Introduction

[1] Toni Baxter brings an application for certiorari, seeking to quash her committal to trial on charges of robbery, forcible confinement and aggravated assault.

[2] The charges arise from a home invasion robbery on February 20, 2017. On that date, two unknown men knocked on an apartment door. When the victim opened the door, the men struggled with the victim and forced their way in. The victim was shot through the shoulder and stabbed. The men then rummaged through the apartment, taking watches and a diamond ring before fleeing.

[3] Ms. Baxter was not present when the robbery occurred. There is no dispute, however, that earlier in the day she agreed to go with the two men to knock on the door. She told police she thought she had been asked to do so because she was a “girl”. Further, there is no dispute that Ms. Baxter, in fact, went with the two men to the apartment complex for the purpose of knocking on the door. It is conceded by the defence that a reasonable inference can be drawn that Ms. Baxter “agreed to participate in some nefarious activity that required her to knock on a door”. This reasonable inference flows in part from text messages sent by Ms. Baxter to a friend, in which she said that she was “making bad decisions right now” and “why do I do dumb shit”. After arriving at the apartment complex, however, Ms. Baxter became separated from the two men. She ultimately left the building before the robbery took place.

[4] The preliminary inquiry judge found that there was some evidence upon which a reasonable jury, properly instructed, could find that Ms. Baxter was liable for the robbery as a party. He pointed out that Ms. Baxter had sent a number of text messages in which she admitted that she was making “bad decisions”, and despite that, she went with the men anyway. This evidence, he reasoned, showed “more than mere suspicion as to involvement with an unknown nefarious plot”. He further found that the evidence supported the inference that Ms. Baxter had knowledge of a plan for the two males to gain entry into the apartment, and she agreed to a specific role in that plan - to facilitate their entry by having the unwitting occupant think that he was opening the door for a female. The preliminary inquiry judge then noted that Ms. Baxter attended the building with the males, who then committed the robbery, “albeit without her participation at the time”. He thus concluded that it was reasonable to infer Ms. Baxter’s participation as a party in a planned home invasion. He further found that Ms. Baxter should also be committed to trial on the charges of aggravated assault and forcible confinement pursuant to s. 21(2) of the Criminal Code, as such offences would be the “probable” consequences of a home invasion robbery.

[5] Ms. Baxter argues that the preliminary inquiry judge exceeded his jurisdiction by committing her in the absence of any evidence that she did anything that actually aided or abetted the robbery. Indeed, she points out that he failed to even mention aiding or abetting in his reasons. The Crown counters that there was some evidence upon which the judge could commit Ms. Baxter as a party pursuant to s. 21(1) of the Criminal Code, as either an aider and abettor. Both sides agree that the issue of whether Ms. Baxter is liable for the aggravated assault and forcible confinement pursuant to s. 21(2) of the Criminal Code rises or falls with the robbery count: if she was properly committed on robbery, then there was a basis to commit on those counts, if not, then she should be discharged on those counts.

[6] For the reasons set out below, I have determined that there was a basis in the evidence upon which the preliminary inquiry judge could commit Ms. Baxter to trial as a party to the robbery. As a result, the application to quash the committal for trial is dismissed.

Standard of Review

[7] A reviewing court should only intervene by way of certiorari where the preliminary hearing judge commits a jurisdictional error: R. v. Sazant, 2004 SCC 77, at para. 14. It is a jurisdictional error to commit a defendant to trial on a charge where there is no evidence of a required element of that offence: Sazant, at para. 16; R. v. Deschamplain, 2004 SCC 76, at para. 23; R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 104; R. v. Russell, 2001 SCC 53, at para. 21.

[8] A reviewing court is not restricted to considering the routes of committal relied upon by the preliminary inquiry judge or argued by counsel: R. v. Mullings, [2005] O.J. No. 2962 (S.C.), at para. 34. That said, the scope of review is narrow. It is not open to this court to set aside the decision of the preliminary inquiry judge simply because I would have reached a different conclusion, even if the preliminary inquiry judge committed an error of law: Russell, at para.19; Deschamplain, at paras. 17 and 23. I can only intervene if there was an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the defendant on trial: R. v. Boucher, 2000 3270 (ON CA), [2000] O.J. No. 2373 (C.A.), at para. 11.

Analysis

[9] Section 21(1) of the Criminal Code provides for three modes of participation in a crime. Section 21(1)(a) governs principal parties: those who actually commit the crime. Sections 21(1)(b) and (c) govern aiders and abettors respectively. While it is common to refer to aiding and abetting together, those two concepts are distinct and liability can flow from either one: R. v. Briscoe, 2010 SCC 13, at para. 14. As noted in R. v. Greyeyes, 1997 313 (SCC), [1997] 2 S.C.R. 825, at para. 26, “[t]o aid under s. 21(1)(b) means to assist or help the actor. To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promotion or procuring the crime to be committed”.

[10] Liability as an aider or abettor has both a conduct component and a culpable mental state component. The actus reus component of aiding is met where the defendant engaged in some conduct that actually assisted the principal in committing the offence. The mens rea component requires that the defendant did so for the purpose of assisting in the offence, knowing that the perpetrator intended to commit the crime: R. v. Alvarez-Maggiani, 2018 ONSC 4834, at para. 38.

[11] The actus reus component of abetting is met where the abettor said or did something that actually encouraged, instigated, promoted or procured the crime. The mens rea component requires that the abettor intentionally acted to encourage, instigate, promote or procure the principal in the commission of an offence: Alvarez-Maggiani, at para. 39.

[12] While knowledge of another's intent to commit a crime and mere presence at the scene do not lead automatically to a finding of aiding and abetting, such factors can be evidence of aiding or abetting: R. v. Carrington, 2017 ONCA 2, at para. 23; R. v. Dunlop, 1979 20 (SCC), [1979] 2 S.C.R. 881, at paras. 31-43; R. v. McKay, 2012 ABCA 310, at paras. 21-22; Alvarez-Maggiani, at para. 40.

[13] Ms. Baxter points out that the preliminary inquiry judge failed to even mention aiding or abetting in his reasons. She argues that his analysis was flawed, as he focused only on the mens rea, and failed to assess whether there was any evidence of the actus reus. That is, he failed to consider whether there was any evidence that Ms. Baxter did or said anything that actually assisted or encouraged the robbery.

[14] To be fair to the preliminary inquiry judge, his reasons largely responded to the arguments advanced before him. The bulk of submissions focused on Ms. Baxter’s knowledge and intention. In any event, regardless of the path taken by the preliminary hearing judge to reach his conclusion, the question before me is whether there was any evidence upon which he could commit Ms. Baxter as a party to the robbery. I turn to consider that now.

[15] As noted by Doherty J.A., in R. v. Dooley, 2009 ONCA 910, at para. 120, an aider or abettor’s liability is for the substantive crime and not for some preparatory step toward the commission of the crime. There must be a connection between the alleged act of aiding or abetting and the actual commission of the crime by the person who is aided or abetted. That said, there is no requirement for there to be a causative link. As explained in Dooley, at para. 123:

Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime.

[16] I agree with Ms. Baxter that there was no evidence before the preliminary inquiry judge to support an inference that she actually did anything that aided in the robbery. While she agreed to participate, she ultimately did not do so. While Crown counsel argues that she facilitated the entry of the two men into the apartment building, the evidence does not bear this out. There is a complete absence of evidence that Ms. Baxter did anything that actually assisted the two robbers.

[17] On the other hand, I cannot agree that there was no evidence before the preliminary inquiry judge to support a finding that Ms. Baxter abetted the robbery. Ms. Baxter agreed to knock on the door. She did so knowing that she was being asked to do so because, as a “girl”, she would likely have more success in getting the victim to open the door. Ms. Baxter then got into a car with the two robbers and went to the apartment complex. It was open to the preliminary inquiry judge to find that by agreeing to play a role in the planned robbery, and by taking steps towards that plan by going with the men to the building to knock on the door, Ms. Baxter, “to some extent”, encouraged the robbers. Put another way, her earlier agreement, along with the steps she took towards fulfilling that agreement, could be seen as encouraging the robbers, despite the lack of a causative link to the eventual robbery. Any issues relating to the defence of abandonment are for the jury to consider.

Conclusion

[18] As noted in Dooley, at para. 129: “In some cases, the alleged connection between the alleged act of aiding or abetting and the commission of the crime by the perpetrator may be strained or indirect, raising difficult questions concerning the reach of accessorial liability.” In my view, this is such a case. But despite the difficult questions raised, I find that there was an evidentiary basis upon which the preliminary inquiry judge could commit Ms. Baxter to trial. It was open to him to find that there was some evidence upon which a reasonable jury, properly instructed, could find that Ms. Baxter abetted the robbery and is thus guilty as a party.

[19] As a result, the application to quash the committal for robbery cannot prevail. As noted above, the defence concedes that if the committal for robbery stands, that the committal for forcible confinement and aggravated assault must also stand. Thus, the application to quash Ms. Baxter’s committal for trial on the counts of robbery, forcible confinement and aggravated assault is dismissed.

Justice Heather McArthur

Date: January 23, 2019

R. v. Baxter, 2019 ONSC 595

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TONI BAXTER

REASONS on CERTIORARI APPLICATION

Justice Heather McArthur

Released: January 23, 2019

R. v. Baxter, 2019 ONSC 595

Case Summary

Introduction

Standard of Review

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 3