R. v. Jackson, [1993] 4 S.C.R. 573

Her Majesty The Queen Appellant

v.

Paul Benjamin Davy Respondent

Indexed as: R. v. Jackson

File No.: 22808.

1993: June 3; 1993: December 16.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Parties to offences ‑‑ Aiding and abetting ‑‑ Murder or manslaughter ‑‑ Whether party who aids and abets may be convicted of manslaughter under s. 21(1) of Criminal Code where principal guilty of murder ‑‑ Mens rea required for conviction for manslaughter under s. 21(1) of Code ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 21(1).

Criminal law ‑‑ Parties to offences ‑‑ Common intention ‑‑ Murder or manslaughter ‑‑ Whether party to common unlawful purpose may be convicted of manslaughter under s. 21(2) of Criminal Code where principal guilty of murder ‑‑ Mens rea required for conviction for manslaughter under s. 21(2) of Code ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 21(2).

Criminal law ‑‑ Parties to offences ‑‑ Charge to jury ‑‑ Evidence capable of supporting murder or manslaughter ‑‑ Whether trial judge should have instructed jury that a party under s. 21(1) or 21(2) of Criminal Code may be guilty of manslaughter even though principal guilty of murder ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 21.

J and the accused were charged with first degree murder following the killing of J's employer. J believed that the victim, with whom he had a homosexual relationship, had brought in a new employee to take his place. On the night of the murder, the accused drove J to the victim's antique shop. According to J, the accused never left the car and was unaware of what happened in the shop. J admitted to entering the shop, losing control and striking the victim with a hammer. The accused gave a different story. According to him, J talked on the way to the shop about killing the victim, although the accused took this to be a joke. J got out of the car carrying a hammer, balaclava and gloves, and ordered the accused to follow him. J entered the shop and the accused remained outside near the door where he heard loud voices and noises, suggesting that someone was getting hit. The accused became frightened and ran down the driveway toward the car. J ran after him, hit him and forced him to return to the shop. He then told the accused to retrieve the cash box. The Crown's theory was that J and the accused both entered the shop and both participated fully in the attacks as well as the robbery. The trial judge charged the jury on both murder and manslaughter. He set out a number of plausible scenarios but in none of them was it suggested that the accused might be guilty of manslaughter. Rather, the trial judge expressed the opinion that this was unlikely. The jury found J guilty of first degree murder and the accused of second degree murder. The Court of Appeal set aside the accused's conviction and directed a new trial on the ground that the trial judge did not adequately instruct the jury as to the accused's potential liability for manslaughter under ss. 21(1) and 21(2) of the Criminal Code.

Held: The appeal should be dismissed.

Per La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: A person who aids and abets another in the offence of murder can be guilty of that offence under s. 21(1)(b) and (c) of the Code if he possesses the requisite mens rea for murder. Where the aider and abettor does not have the mens rea required for murder, he may be guilty of the lesser offence of manslaughter if he possesses the requisite mens rea for that offence. Unlawful act manslaughter under s. 21(1)(b) and (c) does not require a subjective appreciation of the consequences of the act. The test is objective. Nor is it necessary that the risk of death be foreseeable. As long as the unlawful act is inherently dangerous and harm to another which is neither trivial nor transitory is its foreseeable consequence, the resultant death amounts to manslaughter. A person may thus be convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken.

As well, under s. 21(2) of the Code, where a common unlawful purpose has been demonstrated and one party to the purpose has committed murder, another party to the purpose may be convicted of either murder or manslaughter. The offence referred to in s. 21(2) is not confined to the offence of which the perpetrator is convicted but extends to included offences. The appropriate mens rea for manslaughter under s. 21(2) is objective awareness of the risk of harm. It follows that a conviction for manslaughter under s. 21(2) does not require foreseeability of death, but only foreseeability of harm, which in fact results in death. A party to a common intention to carry out an unlawful purpose under s. 21(2) may thus be guilty of manslaughter, even though the perpetrator was guilty of murder, if he did not foresee the probability of murder but a reasonable person in all the circumstances would have foreseen at least a risk of harm to another as a result of carrying out the common intention.

Here, the accused was entitled to have the verdict of manslaughter clearly put to the jury. The evidence adduced at trial was capable of supporting a conviction for manslaughter on the basis that the accused was an aider and abettor under s. 21(1) or that he was a party to a common intention to carry out an unlawful purpose under s. 21(2). It was thus essential that the jury be instructed with respect to the accused's potential liability for manslaughter under these sections. Given the trial judge's failure to set out the basis for convicting the accused of manslaughter under ss. 21(1) and 21(2) and the absence of any instruction that a party may be guilty of manslaughter even though the perpetrator is guilty of murder, one cannot be satisfied that the verdict was just. This was not a proper case for the application of s. 686(1)(b)(iii) of the Code.

Per Lamer C.J.: The reasons of McLachlin J. were generally agreed with. In particular, an accused can be convicted of manslaughter under s. 21(2) of the Criminal Code if the accused, having formed an intention in common to carry out an unlawful purpose and to assist the perpetrator therein, knew or ought to have known that a probable consequence of carrying out the common purpose was the carrying out by the perpetrator of a dangerous act which a reasonable person could recognize as creating the risk of bodily harm which is neither trivial nor transitory. No Charter issue was raised in this appeal.

Cases Cited

By McLachlin J.

Applied: R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74; R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3; R. v. Trinneer, 1970 177 (SCC), [1970] S.C.R. 638; approved: R. v. Emkeit (1971), 1971 ALTASCAD 37, 3 C.C.C. (2d) 309; R. v. Kent (1986), 1986 4745 (MB CA), 27 C.C.C. (3d) 405; disapproved: R. v. Wong (1978), 1978 2367 (BC CA), 41 C.C.C. (2d) 196; Hébert v. R. (1986), 1986 7294 (NB CA), 51 C.R. (3d) 264; referred to: R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944; R. v. Tomkins, [1985] 2 N.Z.L.R. 253; R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731; Bullard v. The Queen, [1957] A.C. 635.

By Lamer C.J.

Applied: R. v. Trinneer, 1970 177 (SCC), [1970] S.C.R. 638; R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74; R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms.

Criminal Code, R.S.C. 1927, c. 36, s. 69(2).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 21, 686(1)(b)(iii).

APPEAL from a judgment of the Ontario Court of Appeal (1991), 1991 11739 (ON CA), 51 O.A.C. 92, 68 C.C.C. (3d) 385, 9 C.R. (4th) 57, allowing the accused's appeal from his conviction on a charge of second degree murder. Appeal dismissed.

Kenneth L. Campbell and Jay Naster, for the appellant.

Marc Rosenberg and Richard T. Crothers, for the respondent.

The following are the reasons delivered by

Lamer C.J. -- I agree with Justice McLachlin's proposed disposition of this appeal and generally with her reasons. In particular, I agree that having regard to the decisions of this Court in R. v. Trinneer, 1970 177 (SCC), [1970] S.C.R. 638, R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74, and R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, an accused can be convicted of manslaughter under s. 21(2) of the Criminal Code, R.S.C., 1985, c. C-46, if the accused, having formed an intention in common to carry out an unlawful purpose and to assist the perpetrator therein, knew or ought to have known that a probable consequence of carrying out the common purpose was the carrying out by the perpetrator of a dangerous act which a reasonable person could recognize as creating the risk of bodily harm which is neither trivial nor transitory.

In so holding, I would emphasize that the Court is not here concerned with any issue under the Canadian Charter of Rights and Freedoms, no such point having been raised or argued.

The judgment of La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

McLachlin J. -- Paul Benjamin Davy stands convicted of the second degree murder of Eugene Rae. The Court of Appeal of Ontario ordered a new trial on the ground that the charge to the jury did not adequately describe the alternative of manslaughter. The Crown now appeals to this Court.

Two issues arise on this appeal. The first concerns the principles which govern a conviction for manslaughter. The second is whether the charge given by the trial judge was in conformity with those principles.

The Background

Davy was charged, together with Ricky Allan Jackson, with the first degree murder of Eugene Rae which took place in the early morning of August 27, 1986. Mr. Rae was the owner of an antique shop, the Raebenloft, in the town of Bobcaygeon. His living quarters were in the shop. Jackson had worked for Rae in the shop and had been Rae's lover.

In the summer of 1986, Rae hired a 19-year-old man named Michael Pearson. Jackson became concerned that Pearson would replace him in the shop and in Rae's affections. Jackson and Rae argued about Pearson and Rae assured Jackson that Pearson would be leaving.

On the night of the murder, Jackson was visiting Davy and his wife in their home in Orillia when he decided to telephone Rae. Upon doing so, he learned that, despite Rae's promise, Pearson was at the Raebenloft with him. Upset, Jackson asked Davy to drive him to Bobcaygeon.

Here the stories of Jackson and Davy diverge. According to Jackson, Davy never left the car and was unaware of the events that subsequently took place in the Raebenloft. Jackson admitted to entering the shop, losing control and striking Rae with a hammer. He was unable to say how many times he struck Rae. He also recalled chasing Pearson up the stairs, catching and hitting him about three-quarters of the way up and then seeing Pearson lying beside the bed. The next thing he remembered was being out in Davy's car and giving him directions back to Orillia.

Davy's story was quite different. According to him, Jackson talked on the way to Bobcaygeon about killing Rae, although Davy took this to be a joke. Upon their arrival in Bobcaygeon, they parked the car across the street from the Raebenloft. Jackson got out, carrying a hammer, balaclava and gloves, and ordered Davy to follow him. Jackson entered the shop and Davy remained outside, near the door. Davy saw another person in the house with Jackson and heard loud voices and "three smacks". Davy then became frightened and ran down the driveway toward the car. Jackson ran after him, hit him and forced him to return to the shop. He told Davy to retrieve a cash box from the floor before they returned to the car, whereupon Jackson ordered Davy to drive back to Orillia. Jackson disposed of the hammer and some stolen property on the way.

Pearson testified that he had been awakened by screaming from the deceased and then heard a thumping sound. He remained upstairs, hiding behind the bed, until he saw Jackson in the room looking at him. He stood up and asked Jackson what was going on. He testified that he did not see any other person in the room and that he recalls nothing after that until he awoke in the hospital with head wounds.

Forensic evidence revealed the impressions of two different pairs of running shoes at the scene. One pair had a wavy pattern, the other a lug pattern. The wavy prints were found at various places in the downstairs living area and shop and some of them were marked in blood. The lug prints were found at the south end of the bed and halfway between the bed and the doorway leading into the store front. These prints bore no evidence of blood.

The lug shoes were found in Jackson's car on his arrest and Jackson testified that they were his. However, Davy testified that the lug shoes were his, that they had been worn by him on the night of the killing and that he had given them to Jackson on Jackson's orders later. Jackson, he said, wore shoes with a wavy tread. Expert evidence was called which suggested that the lug shoes had been routinely worn by Davy.

On the basis of this evidence a number of scenarios may be constructed. The strength and plausibility of each depends upon the credibility of each witness and the weight which might be ascribed to each piece of evidence. The jury could have found that Davy had nothing to do with the murder and must be acquitted. Or, the jury could have found that Davy assisted Jackson in the activities that led to the murder or the robbery. On yet another scenario, proffered by the Crown, Jackson and Davy both entered Raebenloft and both participated fully in the attacks as well as the robbery. Davy's fate at trial depended upon the scenario chosen and the conclusions drawn as to duress and his state of mind.

The trial judge charged the jury on both the law of murder and of manslaughter. In doing so, he emphasized that the jury should consider each accused's liability independently. He set out a number of plausible scenarios and stated what the liability of each accused would be under each. In none of the scenarios was it suggested that Davy might be guilty of manslaughter. Rather, the trial judge expressed the opinion that it was unlikely that Davy would be guilty of manslaughter. The jury, as noted, convicted Davy of second degree murder.

The Court of Appeal set aside Davy's conviction and directed a new trial on the ground that the judge's charge did not adequately deal with the possibility that he might be guilty of manslaughter: (1991), 1991 11739 (ON CA), 51 O.A.C. 92, 68 C.C.C. (3d) 385, 9 C.R. (4th) 57.

Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46

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

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

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew 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.

Discussion

(1) Manslaughter and its Application in this Case

The main objection to the charge is that the trial judge failed to properly instruct the jury with respect to Davy's potential liability for manslaughter through the application of ss. 21(1)(b), 21(1)(c) and 21(2) of the Criminal Code.

(i) Aiding and Abetting: Section 21(1)(b) and (c)

I turn first to Davy's potential liability for manslaughter as an aider and abettor under s. 21(1)(b) and (c). A person is a party to an offence if he or she aids or abets the commission of it. In this case, Jackson committed the offence of murder. It was open on the evidence for the jury to find that Davy aided and abetted him in that offence, and is guilty under s. 21(1)(b) and (c) of the Criminal Code. If he possessed the necessary mens rea for murder he could be guilty of murder. In the event that the jury did not find the intent required for murder, the question arises whether and in what circumstances Davy could be convicted under s. 21(1) for the lesser offence of manslaughter.

The trial judge did not give the jury a specific direction that it could find Davy guilty of manslaughter as an aider and abettor under s. 21(1) of the Criminal Code. The Court of Appeal held that this was an error. It held that the trial judge should have told the jury that s. 21(1)(b) and (c) of the Code would lead to a verdict of manslaughter if Davy did not have the mental state required for murder but the unlawful act which was aided or abetted was one he knew was likely to cause some harm short of death. This follows from the decision of this Court in R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74, at p. 88, per Cory J., where it was held that a person who aids and abets in an attack which results in a death may be guilty of manslaughter where that person does not have the requisite mens rea for murder but possesses the requisite intention for manslaughter, and where his co-accused is guilty of murder. (See also Wilson J., at pp. 96-97.)

I agree with the Court of Appeal that the jury could have convicted Davy of manslaughter under these sections while convicting Jackson of murder.

I differ from the Court of Appeal, however, in the state of mind required to be guilty of manslaughter under s. 21(1)(b) and (c). The Court of Appeal held that the test was a subjective appreciation that the act was likely to cause some harm short of death. Since the date of the Court of Appeal's decision, this Court has held that unlawful act manslaughter -- that is, the killing of a person while engaged in an unlawful act -- does not require a subjective appreciation of the consequences of the act. The test is objective -- what a reasonable person would have appreciated in all the circumstances. Nor is it necessary that the risk of death be foreseeable. As long as the unlawful act is inherently dangerous and harm to another which is neither trivial nor transitory is its foreseeable consequence, the resultant death amounts to manslaughter: R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3; see also R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944.

I conclude that a person may be convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken. I further conclude that Davy might fall within this rule on the evidence presented at trial.

(ii) Common Unlawful Purpose: Section 21(2)

I turn next to Davy's potential liability for manslaughter under s. 21(2) of the Criminal Code, the "common purpose" section.

In my view, the trial judge correctly instructed the jury on the potential liability of Davy for murder under s. 21(2). He told the jury that if Davy formed a common intention with Jackson to rob the deceased and Jackson committed murder in the course of carrying out that robbery and foresaw that the murder was a probable consequence of carrying out the robbery or common purpose, then Davy would be guilty of second degree murder.

The trial judge, however, did not tell the jury that they could find Davy guilty of manslaughter under s. 21(2). The Court of Appeal held that this was an error, and that he should have instructed the jury that if they found Jackson guilty of murder, it was open to them under s. 21(2) to find Davy guilty of manslaughter.

This raises the question of whether a party may be found guilty of manslaughter under s. 21(2) where the perpetrator of the offence under that section is found guilty of murder. In other words, is the offence referred to in s. 21(2) confined to the offence of which the perpetrator is convicted -- in this case murder -- or does it extend to included offences such as manslaughter? If it is found to extend to included offences, then the further question arises of the required mens rea for manslaughter under s. 21(2).

Canadian courts have divided on the question of whether s. 21(2) imposes liability for included offences. In British Columbia and New Brunswick, appellate courts have held that a party cannot be convicted of manslaughter under s. 21(2) where the perpetrator is convicted of murder: R. v. Wong (1978), 1978 2367 (BC CA), 41 C.C.C. (2d) 196 (B.C.C.A.), at pp. 200-202; and Hébert v. R. (1986), 1986 7294 (NB CA), 51 C.R. (3d) 264 (N.B.C.A.). On the other hand, in Alberta and Manitoba the contrary view has been taken: R. v. Emkeit (1971), 1971 ALTASCAD 37, 3 C.C.C. (2d) 309 (Alta. C.A.), at pp. 336-37; and R. v. Kent (1986), 1986 4745 (MB CA), 27 C.C.C. (3d) 405 (Man. C.A.), at pp. 431-32.

In this case, the Court of Appeal took the view that where a common unlawful purpose has been demonstrated and one party to the purpose has committed murder, another party to the purpose may be convicted of either murder or manslaughter. Its reasons may be summarized as follows.

First, the Court of Appeal held that while Kirkness, supra, does not finally decide the issue, its reasoning supports the conclusion that liability under s. 21(2) may extend to included offences.

Second, the Court of Appeal held that the wording of the section admits of this conclusion. It is true that the reference in s. 21(2), to "an offence" committed by the principal, followed by the phrases "the offence" and "that offence" describing the second person's liability, suggest at first reading that the second person's liability must be for the same offence as the principal's liability, in this case murder. However, if "the offence" and "that offence" are read as encompassing all included offences, a different conclusion emerges. Doherty J.A. wrote (at p. 420 C.C.C.):

The accessory is liable for "the offence" committed by the perpetrator. If the perpetrator commits murder, he or she necessarily commits the offence of manslaughter, although liability for manslaughter, being a lesser and included offence in murder, is subsumed in the conviction for murder. . . . The accessory's liability under s. 21(2) is properly addressed in relation to each of the incidental offences committed by the perpetrator, not just by reference to the offence to which the perpetrator is ultimately convicted.

Third, the Court of Appeal held that interpreting s. 21(2) in this way "maintains an appropriate equilibrium between moral culpability and the offence for which an accused is ultimately convicted" (p. 420 C.C.C.). Doherty J.A. cited Cooke J. (as he then was) in R. v. Tomkins, [1985] 2 N.Z.L.R. 253 (C.A.), at p. 255:

The availability of manslaughter as a verdict in such cases gives effect to the community's sense that a man who joins in a criminal enterprise with the knowledge that knives (or other weapons such as loaded guns) are being carried should bear a share of criminal responsibility for an ensuing death; but that, if he did not think that the weapons would be intentionally used to kill, it may be unduly harsh to convict him of murder.

These considerations, taken together, led the Court of Appeal to conclude that a person can be convicted of manslaughter under s. 21(2) of the Code where the principal is guilty of murder. While the matter admits of difficulty, I think that the Court of Appeal in the end arrived at the correct result, bearing in mind not only the wording of the Code but the manifest justice of permitting a conviction for manslaughter in these circumstances. In arriving at this conclusion, I have not ignored the history of s. 21(2), which at one time referred to "every offence" (R.S.C. 1927, c. 36, s. 69(2)). The change is arguably equally consistent with the theory that "offence" encompasses included offences, as with the Crown's theory that the drafters of the Criminal Code were seeking to limit it to the principal's offence.

This leaves the question of the mens rea required to sustain a conviction for manslaughter under s. 21(2) of the Criminal Code. The Court of Appeal held that to be convicted of manslaughter under s. 21(2) of the Code, the Crown must establish that the accused knew or ought to have known that killing short of murder was a probable consequence of the pursuit of the common unlawful purpose. However, as was previously noted, since the date of the Court of Appeal's decision, this Court has held that manslaughter does not require that a risk of death be foreseeable; foreseeability of the risk of harm is sufficient: Creighton, supra. This Court's decision in R. v. Trinneer, 1970 177 (SCC), [1970] S.C.R. 638, suggests that there is nothing inherent in s. 21(2) which requires a higher mens rea than would otherwise be required for a conviction for manslaughter. There the Court held unanimously that an accused could be convicted of constructive murder as a party to that offence under the combination of ss. 21(2) and 230 (then s. 202) of the Criminal Code, without the Crown proving that the accused knew or ought to have known that it was probable death would ensue from the execution of the common unlawful purpose. While it would no longer be possible to convict for murder under s. 21(2) without proof of subjective awareness of the risk of death (R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731), the reasoning in Trinneer, coupled with Creighton, supra, suggests that the appropriate mens rea for manslaughter under s. 21(2) is objective awareness of the risk of harm. It must follow that a conviction for manslaughter under s. 21(2) does not require foreseeability of death, but only foreseeability of harm, which in fact results in death.

On the evidence presented, one of the scenarios available to the jury was that Jackson and Davy had formed a common intention to rob Rae and that, in the course of the robbery, Jackson murdered Rae. Even if he did not participate in the murder, Davy could be liable under s. 21(2) in this scenario. If he foresaw that murder was a probable consequence of carrying out the common purpose -- in this case the robbery -- he would be guilty of second degree murder. On the other hand, if Davy did not foresee the probability of murder but a reasonable person in all the circumstances would have foreseen at least a risk of harm to another as a result of carrying out the common intention, Davy could be found guilty of manslaughter under s. 21(2).

To summarize, the evidence was capable of supporting a conviction for manslaughter on the bases that Davy was an aider and abettor under s. 21(1) of the Criminal Code or that he was a party to a common intention to carry out an unlawful purpose under s. 21(2) of the Criminal Code. The remaining question is whether the jury was correctly charged with respect to these options.

(iii) Adequacy of the Charge on Manslaughter

The trial judge, as part of his general direction on the law, charged the jury on manslaughter as follows:

Let us then assume that you have a reasonable doubt as to second degree murder, or, as I have called it, murder. We will then turn to manslaughter.

If you find that Eugene Rae died as the result of an unlawful act and that the accused committed, or was a party to that unlawful act, but you are not satisfied beyond a reasonable doubt that one of the accused had the intent required for murder, then you will find the accused not guilty of murder but guilty of manslaughter. No intention to kill -- I repeat, no intention to kill -- or no intention to cause bodily harm of the nature I have described need be proved by the Crown to sustain a verdict of manslaughter. Manslaughter simply is the unintentional killing resulting from an unlawful act, but the Crown must satisfy you beyond a reasonable doubt that the accused killed Rae by means of an unlawful act that the accused committed upon Rae, or was a party thereto. Here, the unlawful act would be assault, a non-accidental application of force.

Keep in mind that Mr. Owen [defence counsel for Jackson] has conceded that Jackson is guilty in the least of manslaughter, that is, the unlawful act of assaulting Rae caused Rae's death.

The trial judge gave the following directions on party liability:

All parties to the offence are equally guilty. There are two accused here. You must consider their liability separately. In that regard, you must determine whether Jackson or Davy are parties to first degree murder, second degree murder, or manslaughter. A party to an offence is guilty of the murder whether he is a principal or secondary offender.

The trial judge charged on aiding and abetting as follows:

I turn next to aiding and abetting an offence. Each is a separate mode by which an accused may be a secondary party to an offence actually committed by some other person. Before a person can be liable as an aider or abettor, you must find that a specific offence, in this case first degree murder, second degree murder or manslaughter, was committed. If you find that the offence has been committed, then the accused would be guilty if he aided, or abetted, in the commission of the offence.

Aiding or abetting must relate to a specific offence. You cannot aid, or abet, in the abstract. The word "aid", of course, simply means to help, or assist. The helping may consist of doing something. The word "abet" means to encourage, to urge on, to incite, to instigate.

Persons who actually aid, or abet, in the commission of an offence are as guilty of the offence as the person who actually commits it. To be guilty of aiding or abetting, there must be some actual participation or assistance rendered, or some active encouraging or urging that the offence be carried out. A mere bystander is not an aider or abettor. Passive acquiescence is not sufficient.

To aid, or abet the venture; to aid, or abet, the commission of a crime, a person must associate himself with a criminal venture by participating in it and trying to make it succeed, or by actively encouraging it, or urging that it occur. Remember, it is no criminal offence to stand by. A mere passive spectator to a crime, no matter how serious the offence, is not guilty of an offence. There must be intentional assistance or encouragement in the commission of the crime for an accused to be guilty of aiding or abetting.

In order for you to find the accused guilty on the basis of aiding or abetting, it is not sufficient for the Crown to prove that his acts, in fact, had the effect of aiding or abetting the commission of the crime; the Crown must also prove beyond a reasonable doubt that he did the acts for the purpose, or with the intention of aiding or abetting the commission of an offence.

Having set out the law on these matters, the trial judge then reviewed the available verdicts and crimes:

You must give special consideration and render separate verdicts with respect to each accused and each offence considered. Each accused is entitled to have his guilt, or innocence, as to each crime charged determined from his own conduct and from the evidence which applies to him as if he were being tried alone.

So, you start at second degree murder with Jackson. You make your determination. If you find Jackson not guilty of second degree murder, then you go down to manslaughter. He is only guilty of manslaughter. That is conceded. If you, however, find that Jackson is guilty of second degree murder, then you go on to consider whether or not it was a planned and deliberate, intentional killing; and, if so, then he is guilty of first degree murder.

Likewise with Davy. Consider Davy as to second degree murder and his liability for that. If you are not satisfied as to that, you may consider manslaughter. It may be unlikely in this case that Davy would be guilty of manslaughter. If you find Davy guilty of second degree murder, only then do you step up and consider his culpability as to first degree murder.

As far as Paul Benjamin Davy is concerned, you will be asked first; do you find him guilty of first degree murder? Although you start with second degree murder in your deliberations. If not, then, is he guilty of manslaughter? If not, then he is not guilty, and there is an outright acquittal.

You will be given various definitions of the Criminal Code. You will get the definition of second degree murder in s. 214 [now s. 231]. You will get the definition of first degree murder in s. 214(2) [now s. 231(2)]. You will also get simple manslaughter as a third alternative. There is no definition of an unlawful act causing death and it is already conceded that the assault would cause death, therefore there is manslaughter in the least. You will also be given s. 21 in its entirety as to actual parties to the offence. Remember, each is liable if they are a party to the offence. You can be a party by actually committing, aiding, abetting, or by having an intention to rob where it is probable that murder will result.

Finally, the trial judge gave the jury this concluding instruction:

In considering each accused's liability separately in each scenario, apply s. 21 of the Criminal Code, i.e., the party to an offence provision. Apply those provisions, the party provisions, to second degree murder, then to first degree murder, if applicable, then to manslaughter, if applicable. Start with s. 21(1)(a), actually commits; then s. 21(1)(b), aids; then s. 21(1)(c), abets, and finally s. 21(2) to each accused in each scenario. Obviously, certain subsections in s. 21 may not apply to each accused in particular scenarios.

If you follow this approach, I am sure you will arrive at true and just verdicts.

At no point did the trial judge expressly tell the jury that it was open to it to find Jackson guilty of murder and Davy guilty of manslaughter. In the scenarios which he outlined for the jury, none of the possible verdicts for Davy were manslaughter. Furthermore, and most telling, the trial judge stated: "It may be unlikely in this case that Davy would be guilty of manslaughter."

The Crown argues that the trial judge adequately set out the requirements of manslaughter and left that verdict open with respect to both accused. Furthermore, the Crown stresses that the trial judge advised the jury to consider the position of each accused independently. Finally, the Crown notes that if the jury followed the trial judge's directions, it would not have arrived at the verdict of manslaughter unless it was satisfied that Davy was not guilty of murder. This, states the Crown, was clearly not the case as the jury convicted him of second degree murder. The Crown says that it was unnecessary to expressly tell the jury that they could convict Jackson of murder and Davy of manslaughter.

Giving these arguments due weight, I am nevertheless left in doubt as to whether the jury was properly charged with respect to manslaughter. I agree with the Court of Appeal that it was essential that the jury be instructed with respect to Davy's potential liability for manslaughter under ss. 21(1) and 21(2) of the Criminal Code. It might not be apparent to a jury reading these provisions that, under them, they could convict Jackson for murder and Davy for manslaughter. This was exacerbated by the trial judge's suggestion that it was unlikely that Davy was guilty of manslaughter and by some of the wording employed by the trial judge in the charge. For example, the trial judge, in charging the jury on parties to the offence, used the phrase"[a]ll parties to the offence are equally guilty." If the jury had concluded that the offence under s. 21(2) was murder by Jackson, this might well have led it to conclude that Davy must also be guilty of murder when, as discussed above, he may have only been guilty of manslaughter in the absence of the requisite intent for murder. This ambiguity in the charge could have been easily countered by a clear explanation that the jury might find Jackson guilty of murder and Davy guilty of manslaughter. That direction, however, was not given.

It is true that the trial judge charged the jury clearly and correctly on the mental state required to find Davy guilty of murder. It is also true that the jury found Davy guilty of murder. Nevertheless, I agree with the Court of Appeal that one cannot be satisfied the verdict is just, given the failure of the trial judge to set out the basis for convicting Davy of manslaughter under ss. 21(1) and 21(2) and the absence of any instruction that a party may be guilty of manslaughter even though the perpetrator is guilty of murder. As Lord Tucker stated in Bullard v. The Queen, [1957] A.C. 635, at p. 644:

Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.

I cannot but conclude that Lord Tucker's admonition has not been followed in this case and the issue of manslaughter was not properly left to the jury.

(2) Whether Section 686(1)(b)(iii) of the Criminal Code Applies

I am not satisfied that it is clear that a jury, properly instructed, would necessarily have returned a verdict of second degree murder against Davy. He was entitled to have the verdict of manslaughter clearly put to the jury. We cannot be certain that if this had been done, and notwithstanding the correct instruction on murder, that the verdict might not have been different. This is, consequently, not a proper case for the application of s. 686(1)(b)(iii).

Conclusion

I would dismiss the appeal and confirm the order for a new trial.

Appeal dismissed.

Solicitor for the appellant: The Ministry of the Attorney General for Ontario, Toronto.

Solicitors for the respondent: Greenspan, Rosenberg & Buhr, Toronto.