Court File and Parties

COURT FILE NO.: CR-18-5-192 DATE: 2018-12-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - SHELDON TINGLE - and - JERMAINE DUNKLEY

Counsel: Elizabeth Nadeau and Marco Cuda, for the Crown Scott Reid and Marianne Salih, for the accused, Sheldon Tingle Jeff Hershberg and Brian Ross, for the accused, Jermaine Dunkley

HEARD: September 24-25, 2018

K.L. Campbell J.:

Ruling

Constructive First-Degree Murder Under s. 231(6.1)(a) of the Criminal Code

A. Overview

[1] The two accused, Sheldon Tingle and Jermaine Dunkley, are charged with first-degree murder in connection with the November 24, 2013 killing of Neeko Mitchell, which took place just outside the front entrance of the North Kipling Community Centre in the city of Toronto.

[2] That night there were a series of men’s recreational basketball games being played in the gymnasium of the Community Centre. Mr. Mitchell attended the Community Centre to watch one of the games. The Crown alleges, essentially, that Mr. Mitchell was shot to death by Reshane Hayles-Wilson, at the request of Jermaine Dunkley, and after Mr. Mitchell was lured from the gymnasium and outside the Community Centre by Sheldon Tingle.

[3] The killing itself was captured, quite clearly, on a video recording from a security surveillance camera located near the entrance of the Community Centre. That recording leaves no doubt that it was Mr. Hayles-Wilson who killed the deceased. More particularly, that video recording shows Mr. Hayles-Wilson approach Mr. Mitchell just after he exited the Community Centre, draw a semi-automatic handgun from the waistband of his pants, and quickly shoot Mr. Mitchell repeatedly from very close range. Mr. Mitchell died a short time later, having suffered some eight gunshot wounds from the handgun wielded by Mr. Hayles-Wilson.

[4] The Crown’s primary theory of liability in this case, based upon the combination of ss. 21(1) and 231(2) of the Criminal Code, R.S.C. 1985, chap. C-46, is that the two accused are parties to the “planned and deliberate” murder of the deceased. The Crown contends more particularly: (1) that Mr. Dunkley ordered, or at least encouraged, Mr. Hayles-Wilson to commit the murder, and is therefore guilty as an “abettor;” and (2) that Mr. Tingle assisted in the murder by summoning Mr. Mitchell outside the Community Centre so that he could be killed by Mr. Hayles-Wilson, and is therefore guilty as an “aider.” The Crown contends that the murder of Mr. Mitchell was “planned and deliberate” on the part of both of these alleged parties to the killing.

[5] The Crown contends that the jury should also be instructed as to an alternative theory of liability, based upon s. 231(6.1)(a) of the Criminal Code. This provision states that, “irrespective of whether a murder is planned and deliberate on the part of a person,” murder is first-degree murder when “the death is caused by that person for the benefit of, or at the direction of or in association with a criminal organization.” The Crown contends that Mr. Hayles-Wilson and Mr. Tingle were both part of an urban street gang known as “Monstarz,” which was led by Mr. Dunkley, and that the killing of Mr. Mitchell was for the benefit of, at the direction of, or in association with, that criminal organization.

[6] Defence counsel for the two accused argue that this alternative basis of liability for first-degree murder should not be left with the jury in this case as there is no evidence that infuses that theory with the necessary air of reality. More particularly, defence counsel argue that s. 231(6.1)(a) of the Criminal Code can have no potential application to the two accused in the evidentiary circumstances of this case, as it was clearly Mr. Hayles-Wilson who was the only person who caused the death of Mr. Mitchell. In other words, as neither of the accused were in any way directly involved in physically causing the death of Mr. Mitchell, s. 231(6.1)(a) of the Criminal Code can have no potential application to them.

[7] At the conclusion of oral argument, I advised the parties that I would not instruct the jury as to the potential application of s. 231(6.1)(a) of the Criminal Code in the circumstances of this case, as it had no evidentiary air of reality regarding the two accused. More particularly, I indicated that, in my view, there is simply no evidence in this case that the death of Mr. Mitchell was “caused by” either Mr. Dunkley or Mr. Tingle, within the meaning of s. 231(6.1)(a) of the Code. I also indicated that I would subsequently provide reasons explaining this decision. These are those reasons.

B. The “Substantial Cause” Test for Liability for First-Degree Murder

1. The Supreme Court of Canada Cases

[8] According to s. 231(5) of the Criminal Code, “[i]rrespective of whether a murder is planned and deliberate on the part of any person,” murder is first-degree murder in respect of a person when “death is caused by that person” while committing or attempting to commit an offence under a number of listed provisions of the Criminal Code, including the offences of sexual assault and forcible confinement. The law is settled that, in order to establish liability for first-degree murder under this provision of the Code, the Crown must prove that the accused is guilty of murder, and that his or her actions were “an essential, substantial and integral” part of the killing of the victim, and that the killing took place while the accused was committing or attempting to commit one of the offences enumerated in that section. See R. v. Harbottle, [1993] 3 S.C.R. 306, at pp. 322-326; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 61-65.

[9] In R. v. Harbottle, the accused, James Harbottle and his friend, Shawn Ross, forcibly confined the female victim. While she was still confined, with her hands tied together, Ross strangled her to death with her own brassiere, while Harbottle held her legs to prevent her from continuing to kick and struggle against the two men. The accused was convicted of first-degree murder. On appeal, the accused argued that, in order to be convicted of first-degree murder under s. 231(5) of the Code, his actions had to be the diagnostic cause of death and, as the victim died from asphyxia due to strangulation, he could not properly be convicted of first-degree murder under the operation of this provision. The Court of Appeal for Ontario, in a 2:1 decision, affirmed the conviction of the accused for first-degree murder, and the Supreme Court of Canada dismissed a further appeal by the accused.

[10] Cory J., delivering the judgment of the unanimous Supreme Court in Harbottle, at pp. 322-326, held that the statutory language of s. 231(5) is broad enough to cover both: (1) perpetrators whose acts were the pathological or diagnostic cause of the death of the deceased; and (2) persons who assisted in the murder and whose acts were a “substantial and integral cause” of the death of the deceased. Applying this governing legal standard, Cory J. concluded that while it was the actions of Ross that were the diagnostic cause of death, in that he strangled the victim to death with her bra, the actions of Harbottle were also a “substantial and integral” cause of her death, as it was his actions, in holding her legs to prevent her from struggling, that allowed Ross to strangle her to death. Cory J. found it “impossible to distinguish between the blameworthiness” of the two accused. Cory J. concluded that there was every reason to believe that, if it had not been for Harbottle holding her legs, the victim would have been able to resist the efforts of Ross in trying to strangle her.

[11] In drawing these conclusions, Cory J. noted, at pp. 324-325, that the “substantial cause” test under s. 231(5) of the Criminal Code requires that the accused play a “very active role – usually a physical role – in the killing,” and that the actions of the accused must “form an essential, substantial and integral part of the killing of the victim.” Cory J. observed that this legal standard was a much higher standard of causation than the usually operative causal standard in homicide cases, namely, that the actions of the accused simply be a “contributing cause of death beyond the de minimis range,” as articulated in R. v. Smithers, [1978] 1 S.C.R. 506.

[12] Cory J. acknowledged, in Harbottle, at pp. 324-325, that in “most cases” it will be necessary for the Crown to establish that it was the actions of the accused that physically caused the death of the victim in order to ground liability for first-degree murder under s. 231(5) of the Code. Cory J. maintained, however, that there will be instances where an accused could well be the “substantial cause of the death without physically causing it.” In this regard, Cory J. noted, for example, that if one accused, with intent to kill, locked a victim in a cupboard, while another accused set fire to that cupboard, then the accused who confined the victim might properly be found guilty of first-degree murder on that basis that he caused the death of the victim within the meaning of s. 231(5). Cory J. noted that, similarly, if one accused “fought off rescuers in order to allow his accomplice to complete the strangulation of the victim,” the accused who prevented the rescue efforts might also properly be found to have been a “substantial cause of the death.”

[13] The Supreme Court of Canada returned to this subject in R. v. Nette. The accused in that case was alleged to have broken into the home of an elderly woman, robbed her, and left her “hog-tied” on her bed, with a garment around her head and neck. Sometime over the next 24 to 48 hours, she died from asphyxiation. The accused was alleged to be guilty of first-degree murder under s. 231(5) of the Code, on the basis that he had murdered her while committing the offence of unlawful confinement. In distinguishing between the degrees of murder, the trial judge instructed the jury that, for second-degree murder, the actions of the accused must have been “more than a trivial cause” of death, while for first-degree murder, the actions of the accused must have been a “substantial cause” of death. The accused was convicted of second-degree murder.

[14] On appeal, the accused argued that the “substantial cause” standard articulated in Harbottle should be applied in every type of homicide and each degree of murder, and that the trial judge erred in suggesting that the Harbottle “substantial cause” standard only applied to first-degree murder. Both the British Columbia Court of Appeal and the Supreme Court of Canada rejected this argument. Arbour J., delivering the judgment of the majority of the Supreme Court in Nette, ultimately concluded, at paras. 86 and 88, that the trial judge had instructed the jury in a manner that was “entirely satisfactory,” after having made it clear to the jury that, in order to find the accused guilty of manslaughter or second-degree murder, they must find that the actions of the accused were “more than an insignificant or trivial cause” of the death of the deceased.

[15] In drawing this conclusion, Arbour J. observed, at paras. 61-62, that Harbottle stressed the “increased degree of participation” required before the accused may be convicted of first-degree murder under s. 231(5) of the Code, holding that the participation of the accused in the killing must be “sufficiently immediate, direct and substantial to warrant the greater stigma and sentence” attached to first-degree murder. Moreover, Arbour J. stated, at paras. 64-65, that the “substantial cause” standard in Harbottle recognized the “increased degree of legal causation” that was the required “aggravating circumstance,” increasing the moral blameworthiness of the accused and warranting the increased penalty and stigma associated with first-degree murder. This necessary “high degree of blameworthiness” can only be established where, using the language of Harbottle, the actions of the accused were “an essential, substantial and integral part of the killing of the victim.”

[16] In Nette, Arbour J. also concluded, at paras. 66-73, and 86, that, in instructing the jury as to the necessary causal element to trigger liability for the offences of manslaughter and second-degree murder, it would make sense for trial judges, in the future, to tell juries that the acts of the accused must have made a “significant” contribution to the victim’s death. See also R. v. Hughes, 2011 BCCA 220, at paras. 56, 64, leave denied, (2011), 430 N.R. 390 (S.C.C.); R. v. Kippax, 2011 ONCA 766, at para. 24, leave denied, [2012] S.C.C.A. No. 92; R. v. Maybin, 2012 SCC 24, at paras. 5, 13-17. Arbour J. contrasted this lesser standard of causation (i.e. significant contributing cause of death) with the increased Harbottle standard of causation for first-degree murder under s. 231(5) of the Code (i.e. that the accused’s actions must have been “an essential, substantial and integral part of the killing of the victim”).

2. The Subsequent Appellate Court Jurisprudence

[17] The subsequent appellate court jurisprudence shows the consistent application of this same “substantial cause” standard, and provides helpful, concrete examples as to when this standard has (and has not) properly founded a conviction for first-degree murder under s. 231(5) of the Criminal Code.

[18] In R. v. Norouzali (2003), 177 C.C.C. (3d) 383 (Ont.C.A.), the accused was alleged to have been involved, together with his co-accused, in the killing of a man named Thomas. The body of the deceased was found inside the secure, chain-link-fenced area surrounding the Pickering Nuclear Generating Station. The deceased was killed in this location, suffering a number of gunshots to the head. The Crown contended that the accused was liable for first-degree murder on the basis that he was a substantial cause of the death of the accused, while he was being unlawfully confined. On the appeal against his conviction, defence counsel argued that the trial judge erred in leaving the jury with potential liability for first-degree murder under s. 231(5) of the Code. The Court of Appeal for Ontario rejected this argument.

[19] Gillese J.A., delivering the judgment of the court, concluded, at paras. 53-54, that the jury was entitled to conclude that the actions of the accused were “a substantial and integral cause” of the death of Mr. Thomas. In reaching this conclusion, Gillese J.A. noted that the body of Thomas was found in a clump of trees 15-20 feet inside the fenced area, and that this fence was six feet high and topped with barbed wire. Moreover, the undergrowth in this area at the time of the killing would have been dense. Gillese J.A. concluded that, if there had only been one assailant, whether Thomas was forced to climb over the fence, or crawl through the nearby gap in the fence, Thomas would have been able to run away when the assailant himself climbed the fence or crawled through the drain way. Gillese J.A. stated that the jury was entitled to conclude that it took both the shooter and the non-shooter, acting in concert, to forcibly escort Thomas to the location of his execution. In so doing, the accused, even if he was not directly physically involved in the shooting of the deceased, prevented Thomas from escaping and engaged in a series of acts that were a substantial and integral cause of death.

[20] In R. v. Al Ghazzi, [2006] O.J. No. 4052 (C.A.), the accused sought to challenge his committal for trial on a charge of first-degree murder on the basis that there was no evidence that he played an active, essential or integral role in the conduct that caused the death of the victim, in that he was simply driving the motor vehicle in which the victim was beaten to death by another man. The Court of Appeal for Ontario disagreed, concluding, at para. 4, that even if the original plan had only been to assault the victim, rather than kill him, the jury could still find the accused guilty of first-degree murder, if they concluded that, when it became apparent during the altercation inside the vehicle, that the assault on the victim was accelerating into a murderous attack, the accused continued to drive the vehicle, in which the victim was being forcibly confined, for some five minutes, while the victim pleaded aloud for his life, without stopping the car or otherwise curtailing the murderous actions of his companion.

[21] In R. v. Ferrari, 2012 ONCA 399, two accused were charged with first-degree murder in connection with the firearm-killing of the deceased during the course of their robbery of him in his home. The Crown alleged that the accused unlawfully confined the deceased while committing the murder. Each of the accused contended that it was the other accused who actually shot the deceased. While the accused were convicted of first-degree murder at trial, on appeal the court substituted convictions for second-degree murder. Rosenberg J.A., delivering the judgment of the Court of Appeal for Ontario, concluded, at para. 85, that the trial judge had not adequately instructed the jury that, in order to convict the “non-shooter” of first-degree murder under s. 231(5) of the Code, the jury had to be satisfied that the actions of the accused formed an “essential, substantial and integral part of the killing of the deceased.

[22] In reaching this conclusion, Rosenberg J.A., noted, at para. 58, that while the Supreme Court of Canada in Nette used slight different words in formulating the “substantial cause” standard, namely, that the actions of the accused said to cause the death of the deceased had to be “sufficiently immediate, direct and substantial,” the concept was the same as “substantial and integral cause” of death used by the Court in Harbottle, in that the additional causation requirement is a measure of the additional moral culpability or blameworthiness that is required for first-degree murder under s. 231(5) of the Code.

[23] Further, in Ferrari, Rosenberg J.A. concluded, at paras. 68-71, that liability for first-degree murder may be premised upon the combination of ss. 231(5) and 21(2) of the Criminal Code, provided that the conduct of the accused party under s. 21(2) of the Code was a “substantial cause” of the death of the deceased, and that the other essential elements of liability are established. See also R. v. Michaud (2000), 144 C.C.C. (3d) 62 (N.B.C.A.), at para. 14; R. v. Simmonds, 2002 BCCA 332, at paras. 2-3, 46-66, leave denied, [2002] S.C.C.A. No. 314; R. v. Richardson (2003), 174 O.A.C. 390 (C.A.), at paras. 72-75, leave denied, [2004] S.C.C.A. No. 330.

[24] In R. v. Tomlinson, 2014 ONCA 158, two accused were alleged to have gained entry into the apartment of a drug-dealer for the purposes of committing a robbery. Tomlinson was armed with a firearm. Subsequent to their entry, Tomlinson unlawfully confined the drug-dealer (Hodges) in the living room, while the other accused (Ceballo) kept a drug-purchaser (Muirhead) unlawfully confined, at knife-point, in the kitchen. Tomlinson ultimately shot both the drug-dealer and the drug purchaser to death. The accused were both convicted of first-degree murder. On appeal, counsel for Ceballo argued that, in relation to his potential liability, the jury should not have been instructed as to the application of constructive first-degree murder pursuant to s. 231(5) of the Code. The Court of Appeal for Ontario rejected this argument. Watt J.A., delivering the judgment of the court, outlined the “participation requirement” in constructive first-degree murder cases as follows, at paras. 141-142:

Among the essential elements of constructive first-degree murder is a requirement that the Crown prove beyond a reasonable doubt that an accused participated in the murder of the deceased in such a manner that she or he was a substantial cause of the death of the victim: R. v. Harbottle, … at pp. 323-324. To satisfy this requirement, the Crown must prove that an accused committed an act or series of acts that are of such a nature that they must be regarded as a substantial and integral cause of the deceased's death. An accused must play a very active role – usually a physical role – in the killing: Harbottle, at p. 324.

The decision in Harbottle underscores the need for proof of an enhanced or increased degree of participation in the killing before an accused may be convicted of first-degree murder under s. 231(5): R. v. Nette, … at para. 61.

[citations omitted]

[25] Further, in Tomlinson, Watt J.A. also confirmed, at paras. 145 and 165, that the “enhanced participation requirement” imposed in constructive first-degree murder cases pursuant to Harbottle does not bar the conviction of secondary parties, such as an alleged “aider,” provided that his or her conduct “satisfies the enhanced participation standard imposed by Harbottle,” namely, that his or her actions can be “regarded as a substantial and integral cause of the death of the deceased.”

[26] Watt J.A. ultimately concluded, at paras. 164-166, that the evidence was reasonably capable of supporting the inference that “Ceballo, armed with a knife, kept Muirhead confined in the kitchen,” knowing that “Tomlinson was armed with a handgun” and had displayed a “willingness to use the gun” and would “kill by any available means.” Further, Watt J.A. concluded that the jury could also reasonably infer that “Ceballo knew the gunman intended to kill the deceased and that Ceballo intended to help him do so by keeping Muirhead confined at knifepoint in the kitchen.” Watt J.A. concluded that it was open to the jury to conclude that, by confining Muirhead at knifepoint in the kitchen, and thereby eliminating any assistance he could provide to Hodges, who was confined at gunpoint in the living room, Ceballo's conduct satisfied the enhanced participation requirement of Harbottle.

[27] In R. v. Aravena, 2015 ONCA 250, leave refused (Mather), 2016 CarswellOnt 5410, leave refused (Aravena), 2016 CarswellOnt 5400, eight members of the Toronto Bandidos motorcycle gang were shot and killed on a farm property in south-western Ontario. These killings were the culmination of some internal strife within the broader motorcycle gang organization. Six men, who were also members of the motorcycle gang, were charged with eight counts of first-degree murder. After a lengthy trial, three of the accused, Sandham, Mushey and Kellestine, were convicted of eight counts of first-degree murder. The Crown had alleged that they had been the ones that had actually perpetrated the murders – shooting the victims to death. The jury convicted two of the other accused, Mather and Aravena, of manslaughter in relation to the first homicide and seven counts of first-degree murder in relation to the seven subsequent killings. The Crown had alleged that Mather and Aravena played important roles as aiders and abettors in the events surrounding the killings, although neither of them actually shot any of the eight victims.

[28] On appeal, counsel for Mather and Aravena argued that their roles, in essentially “standing guard,” while the victims were sequentially and individually killed by others, could not amount to an essential, substantial and integral cause of the murders and, therefore, they could not be found guilty of first-degree murder. The Court of Appeal for Ontario rejected this argument.

[29] In a judgment by Doherty and Pardu JJ.A., the court concluded, at paras. 117-119, that the trial judge did not err in leaving first-degree murder with the jury given that the evidence established that the accused had been participants in an “execution assembly line.” More particularly, after the first victim was killed, Mather and Aravena rushed to the barn where the others were being held. Mather was armed with a gun and Aravena with a baseball bat, and they both “stood guard” in the barn over the remaining captives, as each victim was subsequently led outside, one at a time, to be shot and killed. They also supported the false claim to the captives that there were “back up” shooters on the roof outside. The court concluded that Aravena and Mather, together with the three actual killers, took control of the victims and, but for their subjugation of the victims, they could not have been led outside individually to be executed. Aravena and Mather maintained control over the victims while they were executed, and their domination of the victims prevented them from escaping or fighting back. In reaching this conclusion, the court reiterated the observation in Ferrari, at para. 87, that, in some circumstances, participation in unlawfully confining a victim can also be the foundation for the required “active participation in the killing.”

[30] See also R. v. Brown (2002), 160 O.A.C. 141 (C.A.), at para. 4, leave denied, [2003] S.C.C.A. No. 216; R. v. Podolski, 2018 BCCA 96, at paras. 310-316; E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, (2nd ed., Loose-Leaf, 2017), vol. 4, at § 27:0049.

C. The Present Case

1. The Applicability of the “Substantial Cause” Standard to s. 231(6.1) of the Code

[31] In the present case, the first issue to be determined is whether this body of helpful jurisprudence, decided under s. 231(5) of the Criminal Code, is applicable to the interpretation and application of s. 231(6.1) of the Criminal Code. I have no hesitation in concluding that the “substantial cause” standard is just as applicable in determining an accused’s potential liability for first-degree murder under s. 231(6.1) of the Code, as it is for determining potential liability under s. 231(5) of the Code. The Crown did not suggest otherwise.

[32] In this regard it is critical to recall that ss. 231(6.1) and 231(5) use the identical statutory language to describe the necessary causal component of the aggravating circumstances that properly classify any murder as first-degree murder. Both provisions indicate that, irrespective of whether a murder is planned and deliberate on the part of a person, the murder is first-degree murder “when the death is caused by that person” in certain defined circumstances. More particularly:

• Under s. 231(5) of the Code, those defined circumstances are when the death is caused by that person “while committing or attempting to commit an offence” under a number of specifically listed provisions of the Code.
• Under s. 231(6.1)(a) of the Code, those defined circumstances are when the death is caused by that person “for the benefit of, at the direction of or in association with a criminal organization.”
• Under s. 231(6.1)(b) of the Code, those defined circumstances are when the death is caused by that person “while committing or attempting to commit an indictable offence” under the Criminal Code or any other Act of Parliament “for the benefit of, at the direction of or in association with a criminal organization.”

[emphasis added throughout].

[33] It is also important to appreciate the legislative history of s. 231(6.1) of the Criminal Code. The current version of s. 231(6.1) of the Code was enacted as part of Bill C-14, An Act to Amend the Criminal Code (organized crime and protection of justice system participants), which came into force on October 2, 2009. See S.C. 2009, chap. 22, s. 5.

[34] Prior to that date, s. 231(6.1) of the Code was worded very differently. At that time, the provision was not limited in its application, as it is now, to the person who caused the death of the victim, but it applied only when “the death [was] caused while committing or attempting to commit” the offence of “using explosives" under s. 81 of the Criminal Code “for the benefit of, or at the direction of or in association with a criminal organization.” More specifically, prior to October 2, 2009, s. 231(6.1) of the Code provided that “[i]rrespective of whether a murder is planned and deliberate on the part of a person, murder is first-degree murder when the death is caused while committing or attempting to commit an offence under section 81 for the benefit of, at the direction of or in association with a criminal organization.” See R. v. Nette, at para. 63; R. v. Bottineau, [2006] O.J. No. 1864, at paras. 99-100, affirmed, 2011 ONCA 194, leave denied, [2012] 1 S.C.R. vi; E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, vol. 4, at § 27:0510 and 27:0700.

[35] Accordingly, with its October 2, 2009 amendment of s. 231(6.1) of the Code, Parliament did two important things. First, Parliament significantly expanded the general scope of liability for first-degree murder to any circumstances in which the killing: (a) is for the benefit of, at the direction of or in association with a criminal organization;” or (b) happens while a federal offence is being committed or attempted for the benefit of, at the direction of or in association with a criminal organization. Second, Parliament significantly narrowed the individual application of this classification provision by employing the same causal component from s. 231(5), namely, that a murder will be first-degree murder “on the part of a person” where “the death is caused by that person” in any of the thereafter defined circumstances.

[36] This legislative history strongly suggests that Parliament intended that, as of October 2, 2009, the well-established “substantial cause” standard would govern the individual application of s. 231(6.1) of the Code. Indeed, it is difficult to imagine how, in amending s. 231(6.1) of the Code as it did, and importing the identical legislative language used to describe the causal component of first-degree murder in s. 231(5) of the Code, Parliament could have had any other intention, but to have this same language in s. 231(6.1) have the same meaning. I am, accordingly, driven to conclude that the “substantial cause” standard, as reflected in the governing jurisprudence interpreting and applying s. 231(5) of the Code, is equally applicable to the interpretation and application of s. 231(6.1) of the Code.

2. The Application of the “Substantial Cause” Standard in the Present Case

[37] The next question is whether there is any evidence in the present case that gives any “air of reality” to the potential liability of the two accused for first-degree murder under s. 231(6.1)(a) of the Criminal Code. In other words, using the language employed in Harbottle, is there any evidence in this case that the accused engaged in any conduct that can accurately be described as forming an “essential, substantial and integral part of the killing” of the deceased? In short, is there any evidence that any actions of the accused might potentially meet the “substantial cause” standard? In my view, there is no such evidence.

[38] There is certainly some evidence from which the jury might reasonably infer that Jermaine Dunkley verbally ordered, or at least encouraged, Mr. Hayles-Wilson to kill Neeko Mitchell, as revenge for the perceived involvement of Mr. Mitchell in the earlier killing of Ricky Dunkley (Jermaine Dunkley’s younger brother and close personal friend of Mr. Hayles-Wilson). There is also clearly some evidence from which the jury might reasonably infer that Sheldon Tingle, relying upon his personal relationship with Mr. Mitchell, summoned Mr. Mitchell out of the gymnasium of the North Kipling Community Centre so that he could be killed by Mr. Hayles-Wilson once he was outside. But this evidence, in my view, cannot possibly meet the applicable “substantial cause” standard.

[39] Mr. Mitchell was killed by a lone gunman – Mr. Hayles-Wilson. Neither of the two accused engaged directly in any action that caused or contributed to causing the death of Mr. Mitchell. Simply put, Mr. Hayles-Wilson was the only person who caused the death of the deceased.

[40] Unlike the accused in Harbottle, neither of the accused in this case were directly, physically involved in the killing of Mr. Mitchell. When Mr. Mitchell was shot to death by Mr. Hayles-Wilson, neither of the accused were touching Mr. Mitchell, or in any way physically involved with Mr. Mitchell. They were neither holding him, nor engaged in any efforts to prevent his possible escape or rescue. Unlike the accused in Norouzali, neither of the accused in this case were integrally engaged in forcibly escorting the victim to an isolated location and unlawfully confining him there, preventing Mr. Mitchell’s escape until he was killed. Unlike the accused in Al Ghazzi, the accused in the present case did not unlawfully confine the victim in a moving motor vehicle, knowing that he was being killed in a murderous attack by his companion. Unlike the accused in Tomlinson, neither of the accused in this case used any kind of weapons to ensure that others nearby, who might potential offer rescue assistance to the victim, were unable to interfere in the killing of the victim. Finally, unlike the accused in Aravena, neither of the accused in this case used any weapons to assist in subjugating and unlawfully confining the victim so that he could ultimately be shot to death by another.

[41] As Watt J.A. aptly observed in R. v. Almarales, 2008 ONCA 692, at para. 73, in relation to s. 231(5) of the Criminal Code, “secondary participation in a constructive first-degree murder … is more problematic because of the statutory requirement “when the death is caused by that person” and because, according to R. v. Harbottle, “the degree of participation in the killing by a secondary participant may be insufficient to permit a finding that the secondary party is guilty of first-degree murder.” See also R. v. Pickton, 2010 SCC 32, at paras. 67, 71; R. v. Mendez, 2018 ONCA 354, at paras. 10-11. In my view, that is true in the present case. The evidence in this case simply provides no air of reality to the Crown’s submission that the actions of the two accused meet the “substantial cause” standard required for their potential liability for first-degree murder under s. 231(6.1)(a) of the Criminal Code.

D. Conclusion

[42] Accordingly, for these reasons, as I have already advised the parties, the jury will not be instructed as to the potential application of s. 231(6.1)(a) of the Criminal Code as a potential route to liability for first-degree murder in this case.

Kenneth L. Campbell J. Released: December 3, 2018