ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 793/10
DATE: 20120927
BETWEE N:
HER MAJESTY THE QUEEN
Mr. B. Linley, for the Crown
- and -
CODY MICHAEL CROCKER
Mr. P. Cornish, for the defence
Defendant
HEARD: September 26, 2012
REASONS FOR DECISION
ON THE DEFENCE APPLICATION
TO QUASH COUNTS ON THE INDICTMENT
AND FOR DIRECTED VERDICTS OF ACQUITTAL
Conlan J.
[ 1 ] Cody Crocker is being tried before a jury on a six-count Indictment. The subject matter involves a shooting in Hanover in November 2009 which seriously wounded Tyler Hammond.
[ 2 ] At the end of the Crown’s case which consisted of 15 witnesses and numerous exhibits over the course of several days, in the absence of the jury, and in advance of the defence being put to its election as to whether it wishes to call any evidence, the defence makes an Application.
[ 3 ] The defence applies to quash counts 1 and 2 on the Indictment on the ground of issue estoppel or res judicata. The defence also applies for directed verdicts of acquittal on counts 1, 2, 3, 4 and 6 on the Indictment.
[ 4 ] The Court is grateful for the assistance of counsel in deciding these issues. The interests of the public and the interests of Mr. Crocker have been well served by the competent advocacy by counsel on both sides.
[ 5 ] The Court reserved its decision. These are my reasons. I have considered carefully the oral submissions of counsel and the materials filed. A list of the materials and case law supplied to the Court can be found in my oral reasons on the preliminary issue of leave to the defence to bring the Application as it relates to quashing certain counts. Reference should be made to those oral reasons delivered by me in Court on 26 September 2012. I have reviewed carefully all of my notes on the evidence at trial thus far.
[ 6 ] First, I will deal with the Application to quash counts 1 and 2 on the basis of issue estoppel or res judicata.
[ 7 ] In his Reasons for Judgment at the Preliminary Inquiry dated October 27, 2010, the Justice discharged Mr. Crocker on the charge of conspiracy to murder Mitchell Bowes. The Justice concluded that the evidence “fails to establish that Cody Crocker had agreed to participate in planning the murder of Mitchell Bowes”.
[ 8 ] The defence argues, essentially, that the said decision precludes the Crown from proceeding on counts 1 and 2 on the Indictment – discharging a firearm with intent and aggravated assault against Tyler Hammond. I disagree.
[ 9 ] The question is whether Mr. Crocker is being subjected to a second prosecution for a different aspect of the same conduct which was necessarily involved in the offence for which Mr. Crocker was discharged by the Justice in the court below. Regina v. Gushue, [1979] S.C.J. No. 128 at page 7.
[ 10 ] Put another way, is there a risk of inconsistent verdicts? Has the same point been determined in favour of Mr. Crocker in the court below which is now brought in issue at this trial? Regina v. Wright, 1965 338 (ON CA), [1965] O.J. No. 985 (C.A.) at paragraphs 2 and 10.
[ 11 ] The answer to each of these questions is the same – no. Whether Mr. Crocker played a part in planning the murder of Mitchell Bowes is not the same conduct that is alleged in counts 1 and 2, namely, being a party to discharging a firearm into a dwelling house and endangering the life of Tyler Hammond. There is no risk of inconsistent verdicts as Mr. Crocker could be found guilty of counts 1 and/or 2 without any evidence that he participated in planning the murder of Mitchell Bowes. The issues for the jury on counts 1 and 2 have not been determined in favour of Mr. Crocker in the court below.
[ 12 ] The defence Application to quash counts 1 and 2 on the Indictment is dismissed.
[ 13 ] I turn now to the defence Application for directed verdicts of acquittal on the various counts.
[ 14 ] The test generally is whether a reasonable jury properly instructed could return verdicts of guilty on those counts. Put another way, has the Crown made out a prima facie case against the accused on those counts? Has the Crown adduced a scintilla of evidence on each essential element of each of those charges?
[ 15 ] The Crown’s theory on counts 1, 2, 3 and 4 is based on party liability under section 21 of the Criminal Code of Canada – aiding, abetting and/or common intention or joint enterprise.
[ 16 ] The mens rea of aiding includes both intent and knowledge. The accused must have intended to assist the principal. The Crown need not prove that the accused desired that the offence be successfully carried out. The accused must also have known that the principal intended to commit the offence, although how and the details are not necessary. Regina v. Briscoe, 2010 SCC 13 (), [2010] 1 S.C.R. 411.
[ 17 ] With regard to abetting, the Crown must prove that the accused encouraged the principal with acts or words, and that the accused intended to do so. Regina v. Greyeyes (1997), 1997 313 (SCC), 116 C.C.C. (3d) 334 (S.C.C.).
[ 18 ] The actus reus of both aiding and abetting is essentially doing or omitting to do something that assists or encourages the perpetrator to commit the offence. Briscoe, supra.
[ 19 ] It is the totality of the evidence that must be considered. This Court should not lightly usurp the role of the jury. Nor should this Court engage in a piece-meal examination of individual items of evidence. The case for the Crown must be taken at its highest. Competing permissible inferences must be resolved in favour of the Crown. Regina v. Masterson, 2008 ONCA 481 () at paragraph 6.
[ 20 ] On count 1, the essential elements are:
(i) to intentionally discharge a firearm;
(ii) in to a dwelling house; and
(iii) knowing or being reckless as to whether another person was present.
[ 21 ] On count 2, the essential elements are:
(i) to intentionally apply force to Tyler Hammond; and
(ii) endangering the life of Mr. Hammond.
[ 22 ] On count 3, the essential elements are:
(i) to commit an offence;
(ii) use a firearm; and
(iii) use the firearm while committing the offence.
[ 23 ] There is evidence that Mr. Crocker was at a party at Shawn Yenssen’s place in Wingham. Others were present including Pletch and Chambers. Pletch and Chambers were making threats on the telephone. Two shots were soon after fired into the dwelling of Mr. Bowes, miles and miles away, while it was occupied by several persons. There is evidence that Mr. Crocker drove Pletch and Chambers from Yenssen’s house to Ward’s place, where the gun was plainly retrieved and placed in Mr. Crocker’s truck with the ammunition, and then from Ward’s to the Bowes’ specific address in Hanover where the shots were fired. There is evidence that Mr. Crocker had the directions to that address and knew where it was. There is evidence that Mr. Crocker knew why they were stopping at the Ward residence before they even got there. There is circumstantial evidence that Pletch and Chambers would not have been in Hanover and the shooting would not have occurred but for the actions of Mr. Crocker.
[ 24 ] That alone is some evidence that Mr. Crocker did something to aid or abet the offences charged in counts 1, 2 and 3. This ruling has focussed on aiding and abetting as, in my assessment, those modes of participation are supported on the evidence much stronger than common intention or joint enterprise.
[ 25 ] Whether convictions could be sustained on all three of those counts is not the issue at this stage. That will be determined if the jury renders verdicts of guilty on more than one of those three charges.
[ 26 ] Whether Mr. Crocker is believed when he says to the police, consistently, that he did not know there would be or intend there to be a shooting at Hanover will be for the jury to decide. This Court, on the totality of the evidence, is not prepared to take that determination out of the hands of the triers of fact.
[ 27 ] On count 4, the essential elements are:
(i) to possess a weapon;
(ii) knowing it is a weapon; and
(iii) for the purpose of committing an offence.
[ 28 ] There is evidence that Mr. Crocker directly and knowingly possessed the Bell Glasgow gun in his motor vehicle. There is evidence that the purpose of the three men in retrieving that gun from the Ward residence and proceeding afterwards to Hanover was to commit an offence, even if the jury accepts that Mr. Crocker did not intend on an actual shooting per se.
[ 29 ] On count 6, the essential elements are:
(i) to possess the Bell Glasgow gun;
(ii) which had been obtained by crime; and
(iii) knowing it had been obtained by crime.
[ 30 ] There is evidence that Mr. Crocker personally possessed the said gun which he must have known was stolen because he admitted to stealing it.
[ 31 ] On each of counts 1, 2, 3, 4 and 6 on the Indictment, there is evidence upon which a reasonable jury properly instructed could return a verdict of guilty.
[ 32 ] The defence Application for directed verdicts on those counts is dismissed.
Conlan J.
Released: September 27, 2012
COURT FILE NO.: 793/10
DATE: 20120927
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HER MAJESTY THE QUEEN - and - CODY MICHAEL CROCKER Defendant REASONS FOR DECISION ON THE DEFENCE APPLICATION TO QUASH COUNTS ON THE INDICTMENT AND FOR DIRECTED VERDICTS OF ACQUITTAL Conlan J.
Released: September 27, 2012