COURT FILE NO.: CR-21-50000137
DATE: 20220530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDRAE DOUSE and MICHAEL SMITH
P. Zambonini and M. Townsend, for the Crown
R. Handlarski and T. Lau, for Mr. Douse
D. Derstine and J. Cowley, for Mr. Smith
HEARD: May 10-12, 2022
REASONS FOR DECISION
(Directed Verdict Applications and Jury Charge Issues)
SCHRECK J.:
[1] Michael Smith is alleged to have been one of three men who went into the home of Blaine Grindley and killed him with a single gunshot. Andrae Douse is alleged to have purchased gloves and face coverings for the three men minutes before the shooting. They are jointly charged with first degree murder and are being tried by this court with a jury.
[2] At the close of the Crown’s case, Mr. Douse and Mr. Smith applied for directed verdicts of acquittal or, in the alternative, to have only a charge of manslaughter left with the jury. After hearing submissions, I dismissed both applications with reasons to follow.
[3] There followed a pre-charge conference in which a number of issues were discussed with respect to which modes of participation the jury should be instructed on. At the conclusion of the pre-charge conference, I advised counsel that with respect to Mr. Smith, the jury would not be instructed on liability as a co-principal pursuant to s. 21(1)(a) of the Criminal Code, but would be instructed on liability as an aider pursuant to s. 21(1)(b) in relation to the offences of first and second degree murder and manslaughter. With respect to Mr. Douse, the jury would be instructed on s. 21(1)(b) in relation to first degree murder and manslaughter, but not second-degree murder. The jury would not be instructed on abetting pursuant to s. 21(1)(c). The jury would also not be instructed on liability pursuant to the common unlawful purpose doctrine in s. 21(2) in relation to the offence of second-degree murder for either accused, but manslaughter would be left to the jury on this basis for both of them.
[4] The Crown also objected to an aspect of the jury instructions respecting circumstantial evidence. A draft charge provided to counsel contained the usual instruction that guilt must be the only reasonable inference to be drawn from the evidence in order for there to be a conviction, as well as an instruction to the effect that inferences other than guilt need not be based on the proven facts and can arise from plausible theories and reasonable possibilities. Crown counsel submitted that the additional instruction was unnecessary and should be omitted. I agreed to provide further instruction to the jury on the distinction between reasonable possibilities and speculation, but declined to remove the additional instruction.
[5] Following are my reasons for these decisions.
I. EVIDENCE
A. The Homicide
(i) The Three Men From the Honda Accord
[6] Blaine Grindley lived in a townhouse in a housing complex on John Garland Boulevard in Toronto. At around 1:00 p.m. on May 1, 2019, security video cameras at the housing complex captured a black Honda Accord pulling into the parking lot. The car’s windows were tinted but its licence plate was clearly visible. Three men wearing masks and gloves emerged from the front passenger and rear passenger doors of the vehicle. They walked through the housing complex towards Mr. Grindley’s townhouse and were recorded on various security cameras as they did so. One of the men was wearing a light grey track suit and was carrying a long stick-like object which he secreted up his sleeve.
(ii) The Neighbour’s Observations
[7] Once they were near to Mr. Grindley’s residence, the three men were off camera for about 50 seconds. At the same time, a neighbour of Mr. Grindley heard the sound of two gunshots. He looked out of his window and saw three men run out of the backyard of Mr. Grindley’s townhouse. One of them tucked a short gun into his pants. Although the neighbour’s evidence was initially unclear, he eventually adopted a portion of a statement he had given to the police in which he said that he saw the three men “almost simultaneously” to when he heard the second gunshot.
[8] After the three men left, the neighbour saw three different men come out of another housing unit and enter Mr. Grindley’s house. They left the house about five minutes later and one of them was on the phone.
(iii) The Flight of the Three Men
[9] The video cameras that had shown the three men walking towards Mr. Grindley’s house also showed them running away from it, back towards the Honda Accord. The rear window of the Accord was slightly open, but closed as the three men approached and someone appeared to open the rear driver’s side door. The men got into the front passenger and rear doors, after which the Accord immediately drove away.
(iv) The Discovery of the Body
[10] An unidentified person called 911 and police and paramedics attended Mr. Grindley’s house. A window near the door of the house was damaged, a glass closet door had been smashed and there were broken items, including a chair, throughout the house. Mr. Grindley was found on the floor of his bedroom. He had been fatally shot in the chest. Quantities of various controlled substances and $9472 in cash were also found in the bedroom. There was evidence that another person was located upstairs in the house, as was a .22 calibre firearm. The police found a 9 mm shell casing just outside the door of the house.
(v) The Pathologist’s Evidence
[11] According to Dr. Anita Lal, the forensic pathologist who did the post mortem examination, Mr. Grindley was shot once. The bullet entered his body on the left side at the 10^th^ rib and travelled through his body to the eighth rib on the right side, meaning it followed an upwards trajectory. Dr. Lal was unable to determine the distance from which Mr. Grindley was shot, although she was able to say that it was not a contact wound. There was no evidence as to the bullet’s calibre.
B. The Purchase of Masks and Gloves Before the Homicide
[12] At about 12:59 p.m., the same Honda Accord drove into a plaza across the road and slightly south of the John Garland housing complex. The car stopped outside a Dollar King store and Mr. Douse, whose identity is not in issue, got out of the rear of the vehicle and entered the store, where he purchased gloves and neck gaiters consistent in appearance with the face coverings worn by the three men who got out of the Accord at the housing complex. The transaction was captured by security cameras, the existence of which would have been apparent to Mr. Douse, who made no effort to hide his features. After purchasing the items, Mr. Douse got back into the Accord, which left the plaza and headed in the direction of the housing complex.
C. The Honda Accord
(i) The Rental of the Car
[13] The Honda Accord belonged to a car rental agency and had been rented in March 2019 by Brandon Hill. It was Mr. Hill’s evidence that he had rented the car at the request of a man he knew as “Lava” in exchange for drugs. There is evidence that “Lava” was actually Dayne Sitladeen.[^1] The telephone number provided on the rental agreement was 437-778-1899 (“1899”), which Mr. Hill believed to be Lava’s telephone number.
(ii) Ms. Morris’s Evidence
[14] Mr. Hill returned the Accord to the rental agency on May 2, 2019 in the company of another person, Yanicee Morris, and exchanged it for another vehicle. Ms. Morris testified that she had exchanged the car at the request of Mr. Smith, from whom she had borrowed the car on several occasions and who was a friend of hers. According to her, at some time on May 1, 2019, Mr. Smith had told her that the car would be dropped off at her home and it was later delivered there at about 6:00 p.m. by an unidentified person. Ms. Morris testified that prior to that, she had last seen the car in the early morning hours of May 1, when she had used it to drive some of Mr. Smith’s friends to a recording studio in downtown Toronto. She left the car there with Mr. Smith’s friends and was driven home by her cousin. Ms. Morris claimed that she left her phone in the car and did not recover it until she next had the car at 6:00 p.m.
(iii) The Defendants’ Use of the Car
[15] There was evidence that eight days prior to Mr. Grindley’s death, the Honda Accord had been used by Mr. Smith, Mr. Douse, Mr. Sitladeen and Ms. Morris to travel to the Eaton Centre. Mr. Sitladeen made a court appearance while Mr. Smith, Mr. Douse and Ms. Morris went to a shoe store.
D. The Occupants of the Honda Accord at the Housing Complex
(i) Mr. Douse
[16] As noted earlier, there is no issue that Mr. Douse was in the Honda Accord at the Dollar King just prior to the murder. It is clear from the clothing he was wearing that he was not one of the three men who got out of the car and walked towards Mr. Grindley’s house. While Mr. Douse admits that he was in the Accord at the plaza, he does not admit that he was still in the Accord when it arrived at the housing complex.
(ii) Mr. Sitladeen
[17] The parties agree that it would be reasonable to infer that the man in the light grey tracksuit who walked towards the house was Mr. Sitladeen based on similarities between the clothing worn by the man and clothing Mr. Sitladeen was wearing later that day and on an earlier occasion.
(iii) Mr. Smith
(a) GPS Evidence
[18] It is the Crown’s theory that Mr. Smith was also in the Accord. The Crown’s primary position is that he was one of the three men or, in the alternative, the driver. The Crown maintains that Ms. Morris was in the car as well, although she was not charged. In support of this theory, the Crown relies on global positioning system (“GPS”) data from the Accord and cellular telephone location data from telephones associated to Ms. Morris, Mr. Sitladeen and Mr. Smith.
[19] The Honda Accord was equipped with a GPS device that relayed its location under certain conditions, such as when the car was travelling faster than the speed limit or was turned on or off. The car did not have continuous GPS tracking and its position was only known when those specified conditions existed.
(b) Cell Site Evidence
[20] An employee of Rogers Telecommunications testified that when a cellular telephone is used to make or receive a call or text message, the phone connects with a cellular site, sometimes referred to as a “cell tower.” While the phone will generally transmit to the closest site, this is not always the case. For example, if there is some obstruction between the phone and the site, or if the site is experiencing a lot of traffic, the phone may connect with another site further away. A phone may connect to more than one site during a telephone call.
(c) The 1899 Phone
[21] The Crown relied on the cell site data for three phones: a number Ms. Morris identified as hers, a number Mr. Sitladeen’s former girlfriend identified as his, and the 1899 number referred to earlier.
[22] Mr. Smith’s mother testified that in May 2019, Mr. Smith had two telephone numbers: one she referred to as his “main number” and the 1899 number. When she wanted to speak to Mr. Smith, she would first try to reach him on his main number, but if she was unsuccessful she would try the 1899 number. According to her, sometimes Mr. Smith answered when she called the 1899 number, but sometimes other people would answer as well. When this happened, she would ask the person to relay a message to Mr. Smith.
[23] Ms. Morris also testified that she used the 1899 number to call Mr. Smith, although she also said that the same number was used by other people as well.
[24] Mr. Smith’s girlfriend testified that she could not recall what number she used to call Mr. Smith in April or May 2019. She agreed that the telephone records showed that she had made and received calls to and from the 1899 phone on a daily basis during that period, often in the early morning hours. However, she denied being able to remember who those calls were with.
[25] The 1899 phone was on a prepaid plan which did not require the registered user to confirm his or her identity. The user on the contract was listed as “Eric Jones” with an address in Brampton. The address given did not actually exist, although the postal code was that of Mr. Smith’s mother. The date of birth listed for “Eric Jones” was the same as Mr. Smith’s.
(d) Summary of the GPS and Cellular Site Evidence on May 1, 2019
[26] At 12:04 a.m. on May 1, the Morris phone made a call through a cellular site at Chinguacousy Road and Mayfield Road in Brampton. This is near Ms. Morris’s home, although she claimed that she did not have her phone there at the time. At 1:10 a.m., the Sitladeen phone connected to a site at the Valhalla Inn on Highway 427 south of Highway 401 in Toronto. At 3:50 a.m., the 1899 phone connected to a site on Edwards Boulevard in Mississauga. This is near where Mr. Smith’s mother lives and is also near Garden Gate Circle, which Ms. Morris testified is a location which Mr. Smith and his friends often frequented.
[27] At 4:00 a.m., the GPS showed the Accord as being on Garden Gate Circle, near the cellular site used by the 1899 phone ten minutes earlier.
[28] Between 10:06 a.m. and 10:42 a.m., there was a series of calls between the 1899 phone and the Morris phone and one call from the Sitladeen phone to the 1899 phone. All of these connected through the same sites as earlier.
[29] Between 11:22 and 11:41 a.m., the 1899 phone connected to cell sites north of where it had been and eventually connected to the same site that the Morris phone has used earlier near Ms. Morris’s home. At 11:41 a.m., the two phones connected with each other using that same site. This was the last time the Morris phone was used until after the homicide.
[30] From 11:49 a.m. to 11:55 a.m., GPS data showed the Honda Accord travelling southbound from the intersection of Highway 10 and Highway 410 to a location on Highway 410 just north of Highway 407. There was no further GPS data until 12:50 p.m.
[31] Between 12:03 p.m. and 12:43 p.m., the 1899 phone connected to a number of cellular sites, beginning near the intersection of Highway 410 and Highway 401, then east of there along the 401 and then south of there on Highway 427. At 12:43 p.m., the 1899 phone connected to the same site at the Valhalla Inn that the Sitladeen phone had connected to at 10:23 a.m.
[32] At 12:43 p.m., the 1899 phone received a call from Mr. Smith’s girlfriend’s number. The same number had called the 1899 phone at 12:28 p.m.
[33] There was no further telephone activity on any of the phones until 1:16 p.m., after the homicide.
[34] Between 12:50 and 12:51 p.m., the GPS data showed the Accord travelling northbound on Highway 427, towards the general area of the John Garland housing complex. As noted earlier, the Accord was at the Dollar King and the housing complex between 12:59 p.m. and 1:06 p.m. At 1:13 p.m., the GPS showed the Accord on Highway 427 again. There was no further GPS data until 4:04 p.m.
[35] Between 1:16 p.m. and 1:22 p.m., the 1899 phone connected to sites at the intersection of the 427 and 401 and then west from there along the 401. At 1:22 p.m., the 1899 phone and the Sitladeen phone connected to sites that were close to each other in Mississauga. At 1:38 p.m., they connected to the same site on Edwards Boulevard that the 1899 phone had connected to earlier in the day. At 1:47 p.m., the Morris phone also connected to that site.
E. Absence of Evidence
[36] There is no evidence of any relationship or prior contact between Mr. Grindley and the defendants, Mr. Sitladeen, Ms. Morris or anyone known to them. There is no evidence that the defendants or Mr. Sitladeen had any motive to kill or harm Mr. Grindley.
[37] As noted earlier, there is no evidence as to the calibre of the bullet that killed Mr. Grindley. There was no evidence linking any firearm to the defendants or anyone associated with them.
II. DIRECTED VERDICT APPLICATIONS
A. Overview of Applicable Legal Principle
[38] This is a case where the Crown relies on circumstantial evidence. The court’s task on an application for a directed verdict in such cases was summarized by Fairburn J. (as she then was) in R. v. Singh, 2016 ONSC 3136, at paras. 9-11:
The standard to be applied on a directed verdict application is the same test applied to committal following a preliminary inquiry. The question is whether there is any evidence upon which a properly instructed jury, acting reasonably, could return a verdict of guilty: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. There must be evidence, direct or circumstantial, that is capable of proving each element of the offence.
As McLachlin C.J. noted in Arcuri, where the Crown relies upon circumstantial evidence to prove an element of an offence, the judge’s task involves a “limited weighing” of the evidence. This requires a determination as to whether the evidence is reasonably capable of supporting the inferences that the Crown will ask the jury to draw: Arcuri, at para. 23; R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545 (C.A.), at para. 159, leave to appeal ref’d [2015] S.C.C.A. No. 478, [2015] S.C.C.A. 498.
The very nature of circumstantial evidence is that it will often furnish more than one inference. Some inferences may point toward guilt and others against. On a directed verdict application, the judge is not to draw an inference or ask whether she or he would draw the inferences suggested by either party. Where the evidence supporting an essential element of the offence is “entirely circumstantial”, the trial judge’s task is simply to determine whether the evidence is “reasonably capable of supporting the inference” about the essential element: Pannu, at para. 159. If the evidence, considered as a whole, could reasonably support an inference of guilt, then a directed verdict motion must fail: Pannu, at para. 160.
[39] The inferences the Crown seeks to have drawn need only be reasonable. They need not be easily drawn, likely or probable: R. v. Katwaru (2001), 2001 24112 (ON CA), 52 O.R. (3d) 321 (C.A.) at para. 40; R. v. Dwyer, 2013 ONCA 368, at para. 4. However, the burden of proof must be kept in mind and the evidence must be capable of supporting not simply an inference of guilt, but guilt beyond a reasonable doubt: R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679 at para. 35. It is not my role to choose between competing inferences and in determining which inferences are reasonably available, I am required to consider the whole of the evidence: R. v. Sazant, 2004 SCC 77; [2004] 3 S.C.R. 635 at para. 25. I have done so in this case.
B. The Applicants’ Positions
(i) Mr. Smith
[40] Counsel for Mr. Smith submits, in the alternative, that the evidence does not support an inference that (1) he was in the Honda Accord when it went to the housing complex; (2) if he was, that he was either the driver or one of the three men who got out; (3) that any of the three masked men caused the death of Mr. Grindley; (4) that the three men went to the house for the purpose of murdering Mr. Grindley; (5) that he was the person who caused the death of Mr. Grindley or did anything to aid or abet the person who caused the death of Mr. Grindley; (6) that he had the requisite mens rea for murder. Based on this, he submits that there should be a directed verdict of acquittal. If there is evidence capable of supporting an inference that Mr. Smith was present as a party to some unlawful act and there was an objective foreseeability of bodily harm, then a charge of manslaughter should be left with the jury.
(ii) Mr. Douse
[41] Counsel for Mr. Douse adopts the third and fourth submissions advanced by Mr. Smith. As well, while he accepts that it can be inferred that he knowingly aided the others to effect some unlawful purpose by supplying them with masks, there is no evidence from which it can be inferred that he knew that their purpose was to commit murder.
C. Can it be Inferred That the Three Men Caused the Death?
[42] I will begin with the issue of whether it can reasonably be inferred that one of the three men murdered Mr. Grindley. Counsel point out that there was evidence of another person in the house as well as a firearm and that according to the neighbour, three other men entered the house right after the first three men left. The neighbour testified that he heard a second shot at approximately the same time as the first three men came out of the house, which suggests that the second shot was fired by someone else. As well, there was a second entrance to the house through which someone else could have entered and shot Mr. Grindley.
[43] In my view, the evidence that the three masked men were at the house at around the same time that shots were fired, following which they ran away from the house, amply supports the inference that one of them shot Mr. Grindley. While the neighbour testified that the second shot occurred at around the same time as the men left the house, he was unclear on this point and had to have his memory refreshed from his police statement. In these circumstances, it would be open to the jury to conclude that his memory as to the exact time he heard the shots is unreliable, but to accept that he heard it at around the same time as the masked men were at the house.
D. Can it be Inferred That the Three Men Planned to Commit Murder?
[44] I also do not agree that it cannot be inferred that the three men entered the house planning to commit murder. They were at the house for less than a minute, following which they immediately ran to a car that was waiting. While there was cash and drugs in the house, none of it was taken, which could support the inference that robbery or theft was not the reason for the three men’s attendance. In my view, it is open to the jury to conclude that the three men went to the house planning to do exactly what they did, which was to shoot Mr. Grindley.
[45] While I agree that there is no basis on which the jury could determine which of the three men fired the shot, they clearly went there together, and the jury could infer that they shared a common purpose and were present to assist each other.
[46] There may well be other inferences that arise from the evidence, for example, that the three men went to the house to steal the drugs or the cash and something went wrong resulting in Mr. Grindley being shot and the three men fleeing before they had an opportunity to complete the theft. But it is not open to me to choose between competing inference.
E. Can it be Inferred That Mr. Smith Was in the Car?
[47] Counsel for Mr. Smith points out that although the 1899 phone was used by Mr. Smith, others used it as well so there is no basis to conclude that it was Mr. Smith and not someone else who was using it on May 1.
[48] Counsel submits that even if Mr. Smith was using the phone, the evidence at its highest shows only that he was at the same location as Ms. Morris’s phone some time prior to the murders and at a location proximate to where someone using Mr. Sitladeen’s phone had been earlier that day. There is no evidence that the Accord and the 1899 phone were at the same place at the same time at around the time of the homicide. At the time the Accord was driving north on Highway 427 towards the scene of the murder, all we know is that the 1899 phone had last been at the Valhalla Inn at some earlier time and there is no evidence if it moved from there or where it went.
[49] With respect to the first issue, there is no issue that Mr. Smith had some connection to the 1899 phone and had used it in the past. In my view, the fact that the 1899 phone received calls from Mr. Smith’s girlfriend at 12:28 p.m. and 12:43 p.m. supports an inference that Mr. Smith had the phone at that time. It is open to the jury to disbelieve her evidence that she did not remember whose number it was and conclude from her frequent calls to it that she was using it to communicate with Mr. Smith.
[50] If the jury concludes that Mr. Smith was using the 1899 phone, the jurors could infer that Mr. Smith spoke to Ms. Morris and Mr. Sitladeen earlier in the day and then travelled to Ms. Morris’s home and thereafter to the Valhalla Inn. The Sitladeen phone had connected to a site at the Valhalla Inn earlier that day, and the jury could conclude that Mr. Sitladeen was there and that Mr. Smith came to meet him at 12:43 p.m., about 20 minutes before the homicide. It will be recalled that all parties agree that it is open to the jury to conclude that Mr. Sitladeen was one of the three men who got out of the Accord.
[51] The phone evidence also supports the inference that Mr. Smith, Mr. Sitladeen and Ms. Morris were together after the murder.
[52] Furthermore, there is evidence linking Mr. Smith to the Accord. He was the person who told Ms. Morris to return it the day after the homicide and he, Mr. Douse, Mr. Sitladeen and Ms. Morris had used it together at the Eaton Centre eight days earlier.
[53] Based on this evidence, in my view a reasonable jury could infer that Mr. Smith was in the Honda Accord when it arrived at the housing complex.
F. Can it be Inferred That Mr. Smith Was the Driver or One of the Three Men?
[54] Counsel also submits that even if Mr. Smith was in the car, it would not be reasonable to infer that he was either the driver or one of the three men who got out and exclude the possibility that he was merely a passive occupant. I do not agree.
[55] Photographs of the car show that it was designed to seat up to five people. While a sixth person could perhaps fit into it, it would be difficult for six adults to be in the car at the same time. For the reasons outlined earlier, the jury could infer that Mr. Smith, Mr. Douse, Mr. Sitladeen and Ms. Morris were in the car. We know that neither Mr. Douse nor Ms. Morris got out of the car. It follows that the three men were Mr. Sitladeen, Mr. Smith and another unidentified male. If the jury is not satisfied that Mr. Smith got out of the car, the jurors could conclude that he was the driver. Someone was clearly in the driver’s seat when the three men returned to the car and it was not Mr. Douse, as he had entered the back seat at the Dollar King.
G. Party Liability
[56] Mr. Douse submits that while it can be inferred that he knowingly aided others to effect some unlawful purpose, it cannot be inferred that the purpose was murder. Mr. Smith makes a similar argument in the event that the jury concludes that he remained in the car but was the driver.
[57] Counsel rely on a number of cases where it was held that a reasonable inference that someone was involved in some illegal activity cannot, without more, support a further inference that it was some specific illegal activity: United States of America v. Huynh (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.); R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.); R. v. H.A. (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.); R. v. Lee, 2018 ONSC 2689.
[58] Whether evidence of participation in an unlawful activity can, without more, support an inference of knowledge of a specific unlawful activity will depend on the facts of the case. For example, in Huynh, the fact that the appellant was in possession of proceeds of crime could not, without more, support an inference that the crime was drug trafficking as opposed to something else. The fact that the applicant in Munoz received payment for something while in jail did not, without more, support an inference that he was being paid in relation to a conspiracy to commit murder.
[59] In this case, however, not only is there evidence that the applicants did something to assist others in effecting an unlawful objective, there is also evidence that their activities were geographically and temporally proximate to the realization of the objective. In my view, it is open to the jury to infer that people who are present and assisting a plan at the time the plan is being carried out have knowledge of the nature of that plan. Thus, the result in Huynh may well have been different if there was evidence that the appellant was given the money by a drug trafficker immediately after he sold some drugs and the result in Munoz might have been different if the applicant had done something to advance the conspiracy and had been immediately paid by a co-conspirator.
[60] In my view, H.A. does not assist the applicants. As I read H.A., the real issue in that case was whether the Crown was able to prove the mutuality of objective requirement of the actus reus in relation to conspiracy charges: H.A., at para. 44-48.
[61] The case that perhaps best supports the applicants’ position is Lee. In that case, the applicant on a motion for a directed verdict had made a plan with another individual, P., to murder a person named Mr. Hoang after luring him to a drug transaction. Mr. Hoang was driven to the transaction by his girlfriend and her brother. When he arrived, the applicant and P. shot at him while he tried to run away. P. ran out of bullets and asked the applicant for his gun. The applicant gave P. his gun, believing that he was going to use it to “finish off” Mr. Hoang. P. then used the gun to kill not only Mr. Hoang, but his girlfriend and her brother as well. Mr. Lee was charged with the first degree murder of all three. He successfully applied for a directed verdict only in relation to the girlfriend and her brother on the basis that there was no evidence that at the time he handed the gun to P., he knew that P. was going to kill them.
[62] In my view, the decision in Lee is highly fact specific and does not assist the applicants. The court appears to have concluded that on the facts of that case, it was not reasonable to infer that at the time the applicant handed the gun to P., he knew that P. intended to use it to kill the others. The case against the applicant in Lee was largely based on a confession he had made to undercover police officers. It was a case where the Crown relied on direct, rather than circumstantial evidence, and the directed verdict application therefore turned to some extent on what the applicant had said in his confession.
[63] In this case, it is open to the jury to conclude that if either applicant did something to assist the murderers, the fact that they did so immediately before or after the murder could support the inference that they were aware of and part of the plan that was being carried out. Of course, it is also open to the jury to have a reasonable doubt on this or any other issue. But that is for the jurors, not me, to decide.
[64] For these reasons, I conclude that it would be open to a reasonable jury, properly instructed, to convict Mr. Douse and Mr. Smith of first-degree murder.
III. JURY CHARGE ISSUES
A. Co-Principals
(i) The Issue
[65] The Crown requests that the jury be instructed that Mr. Smith may be convicted either on the basis of aiding or abetting pursuant to s. 21(1)(b) or (c) of the Criminal Code, or as a co-principal pursuant to s. 21(1)(a). Relying on R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, the Crown submits that there was evidence that Mr. Smith was an “active participant” in the murder and that is sufficient to ground his liability as a co-principal.
[66] Counsel for Mr. Smith submits that the evidence establishes that the deceased died of a single gunshot wound, so there could only have been one shooter and therefore only one principal. Since there is no basis on which the jury could find that Mr. Smith was the shooter, he can only be convicted of murder if the Crown can prove that he was a party by virtue of s. 21(1)(b) or (c) of the Criminal Code.[^2] On this issue, counsel for Mr. Smith relies on R. v. Mendez, 2018 ONCA 354.
(ii) R. v. Mendez
[67] The facts in Mendez bear some similarity to the facts in this case. Two accused were captured on video approaching the victim’s home and then running away a few minutes later. There was evidence that during this period, one of the accused shot the deceased and the other was in the area, but there was no way to determine who the shooter was. At trial, the jury was instructed that the accused could be convicted if it was found that they “acted jointly,” but the trial judge did not relate the evidence to the necessary elements of aiding and abetting.
[68] In allowing an appeal from convictions for first degree murder, the Court of Appeal held (at paras. 9-11):
The trial judge told the jury that it could consider the appellants’ conduct after the shooting to determine whether they were acting jointly or in concert before or during the shooting. She defined active participation in the killing as either shooting or doing something for the purpose of aiding or abetting the killing. Rather than focusing the jury’s attention on the issue of whether the Crown had proven the elements of aiding or abetting in relation to the non-shooter, she invited the jury to consider whether the killing itself was planned and deliberate and whether either individual accused participated in the killing by acting jointly with the shooter. While the instructions elsewhere in the charge correctly set out the elements of aiding and abetting, the instructions had the functional effect of telling the jury that if the shooting was planned and deliberate, and if the parties “acted jointly,” both were guilty of planned and deliberate murder. This obscured the need to find proof of the elements of aiding or abetting, the act of assistance or encouragement, and the intention to assist or encourage a second degree murder or a planned and deliberate first degree murder.
It is common ground that there was one shooter. In R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 71, the Supreme Court of Canada indicated that where one person holds the gun and pulls the trigger, the non-shooter’s potential liability had to “flow, not through co-principal liability, but through aiding and abetting.”
At para. 67 of the same decision, the Supreme Court observed:
Where the cause of death could clearly only have been inflicted on the victim by one person, however, and there is no evidence of any other force being applied to the victim prior to death, then absent any other evidence, likely the only logical inference is that there exists only a single principal offender. The principles of criminal causation demand such a conclusion, as there cannot be said to be any other “significant contributing cause” to the death. In that situation, the potential of co-principal liability is eliminated.
(iii) R. v. Strathdee
[69] The Crown submits that Mendez has been effectively overruled by the Supreme Court of Canada in R. v. Strathdee, 2021 SCC 40, aff’g 2020 ABCA 443, 21 Alta. L.R. (7^th^) 72. Strathdee involved a group assault on a number of victims, one of whom died of a stab wound. The identity of the stabber could not be determined. Relying on a number of authorities, including Mendez, the trial judge concluded that the accused could not be convicted as a co-principal and since there was no evidence of aiding and abetting, acquitted him. On a Crown appeal against the manslaughter (but not the murder) acquittal, the Alberta Court of Appeal concluded that the trial judge had erred in concluding that the accused could not be convicted as a co-principal, given that this was a group assault (at para. 49):
The trial judge failed to properly assess Strathdee’s liability as a joint principal to manslaughter in light of her finding of a group assault. In particular, she failed to recognize the legal effect of a group assault, instead setting aside that aspect of the law. She effectively found that since Tong died from a single stab wound, the law on group assaults did not apply in the circumstances here. On her reasoning, where a victim dies in the course of a group assault, no member of the attacking group can be convicted as a joint principal unless the Crown proves that the member directly assaulted the deceased. But that is not the law. The rationale for the law on group assaults also applies where the attacking group assaults multiple victims - irrespective of whether the accused strikes the victim who dies in the course of the group assault.
[70] The Alberta Court of Appeal also noted that several of the authorities that the trial judge had relied on were not group assault cases but, rather, cases where there was no evidence of more than one person being involved in the attack (at para. 51):
That was the case, for example, in R. v. Mendez, 2018 ONCA 354 [Mendez] which the Reasons rely on for the proposition that where it appears that only one person caused the death, potential party liability flows “not through co-principal liability, but through aiding and abetting”. Mendez (at para 10) cites R. v. Pickton, 2010 SCC 32 at para 71, [2010] 2 SCR 198 [Pickton] for this proposition. Mendez then goes on (at para 11) to cite Pickton at para 67 for the further proposition that there will usually only be a “single principal offender” in instances “[w]here the cause of death could clearly only have been inflicted on the victim by one person ... and there is no evidence of any other force being applied to the victim prior to death”.
However, this statement from Pickton, when read in context, is clearly directed at the facts of that case; it does not speak to the potential culpability for members of a group assault involving multiple victims where only one assailant in the attacking group strikes the victim who dies.
[71] Although the Court distinguished Mendez on the basis that it was not a group assault case, the Court went on to state the following (at para. 53):
Moreover, in any event, the quotation from Pickton about liability flowing only through aiding and abetting and not through co-principal (joint principal) liability is from the minority concurring judgment in Pickton, not from the majority judgment. In our view, the majority judgment in Pickton implicitly rejected the proposition that where a victim is shot by a perpetrator, no one else can be liable as a joint principal to that murder: see contra R. v. Whynder, 2020 NSCA 77.
(iv) The Continued Applicability of R. v. Mendez
[72] The Alberta Court of Appeal’s decision in Strathdee was affirmed by the Supreme Court of Canada in a brief, four-paragraph judgment. The Crown’s argument, as I understand it, is that in affirming Strathdee, the Supreme Court of Canada implicitly approved the Alberta Court of Appeal’s criticism of Mendez. There are three reasons why I do not accept that argument.
[73] First, the Supreme Court of Canada clearly delineated which aspects of the Alberta Court of Appeal’s decision it was adopting. Writing for the Court, Rowe J. stated (at para. 3):
Having regard to the findings of fact in paras. 137 and 156-59 of the trial decision [2019 ABQB 379], and the statement of law set out by the Court of Appeal at paras. 61, 66 and 68 of its decision, this Court affirms the result of the Alberta Court of Appeal that Mr. Strathdee is guilty of unlawful act manslaughter. [Emphasis added].
Paragraphs 61, 66 and 68 of the Alberta Court of Appeal’s decision all deal with group assaults and do not include the Court’s comments about Mendez. In fact, since the Alberta Court of Appeal distinguished Mendez on its facts, the criticism of the decision it goes on to engage in is classic obiter dicta.
[74] In these circumstances, the Supreme Court cannot be taken as having implicitly overruled Mendez. As a result, Mendez must be taken as a correct statement of the law on this issue and is binding on me.
[75] Second, insofar as the Alberta Court of Appeal has suggested that Mendez was wrongly decided, I must respectfully disagree. It is true, as was pointed out by the Alberta Court of Appeal in Strathdee, that the Court in Mendez cited Lebel J.’s separate concurring reasons in Pickton, rather than Charron J.’s majority reasons. However, I do not read Charron J. as having disagreed with the portion of Lebel J.’s judgment that is relied on in Mendez. Rather, Charron J. noted that there was significant evidence of Pickton’s participation in the killings even if he was not the shooter, such as admissions on his part that he had handcuffed and strangled the victims: Pickton, at para. 32. My view on this is shared by the Nova Scotia Court of Appeal in R. v. Whynder, 2020 NSCA 77, 398 C.C.C. (3d) 93, at paras. 57-58.
[76] The third reason is that in most cases, including this one, the distinction between co-principals and aiders or abettors is really one of semantics. For example, in explaining how a non-shooter could be a co-principal, the Alberta Court of Appeal in Strathdee stated (at para. 55):
As to how, as a general proposition, an accused could be liable as a joint principal where someone else shot the victim, a number of alternatives come to mind. To take an obvious example, the accused non-shooter could have said: “Shoot him”. Or the non-shooter could have strangled the victim just short of death to allow the shooter to finish off the victim without resistance. Or the non-shooter could have drugged the victim to this end. Or the non-shooter could have supplied the gun and handed it to the shooter to pull the trigger. Or the non-shooter could have planned the murder with the shooter and they could have executed it together.
In all of these examples, the non-shooter would be guilty as an aider or abettor by virtue of s. 21(1)(b) or (c) of the Criminal Code. In the context of a jury trial, there would no advantage to instructing a jury on liability as both a co-principal and as a party. However, instructing the jury in terms of whether the accused was an “active participant” or “moved along with the whole plan” (see Whynder, at para. 70) creates a risk that the jury will not focus on evidence of the accused’s specific role. That is the concern that animated the decisions in Mendez and Whynder.
[77] In this case, the jury has to consider whether the evidence establishes the liability of Mr. Smith, rather than the three men as a group, and if so on what basis: R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at paras. 40-52. The real issue that the jury will have to grapple with is whether the evidence supports the conclusion that the non-shooters’ conduct assisted in the commission of the offence and not what label should be attached to that conduct: R. v. Suzack (2000), 141 C.C.C. (3d) 149 (Ont. C.A.), at para. 153. Charging the jury on both co-principals and aiding would not assist the jury in focussing on this task and risks adding unnecessary confusion.
B. Abetting
[78] There is no evidence of any words or gestures being exchanged among the three men who went to the deceased’s home. Despite this, Crown counsel requested that the jury be charged on abetting pursuant to s. 21(1)(c) of the Code as well as aiding pursuant to s. 21(1)(b). When I asked Crown counsel what evidence there was that the non-shooters abetted the shooter, his response was that it was open to the jury to conclude that their mere presence had the effect of doing so.
[79] There is, in my view, a basis for the jury to conclude that the non-shooters’ presence had the effect of assisting the shooter if the jury concludes that they were there to provide strength in numbers or as back-up. But to instruct the jury that their mere presence could, without more, constitute abetting risks undermining the well-established principle that mere presence, without more, cannot ground criminal liability: R. v. Dunlop, 1979 20 (SCC), [1979] 2 S.C.R. 881, at pp. 890-897; R. v. Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at paras. 3, 9.
[80] In my view, there is no evidence of abetting in this case and the jury will not be charged on s. 21(1)(c).
C. Mr. Smith’s Liability for Second Degree Murder as an Aider
[81] I determined that second degree murder should be left with the jury as an available verdict for Mr. Smith over the objections of his counsel. For the reasons explained earlier, I am satisfied that there is a basis on which the jury could find Mr. Smith guilty of first degree murder if the jurors conclude that there was a pre-existing plan to commit murder and that Mr. Smith participated in that plan and assisted the shooter in some way.
[82] I concluded that the fact that the three men went straight to the deceased’s home and left less than a minute later supports the inference that they had a plan to do the very thing they actually did, which was to shoot the deceased. To convict Mr. Smith on that basis, the jury would have to be satisfied that the shooter committed a planned and deliberate murder. However, it would be open to conclude that while it was likely that the murder was planned, this had not been established beyond a reasonable doubt. Alternatively, the jury could conclude that the decision to commit murder was made after the three men arrived at the house and found the deceased there and that the two non-shooters assisted in some way.
[83] While the evidentiary basis for a conviction on second degree murder is, in my view, thin, it nonetheless exists and I am therefore duty-bound to leave it with the jury, even though it is inconsistent with the Crown’s theory: R. v. Ranger (2003), 2003 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), at para. 133.
[84] I take a different view with respect to Mr. Douse. It is undisputed that Mr. Douse was not present when the deceased was killed. The only role the jury could find that he played was to purchase the face coverings and gloves for the three masked men. In my view, there is no basis upon which a reasonable jury could conclude that Mr. Douse knowingly did anything to assist a murder unless that murder was planned prior to the three men arriving at the John Garland complex. As a result, second degree murder is not an available verdict for Mr. Douse.
D. The Common Unlawful Purpose Doctrine
(i) The Issue
[85] The Crown sought to have the jury instructed that it could find both Mr. Smith and Mr. Douse guilty of second degree murder by virtue of s. 21(2) of the Criminal Code on the basis that they were part of an agreement to commit an unlawful act and knew that murder was a probable consequence of that agreement.
[86] A jury may only be instructed on a basis of liability if it has an “air of reality,” which requires some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element necessary for the particular mode of participation: R. v. Simon, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 43; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 141.
(ii) The Elements of Section 21(2)
[87] The requirements for a conviction for murder pursuant to s. 21(2) are well established. The Crown must prove that (1) the accused and the principal entered into an agreement to carry out a common unlawful purpose and assist each other in doing so; (2) the principal committed the charged offence in the course of carrying out the agreement; and (3) the accused knew that the commission of the offence was a probable consequence of the agreement: Patel, at para. 39; Simon, at para. 43. With respect to the third requirement, the Crown must prove that the accused subjectively knew that murder, that is, an intentional killing, was a probable consequence of the agreement: R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at para. 81; R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at 61; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 224.
[88] In this case, there is an evidentiary basis for the first two elements. If the three men did not go to the deceased’s house to kill him, they clearly went there for some other unlawful purpose. All three had their faces covered and one of them was carrying a long, stick-like object which he hid up his sleeve. There was a large amount of cash and a quantity of illegal drugs in the house and damage to the house consistent with there having been a struggle. It is open to the jury to conclude that the three men went to the house with a plan to rob the deceased or for some other unlawful purpose and something went wrong resulting in the deceased being shot, at which point the three men ran away.
(iii) Evidence of Knowledge
[89] However, in my view there is no evidence that the non-shooters would have known that murder was a probable consequence of the agreement. The jury heard no evidence about the nature of any plan between the three men, if there was one. There were no intercepted communications, no statements by any of the accused, and no witness who overheard anything being discussed: R. v. Bidesi, 2015 BCSC 863, at para. 145. The jury also heard virtually no evidence about any of the parties to the agreement, such as whether any had a propensity for violence or anger management issues that would have been known to the others: R. v. Jongbloets, 2017 BCSC 2329, at paras. 166-167. And there was no evidence about any relationship between the three men and the deceased or any motive to harm him.
[90] The Crown submits that it is open to the jury to conclude that one of the three men had a firearm and that this fact alone can support the conclusion that the adherents to the plan knew that murder was a likely consequence. I do not agree for the reasons given by my colleague, Harris J. in R. v. Kawal, 2018 ONSC 4560, at paras. 53-54:
Violence and the threat of violence fails to demonstrate sufficient evidence of an intention to kill. In law, robberies and kidnappings definitionally and as a practical matter involve violence of one type or another. The prospect of violence does not equate to the probable consequence of the full offence of second degree murder.
Professor Colvin writes in Principles of Criminal Law (Carswell, 1986) at page 323:
... in the most common type of case where s. 21(2) is used, which is the commission of a murder during the course of an armed robbery, it is by no means obvious that the condition [of probability] is met. To say that a consequence is “probable” (or "likely") is ordinarily to say that it can be expected to occur, that its occurrence is more likely than not, or that there is a better than even chance of its occurrence. Armed robberies do not usually lead to killings. Killing might be regarded as a possible outcome of any armed robbery, but it will rarely be a probable outcome. Thus, if the calculation of probability is made from the time the implementation of the common purpose commences, the condition would place stringent restrictions on the extension of secondary liability.
[91] For these reasons, the jury will not be instructed on liability for second degree murder on the basis of s. 21(2). The jurors will be instructed on liability for manslaughter on that basis, as all counsel accept they should be.
E. Instructions on Circumstantial Evidence and Alternative Rational Inferences
(i) The Issue
[92] The case against Mr. Douse and Mr. Smith is based entirely on circumstantial evidence. As a result, there is no issue that the jury should be given the standard instruction that it may find guilt for an offence on the basis of circumstantial evidence only if guilt is the only reasonable inference to be drawn from that evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30.
[93] In a draft charge that I provided to counsel before the pre-charge conference, I also included instructions based on paras. 25-38 of Villaroman to the effect that in considering whether there are reasonable inferences other than guilt, the jury is not restricted to considering conclusions based on proven facts but may also consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, although the Crown does not need to disprove “every possible conjecture, not matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2, at p. 8 (cited in Villaroman, at para. 37).
[94] Crown counsel objected to the inclusion of this instruction. While he acknowledged that the instruction was correct in law, he pointed out that it does not appear in Watt’s Manual of Jury Instructions, 2^nd^ ed. (Toronto: Thomson Reuters, 2015) and submitted that its inclusion was unnecessary and that it should be omitted. I disagree for the following reasons.
(ii) Alternative Inferences and the Absence of Evidence
[95] The permissibility of considering “other plausible theories” or “reasonable possibilities” that are not based on proven facts arises directly from the well-established proposition that a reasonable doubt need not be based on the evidence and may also arise from an absence of evidence: Villaroman, at para. 36; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at paras. 39-40.
[96] The absence of evidence looms large in this trial. There is no direct evidence of the details of any plan amongst those involved, no evidence as to who did what at the time the deceased was killed, and no evidence of any motive or prior relationship between the victim and the alleged perpetrators.
[97] The Crown’s case, especially with respect to Mr. Smith, depends on the jury making a number of other factual findings, most of which also depend on circumstantial evidence. To conclude that Mr. Smith was present at the time of the homicide, the jury would have to conclude that the cell phone and GPS evidence showed that he travelled there. To rely on the cell phone and GPS evidence, the jury would have to conclude that Ms. Morris and Mr. Sitladeen were present at the scene of the homicide, conclusions which also depend on circumstantial evidence. The jury would also have to conclude that Mr. Smith was using the 1899 phone, which would be another inference from circumstantial evidence.
[98] There is a danger in circumstantial cases that jurors will “fill in the blanks” or “jump to conclusions”: Villaroman, at para. 29. As was observed in B.L. Berger, “The Rule in Hodge’s Case: Rumours of Its Death Are Greatly Exaggerated” (2005) 84 Can. Bar. Rev. 47, at p. 52 (cited in Villaroman, at para. 29), social science research has shown that “individuals asked to mentally aggregate a large collection of evidence may ignore, discard, or integrate over contradictory evidence and otherwise overlook other subtleties in evidence” (citing D. Schum and A. Martin, “Formal and Empirical Research on Cascaded Inference in Jurisprudence,” ch. 6 in R. Hastie, ed., Inside the Juror: The Psychology of Juror Decision-Making (Cambridge: Cambridge University Press, 1993)). In my view, it is reasonable to conclude that where evidence is absent on a number of issues, there are more “blanks” and a greater danger that the jury will “fill them in.”
(iii) Specimen Jury Charges
[99] Crown counsel is correct that the impugned additional instruction does not appear in Watt’s Manual of Criminal Jury Instructions, although it is worth pointing out that it was published before Villaroman was released. However, there is likewise no such instruction in Canadian Criminal Jury Instructions (CRIMJI) (Continuing Legal Education Society of British Columbia, 2021) or the Canadian Judicial Council’s Model Jury Instructions (2019) (https://cjc-ccm.ca/en/resources-center/publications/jury-instructions), both of which post-date Villaroman. However, as noted in Whynder, at para. 43, “appropriate and accurate specimen charges are in the abstract, they are the beginning of the process, not the end.”
[100] Given the circumstantial nature of this case and the lack of evidence on a number of issues, in my view it is important for the jury to understand how to evaluate circumstantial evidence and how the concept of reasonable doubt, including that it may arise from the absence of evidence, relates to that evaluation. For this reason, I conclude that the circumstances of this case require a more detailed instruction on circumstantial evidence than is found in the specimen jury instructions.
(iv) The Final Instruction
[101] All of that said, I did accept Crown counsel’s submission that the distinction between a “plausible theory” arising from the absence of evidence and speculation and conjecture was not as well-explained as it should have been and modified the instruction accordingly.
[102] In the result, the jury was instructed as follows:
You will recall that earlier I told you that a reasonable doubt can be based on the evidence, or a lack of evidence. Because of this, when you are considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, you may consider any plausible theory or reasonable possibility, as long as it is rooted in logic and experience applied to the evidence, or the absence of evidence. A reasonable inference other than guilt does not have to be based on proven facts. However, an alternative inference does have to be reasonable, not just possible.
You should keep in mind that the Crown is not required to disprove every possible conjecture, no matter how fanciful or irrational, that is consistent with innocence. A purely hypothetical narrative that is not based on logic and experience cannot be an alternative reasonable inference. A reasonable alternative inference is one that you can rationally draw after considering all of the evidence, or the absence of evidence, assessed logically and in light of human experience.
While an alternative inference other than guilt can be based on plausible theories or reasonable possibilities, an inference of guilt cannot. You may not find Mr. Douse or Mr. Smith guilty based on a plausible theory or reasonable possibility. You may only find them guilty based on evidence that persuades you of their guilt beyond a reasonable doubt.
F. Use of the Term “Common Sense” in the Charge
(i) The Issue
[103] Crown counsel objected to the fact that the term “common sense” does not appear in the jury charge. Given that the term is traditionally used in jury charges, my decision not to use it merits some explanation.
(ii) Common Sense and Human Experience
[104] The term “common sense” can have a variety of meanings. It is often used to refer to “sound judgment” or as a synonym for “reasonable,” but it is also often used to refer to beliefs shared by most people based on human experience. This is the way it is usually used in jury instructions. For example, it is “common sense” that people usually intend the natural consequences of their actions, that people who have done something wrong often attempt to avoid the consequences, or that people tend not to leave valuable things where they can be damaged or stolen. When jurors are told to base their conclusions on common sense, they are being told to draw inferences from the knowledge they have gained through their life experience.
(iii) Common Sense and Myths, Stereotypes and Ungrounded Assumptions
[105] However, the term “common sense” is also sometimes used to justify what are in fact beliefs based on myths or stereotypes or ungrounded assumptions about human behaviour: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 58-70. For example, the myth that victims of sexual abuse avoid their abusers was once thought to be “common sense”: R. v. A.R.J.D., 2017 ABCA 237, 55 Alta. L.R. (6^th^) 213, at paras. 42-33, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. A.(A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at paras. 8-10. The same has been found to be true of generalizations about how men and women interact in sexual situations (R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at paras. 13-26; R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289, at paras. 35-36; R. v. Kodwat, 2017 YKCA 11, at paras. 33-41) or how an innocent person would behave when accused of a crime (R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pars. 26-27; R. v. Trotta (2004), 190 C.C.C. (3d) 190 (Ont. C.A.), at paras. 40 (rev’d on other grounds 2007 SCC 49, [2007] 3 S.C.R. 453); R. v. Stark (2004), 2004 39012 (ON CA), 190 C.C.C. (3d) 496 (Ont. C.A.), at para. 16; R. v. W.(J.S.), 2013 ONCA 593, 301 C.C.C. (3d) 252, at paras. 39-40; R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 40; R. v. Senthamilselvan, 2019 ONSC 3884, 57 C.R. (7^th^) 143, at paras. 37-38).
(iv) Common Sense and Unconscious Bias
[106] The third way in which “common sense” is sometimes used is to describe intuitions or feelings that do not have any objective basis but, rather, are the product of implicit or unconscious bias. In R. v. Bhogal, 2021 ONSC 4925, at para. 9, Pomerance J. observed:
Research has determined that we are all, as human beings, biased in some respects. We bring our own personal perspective to the task of decision making. This is the wellspring of what we call “common sense”. However, it is also an opaque repository of unproven fact, intuition, conjecture, inherited wisdom, and other mental baggage.
(v) Jurors’ Reliance on Common Sense
[107] It is, of course, desirable that jurors make use of the first type of common sense described above. Indeed, one of the greatest strengths of the jury system is that the fact that 12 people agree despite all having had different life experiences enhances confidence in the reliability of their conclusion.
[108] However, the other types of “common sense,” that is, myths, stereotypes, ungrounded assumptions and intuitions and feelings based on unconscious bias, have no place in a jury’s deliberations.
[109] In an attempt to ensure that the jury makes use of the first type of common sense but avoids resort to the other types, I chose to avoid use of the term altogether and instead used terms such as “logic and human experience” or “reasonable.” I did so in the hope that in arriving at their conclusions, the jurors would rely on their reasoning abilities, logic and shared human experiences rather than assumptions and beliefs arising from unconscious bias. I do not know how effective this will be. However, in my view there is no danger that avoiding the term “common sense” will result in jurors failing to rely on the type of common sense that is at the core of our system of trial by jury.
IV. DISPOSITION
[110] The applications for directed verdicts are dismissed. The jury will be instructed on party liability and circumstantial evidence in accordance with these reasons.
Justice P.A. Schreck
Released: May 30, 2022
COURT FILE NO.: CR-21-50000137
DATE: 20220530
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANDRAE DOUSE and MICHAEL SMITH
REASONS FOR JUDGMENT
P.A. Schreck J.
Released: May 30, 2022
[^1]: Mr. Sitladeen is also charged with first degree murder but is being tried separately. [^2]: The Crown does not suggest that liability for first degree murder is available through the operation of s. 21(2), but submits that second degree is, an issue I consider later in these reasons.