COURT FILE NO.: CR-18-002519 C.A. No. 19-15
DATE: 20200205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JUSTIN RYAN
Applicant
Lee-Anne McCallum, Counsel for the Respondent, Crown
Iain Donnell and Rose Sharifi, Counsel for the Applicant, Justin Ryan
HEARD: December 9, 2019
reasons for decision
DI LUCA J.:
[1] Mr. Ryan stands charged with a number of offences including second degree murder, assault cause bodily harm, possession for the purpose of trafficking cocaine, marijuana and LSD, carrying a concealed weapon, possession of a prohibited weapon, and possession of property obtained by crime over $5,000. He is charged along with a co-accused, Dimytri Ingram-Piruzevski. A young person, Mr. S., also stands separately charged with the same murder.
[2] The charges stem from incidents surrounding the unfortunate death of Keegan Blyth, who was stabbed to death on March 27, 2018 during an altercation involving a number of persons. Mr. Ryan is alleged to have driven Mr. S. and Mr. Ingram-Piruzevski to and from the scene of the stabbing.
[3] Mr. Ryan was arrested on March 28, 2018 while he was driving a vehicle accompanied by his co-accused. A search of the vehicle revealed the weapon used in the stabbing, various quantities of drugs and some stolen items.
[4] On March 19, 2019, following a preliminary inquiry before Kenkel J., the Applicant was committed to stand trial.
[5] The Applicant now seeks an order in the nature of certiorari quashing his committal to stand trial on all counts, except the count of assault cause bodily harm.
[6] For the reasons that follow, the application is allowed in part. The committal to stand trial on the count of second degree murder is quashed, though a committal for the lesser and included offence of manslaughter remains. The application is otherwise dismissed as it relates to the remaining counts.
[7] I find that the preliminary inquiry justice erred in relying on s. 229(c) of the Criminal Code of Canada (“the Code”) to provide a route for liability on the charge of second degree murder. Simply stated, this is not a case to which s. 229(c) applies. The liability of the principal involves a clear and straightforward application of ss. 229(a)(i) or (ii) of the Code. The liability of Mr. Ryan as a party to murder rests on s. 21(2) of the Code. When the evidence at the preliminary inquiry is reviewed through this legal framework, there is no evidence upon which a trier of fact acting reasonably could conclude that Mr. Ryan had the requisite mens rea for second degree murder. In the absence of this evidence, Mr. Ryan could only have been committed to stand trial on manslaughter.
[8] In terms of the charges relating to the items found in the car upon arrest which form the basis for the remaining charges, I am satisfied that there was some evidence, albeit weak, to support the requisite inferences of knowledge and control, and as such, I uphold the committal on those counts.
The Test on Review
[9] The parties are ad idem on the scope of review on a certiorari application seeking to quash a committal. The role of the reviewing court is limited. A committal can only be overturned where there is a jurisdictional error; see R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19.
[10] A committal to stand trial in the absence of evidence on any one or more elements of an offence amounts to a jurisdictional error for the purposes of a certiorari review. On a jurisdictional review, the court should not interfere with a committal as long as there is at least a “scintilla of evidence” on each element of the offence; see R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 108.
[11] An error in law is generally an error within jurisdiction and cannot be reviewed by way of certiorari. However, where the error in law results in a committal to stand trial in the complete absence of evidence in relation to an element of the offence, a jurisdictional error may nonetheless result.
The Evidence at the Preliminary Inquiry
[12] On March 27, 2018, at approximately 12:26 a.m., police and paramedics were called to respond to a reported stabbing at 878 Mount Albert Road. They arrived at approximately 12:34 a.m., and began administering first aid to Keegan Blyth who was lying on the ground suffering from significant stab wounds to his abdomen and shoulder. Mr. Blyth was transported to Sunnybrook Hospital where he underwent surgery. Unfortunately, despite the efforts of the emergency personnel and the surgery team at the hospital, he succumbed to his injuries on March 29, 2018.
[13] At the scene, police also observed that a second male, Stephen Chanady, had a small laceration to his upper left arm. The wound was not serious and was treated with a small dressing. A third male, Mitchell Pepper, had a small laceration at the base of his thumb on his right hand.
[14] A cell phone and a black and gold folding knife were found at the scene. An extraction report was later completed on the cell phone.
[15] Mr. Ryan and his co-accused, Mr. Ingram-Piruzevski, were initially arrested on March 28, 2018 shortly after 9:30 p.m. Mr. Ryan was arrested for trafficking offences and Mr. Ingram-Piruzevski was arrested for aggravated assault as well as the trafficking offences.
[16] At the time of the arrest, Mr. Ryan was driving a grey Mazda owned by his father. Mr. Ingram-Piruzevski was a passenger. A search incident to arrest revealed a cell phone in Mr. Ryan’s possession. Mr. Ingram-Piruzevski was also searched and police located a cell phone and over $12,000 in cash. A knapsack in the car was also searched. It contained a black folding knife, a baton, and quantities of various drugs. Extraction reports were later completed on these cell phones as well.
[17] On March 29, 2018, a search was conducted at the home of Mr. Ingram-Piruzevski during which police located some red stained clothing, knives, Canadian currency, various drugs and related drug paraphernalia, as well as two additional cell phones.
[18] The young person, Mr. S., was arrested and charged with second degree murder on March 30, 2018.
[19] Testing at the Centre of Forensic Sciences revealed, inter alia, the following:
a. Blood was detected on the folding knife found in Mr. Ingram-Piruzevski’s knapsack, though there was insufficient DNA to compare the sample with a known sample of Mr. Blyth’s DNA. No blood was found on the knife located at the scene of the stabbing.
b. Blood was located on clothing worn by Mr. Dimytri-Piruzevski at the time of his arrest and on clothing found at his home. Mr. Blyth was excluded as the source of the blood.
c. Blood was detected on a pair of pants found at Mr. S.’s home. Mr. Blyth was excluded as the source of the blood.
[20] By way of background, the evidence revealed that Mr. Ryan was a close friend of Mr. Ingram-Piruzevski, who was a known drug dealer. Indeed, Mr. Ryan was a regular driver for Mr. Ingram-Piruzevski during the latter’s drug trafficking activities.
[21] On the night of the stabbing, Mr. Ryan, Mr. Ingram-Piruzevski and Mr. S. were hanging out together at Mr. Ingram-Piruzevski’s home. They were drinking alcohol and smoking marijuana. At some point, the deceased was in contact with Mr. Ingram-Piruzevski to arrange a deal to purchase a substantial amount of marijuana with a value between $1,200 and $2,400. The deal was arranged by text message and by telephone call. There is no suggestion that Mr. Ingram-Piruzevski and Mr. Blyth knew each other before this exchange.
[22] The three left Mr. Ingram-Piruzevski’s residence and headed over to Mr. Blyth’s residence. Mr. Ryan was the driver. He dropped his cohorts off at the residence and left the scene parking “up the street.”
[23] Mr. Ingram-Piruzevski was armed with a knife, a baton and a taser. Mr. S. also had a knife. The knife in Mr. S.’s possession was provided by Mr. Ingram-Piruzevski.
[24] There were conflicting accounts of what happened at the scene. However, the following appears to be one available version. On arrival at the driveway of the residence, Mr. S. and Mr. Ingram-Piruzevski were greeted by Mr. Blyth and his friend, Mr. Pepper. Neither Mr. Blyth nor Mr. Pepper were armed with any weapons. Mr. S. approached Mr. Blyth and they exchanged what appeared to be a handshake. Almost immediately, the deceased was stabbed by Mr. S. multiple times. An amount of money, likely $1,200, was taken from Mr. Blyth and no drugs were provided. Mr. Ingram-Piruzevski and Mr. Pepper became involved in a simultaneous fight. Mr. Pepper engaged Mr. Ingram-Piruzevski, as he believed that Mr. Ingram-Piruzevski was going to join the altercation against Mr. Blyth. The fights lasted a matter of minutes.
[25] Following the altercation, Mr. S. and Mr. Ingram-Piruzevski ran back to Mr. Ryan’s car and the three of them returned to Mr. Ingram-Piruzevski’s home. Mr. Ingram-Piruzevski remained in possession of the drugs that were to be trafficked.
[26] The next day, Mr. Ingram-Piruzevski and Mr. Ryan exchanged text messages and agreed they had to “dip town.” They were placed under surveillance by police and were arrested in Mr. Ryan’s car.
The Committal Ruling
[27] The preliminary inquiry justice provided written reasons for committing the Applicant to stand trial on the various counts. In his reasons, he averted to the limitations in the evidence. In particular, he explained that on the basis of the evidence heard, there were three available explanations for the stabbing:
a. Mr. Ryan’s group planned to rob Mr. Blyth of his money using violence, including knives, and Mr. Blyth was killed during the robbery.
b. Mr. Blyth and his associates planned to rob the accused’s group of the drugs and was killed when the robbery was resisted by the accused.
c. Neither group intended to rob the other, but something occurred between Mr. Blyth and Mr. S. during the drug deal that led to an altercation resulting in Mr. Blyth’s death.
[28] The preliminary inquiry judge noted that based on the evidence as a whole, the first scenario, which had Mr. Ryan’s group robbing Mr. Blyth’s group, was the least likely. Nonetheless, he correctly focussed on this scenario as it was the scenario that was both the most favourable to the Crown and also reasonably available on the evidence.
[29] The preliminary inquiry justice commenced his analysis by assessing the liability of Mr. S., the young person who inflicted the fatal injuries on Mr. Blyth. He noted:
The young person may be liable to conviction on a charge of murder if the killing is found to be intentional or if it is found pursuant to s. 229(c) that he did anything he knew was likely to cause death in furtherance of an unlawful object and death was thereby caused notwithstanding that the young person hoped to accomplish the unlawful object without causing death or harm.
[30] After briefly reviewing the evidence supporting the theory of a robbery by Mr. Ryan’s group, the preliminary inquiry justice concluded that the principal, Mr. S., was liable for murder because the evidence supported an inference that “he intended to kill or knew that the stabbing was likely to cause death.” It is not clear whether this was a reference only to the intents required by ss. 229(a)(i) and (ii), or also a reference to the intent required by s. 229(c). One interpretation is the preliminary inquiry justice found that inferences of intent under ss. 229(a)(i) and (ii) were available in relation to Mr. S., and therefore he did not consider Mr. S.’s liability under s. 229(c).
[31] In relation to Mr. Ryan specifically, the preliminary inquiry justice found that the evidence supported an inference that Mr. Ryan was in the company of Mr. Ingram-Piruzevski and Mr. S. when the drug deal was arranged. He also knew that Mr. Ingram-Piruzevski was a drug dealer and he had, on prior occasions, knowingly assisted him by driving him to various locations for the purpose of drug deals.
[32] Assuming the trier of fact could find that this was a planned robbery of Mr. Blyth’s group, it was also reasonable to infer that Mr. Ryan would have known about the planned robbery and would have agreed to assist in the robbery by driving Mr. Ingram-Piruzevski and Mr. S. to Mr. Blyth’s residence. Further, Mr. Ryan would have known that the robbery involved the potential use of knives. He knew that Mr. Ingram-Piruzevski carried a knife, and the evidence suggests that the knife used by Mr. S. had been given to him by Mr. Ingram-Piruzevski. Lastly, just prior to their departure from Mr. Ingram-Piruzevski’s home, a fourth person, Mr. Sadeghi-Niaraki, gave each of them a fist bump and told them to “be safe.”
[33] The preliminary inquiry justice concluded his analysis as follows:
If a trier of fact accepted the evidence of Mr. Pepper and Mr. Chanady and concluded that the transaction was a robbery including a knife attack on Mr. Blyth as the person with the money, then they would conclude that Mr. Ryan was a party to that robbery under s. 21 by aiding the offence and by assisting the common plan. Mr. Ryan’s after the fact conduct including assisting Mr. Ingram-Piruzevski in flight is not a necessary circumstance to form that conclusion but a trier of fact could reasonably find that it is further evidence consistent with that conclusion.
As a party to a robbery which included a violent knife attack on multiple people where he knew his co-accused was worried about being stabbed in the altercation, Mr. Ryan would have been aware that death was likely to be caused to Mr. Blyth even if he did not desire that result. If a trier of fact made those findings, which are available on the evidence, Mr. Ryan could be found guilty as a party to murder under s. 229(c).
[34] The preliminary inquiry justice did not provide any reasons specific to drug and possession charges, though he ultimately concluded that the Crown had tendered sufficient evidence warranting committal.
Analysis
[35] The defence argues that there was no evidence that Mr. Ryan had the requisite degree of knowledge for murder or for the various possession offences. The defence also argues that the preliminary inquiry justice misapprehended aspects of the evidence and drew impermissible inferences. In its written material, the defence argued that Mr. Ryan should be discharged on all counts. In oral submissions, this position was moderated and the defence acknowledged that a committal for manslaughter was likely appropriate.
[36] In seeking to uphold the committal for second degree murder, the Crown argues that Mr. Ryan is liable for murder by application of s. 229(c) of the Code. In the alternative, it argues that s. 21(2) applies and Mr. Ryan is a party to murder.
[37] Section 229(c) of the Code provides as follows:
Culpable homicide is murder
(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.
[38] Section 229(c) of the Code provides a route of liability for a principal who, for an unlawful object, does anything which causes death in circumstances where he knows that death is a likely consequence, regardless of whether in doing the thing that causes death he actually intends to cause death or serious bodily harm that results in death.
[39] In R. v. Shand, 2011 ONCA 5, the Court of Appeal considered the scope and constitutionality of s. 229(c) of the Code. The Court held that the provision met minimum constitutional standards. It further held that liability under s. 229(c) required proof of the following:
a. The accused must pursue an unlawful object other than to cause the death of the victim or to cause the victim bodily harm that they knew would likely cause death.
b. The unlawful object must be a serious crime, an indictable offence requiring mens rea.
c. In furtherance of the unlawful object, the accused must commit a dangerous act that is distinct from the unlawful purpose. However, while the act must be to some degree distinct, it is not necessary that the dangerous act be completely unrelated to the unlawful object or purpose.
d. The dangerous act need not be an offence, but it must be a specific act or closely related series of acts that in fact results in death.
e. When the dangerous act is committed, the accused must have subjective knowledge that death is likely to result, notwithstanding that the accused desires to effect the unlawful object without causing death.
[40] In my view, the Crown’s argument that s. 229(c) alone grounds Mr. Ryan’s liability for murder is misplaced.
[41] Section 229(c) provides for liability of a principal, not a party. In this regard, it is important to keep in mind what being a “principal” to an offence entails. Section 21(1)(a) of the Code establishes that a principal to an offence is any person who “actually commits it.” Co-principal liability arises where two or more people actually commit an offence or where two or more persons agree to commit an offence, are present during the commission of the offence and contribute to it, even though they each do not personally commit all the essential elements: see R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, per Lebel J. concurring. Ultimately, all that is required is that the accused perform some portion of or contributes to the actus reus while possessing the requisite mens rea: see R. v. Hughes (2011), 2011 BCCA 220, 271 C.C.C. (3d) 448 (B.C.C.A.).
[42] In order for Mr. Ryan to be a joint principal under s. 229(c), he would need to have “actually committed the offence.” Under s. 229(c), this would require that he actually committed the dangerous act that caused death.
[43] It is also important to keep in mind what “dangerous act” means in the context of s. 229(c). In this regard, the Court in Shand offered the following guidance at paras. 190-191:
In identifying the dangerous act, as explained earlier, it is important not to frame the dangerous act too broadly. A broad and vague characterization of what constitutes the dangerous act does not fit well into the causation framework and may skew the subsequent mens rea analysis.
It would, for example, be wrong to frame the dangerous act as entering a home with a loaded gun or engaging in a home invasion with a gun. Although these “acts”, in a sense, led to the events in the basement bedroom, they were not the acts that actually caused the death.
[44] Applying this guidance to the facts in this case, the dangerous act that caused death was Mr. S.’s repeated stabbing of Mr. Blyth. Neither the possession of the knife nor the brandishing of the knife caused Mr. Blyth’s death. While possession or brandishing the knife, “in a sense” led to Mr. Blyth’s death, in accordance with the above passage from Shand, they were not the acts that caused death.
[45] Viewed in this manner, Mr. Ryan did not commit the dangerous act that resulted in death. His knowledge that his cohorts had knives and might use them during the robbery does not alter this analysis.
[46] Further, in assessing the nature of the conduct by Mr. S., it is important to keep in mind that his liability falls squarely within ss. 229(a)(i) or (ii) of the Code. On the facts before the preliminary inquiry justice, Mr. S. approached Mr. Blyth, there was a short exchange of some sort, and then Mr. S. stabbed Mr. Blyth repeatedly with a knife. The knife wounds were to the abdomen and upper body. At the risk of being too categorical, this is a standard s. 229(a)(i) and (ii) case.
[47] In Shand, the Court of Appeal cautioned against resorting to s. 229(c) in cases where a clear path to liability exists under s. 229(a). The Court also noted that an expansive use of s. 229(c) would render s. 229(a) meaningless or redundant. The Court explained as follows at para. 129:
In accordance with the principles of statutory interpretation, s. 229(c) must be interpreted so as not to make s. 229(a) redundant. Parliament created two separate routes to establish murder and each must be given meaning. The difference between ss. 229(a) and 229(c) is that s. 229(c) requires more than proof of an unlawful object. The Crown must also prove that, when the dangerous act was committed, the person knew that death was likely. As a result, where the intention is causing the death of the victim or causing bodily harm to the victim knowing that death is likely, s. 229(a) applies. This is because there is no need to carry out a further analysis focusing on the state of mind of the accused when the dangerous act causing death was committed. Because the two-part analysis prescribed by s. 229(c) is not required in these circumstances, it is apparent that s. 229(a) and not s. 229(c) applies.
And further on at paras. 141-142:
As gatekeeper, the trial judge must be cautious not to instruct juries on s. 229(c) in situations which fit squarely within s. 229(a) or (b). The unlawful object must be a genuine object, and not simply one aspect of the same “general purpose” of causing death or bodily harm that is likely to cause death. Put otherwise, there must be an “air of reality” to the unlawful object that forms the basis of s. 229(c). In DeWolfe, the appellant was shooting at the victim, and the question facing the jury was whether or not he possessed the intent required under s. 229(a) (then s. 212(a)). In that situation, this court was right to find that s. 229(c) did not apply and should not have been put to the jury.
This caution also addresses the concern that s. 229(c) might be used by the Crown as a substitute to s. 229(a) or (b) in an attempt to somehow lessen the burden of proving intent. In the apt words of Zuber J.A. in DeWolfe, at para. 24, we should “prevent [s. 229(c)] from overflowing its banks and making murder of almost every unlawful homicide”. While this concern was more acute when s. 229(c) had an objective component, it still remains today.
[48] Turning to the facts of this case, the preliminary inquiry justice’s reasons are not entirely clear on whether he found Mr. S.’s liability was based solely on s. 229(a)(i) or (ii), or also on s. 299(c). On one interpretation, it appears that he found sufficient evidence supporting Mr. S.’s liability for murder under both ss. 229(a)(i) and (ii) only. He was correct in doing so and the evidence clearly supports reasonable inferences for either form of intent.
[49] However, unlike Shand, this not a case where there is any suggestion that the deceased was accidentally or unintentionally killed while Mr. S. dangerously wielded a knife during a robbery. As well, unlike R. v. Roks, 2011 ONCA 526 and R. v. Magno, 2015 ONCA 111, this is not a case where, during the commission of a dangerous arson, a co-perpetrator was killed despite that not being the intention.[^1] In short, this is not a case requiring an application of s. 229(c) and resorting to that section in these circumstances clearly renders the application of s. 229(a) redundant. This is contrary to the caution expressed in Shand.
[50] In relation to Mr. Ryan specifically, the preliminary inquiry justice found that he was a party to robbery under s. 21(1)(b) and further that he assisted the common plan to commit robbery. He then held that Mr. Ryan, as a party to robbery which included a violent knife attack on multiple people where he knew that his co-accused was worried about being stabbed, would have been aware that death was likely to be caused to Mr. Blyth. On that basis, he committed Mr. Ryan to stand trial for murder under s. 229(c).
[51] With respect, I find that the preliminary inquiry justice erred in his analysis. Having found that the liability of the principal, Mr. S., was based on ss. 229(a)(i) and (ii) of the Code, the preliminary inquiry justice should have gone on to assess whether Mr. Ryan’s liability for murder could be established in accordance with party liability principles.
[52] In this regard, s. 21(2) of the Code provides as follows:
Common intention
(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…that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[53] Section 21(2) of the Code provides a route of liability for a party to an offence. It requires the party to have subjective foresight that the commission of a specific further offence is a probable consequence of carrying out a common unlawful plan or purpose.[^2] The subjective foresight includes a subjective awareness of the mens rea of the offence finally or ultimately committed. Where the offence charged is murder, it is not enough for a party to a common plan or purpose to subjectively foresee a risk or even the likelihood of death as a probable consequence of carrying out the unlawful plan or purpose. What is required is a subjective awareness that an intentional murder is likely to be committed: see R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573, R. v. Ferrari, 2012 ONCA 399, R. v. Phillips, 2017 ONCA 752. As such, liability for the party under s. 21(2), requires that the party have subjective foresight of the probability that the principal will intentionally cause someone’s death, or intentionally cause someone serious bodily harm that they know is likely to result in death and they are reckless as to whether or not death ensues.
[54] Applying Jackson, the preliminary inquiry justice should have determined whether the evidence supported an inference that Mr. Ryan subjectively foresaw the likelihood of a murder being committed, not simply a death being caused. In my view, there is no evidence in this case that could reasonably support a finding that Mr. Ryan was subjectively aware that a murder under s. 229(a)(i) or (ii) was likely to be committed. It must be remembered that on the theory most favourable to the Crown, this was a planned robbery where the two assailants were in possession of knives. While there is an available inference that the knives would be brandished to commit the robbery and perhaps a risk that they would be used to inflict harm, there was no evidence suggesting that the stabbing was planned. On these facts, the committal of Mr. Ryan could only have been for manslaughter. Mr. Ryan was a party to an offence, the commission of which entailed an objective foreseeability of bodily harm to someone.
[55] While these findings are sufficient to dispose of this application, I turn next to addressing the Crown’s alternative argument that Mr. Ryan’s liability could arise as a result of the combination of s. 229(c) and s. 21(2) of the Code. Again, while the preliminary inquiry justice’s reasons are not entirely clear on this issue, one interpretation is that he committed Mr. Ryan on murder based on the combined operation of s. 229(c) and s. 21(2) of the Code.
[56] Instances where the Crown seeks to rely on s. 229(c) for the principal’s liability for murder and then seeks to extend liability to a party under s. 21(2) are very rare. There may be good reason for this. The interplay between s. 229(c) and s. 21(2) is unclear and, in my view, challenging.
[57] There is no appellate guidance on this issue. Indeed, in a recent decision from the Court of Appeal, the Court specifically declined to consider how s. 21(2) of the Code might support party liability in concert with s. 229(c) of the Code: see R. v. McLellan, 2018 ONCA 510, at para. 88.
[58] An obvious question is whether these two sections can fairly work in concert. In my view, it will be a rare case, if ever, where the facts will support the application of these sections combined.
[59] In the usual cases where s. 21(2) is applied to the offence of murder, the liability of the principle arises under s. 229(a)(i) or (ii): see, for example, R. v. Young (2009), 2009 ONCA 549, 246 C.C.C. (3d) 417 (Ont.C.A.) and R. v. Rochon (2003), 2003 CanLII 9600 (ON CA), 173 C.C.C. (3d) 321 (Ont.C.A.), as two out of many examples.
[60] In these cases, there is a parity of the mens rea as between the principal and the party. In other words, for the party to be convicted of murder, he or she must subjectively foresee the probability that the principal, in carrying out the common plan or intention, will commit murder in accordance with ss. 229(a)(i) or (ii). This is precisely the scenario addressed in Jackson.
[61] Where, however, the principal’s liability arises only under s. 229(c), the parity of mens rea presents challenges. Combining s. 21(2) and s. 229(c) would appear to require the following evidentiary steps or findings in order to support conviction. First, the principal would need to be engaged in the pursuit of an unlawful object while committing a further or distinct dangerous act that results in someone’s death. Second, the principal would need to be subjectively aware that the death was a probable consequence of his conduct, even if he did not intend to cause death or bodily harm. A party under s. 21(2) would need to share the principal’s unlawful object and be in pursuit of the joint unlawful object when the principal commits the dangerous act resulting in death. Lastly, in order for the party to have the necessary mens rea for murder, the party would need to have the subjective foresight that the principal, while pursuing an unlawful object, would likely commit a dangerous act that the principal subjectively knew would be likely to result in death even though the principal did not intend to cause death or serious bodily harm.
[62] A further complicating feature is that there appears to be no requirement of parity in relation to the particular form of intent as between the principal and the party. In other words, it may be that as long as the party subjectively foresees the probability of murder under either s. 229(a) or (c)[^3], the principal’s specific form of intent is irrelevant. This would permit the Crown to argue that a principal is guilty of murder under s. 229(a)(i) or (ii), and then also argue that a party under s. 21(2) could be guilty of murder in accordance with s. 229(c). While there is no firm or fixed rule that restricts the Crown to advancing a unified theory of liability amongst co-accused, this approach would appear to be contrary to the decision in Jackson and might lead to unfairness where the principal is acquitted of murder because there is a doubt about his or her intent under s. 229(a)(i) or (ii), but the party is convicted of murder on the basis of the mental element required by s. 229(c).
[63] There are few cases that assess the application of s. 21(2) where the Crown’s theory of liability rests on s. 229(c). Interestingly, in two of those cases, the court, without much analysis, simply applied the mens rea requirement discussed in Jackson and indicated that in order to convict the party, the court had to be satisfied that the party had a subjective foresight that a murder would likely be committed; see R. v. Bidesi, 2015 BCSC 863, at paras. 127-164 and R. v. Jongbloets, 2017 BCSC 2329, at paras. 162-174. In a third decision, R. v. Winmill, 2008 NBCA 88, the court ordered a re-trial in a case where one of the Crown’s theories of liability involved the joint application of ss. 229(c) and 21(2). While not addressing the interplay between these two sections in any great detail, the court appears to have endorsed the view that party liability could arise if the party was subjectively aware of the probability of death (as opposed to murder).
[64] Turning to this case, I am of the view that the preliminary inquiry justice erred in his analysis by failing to clearly apply the Shand methodology to the facts of this case. Had he done so, it would have been apparent that Mr. Ryan could not be committed to stand trial for murder under s. 21(2).
[65] On this issue, I start with the observation that the preliminary inquiry justice’s reasons do not provide a clear indication of what he found to be the unlawful purpose and the distinct dangerous act. For example, at para. 18 of his reasons, the preliminary inquiry justice finds that the evidence “could reasonably lead a properly instructed trier of fact to conclude that Mr. Blyth was killed in the course of a plan where the exchange of money was meant to be followed by a knife attack to accomplish a robbery.” Further, at para. 21 he stated, “a trier of fact could reasonably conclude that both the young person and Mr. Ingram-Piruzevski knew that a robbery where they were prepared to use violence with knives carried a likelihood of death…” Lastly, at para. 25, he noted “If a trier of fact accepted the evidence of Mr. Pepper and Mr. Chanady and concluded that the transaction was a planned robbery including a knife attack on Mr. Blyth as the person with the money, then they would conclude that Mr. Ryan was a party to that robbery under s. 21 by aiding the offence and assisting the common plan.”
[66] The decision in Shand makes clear that the dangerous act must be distinct from the unlawful purpose: see also R. v. Meiler (1999), 1999 CanLII 3728 (ON CA), 136 C.C.C. (3d) 11 (Ont.C.A.) and R. v. Vasil, 1981 CanLII 46 (SCC), [1981] 1 S.C.R. 469. In order for s. 229(c) to apply, the unlawful purpose could not have been a planned robbery and stabbing. If that were the case, the unlawful purpose and dangerous act would be one and the same and s. 229(c) would be inapplicable. Moreover, if the evidence permitted an inference that the stabbing of Mr. Blyth was planned in advance, the appropriate charge would likely have been first degree murder and not second degree murder.
[67] Applying Shand, the unlawful purpose in this case was a robbery. On the evidence, it was open to the preliminary inquiry judge to conclude that Mr. Ryan, Mr. Ingram-Piruzevski and Mr. S. jointly agreed to commit a robbery while armed with knives. Mr. Ryan’s role in this planned robbery was to drive his cohorts to Mr. Blyth’s house and then park down the street to await their return.
[68] The distinct dangerous act was Mr. S.’s stabbing of Mr. Blyth. I pause to note one issue regarding the requirement of a dangerous act. In the context of party liability under s. 21(1)(b), a party does not need to be subjectively aware of precisely how the principal will commit the offence as long as he aids with the requisite intent: R. v. Briscoe, [2010] 2 S.C.R. 825. It may be that in the context of ss. 229(c) and 21(2), the party similarly does not need to know the precise nature of the dangerous act that will be committed, though liability may nonetheless attach if there exists a subjective awareness that the principal will likely commit a dangerous act that is likely to result in death. Depending on the nature of the dangerous act committed, this could give rise to issues of remoteness and causation in relation to the liability of the party. However, this issue does not arise in this case where the dangerous act of stabbing would have been the very type of the dangerous act contemplated in driving two colleagues, armed with knives, to a drug deal/robbery.
[69] The remaining issue is whether the preliminary inquiry justice was correct in finding that one available inference was that Mr. Ryan knew that murder committed in accordance with s.229(c) was a probable outcome of the common unlawful act of robbery. This would require the availability of an inference that Mr. Ryan would have subjectively known that in the course of committing the robbery, Mr. S. was likely to commit a dangerous act that was likely to cause someone’s death even though Mr. S. may have not intended death as a result of the dangerous act. On the evidence before the preliminary inquiry justice, Mr. Ryan was not at the scene when the dangerous act happened nor was the dangerous act planned in advance. At best, Mr. Ryan might have been aware of a risk that a dangerous act might occur. In other words, knowing that his friends armed themselves with knives, a taser and a baton, it would have been obvious that those items might be used to varying degrees during the course of a robbery. This, however, does not equate with knowledge that there was a likelihood that a dangerous act would be committed, and further knowledge that the principal knew that the dangerous act would likely result in death as required by s. 229(c). In these circumstances, Mr. Ryan should only have been committed to stand trial on Manslaughter.
[70] While not a basis upon which to decide this certiorari application, I wish to note the following additional concern. Resorting to s. 229(c) on the facts of this case appears to be contrary to the guidance of the Supreme Court in R. v. Rodgerson, 2015 SCC 38 where, at paras. 40-54, Moldaver J. discussed the goal of avoiding unnecessarily complicated jury instructions in murder cases. In particular, Moldaver J. urged the Crown to engage in a focussed cost benefit analysis in terms of the number and seriousness of the charges pursued based on the strength of the available evidence and the risk of necessitating overly complicated jury instructions. In my view, those comments apply equally to marginal theories of liability.
The Remaining Charges
[71] The remaining charges relate to items found inside Mr. Ingram-Piruzevski’s knapsack, which he had with him inside Mr. Ryan’s vehicle when they were arrested a few days after the stabbing. There is no issue that Mr. Ingram-Piruzevski had knowledge and control over the contents of his knapsack. The issue is whether a trier of fact could reasonably conclude that Mr. Ryan was either a co-principal or a party to these offences. The evidence established that Mr. Ryan acted as a driver for Mr. Ingram-Piruzevski while the latter was dealing drugs. He also knew Mr. Ingram-Piruzevski to carry weapons. On the occasion of their arrest, there is evidence supporting an inference that Mr. Ryan and Mr. Ingram-Piruzeski were “leaving town” as a result of the stabbing. An inference arises that Mr. Ingram-Piruzevski’s flight might be accompanied by continued possession of drugs, weapons and other items. A further inference is that Mr. Ryan’s agreement to continue to act as a driver in these circumstances aided Mr. Ingram-Piruzevski’s commission of these offences. This chain of inferences is weak and Mr. Ryan may well be acquitted of these offences. However, that is not the test. Considering my role in reviewing this evidence and despite the absence of reasons from the preliminary inquiry justice, I find that there was sufficient evidence to support committal.
Conclusion
[72] The application is allowed in part. The committal for second degree murder is quashed, but Mr. Ryan remains committed to stand trial for Manslaughter. In ordering this remedy, I am cognizant of the fact that I do not have the power to commit an accused to stand trial and that in cases where there was no committal at a preliminary inquiry, the proper procedure is to remit the matter back to the Ontario Court of Justice to re-consider the matter in view of the reasons provided on the certiorari application, or perhaps order mandamus directing the preliminary inquiry justice to commit the accused: see R. v. Thomsen, (2005), 2005 CanLII 8664 (ON CA), 74 O.R. (3d) 721 (Ont.C.A.).
[73] That said, where there has been a committal on a full offence and certiorari is used to quash a portion of that offence, the committal remains on the lesser and included offence and there is no need to remit the matter back to the Ontario Court of Justice: see Re Dumont and the Queen (1984), 1984 CanLII 3571 (QC CS), 15 C.C.C. (3d) 273 (Que.S.C.), R. v. Foulston (1991), 1991 CanLII 13097 (AB KB), 118 A.R. 125 (Alta.Q.B.), and R. v. K.B., 2007 NLCA 33.
[74] The committal in relation to the remaining counts is upheld.
Justice J. Di Luca
Released: February 5, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JUSTIN RYAN
Applicant
REASONS FOR DECISION
Justice J. Di Luca
Released: February 5, 2020
[^1]: While the Crown argued that both Mr. Roks and Mr. Magno were guilty of murder under s. 229(c), they were both ultimately convicted of manslaughter.
[^2]: The objective mens rea set out in s. 21(2) does not apply in cases where the liability of the principal rests on subjective mens rea: R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 731
[^3]: I note the mental element under s. 229(b) mirrors the mental element in ss. 229(a)(i) and (ii), but merely transfers that intent to an accidental or mistaken victim.