CITATION: R. v. Mills, Hylton, Dennis, 2013 ONSC 5051
COURT FILE: CrimJ 2043/12
DATE: 2013-08-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE QUEEN
D. D'Iorio, for the Crown
- and -
David MILLS, Howard HYLTON and Triston DENNIS
L. Miller for Mr. Mills;
T. Mackay for Mr. Hylton; and
S. Wickramasinghe for Mr. Dennis
Defendants
Heard: June 18, 20, 21, 24, 25, 26, 27, 28, July 2, 3, 4, 5, 8,9, 10,12, 15, 16, 17,18, 19, 22, and 23, 2013
Ruling on Triston Dennis’ s. 21(2) of the Criminal Code Application
RICCHETTI, J.:
THE CHARGES
[1] This application is brought by Mr. Triston Dennis.
[2] Mr. Dennis is charged with:
a. Robbery of Mrs. John;
b. Unlawful confinement of Mrs. John;
c. Use of a firearm during the unlawful confinement of Mrs. John;
d. Robbery of Darren John;
e. Aggravated assault on Darren John;
f. Possession of a loaded prohibited firearm; and
g. Having his face masked with the intent to commit an indictable offence.
[3] The allegations are that the three Defendants and Larry Dennis, Triston Dennis' brother, committed a home invasion on August 24, 2011. Two of the Defendants and Larry Dennis entered the premises while being masked and armed with a loaded prohibited firearm. The purpose of the home invasion was to steal drugs or money from an alleged drug dealer, Darren John. During the home invasion, Darren John's mother was home and was unlawfully confined through the use of a firearm, Darren John was shot with the firearm and money was stolen from Mrs. John.
[4] The Defendants and Larry Dennis fled from the scene in a vehicle and were apprehended shortly thereafter by the police.
[5] Larry Dennis has pleaded guilty and has been sentenced. There is no dispute that Larry Dennis was the armed robber who shot Darren John during this home invasion. The Crown alleges that Triston Dennis was one of the masked men who went into the home with Larry Dennis to assist in the robbery.
[6] Triston Dennis has pleaded not guilty and is proceeding with a trial by judge and jury.
[7] The Crown indicated it would be relying on s. 21 (1) and (2) of the Criminal Code with respect to party liability on most, if not all, of the counts before this court.
THE APPLICATION
[8] Triston Dennis’s application seeks a ruling that the principles of fundamental justice constitutionally require, under s. 7 of the Charter and pursuant to common law, a minimum degree of subjective mens rea (subjective intent only - "knew") for a conviction as a party under s. 21(2) of the Criminal Code to the offences of:
i. robbery;
ii. aggravated assault;
iii. possession of a loaded prohibited firearm;
iv. use of a firearm while committing the indictable offence of forcible confinement; and
v. having face masked with the intent to commit an indictable offence.
[9] Triston Dennis' counsel seeks a ruling that the objective intent component of s. 21(2) (“ought to have known”) of the Criminal Code is inoperative with respect to these offences.
[10] This application first came before this court as a pre-trial application. It was adjourned to be heard at the end of the trial. However, Triston Dennis' counsel requested a ruling on this application prior to the end of the trial. Counsel submitted that having all the facts was not necessary for a determination of the legal question raised by this application. The court agreed to Triston Dennis' counsel's request and heard the application after the Crown had completed its case and prior to the defence election to call evidence or a possible directed verdict application.
[11] The application was dismissed with written reasons to follow. These are those reasons.
THE LAW
The rationale for a minimum mens rea
[12] For certain offences, a minimum mens rea is required as a principle of fundamental justice, and therefore is subject to protection under s. 7 of the Charter. This constitutionally required minimum degree of mens rea was described by the Supreme Court in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636 at para 21:
However, federal and provincial legislatures have chosen to restrict through the Charter this power with respect to criminal law. Under section 7, if a conviction, given either the stigma attached to the offence or the available penalties, will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice.
[13] The most important consideration for the determination whether an offence is one which requires a minimum mens rea is the "continuing serious social stigma" associated with a conviction of that offence. That is not to suggest that the sentence or possible sentence for a conviction is not relevant to the consideration. It is. The Supreme Court in R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 731 stated:
It should be noted that, as a basis for a constitutionally required minimum degree of mens rea, the social stigma associated with a conviction is the most important consideration, not the sentence. Few offences have a high minimum sentence such as that for murder. For some offences, there is a high maximum and a low minimum penalty available; for other offences, the maximum penalty is much reduced and there is no minimum imposed whatsoever. In either situation, the fact that a lesser sentence is available or imposed, by statute or through the exercise of judicial discretion, in no way ends the inquiry. The sentencing range available to the judge is not conclusive of the level of mens rea constitutionally required. Instead, the crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction.
(emphasis added)
[14] In R. v. Creighton, (1993) 3 S.C.R.3 the Supreme Court went on to describe the analysis of social stigma as requiring:
i. A significant moral opprobrium on the individual found guilty of the offence; and
ii. The moral blameworthiness of the offender found guilty of the offence.
There are two main branches to the analysis of social stigma. First the court must look to the conduct being punished to determine if it is of sufficient gravity to import significant moral opprobrium on the individual found guilty of engaging in such conduct. In the case of manslaughter under s. 222(5)(a), the conduct in question consists of killing someone as a consequence of committing an unlawful act. In this respect, there may well be no difference between the actus reus of manslaughter and that of murder; arguably both give rise to the stigma of being labelled by the state and the community as responsible for the wrongful death of another. Clearly, there can be no conduct in our society more grave than taking the life of another without justification.
The second branch of the stigma test concerns the moral blameworthiness not of the offence, but of the offender found guilty of committing it. As a general proposition, more stigma will attach to those who knowingly engage in wrongful conduct than to those who recklessly or inadvertently engage in the same conduct. As I stated in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at pp. 645-46:
The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result.... The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.
Constitutionally protected minimum sentence and party liability
[15] The core of the issue before the court requires a consideration of the law regarding constitutionally protected minimum mens rea and party liability in the context of the various offences which Triston Dennis faces.
[16] Section 21(2) of the Criminal Code provides:
Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [emphasis added]
[17] In Logan, Lamer C.J., writing for the majority, described the application of “constitutionally required minimum degree of mens rea” to party liability offences s. 21(2) of the Criminal Code:
There are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict the rights of an accused under s. 7. If an offence is one of the few for which s. 7 requires a minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of mens rea below the constitutionally required minimum.
Therefore, the question whether a party to an offence had the requisite mens rea to found a conviction pursuant to s. 21(2) must be answered in two steps. Firstly, is there a minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence? This is an important initial step because if there is no such constitutional requirement for the offence, the objective component of s. 21(2) can operate without restricting the constitutional rights of the party to the offence. Secondly, if the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offence as well.
[18] Summarizing, Justice Sopinka stated in Logan:
The correct constitutional principle is that if social stigma and other factors require the principal offender to possess a constitutional minimum mind state in order to be convicted of an offence, then a party under s. 21(2) must possess that same minimum mind state.
Offences where minimum mens rea has been considered
Murder and Attempted Murder
[19] Whether there is a constitutionally protected minimum degree of mens rea for a variety of offences has been considered by the court on numerous occasions.
[20] In Vaillancourt and R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, the Supreme Court determined that murder is one of the offences where there is a constitutionally protected minimum degree of mens rea required as a principle of fundamental justice. See also in R. v. Sit, 1991 CanLII 34 (SCC), [1991] 3 S.C.R. 124; R. v. Rodney, 1990 CanLII 81 (SCC), [1990] 2 S.C.R. 687.
[21] Shortly after in Sit, the Supreme Court confirmed that, since the principles of
fundamental justice constitutionally require proof of subjective foresight of death in order to sustain a conviction of a principal for murder, the same mens rea is constitutionally necessary to sustain the conviction of a party to the offence of murder. The most recent appellate authority on this point is a murder committed during the course of carrying out a robbery is R. v. Scott, 2013 ONCA 286, [2013] O.J. No. 2003. At paragraph 8, the Court of Appeal stated:
The reviewing judge carefully and correctly set out the law on this matter, noting that an accused will only be guilty of murder as a party, pursuant to s. 21(2), if he foresaw that the murder was a probable consequence of carrying out the common purpose, in this case the robbery. He referred to this court’s decision in R. v. Laliberty 1997 CanLII 2992 (ON CA), (1997), 117 C.C.C. (3d) 97, at para. 36, in which the necessary mens rea for the purposes of s. 21(2) is stated to be the requirement of “actual foresight or actual knowledge that [the principal offender] would stab the deceased with the intent to kill him in carrying out the robbery of the deceased”. He also referred to this court’s decision in R. v. Ferrari, 2012 ONCA 399, [2012] O.J. No. 2649, at para. 61, which described subjective foresight as the requirement that the non-participant “knew that the principal offender would probably commit murder in carrying out the unlawful purpose”.
[22] In Logan, the Supreme Court rendered inoperative the words “or ought to have known” in section 21(2) for attempted murder. The Supreme Court reasoned in Logan that because the continuing serious social stigma and penalty following a conviction for attempted murder is comparable to murder, subjective foreseeability (or a minimum mens rea) is constitutionally required.
Theft
[23] In R. v. Finlay, (1993) 1993 CanLII 63 (SCC), 3 S.C.R. 103, the Supreme Court repeated its earlier decision that theft was an offence which required the constitutionally protected minimum mens rea:
Where the offence is one which carries sufficient social stigma coupled with potentially severe penal sanctions, the principles of fundamental justice may require a higher level of mens rea. The "very few" offences which merit this analysis have thus far included murder, attempted murder and theft.
Manslaughter
[24] In R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573, the Supreme Court overturned the Ontario Court of Appeal’s decision that a constitutionally protected minimum mens rea (a subjective awareness) was required for a conviction of manslaughter under s. 21(2). The Supreme Court noted at paragraph 32 that, while it would no longer be possible to convict for murder under s. 21(2) absent proof of subjective awareness of the risk of death, a conviction for manslaughter under s. 21(2) could be upheld 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. In other words, a conviction for manslaughter could be based on objective foreseeability of bodily harm.
[25] In Creighton, the Supreme Court said this regarding the stigma associated with the conviction of manslaughter:
In my view, the stigma which attaches to a conviction for unlawful act manslaughter is significant, but does not approach the opprobrium reserved in our society for those who knowingly or intentionally take the life of another. It is for this reason that manslaughter developed as a separate offence from murder at common law.
Aggravated Assault
[26] The Supreme Court has consistently held that the mens rea for aggravated assault is the mens rea for assault (viz. intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent), plus objective foresight of the risk of bodily harm.
[27] In R. v. Vang (1999), 1999 CanLII 2310 (ON CA), 132 C.C.C. (3d) 32 (Ont. C.A.), (leave to appeal to S.C.C. refused) the Court of Appeal recognized at paragraphs 12, 15, 18 that the required mens rea for the offence is the mens rea for assault and the objective foreseeability of bodily harm. At paragraph 16 the court stated:
It has been held at common law that there are reasons of policy that justify why a party to an unlawful joint enterprise may reasonably have a lower level of mens rea than the actual perpetrator. (See R. v. Powell and another; R. v. English, [1997] 4 All E.R. 545 (H.L.) at 561-62.) Accordingly, it is not unprincipled that the mens rea required of a party to an aggravated assault under s. 21(2) should be the same as that required of the perpetrator. I note that the foregoing reasoning is in accord with that of the British Columbia Court of Appeal in R. v. Cuadra (1998), 1998 CanLII 15001 (BC CA), 125 C.C.C. (3d) 289, which was concerned with liability for aggravated assault through s. 21(1)(b) of the Criminal Code.
[28] Recently, the Court of Appeal in R. v. Macdonald and Green, 2013 ONCA 442 at paragraph 42, directed a new trial as a result of the failure of the trial judge to instruct the jury on that the accused might have the necessary objective mens rea to be a party to the offence.
The third element required by s. 21(2) is proof that the person having the intention in common knew or ought to have known that the commission of the aggravated assault would be a probable consequence of carrying out the common purpose. The trial judge should have addressed the prospect that Graham, McDonald and Green each knew or ought to have known that one or more of them would assault Allen, and also that one or more of them would commit an aggravated assault, all as part of the original unlawful purpose of assaulting Bruer.
Dangerous Driving causing death/Criminal Negligence causing death
[29] The courts have also concluded that the constitutionally mandated minimum mens rea is not applicable to dangerous driving causing death (R. v. Bartlett (1998) 1998 CanLII 2998 (ON CA), 124 C.C.C. (3d) 417 (Ont. C.A.) or to criminal negligence causing death (R. v. Gingrich (1991), 1991 CanLII 11727 (ON CA), 65 C.C.C. (3d) 188 (Ont. C.A.).
Robbery
[30] As will be set out below, there are numerous cases where a conviction for party liability for robbery conviction has been based on objective mens rea. Recently, in R. v. Morgan, 2013 ONSC 1522 at paragraphs 71-80, Skarica J., relying on the Chang, Vang and Williams, found that, having found a common unlawful purpose, the objective foreseeability was sufficient to convict all the accused of robbery.
Firearm related offences generally
[31] It appears that there is no judicial authority expressly dealing with whether firearm related offences are constitutionally protected minimum mens rea offences. However, there are numerous decisions at the trial and appellate level where party liability for firearm offences have been based on the objective foreseeability set out in s.21(2) of the Criminal Code.
[32] The following are examples of such decisions.
[33] In R. v. Koroma, 2012 ONSC 4397, [2012] O.J. No. 3699, at paragraphs 91-2, Code J. found there was a common unlawful purpose to commit a robbery while armed with a loaded handgun, and therefore, the co-accused could be convicted as a party under s. 21(2) for the further offences of aggravated assault and discharging a firearm with intent, provided these offences were objectively foreseeable. Ultimately, Code J. dismissed the charges on the basis he had a reasonable doubt.
[34] In R. v. Chang, [2007] O.J. No. 5787 (S.C.), (affirmed 2009 ONCA 564), Molloy J. found that the two accused intended to commit a robbery against an undercover officer and that the accused knew they would need to use force or violence of some form or another to effect the robbery. Having set out with a common purpose to commit a robbery, the accused ought to have known that a probable consequence of the planned robbery was that one of his companions had a gun. Molloy J. convicted the accused. On appeal, the Court of Appeal dismissed the conviction appeal, saying:
Nonetheless, in light of the fact that the appellant was found guilty of the firearm offences by virtue of being a party to a common intention to rob under s. 21(2) of the Code,......[the court went on to deal with Keinapple issues]
[35] In R. v. Bernier, 2001 BCCA 394, [2001] B.C.J. No. 1147, at paragraphs 18-9, the British Columbia Court of Appeal found that the appellant must have known it was likely the accused would have to use force to successfully break into the home and steal drugs. As a result, robbery and assault were natural and foreseeable consequences of the criminal enterprise in which Bernier was a party. The Court of Appeal while substituting a conviction for robbery while using a firearm with robbery simplicter based on the trial evidence, stated:
The trial judge did not provide a s.21 analysis of the evidence to support the conclusion that the appellant assisted in the commission of the two weapons offences or that he knew or ought to have known that those offences were a probable consequence of the break and entry and theft. It remains for this court to consider whether the evidence supports the conclusion as to the appellant’s intention or legally imputed knowledge.
[36] In R. v. Rowley (2000), 1999 CanLII 3804 (ON CA), 140 C.C.C. (3d) 361 (Ont. C.A.), the Court of Appeal dismissed the appeals from convictions for breaking and entering and robbery. The Court of Appeal upheld the trial judge’s conviction based on party liability under s. 21(2) that the three accused had a common intention to commit a break and enter and robbery and that each accused knew or ought to have known the shooting of one or both of the victims was a probable consequence of implementing the common purpose.
The Position of Triston Dennis
[37] Essentially, Triston Dennis' counsel submits that:
i) theft is a constitutionally required minimum mens rea offence and, therefore, the more serious offence of robbery, which includes an essential element to commit a theft or an intention to commit a theft, should also be a constitutionally required minimum mens rea, and
ii) because firearm offences carry with them significant minimum sentences, Triston Dennis' counsel submits that a minimum mens rea is required as a principle of fundamental justice.
i) Theft requires a constitutionally protected minimum mens rea
[38] Triston Dennis' counsel submits that in Vaillancourt (as confirmed in Logan), the Supreme Court held that theft carries with it the necessary stigma that it was “minimum mens rea offence”:
For example, the offence of theft in the most serious circumstances is punishable by a maximum of ten years or, in less serious circumstances, a maximum of two years if the Crown proceeds by indictment; if the Crown proceeds summarily, the maximum is six months. The constitutional mens rea requirement would not, under s. 7, be triggered by any punishment within these ranges which the sentencing judge decided to impose. Whether the actual or available punishment is severe or not, the social stigma associated with being labelled dishonest will be automatically and unavoidably imposed upon conviction. It is because of this stigma that the principles of fundamental justice will require a minimum degree of mens rea, that is, as I said in Vaillancourt, at p. 653, "proof of some dishonesty".
(Logan)
[39] Triston Dennis' counsel submits that, in a similar fashion, the principles of fundamental justice constitutionally require a minimum mens rea for robbery and all robbery related offences.
ii) Significant social stigma is associated with robbery and firearms
[40] Essentially, Mr. Dennis relies on the mandatory minimum sentences for some of the above which involve the possession or use of firearms. Mr. Dennis relies on:
a) the “Judicial and legislative pronouncements made in support of very harsh penalties reflect the stigma that attaches to crimes involving firearms”; and
b) “Indeed stigma and punishment dovetail in sentencing for crimes involving mandatory minimums”.
ANALYSIS
Aggravated Assault, Unlawful Confinement and Having Face Masked with Intent Offences
[41] Let me first of all deal with the offences of aggravated assault, unlawful confinement and having a face masked with intent to commit an indictable offence. No serious reason or argument was advanced that these offences (when not committed with a firearm) should have constitutionally protected minimum mens rea. It can hardly be argued that there is stigma arising from the conviction of these offences to the degree or level as being branded a "murderer" or "thief". There is certainly no evidence before this court regarding any such stigma.
[42] Further these offences, when a firearm is not involved, do not have a minimum sentence leaving the level of participation or "moral blameworthiness" something which can be dealt with by the sentencing judge.
[43] As stated above, aggravated assault has not previously been found by any court to be a constitutionally protected minimum mens rea offence.
[44] With respect to these offences, the application is dismissed.
Robbery Offences
[45] Let me now turn to the robbery offences.
[46] While Triston Dennis' counsel makes the submission with respect to robbery and firearm related offences, in reality, the real stigma suggested by Triston Dennis' counsel relates to the minimum sentence provided for firearm offences. Robbery, by itself without the use of a firearm, carries no minimum sentence and a maximum sentence of life. So do many other offences which the Supreme Court has determined do not have a constitutionally protected minimum mens rea including manslaughter. The degree of culpability or moral blameworthiness is dealt with through the sentencing process.
[47] There are two robbery offences which Triston Dennis is charged with. The first is robbery against Darren John, the alleged drug dealer, and the second is robbery against Mrs. John, Darren John’s mother who happened to be home that day and had money in her possession which was stolen.
[48] I have difficulty understanding how s. 21(2) would apply at all to the offence of robbery against Darren John. Triston Dennis could only be convicted as a joint principal or for aiding and abetting under s. 21(1). In either case, the objective mens rea in s. 21(2) is not applicable. S. 21(2) has no application to this charge.
[49] Turning to the robbery against Mrs. John. In the circumstance of this case, for party liability under s. 21(2), the Crown is required to prove beyond a reasonable doubt each of the following:
i. Mr. Dennis was party to an agreement to commit a robbery against Darren John,
ii. During this robbery, the other parties to the agreement committed the robbery against Mrs. John, and
iii. Mr. Dennis knew or ought to have known that the other parties to the agreement would, during the robbery against Darren John, probably commit a robbery against other person.
[50] To use the language from Vaillancourt, the facts of this case, if proven, would hardly require the necessity of proof of a subjective mens rea "to avoid punishing the "morally innocent"". Triston Dennis' counsel's analogy to "theft" and the need for "some evidence of dishonesty" falls very short given that the jury would have to be satisfied beyond a reasonable doubt that Triston Dennis was party to an agreement to commit a robbery that day, albeit against Darren John.
[51] Reviewing the decisions above, robbery has never been found to be a constitutionally protected minimum mens rea offence - because of its relationship with theft or as a standalone offence. The availability of objective foreseeability for party liability for robbery is consistent with a number of decisions. The Ontario Court of Appeal in R. v. Chang, [2009] O. J. No. 2938 concluded that the accused, having agreed to commit a robbery, was a party to the firearm offences under s. 21(2):
The trial judge found that the three men had formed an intention in common to rob the officer of the $70,000. Relying upon s. 21(2) of the Criminal Code, she went on to conclude that the appellant was a party to the firearm offences because he knew or ought to have known that one of the three would have a gun.
[52] It is also consistent with the British Columbia Court of Appeal’s decision in Bernier, where the court approved the application of objective mens rea for robbery with a firearm, the same issue in this case.
[53] What is the social stigma associated with a conviction of robbery?
[54] There is a wide range of facts and circumstances which may form the basis for robbery under the Criminal Code. For example, a person may be convicted of robbery by threatening to punch someone unless the person gives them their cell phone. On the other hand, a home invasion where the persons at home are threatened is a robbery. There is no similar or consistent "significant moral opprobrium" on an individual found guilty in these two examples. Further, the "moral blameworthiness" of a convicted offender would vary greatly as would the sentence.
[55] In these circumstances, I am not persuaded that the stigma attached to "robbery" is one which attracts the constitutionally mandated minimum mens rea.
[56] As a result, I conclude that robbery is not a constitutionally protected minimum mens rea offence and the application is dismissed with respect to the robbery offence.
Firearm related OFFENCES (use of firearm to commit an unlawful confinement and possession of a firearm)
[57] This leaves two offences left to consider, both of which are firearm possession and use offences.
[58] It is an important starting point that the Supreme Court in Jackson, overturned the Ontario Court of Appeal finding that the objective intent set out in s.21(2) of the Criminal Code could uphold a conviction of manslaughter, albeit not with a firearm. There can be no doubt that the social stigma of being a "murderer" is very high. Referring back to Creighton, the Supreme Court stated:
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...
In my view, the stigma which attaches to a conviction for unlawful act manslaughter is significant, but does not approach the opprobrium reserved in our society for those who knowingly or intentionally take the life of another. It is for this reason that manslaughter developed as a separate offence from murder at common law.
[59] There are a number of cases where the Ontario Court of Appeal has expressly found that, where a homicide was caused by the use of a firearm, liability for manslaughter could be founded on objective foreseeability. For example, in R. v. Portillo, 2003 CanLII 5709 (ON CA), [2003] 17 C.R. (6th) 362 at paragraphs 72 and 73, a case involving two accused, one of whom was the shooter, the court said:
The jury would also have to be instructed on potential liability for murder and manslaughter under s. 21(2). Liability for murder under s. 21(2) requires that the Crown prove beyond a reasonable doubt that:
• the accused was a party to a common design to steal from the deceased;
• another person who was a party to that same common design committed murder as defined in s. 229(a) in the course of carrying out the theft; and
• the accused knew that murder was a probable consequence of carrying out the common design to steal from the deceased.
If the Crown proves the first two of the three elements described above, but fails to prove that the accused knew that murder was a probable consequence of carrying out the common design, the accused is not guilty of murder but is guilty of manslaughter if a reasonable person would have foreseen the risk of harm to the deceased as a result of carrying out the common design to steal from him: R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573.
(emphasis added)
[60] R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.) involved a firearm. The Court of Appeal’s comments at paragraphs 9 and 31 implicitly accept that objective foreseeability is constitutional and sufficient to convict under s. 21(2) for manslaughter, where the Crown can demonstrate the party knew or ought to have known that the plan involved the risk of bodily harm, despite the fact a mandatory minimum sentence would apply,.
[61] Liability based on the objective foreseeability for manslaughter was recently applied in R. v. Yumnu, 2010 ONCA 637 at paragraph 232 in the context of an aider to an accused who did the shooting.
[62] It is difficult to imagine that a person who is a party to manslaughter caused by the discharge of a firearm, can be convicted on the basis of the objective foreseeability but a person who is a party to a robbery with a firearm, where there is no loss of life, can only be convicted if subjective mens rea is established. This would be inconsistent with any principled approach based on stigma arising from the conviction of the offence or on a relative standard of moral blameworthiness for the accused’s actions.
[63] Let me briefly deal with stigma and the sentencing for firearm offences.
[64] There was no basis or evidence for "stigma" suggested by Triston Dennis' counsel other than that there exists a significant minimum sentence where a firearm is used in the commission of an offence. Counsel equates a significant minimum sentence as the necessary stigma to attract a constitutionally protected minimum mens rea.
[65] In this case, if found guilty, Triston Dennis would face a minimum 3 year sentence for possession of a loaded prohibited firearm and a minimum 5 years for robbery with a firearm (if it was a first such conviction for these offences).
[66] I do not accept and am not prepared to conclude, without further evidence, that the minimum sentence for firearm related offences equates to the level of a “special nature of the stigma” or “continuing serious social stigma which will be imposed on the accused upon conviction” (see Logan). There is no evidence before this court that the stigma associated with a firearm conviction is significant. I do note that if in fact the social stigma attached to firearm convictions was, as suggested by Triston Dennis' counsel, related to the minimum sentences, one would have expected the incidence of firearm offences to have decreased as minimum sentences have increased. There is no evidence to suggest that has been the case.
[67] While sentencing and stigma, may be related to some degree; that is not always the case. Minimum sentences have been a part of Canadian criminal law for many years. Given the continuing and increasing use of firearms, and not because of any alleged stigma related to or associated with firearm possession and use offences, Parliament has decided to increase the minimum sentence for the purpose of deterrence for these types of offences. Regrettably, despite increasing significant minimum sentences for possession and use of firearms, the prevalence of these types of offences continues.
[68] There is no doubt that the use of minimum sentences for firearm offences is intended to deter those who would possess or use firearms. The minimum sentences are significant but there are other offences where the appropriate ranges of sentence upon conviction are also significant.
[69] In any event, the sentence for an offence, even a minimum sentence, is not necessary determinative. In Logan, the Supreme Court said:
The sentencing range available to the judge is not conclusive of the level of mens rea constitutionally required. Instead, the crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction.
[70] I do not find that there is any evidence or basis to conclude that a conviction for firearm use and possession is of sufficient gravity to import "significant moral opprobrium" - which is defined as the disgrace or the reproach incurred by conduct considered outrageously shameful or infamous. I do not find that there is any evidence that the "moral blameworthiness" of an offender who is convicted of a firearm offence rises to the necessary level to establish the necessary and high level of social stigma necessary. There is no evidence to suggest that such an offender is labelled in any manner like a "murderer" or a "thief" or some other label which carries with it stigma to that high level.
[71] I am not persuaded that a conviction for firearm related offences, whether because of the significant minimum sentences or otherwise, brings with it the degree of social stigma to the level described in Vaillancourt, so as to engage the principles of fundamental justice to require a minimum mens rea.
[72] As a result, I conclude that firearm possession and use offences, despite the current minimum sentences, do not reach the level of constitutionally protected minimum mens rea.
CONCLUSION
[73] Mr. Dennis’s application is dismissed.
Ricchetti, J.
Released: August 26, 2013
CITATION: R. v. Mills, Hylton, Dennis, 2013 ONSC 5051
COURT FILE: CrimJ 2043/12
DATE: 2013-08-26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
David MILLS, Howard HYLTON and Triston DENNIS
Ruling on Triston Dennis’ s. 21(2) of the Criminal Code Application
Ricchetti J.