J. No. 6105 (O.C.A.). On a common purpose of breaking and entering a home to commit an indictable offence or of robbery in this case did the non-shooter know or ought to have known that the use of the firearm by discharging it at a person was an objectively foreseeable consequence of the common intention?

Elements of the offences

[60] The date of the alleged offences can be established through the evidence of Mr. Hake as can the jurisdiction.

Identity of Mr. Johnson as one of the intruders

[61] There is evidence that Mr. Johnson was one of the two men who entered the home and confronted Mr. Hake and Ms. Madelyn Garvey. There was a marijuana cigarette located in the home which contained DNA which a jury could find was Mr. Johnson’s. Mr. Hake testified that he did not know the second intruder and that he did not invite him into his house at any point before. Additionally there is the online activity revealed by a search of a phone seized from Mr. Johnson by Detective Constable Brent Down that was in his possession in his hand when he was arrested on the execution of a CDSA search warrant on April 27, 2017. The examination of the phone showed searches of incidents where offences had been committed, one of these to which he plead guilty, the Canna Marijuana Dispensary Clinic robbery, one in which he was charged, and of the Hake incident. There are also searches of his name in close conjunction with offence searches. A jury could conclude based on this evidence that Mr. Johnson is searching to see if he has been linked with offences that he has committed including the Hake incident. There is also evidence that a bullet casing was located at the Hake home that is linked to the bullet casing of the Canna Clinic robbery linking the gun used as being the same at both events. There is also the in dock identification by Ms. Garvey of Mr. Johnson as being the man in her room. Ironically it is the Crown who argues that this identification is of no weight and would not be before the jury leaving it available for the jury to find that Mr. Johnson was the masked individual. I agree with the defence that this is a piece of evidence presented to me for whatever little or no weight a jury may afford it. Mr. Johnson’s presence at the home as one of the two men does not appear to be disputed for the purpose of the preliminary inquiry given the defence concession there is sufficient evidence for trial on other charges arising out of the same transaction. It is hotly disputed that there is evidence that Mr. Johnson was the masked shooter.

Evidence of intent to kill of shooter

[62] There is evidence upon which a reasonable jury properly instructed could find that the shooter had the requisite intent to kill.

[63] As indicated in R. v. Felawka, 1993 36 (SCC), [1993] S.C.J. No 117 (S.C.C.), a firearm is expressly designed to kill or wound. Cory J. at para 21 stated,

[21] …In my view, a firearm must come within the definition of a weapon. A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes of threatening and intimidating. Indeed, it is hard to imagine anything more intimidating or dangerous than a brandished firearm. A person waving a gun and calling "hands up" can be reasonably certain that the suggestion will be obeyed. A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.

[64] Mr. Hake testified that when he pushed the two intruders down the stairs, suspect number one, the one with the gun, pulled the gun out stood up and took aim and shot him. He said this man turned and looked right at him, pointed the gun and shot him. When he pushed this man down the stairs the intruder’s back was to Mr. Hake and he turned and shot him. Mr. Hake testified that this occurred right away, immediately after he was pushed down the stairs. Mr. Hake said that the man turned around, he had the gun in his hand and took aim and shot. He said that he was shot almost immediately after the two men landing at the foot of the stairs. There is Ms. Garvey’s evidence that at some point she heard someone say “I’m going to shoot you, I’m going to shoot you.”

[65] The jury could find that Mr. Hake was in close proximity to the shooter given his evidence that he was at the top of the stairs, there are maybe five stairs and the shooter was at the bottom of the stairs. The jury will have the photograph of these stairs to assist them in this proximity determination.

[66] Mr. Hake was shot in the stomach according to his and Ms. Garvey’s evidence. A reasonable jury properly instructed could infer that someone who points a firearm at someone, takes aim, and shoots from a close distance hitting the victim in the abdomen area intended to kill. They could find this was a deliberate action using a weapon designed to kill or wound. Mr. Hake was not in-between the shooter and the exit door. The shooter chose to turn and shoot as opposed to just leave.

Evidence of Mr. Johnson as the shooter or principal with the shooter 21(1)(a)

[67] The Crown relies on Mr. Johnson’s connection to the Canna Clinic robbery and the use of the gun in that robbery five weeks prior, his DNA putting him on scene, and his cell phone searches of what the Crown alleges are his own crimes including this offence as evidence that can establish that he is the shooter or acting as a principal with the shooter. The Crown argues that the jury does not have to accept the identification of Mr. Johnson as the unmasked individual.

[68] There is no evidence upon which a reasonable jury properly instructed could find that Mr. Johnson was the shooter. There is no evidence to support an inference or finding that the second unmasked intruder was acting in concert with the shooter to commit the offence of murder or attempted murder. There is no evidence from which a jury could find that the unmasked intruder knew of the masked intruder’s intent to kill.

[69] The evidence that a jury could use to establish that Mr. Johnson was one of the two men present, the DNA, the cell phone searches and the bullet casing do not lead to a conclusion that he was the actual shooter, just that he may have been. There is no evidence to support that he was the shooter or was acting in concert with the shooter to commit the offence of murder or as it turned out, attempted murder. There is evidence that indicates that Mr. Johnson was not the shooter. It is not just the sole identification of Ms. Madelyn Garvey that would be before the jury but also the evidence of the description of the comparative sizes of the two intruders and the comparison of this to the size of Mr. Hake. I am required per R. v. Arcuri, supra, to conduct a limited weighing of the evidence to determine if a jury could make the inference that Mr. Johnson was the shooter. On the evidence presented this inference is not open to them.

[70] Mr. Hake testified that both the men were black. He said that suspect number one, the masked man with the gun, was taller than him. He was at least six feet tall and possibly taller. He was average to thin build, not heavy set for sure. Mr. Hake testified he himself was 5’11”. He said that suspect number two was shorter than him. He estimated 5’8” to 5’10”. He had a stockier build than the other suspect. Mr. Hake said he knew that he was shorter than himself but was just guessing his actual height, he did not know for sure. In his statement to the police he said that the man with a gun was taller than he was, 5’11”, was “a pretty heavy guy”, “like stock, solid”, “a pretty sturdy guy”. He said the other man, suspect number two, was a male black shorter guy. He might be 5’8” or 5’9”. He did not think he was as sturdy as suspect number one. He seemed a little smaller but said “um but I don’t remember you know, stocky muscular. Just short is the only thing I remember.” Ms. Garvey testified that the man that came into her room, the unmasked man who took the phone from her, was shorter in comparison to Mr. Hake and the other guy. She testified that the guy with the gun was close in height to Mr. Hake and was of medium build. The guy who took the phone was shorter than those two. He was a bit bigger, he was more built, more sturdy. He had facial hair, a goatee like he has now. She also testified that she has seen that shorter man in court previously and pointed out Mr. Johnson as the man who took the phone, not the man with the gun. The evidence of the guilty plea to the previous robbery was that Mr. Johnson was not the shooter of the gun on that occasion. It would be an impermissible inference for the jury to find that because it was the same gun on both occasions he was the shooter on this occasion. It would also be an impermissible inference for the jury to draw that Mr. Johnson was the shooter based on the descriptions given of the unmasked non shooter and the admission of Mr. Johnson’s height being 5’6” - 5’7”. The jury themselves can see that Mr. Johnson is short and stocky.

[71] It is not open to the jury to find that Mr. Johnson’s role was as the shooter in this case. There is no evidence to support such a finding and evidence to support that he was not.

Evidence of knowledge of other suspect’s intent to commit murder.

[72] The Crown argues that if there is not a reasonable inference that Mr. Johnson was the actual shooter, there was knowledge of the intent on the part of the other perpetrator. The Crown’s position is that this firearm is brought to kill or wound, there was a threat made by someone to use the firearm, “I’m going to shoot you” and the second perpetrator holds Ms. Garvey back. The Crown submits it is open to the jury to find that it is the co-perpetrator wielding what is known to be a loaded firearm and that the perpetrator has the specific intent to kill. They brought a loaded firearm that Mr. Johnson has used in a prior armed robbery and knows is capable of firing. I note that Mr. Johnson was not the shooter on the facts read in on his plea to this prior offence. The Crown’s argument basically is that suspect number two knows of suspect number one’s intent to kill because of the threat to shoot and he knew that it was a loaded gun.

[73] There is no evidence upon which the jury could find that Mr. Johnson’s aiding the shooter was for the purpose of his committing attempt murder or that he knew of the shooter’s intent to kill.

[74] There is no evidence upon which the jury could find that Mr. Johnson was liable as a joint principal to the offence of attempt murder. There is no evidence that he had any intent to kill Mr. Hake or that he was acting in concert with the shooter to kill Mr. Hake. The evidence is not sufficient to draw such an inference.

[75] Mr. Hake testified that he was in his bedroom in his closet getting his robe on when he turned around and there was a guy standing in front of him just outside the closet. This man had a mask on and asked him where the jewelry was and showed him a gun that he had. Mr. Hake was hit with the gun and yelled to Madelyn to call 911. He said he was hit with the gun just after he started to push towards Madelyn’s room which was immediately after he called to her to call 911. Mr. Hake also said that he was hit with the gun before he called to Madelyn to call 911. Mr. Hake testified that there was a second man standing behind this guy facing towards him who went immediately into Madelyn’s room. Mr. Hake said he saw this man immediately after he yelled to call 911 and noticed this man almost immediately. He was behind the first man standing in the hallway in the doorway to his bedroom. Mr. Hake said that when he was hit in the side of the head with the gun he realized there were two of them. Mr. Hake said that when he was hit with the gun he noticed number two in the hallway. Right in front of the doorway. He was two feet from number one at the time and Mr. Hake could see him. This man was facing towards their bedroom and there was nothing impeding suspect number two’s view of suspect number one. Mr. Hake indicated under cross-examination that he did not believe that suspect number two came into the bedroom; if he did it would only be a foot in and he did not join in the attack when he was tussling. Mr. Hake said he did get a hold of him in Madelyn’s room.

[76] Mr. Hake said the first thing the man did was show him the gun. He said the man pulled it out of his right pocket. He reached to the side and pulled it out he was not sure if it was from his pants or coat pocket but it was from the right side. Mr. Hake said when he first saw him he did not have it, he pulled it out to show him he had a gun. Mr. Hake indicated that he did not know for a fact if he pulled it out of a pocket. When he was in the bedroom and he first sees him, he was looking at his face. It was moments after he was asked where the jewelry is that he saw the gun. It was pointed at him. He did not see it at his side before this. Mr. Hake described that when the intruder pointed the gun it was more from the hip. He said he had no idea where it was before it was pointed at him. He did not know where the gun was after he started to push the man to get into Madelyn’s room until it was pointed at him and he was shot. He did not see suspect number one put the gun away after he was hit or during the struggle with him.

[77] Mr. Hake said that he called out to Madelyn immediately after being hit by the gun and the suspect number two began to enter her bedroom right away. Mr. Hake began immediately tussling with suspect number one.

[78] Mr. Hake described that he pushed the first male into Madelyn’s room and then was wrestling with both suspects. The second suspect pulled Madelyn from the bed and took the phone from her. Mr. Hake said he saw him pulling at her and the result was the phone was gone. He assumed that was what was grabbed. Mr. Hake testified that they kept fighting and grappling until he got them to the hallway and pushed and shoved them all the way to the hallway and pushed them down the stairs. He was at the top of the stairs when the first suspect shot him.

[79] Mr. Hake said that he got a hold of suspect number two who was in Madelyn’s room when he got in. It was very brief. He remembered grabbing him by the arm and part of his clothing and pulling him off the bed. They all scrapped together and down the hallway it was the three of them in a big mess.

[80] In his evidence Mr. Hake said that when he pushed them down the stairs the second man was the first down the stairs. There was a second or two between their landings at the bottom of the stairs. He said that the second man left and went out the door and the first man shot him. He testified when suspect number two got to the bottom of the stairs he just ran out the front door. He had left from his vision. He could have been just exiting the door. He said suspect number two was the first to the landing. He did not turn to look at him or stop at any point he just ran out the door. There is also evidence from Mr. Hake and the photographs that Mr. Hake would not be able to see to the left of the foyer and cannot see past where the wall begins. Mr. Hake testified that if someone is in front of the shoe mat he would not see them nor at the front door. He said that he was shot almost immediately after they landed at the bottom of the stairs. When suspect number one turned and shot him he said suspect number two was out of his vision to the left towards the front door. He may have been already out by then. He said he has no idea for sure, just that he could not see him.

[81] Mr. Hake testified that when he pushed the intruders down the stairs he thought he had them out the door because they were in full retreat at that point. He thought they were heading out the door. Suspect number two went towards the door then suspect number one turned and shot him. Mr. Hake said that he thinks it was pretty much simultaneous but thinks suspect number two was leaving first before suspect number one took aim and shot. He said the guy turned to shoot him and the other guy running to get out the door all happened at basically the same time.

[82] In his statement to the police entered under 540(7) of the Criminal Code Mr. Hake testified as to the positioning of the two parties when he was shot. He told the police on April 11, 2017, “… when they got to the top of the stairs, I gave them a good shove, and down they went. They didn’t fall and you know, they looked like they were ready to go, and I don’t know why he would have turned around and shot me, just because of anger, I guess.” He was asked “..were they headed out the threshold of the door when that happened?” Mr. Hake responded, “No, they were right at the bottom of my stairs. And you know, you’ve got to go a few feet to the right to get out of the door, so they were just at the bottom of the stair.”

[83] Mr. Hake was asked to comment on the difference between what he said to the police and his evidence. He testified that his statement to the police was fresher in his mind maybe they were both there. He agreed that his recollection as he testified is that the second man continued straight towards the door. He agreed that when he gave his statement to the police he was concentrating on the gunman when he was describing what he saw. Today his recollection is the second man continued right out the door.

[84] Mr. Hake agreed that he told the police that it was his impression suspect number one fired out of anger. He thought that he was angry because he did not get anything; that was an assumption on his part. He could not rationalize why he would take aim and shoot him when they were already out the door. Mr. Hake said that he did not remember suspect number two saying anything. He did not hear him saying anything acknowledging the gun, saying “get the gun” or “shoot the man”. Mr. Hake said that he thinks they were motivated to get out as he was putting up a resistance. He said it felt like at least suspect number two in the front had given up and was making a retreat. He did not see suspect number two turn around to watch suspect number one shoot him; he was focused on suspect number one.

[85] Madelyn Garvey also testified as to what transpired that morning. Ms. Garvey said that she was sleeping and was woken up with a lot of noise. Her stepfather screamed at her to call the police and someone was in her room and her phone was taken. Mr. Hake was trying to fight off the other guy, all three of them were in her room, they left and she heard the gunshot go off.

[86] Ms. Garvey testified that her stepfather yelled call the police or call 911 she was not sure. She sat up and the one guy was telling her to get down. She went to get her phone and he grabbed it from her hand. She said she was told to get down and she crouched down on the ground and reached for her phone and he took it. He grabbed it out of her hand and the cord came out with it. He told her at least twice to get down. Ms. Garvey said that Mr. Hake (Hal) was fighting with the guy who had the gun at this point. Mr. Hake and the guy with the gun were in her room and Mr. Hake was trying to get them out. She saw the gun in the guy’s right hand. He was just holding it. She did not see him let it go or release it. The gun was up and down. She could not tell if it was always in his hand during the struggle but from what she saw it was in his hand. She testified that she could not recall if the others were in the room when the unmasked man said to get down or as they were coming in. Ms. Garvey testified that when the phone was grabbed from her the other two were in the room wrestling with each other. She did not recall if the man who took the phone jumped into the fray and started attacking Mr. Hake. As best she remembers he was just standing by watching. He told her to get down and tried to grab her hand or put her down by her shoulder. He was not very forceful and not very aggressive. He did not threaten her and she did not see him with a weapon of any sort. Ms. Garvey testified “His eyes looked scared like he was caught off guard almost”.

[87] Ms. Garvey said that after the man grabbed her phone he was facing towards her, looked at Mr. Hake and the other guy and just sort of stood there while they wrestled in her room. They all left together.

[88] Ms. Garvey testified that this was a small silver gun that looked like a handgun. She did not have any trouble seeing it.

[89] Ms. Garvey, after having her memory refreshed from her police statement, testified that she recalled someone saying “I’m going to shoot you”. She could not recall at what point she heard this, whether it was before the people were in her room or after they were in the room. She agreed that she told the police that she heard “I’m going to shoot you I’m going to shoot you and Hal said I’m going to call 911”. She didn’t recall if there was more than one time her dad said to call 911.

[90] The blue item on the floor in the hallway outside the bathroom door with the red wall is her phone charger that was attached to her phone at the time it was taken.

[91] To find Mr. Johnson guilty of 21(1)(b) aiding in the commission of attempt murder the Crown must prove his knowledge of the intent of the shooter to kill Mr. Hake and that he intended to aid him in such. The evidence is not sufficient for a jury to find that Mr. Johnson knew of the intent of the shooter to kill Mr. Hake. Mr. Johnson’s knowledge of the gun, knowledge that the gun was loaded and discharged in the previous robbery, the threat to shoot made prior to the shooting, his actions in stopping Madelyn Garvey from intervening taking her phone and telling her to crouch down, his being involved in a struggle with Mr. Hake is not sufficient. There is no evidence to support an inference that he has knowledge that his co-perpetrator is wielding a loaded firearm with the specific intent to kill. While it is open to the jury to find that he knows this gun has been loaded and fired in the past due to his involvement in the prior robbery that does not assist in the intent aspect for this offence.

[92] Knowledge that a gun has been brought to the scene does not necessarily mean that the aider or abettor knew the co-participant had the intention to kill or cause bodily harm that was likely to result in death: R. v. Zoldi, 2018 ONCA 384 at para 59. “An aider or abettor must have both knowledge and intention. He or she must know that the principal actor intends to commit the offence and must intend to assist or encourage the principal actor in committing it”: R. v. Zoldi, supra, at para 22.

[93] Regardless of the basis for a finding of attempt murder be it as an aider under s. 21(1)(b) or as an offence committed during a common purpose offence 21(2), the Crown has not provided an evidential basis for a finding of intent. As previously referenced, in order for 21(2) to be applicable, the Crown would have to prove subjective foresight of the intent to kill. Mr. Johnson would have to know that it was “probable that his accomplice would do something with the intent to kill in carrying out the common purpose.” The evidence as indicated above, is not sufficient for the jury to find that he knew that it was probable the other perpetrator would shoot Mr. Hake with the intent to kill him during the robbery, break and enter, or assault.

[94] Mr. Johnson will be discharged on the attempt murder count.

Evidence of liability for aggravated assault and discharge firearm

[95] The intent aspect for the aggravated assault and the discharge firearm with intent is different from the specific intent requirement of attempt murder.

[96] The mens rea for aggravated assault is objective foresight of bodily harm: R. v. Godin, supra.

[97] The offence of discharge firearm under s. 244 of the Criminal Code is:

244(1) Every person commits an offence who discharges a firearm at a person with intent to wound, main, or disfigure, to endanger the life of or to prevent the arrest or detention of any person – whether or not that person is the one at whom the firearm is discharged.

[98] It is open to the jury to find that the shooter discharged the weapon at Mr. Hake not only to kill him but with the requisite intent of “wound, main, disfigure or to endanger life as well as to prevent the arrest or detention of himself” and his cohort. The Crown relies on s. 21(2) and 21(1)(b) of the Criminal Code for Mr. Johnson if there is not an evidential support for his being the actual shooter.

[99] The intent for discharge firearm is that the firearm be discharged intentionally, on purpose, that this is at a person and that it is for one of the listed intents.

[100] “An accused can only intend to assist or encourage in the commission of a crime if she knows which crime the perpetrator intends to commit. Therefore, the Crown must prove that an alleged aider or abettor knew that the perpetrator intended to commit the crime, although she need not know precisely how it will be committed: it is assistance for that particular crime.” R, v. Chambers, 2016 ONCA 684, [2016] O.J. No. 4802 (C.A.) at para 38.

[101] It is open to the jury to find that Mr. Johnson aided suspect number one, the shooter, in committing the offences of aggravated assault and discharging a firearm with intent. Mr. Johnson restrained Ms. Garvey from calling for assistance following Mr. Hake being hit with a gun and a gun being produced. There is evidence Mr. Johnson was involved in the struggle with Mr. Hake as he tried to force them out of the house. It is open to the jury to find that Mr. Johnson intended to assist suspect number one in the two offences. There is evidence upon which a jury could find that Mr. Johnson had knowledge of the perpetrator’s intention to shoot Mr. Hake. The gun was visible during the initial confrontation with Mr. Hake when it was produced and used to hit him. There is evidence through Ms. Garvey that the gun was visible during the struggle with Mr. Hake in Ms. Garvey’s room. There was the threat to shoot that was made. There is the evidence that this gun had been loaded and used in a previous robbery when Mr. Johnson was involved and therefore knew was capable of firing. There is evidence of a continuing struggle with Mr. Hake and both suspects down the hall. There is also evidence from which a jury can infer Mr. Johnson knew it was loaded given the threat to shoot and its being fired at a previous event. They can find Mr. Johnson to be wilfully blind given his knowledge of the Canna events. A gun is designed to wound or to kill per R. v. Felwawa, supra. A jury could find that Mr. Johnson knew of the gun, knew of the intent to shoot, and participated in the assault on Mr. Hake. There is evidence not just that there was the statement “I will shoot you” but the gun was brandished at Mr. Hake. It was held to intimidate him to force compliance with the demand for jewelry. It was used to hit him. The jury could also find this sufficient to find that Mr. Johnson was acting as a principal to the assault and the discharge with intent offences.

[102] The jury could find Mr. Johnson guilty of aggravated assault based on his being a principal party to the common intention of the assault that was occurring with Mr. Hake in the bedroom. This is similar to the situation in R. v. Vang, supra, where the accused went to assist the co-perpetrator in an assault knowing a weapon (beer bottle) was being used where a knife was then employed. There was a common purpose to assault the victim and it was held that the trial judge did not err in finding that objective foreseeability of bodily harm was sufficient to found a conviction as a party to aggravated assault even though the accused did not know of the knife.

[103] The jury could also find Mr. Johnson guilty of aggravated assault and discharging a firearm on section 21(2) of the Criminal Code based on the original plan. A jury could find that these offences were offences that Mr. Johnson knew or ought to have known would likely be carried out in the original design. The original design could be found to be break and enter and commit an indictable offence, or robbery. The jury could find objective foreseeability of bodily harm and the discharge of the firearm with intent.

[104] In the present case a jury could find suspect number two knew of the gun at the point suspect number one was in the bedroom. They could find that suspect number two was outside the bedroom when the gun was produced to Mr. Hake and he was hit with it. The jury could find that the gun was present when the demand was made for jewelry given the timing of the demand and the production of the gun and Mr. Hake’s uncertainty of where it came from on the intruder’s person. The jury could find the common purpose includes not just a robbery but a robbery with the knowledge of the gun. The jury could find that it was objectively foreseeable that bodily harm would probably result during the course of this robbery and that it was objectively foreseeable that the gun would be discharged with intent even if just for the purpose of avoiding detention and arrest. Even if the jury were to find the first inkling was when the gun was produced, the jury could find that there was a common purpose formed to commit the robbery now with the gun as the second intruder then took steps subsequent to the production of the gun to facilitate the robbery. Again it was objectively foreseeable that bodily harm would result and that it would be discharged with intent.

[105] The intention in common can arise at the instant of the offence, it does not have to be formed in advance. Morden A.C.J.O. in R. v. Vang, supra stated this proposition at para 24,

[106] When considering party liability under s. 24(2) of the Criminal Code is there evidence upon which a jury can find an agreement to commit an offence and help each other do it? The jury can infer that there was given the entry into the home, the quick arrival in the bedroom on the second floor of the split level and the immediate demand for jewelry given the victim is a jeweler. Both entered the home and went upstairs and the victim was in his closet when one went into the room and the other was just outside it. That person, who could be found to be Mr. Johnson, immediately went to the other bedroom when the victim called out to call 911. The jury can find that in the course of carrying out this original agreed on offence, another offence (aggravated assault and discharge firearm with intent) other than that planned, was committed by one of the parties to the agreement. The jury can find that the accused knew or ought to have known (except for attempt murder) that the other man would probably have committed that offence in carrying out the originally agreed upon offence.

[107] As indicated by Watt J. in Watt’s Manual of Criminal Jury Instructions, Second Edition, the test is “whether a reasonable person in the same circumstances would know that one of the participants in the original agreement would do the offence or would probably [do the offence] in carrying out the original agreement.” (At page 461.) As indicated by Watt J., it has to be determined for aggravated assault “..if Crown Counsel can prove beyond a reasonable doubt that [the non-shooter] actual knew, or should have known, that in carrying out their original agreement or plan to rob [Mr. Hake] [the shooter] would probably cause bodily harm of some kind or other to [Mr. Hake] by intentionally applying force to him in some manner or other.” (At page 462.)

[108] In R. v. Kawal, supra, Harris J. cites authority for what probable consequence means at paras 53 - 54,

[53] Violence and the threat of violence fails to demonstrate sufficient evidence of an intention to kill. In law, robberies and kidnappings definitionally and as a practical matter involve violence of one type or another. The prospect of violence does not equate to the probable consequence of the full offence of second degree murder.

[54] Professor Colvin writes in Principles of Criminal Law (Carswell, 1986) at page 323:

... in the most common type of case where s. 21(2) is used, which is the commission of a murder during the course of an armed robbery, it is by no means obvious that the condition [of probability] is met. To say that a consequence is "probable" (or "likely") is ordinarily to say that it can be expected to occur, that its occurrence is more likely than not, or that there is a better than even chance of its occurrence. Armed robberies do not usually lead to killings. Killing might regarded as a possible outcome of any armed robbery, but it will rarely be a probable outcome. Thus, if the calculation of probability is made from the time the implementation of the common purpose commences, the condition would place stringent restrictions on the extension of secondary liability.

[109] I note that wilful blindness can substitute for actual knowledge. In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, Charron J. at para 21 stated,

[21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"

[110] The jury in considering section 21(2) of the Criminal Code could find an agreement to rob Mr. Hake. Mr. Hake spoke of hearing the door open and feeling the breeze. It was shortly upon this that he saw the intruder who demanded to know where the jewelry is. Mr. Hake owns a jewelry store. The jury can infer the purpose was to rob him of jewelry. The jury could infer that the robbers went directly to him as opposed to looting the house. The jury could find that Mr. Johnson had knowledge or should have known that his cohort would probably cause bodily harm of some kind to the home owner/victim of robbery by applying force to him in some manner or other. It was objectively foreseeable that there would be resistance. It is objectively foreseeable that force would be used and bodily harm caused. While not necessary, it is also objectively foreseeable that the gun would be used and someone would be shot and that gun would be discharged with intent at someone.

[111] It is open to the jury to find that it is objectively foreseeable when one goes to commit a robbery with a gun that the gun will be discharged and someone will be wounded. The jury can find that Mr. Johnson knew of the gun at least from the moment of its being produced in the bedroom and that the common purpose continued at that point. They could also infer that Mr. Johnson was aware of the gun prior to the entry into the house due to its having been present on another occasion where he was involved in a robbery and it was discharged. The jury could find either he was actually aware of it or chose to be wilfully blind to its being brought prior to entry as an inference could be drawn that the prior involvement indicates that a related party to that other robbery had the same gun as used on this occasion leading to an inference that it was the same party this time, leading to the inference that this party was known to Mr. Johnson to use a gun.

[112] A jury can find that it is objectively foreseeable that when you go to an armed robbery that there will be bodily harm. It is objectively foreseeable that one party would probably cause bodily harm and shoot the gun. Mr. Johnson knew of the gun, he knew it was fireable, he knew that it was loaded on the occasion of the Canna robbery, the jury could find he heard the statement “I will shoot you”. There is evidence that he told Ms. Garvey to get down which they could infer was to keep her out of the line of fire. He knows the gun was discharged before by his cohort in the Canna robbery, in fact it is the same gun. I disagree in the circumstance of this case with the defence that it is silly to suggest that whenever you commit robbery with a firearm it is objectively foreseeable someone will get shot without more. Each case turns on its facts. In R. v. Kelly, 2017 ONCA 920, [2017] O.J. No. 6203 (C.A.) Doherty J. at para 29 stated,

[113] As indicated in R. v. Vang, supra, at para 24, the unlawful purpose of robbery with a firearm can occur at the instance of the offence being carried out. As in R. v. Kelly, supra, the circumstances may indicate that the parties came armed and prepared to overcome resistance. In fact that is what occurred in the Hake household. If the jury infers that then they can infer that Mr. Johnson “knew or ought to have known that it was probable that one of the robbers would cause non trivial harm to someone in the course of committing the robbery.” As in R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284 (C.A.), the jury could find that they entered into a common purpose to commit armed robbery and that each knew or ought to have known the use of a firearm, discharging it, shooting someone, causing bodily harm is a probable consequence of carrying out the unlawful purpose.

[114] This case appears similar to R. v. Cuadra (1998), 1998 15001 (BC CA), 125 CCC (3d) 289 (BCCA) cited in R. v. Amador, supra. It is open to the jury to find that Mr. Johnson entered the fray in the bedroom knowing that a gun was out and that a threat to shoot had been made. Bodily harm was objectively foreseeable. The jury could find him guilty as a principal in the aggravated assault. That this was all a flowing of the assault that occurred in the bedrooms and that Mr. Johnson joined in Madelyn’s room. The jury could also find Mr. Johnson guilty as a party in that he aided in the assault of Mr. Hake by preventing Ms. Garvey from calling for help and taking her phone while Mr. Hake was being assaulted with and struggling with the first suspect who had a gun. Again, the jury could find that the shooting of Mr. Hake causing bodily harm was objectively foreseeable as they could find that Mr. Amador knew of the gun as well as knew that he was capable of firing and a threat had been made to shoot Mr. Hake. The jury could also find that 24(2) is applicable and Mr. Johnson entered into an unlawful common purpose to break and enter into someone’s house and commit the offence of robbery. It is open to the jury to find that it is objectively foreseeable that an occupant of the home would resist and suffer bodily harm. The jury could infer that Mr. Johnson knew of the gun in advance given its use at a previous offence in which he was involved. Even if not prepared to so infer, the jury would have the evidence of the gun being produced in Mr. Hake’s bedroom, prior to his being hit with it when the demand for jewelry is made. Mr. Johnson at this point is agreeing to a common purpose of robbery with a firearm and persists in his involvement. It is objectively foreseeable that the gun would be used even without the threat to shoot.

[115] Given that Mr. Johnson had been involved in a prior robbery where the gun was discharged to overcome resistance, a jury could infer from the presence of such a gun during the break and enter and robbery of Mr. Hake that he knew or ought to have known it was probably that the other suspect would cause non trivial bodily harm to someone in the course of the robbery.

[116] It is objectively foreseeable that there will be bodily harm if you break into someone’s home to commit a robbery with a firearm. A jury could find that Mr. Johnson knew or ought to have known of the probable bodily harm from his involvement in the prior robbery where the very gun was discharged and comments made to Mr. Hake “I will shoot you “ and his actions in telling Ms. Garvey to get down. As indicated in R. v. Vang, supra, a 21(2) agreeing to common purpose does not have to be planned days in advance. The jury could find that he brought a loaded firearm to an armed robbery where threats to shoot it were made and he was trying to get Ms. Garvey to stay down is an objective foreseeability of use of it to cause bodily harm and that it will be discharged to cause bodily harm.

[117] The defence has argued that s. 21(2) is not applicable as the common purpose was completed prior to Mr. Hake being shot. The aggravated assault, attempt murder and discharge firearm must be carried out in the common purpose and the robbery was finished. Where the common purpose is completed s. 21(2) does not apply in the carrying out of the common purpose. I disagree that the jury has to find that the common purpose was completed at the time of the shooting. The offence of discharging a firearm with intent contemplates its use to avoid arrest or detention. It is open to the jury to infer that this is what occurred here and that the shot was discharged to facilitate the escape from the unsuccessful robbery. I disagree with the defence that if the shot is to discourage pursuit, that does not make it a part of the common purpose but separate. I also disagree that the only inference the jury could draw was the shot was made in anger because the robbery did not get anything. There could be an inference that it was done to discourage further shoving by Mr. Hake or to prevent pursuit, apprehension and arrest. It is also open to the jury to find that this aggravated assault was committed during the continuing assault involving Mr. Johnson and was reasonably foreseeable and that the assault had not ended at this point given the immediacy of the shot and the positioning of the parties. The jury could also find that the aggravated assault was part of the joint purpose of committing the robbery and getting away, which is a component of the offence.

[118] It is open to the jury to find that s. 21(2) is operable. That the shooting occurred and was still part and parcel of the robbery when they are leaving and the shot is fired. It is open to the jury to find that this was to prevent pursuit and was objectively foreseeable. This occurred while the intruders were being forced out of the home. The jury could find that this was to resist the eviction or to assist in the escape of the parties. The jury could find that it was fired in anger. This is up to them. The inferences to be drawn are up to the jury and at a preliminary inquiry are to be regarded in favour of the Crown.

[119] The jury could find that this is not similar to the decision in Kawal where there was an intervening event. It is not a given that they had actually given up or were in the process of leaving despite Mr. Hake’s assumptions. On the evidence for the Crown at its highest the two were standing together at the foot of the stairs. The evidence is that Mr. Hake got them down the stairs, not that it was completed.

[120] It is open to the jury to find that Mr. Johnson was aware of the gun prior to their entry to the house or was wilfully blind to it given its use a mere five weeks prior at another robbery in which he was involved. In any event, it is open to the jury to find that it was evident to him once it had been produced to Mr. Hake and pointed at him and then struck in the head with it given the evidence that the second suspect was looking in Mr. Hake’s direction, and was within two feet of him at the bedroom door. It is after this that Mr. Johnson assists in the robbery by restraining Ms. Garvey and taking her phone from her and is involved in the assault on Mr. Hake while he is struggling in the bedroom with the gun out and visible. A jury could infer that Mr. Johnson would have been aware of the gun from the beginning of the incident in Mr. Hake’s bedroom and was aware of its presence during the struggle. There was also a threat made to shoot Mr. Hake. The jury can infer that Mr. Johnson heard this threat and persisted in the assaulting of Mr. Johnson as it continued in the bedroom and down the hallway to the stairs. It is objectively foreseeable that this threat would be carried out. It is objectively foreseeable that when there is a struggle and a gun is involved that it will be discharged. It is objectively foreseeable that when a robbery is conducted with a gun that it will be discharged.

[121] The next question is whether the robbery or assault was completed at the time of the discharge of the gun and the wounding of Mr. Hake. The defence argues that they were not overcoming resistance, they had given up and were fleeing at the time of the shooting. It is open to the jury to find that this shooting and discharging of the gun was for the purpose of facilitating escape and that the ongoing offences had not been completed. The jury could find this because of the continuing struggle down the hall, the intruders being physically pushed down the stairs, and the immediacy of the shot discharged at Mr. Hake. The jury does not have to accept Mr. Hake’s assessment that this was done in error. The jury can infer that this was done to prevent pursuit and to facilitate escape. The intruders had not yet left the house if at the bottom of the stairs. Mr. Hake had shown willingness to physically push them out and was at the top of the stairs. It is open to the jury to find that the offences were still continuing in that escaping is part of the full offence and plan and that Mr. Hake was shot to prevent further pursuit. There was no intervening act as in R. v. Kawal, [2018] O.J. No. 4087 (S.C.J.). In Kawal, two of the joint perpetrators of the robbery and kidnapping fled the scene then one in what “appears to be an afterthought” returned and shot the kidnapping victim. Harris J. directed a verdict of acquittal on the attempted murder count. He held, at para 64, “what happened was a split second strangely malicious decision which could not have been anticipated”. There is evidence upon which a jury could determine that this was not the case in the Hake robbery.

[122] I note that robbery can be committed in a number of ways. I recognize the Crown has particularized the robbery charges in this case as being under 344(1)(a) of the Criminal Code. Section 344(1)(b) of the Criminal Code indicates “that a person commits robbery who steals from any person and, at the time he steals or immediately before or immediately after wounds, beats, strikes or uses any personal violence to that person”. I query whether this would be open to the jury down the road in considering whether the common purpose robbery was completed. This was not argued by the parties and does not form part of the foundation for committal for trial.

[123] The Crown has met the burden set out in R. v. Sheppard for the offences set out in the Information of two counts of using a prohibited firearm in robbing Ms. Garvey and Mr. Hake. The Crown has also met the burden for the offences of break and enter s. 348 Criminal Code, aggravated assault on Mr. Hake s. 268 Criminal Code, discharging a firearm with intent s. 244 Criminal Code, and unauthorized possession of a prohibited firearm s. 91 Criminal Code. These are offences that occurred in respect of the same transaction and the committal for trial on these counts is pursuant to s. 548(1)(a) of the Criminal Code.

[124] Mr. Johnson is committed to trial on the following: two counts of Robbery using a prohibited firearm as set out in the Information, break and enter, aggravated assault on Mr. Hake, discharging a firearm with intent, and unauthorized possession of a prohibited firearm.

Released: February 15, 2019

Signed: Justice N. Dawson

R. v. Johnson, 2019 ONCJ 93

Case Summary

WARNING

ONTARIO COURT OF JUSTICE

Dawson J.:

Test for Committal for trial

Legal requirement for mens rea and party liability.

Elements of the offences

Identity of Mr. Johnson as one of the intruders

Evidence of intent to kill of shooter

Evidence of Mr. Johnson as the shooter or principal with the shooter 21(1)(a)

Evidence of knowledge of other suspect’s intent to commit murder.

Evidence of liability for aggravated assault and discharge firearm

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 10